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lord of the manors of M. H. and P. P.,l covenanted that he would, within twenty-
bargained and sold unto C. D., E. F., and four calendar months then next, procure
G. H., "all that messuage, tenement, A. to accept a lease of the premises for
boat house, &c., and also all that and the term of twenty-one years from Christ.
those, the sea grounds, oyster layings, mas day, 1821, and that in case A. would
shores, and fisheries of him, A. B., coin not accept the lease, that he, defendant,
monly called and known by the name would, within one calendar month next
and names of M. H. and P. P. shores or after the expiratian of the said twenty.
sea grounds, with full and free liberty to four calendar months, pay to the plaintiff
C. D., E. F., and G. H., and their heirs a sum of money : Held, upon demarrer,
and assigns forever, to fish, dredge, and that the deed took effect from the day of
lay oysters thereon, and from thence to the date, and that A. not having accepted
take and carry away the same, which the lease, defendant was liable to pay the
said sea grounds, oyster layings, shores, stipulated sum of money at the expira.
and fisheries extended from the south at tion of twenty-five calender months from
low water mark, to the north at high the date of the deed. Styles y. Wardle,
water mark, and from certain sea grounds M. 6 G. 4.

908
on the east to other sea grounds on the
west. And all which said sea grounds,

DEVISE.
oyster layings, shores, and fisheries,
thereby granted, re-leased, &c., contained 1. Testator being sued in fee of lands in
in the whole by estimation eight hundred gavelkind, devised all his real estate unto
acres of land covered with water, or his nephew, T. C., for and during the
thereabouts, as the same were beaconed, term of his natural life, and from and
marked, and stubbed out. Reservation aster the determination of that estate
to the grantor, his heirs and assigns, lord to trustees to preserve contingent re-
of the two manors, of all manner of fish mainders, and from and after the decease
royal and all wrecks of the sea, flotsam, of T. C. to and amonsgt all and every the
jetsam, and ligan, within the said manors, heirs of the body of the said T. C., as
and all manner of franchises." And by well female as male, such heirs, as well
the tenendum, the grantees were to hold female as male, to take as tenants in
the messuage, tenement, and boat house, common, and not as joint tenants, and
sea grounds, oyster layings, shores, or for default of such issue to trustees for a
fisheries, hereditaments, and premises, term of five hundred years, apon trust
with the appurtenances, of the grantor, that they should as soon as might be
lord of the two manors by such suit of after the decease of T. C. in case he
court and other services as were, or of should die without issue of his body
right to be done and performed by other lawfully begotten, raise a sum of money
the freehold tenants of the same respec to be applied to the maintenance of his
tive manors seised of estates of inherit niece, and after the determination of the
ance in fee : Held, that by this deed the said term of five hundred years he de-
right of soil in the sea shores passed to vised the same to his, nephews T. C., and
the grantees.

C. C. for and during their respective na-
It appeared that since the date of the tural lives, to take as tenants in com-
deed, the sea had imperceptibly and gra mon, and not as joint tenants, and from
dually encroached upon the land, and and after their respective deceases unto
consequently, that the high and low water and amongst all and every the heirs of
mark had varied in the same degree. It the respective bodies of the said T. C,
was held, that by the deed the right of and C. C., as well female as male, law.
soil in that portion of land which, from fully begotten or 10 be begotten, such
time to time, lay between high and low heirs to take as tenants in common and
water mark passed to the grantees. Scat not as joint tenants, and in default of
ton v. Brown, T. 6 G. 4.

485 such issue to his own right heirs for-
2. If a deed has no date, or an impossible ever: Held, that T. C. took an estate tail

date, as the 30th of February, it takes in the devised premises. Doe dem. Bos.
effect from the day of delivery; but if itl nall v. Harvey, T. 6 G. 4.

610
has a sensible date in the commence- 2. Testator, after giving several pecuniary
ment, and the word date occurs in the legacies, the bequest of each commenc.
subsequent part of the deed, it then means ing with the word "item," devised as fol-
the day of the date and not of the deli-

l lows: "Item. I give and bequeath unto
very, and therefore, in covenant, on an C. D. all that my messuage and tenernent
indenture, dated the 24th of December, wherein I now dwell, with the garden
1822, whereby plaintiff in consideration and all the appurtenances thereto belong.
of 9441., leased to defendant a house and ing; and I also give to the said C. D. all
premises for ninely-seven years, subject my household goods and chattels, and
io an agreement for an underlease to A. implements of household, within doors
for twenty-one years, and the defendant and without, all for her own disposing,
free will, and pleasure, immediately after 4. Where, in ejectment, a person obtains a
my decease:" Held, that C. D. took only rule lo defend as landlord, the plaintiff,
an estate for life in the premises devised nevertheless, may sign judgment against
to her. Doe on the demise of Ellam v. the casual ejector, but may not take out
Westley, M. 6 G. 4.

667 execution without further order: Held,

that after verdict and judgment against
DISTRESS.

the landlord, execution may be issued

against him without any further order of
Where a tenant, by permission of the land the court. Doe dem. Lucy v. Bennett, M.
lord, remained in possession of part of a 6 G. 4.

897
farm after the expiration of the ienancy:
Held, that the landlord might distrain on

ELECTION OF CURATE..
that part within six months after the ex-
piration of the tenancy, the 8 Ann. c. 14,

See MANDAMUS, 1.
ss. 6 & 7, not being confined to tortious
holding over, or to the holding of the

ESCAPE.
whole farm. Nuttall v. Staunton, E.
6 G. 4.

See PleaDING, 28.

EVIDENCE.

21

1. A. arrested B. on an affidavit of debt for

money paid to his use, but did not de-
EJECTMENT.

clare until ruled to do so, and soon aster-

wards discontinued the action and paid
1. In ejectment for premises which had the costs: Held, that this was sufficient
been demised on lease to one person who prima facie evidence of malice, and the
had underlet to others, it was held to be absence of probable cause to support an
necessary to serve all the under tenants action for a malicious arrest. Nicholson
with a copy of the declaration.

v. Coghill, E. 6 G. 4.
Where the tenant of a house locked it 2. Where a witness in a trial at law gave
up and quitted it, and the landlord, three evidence at variance with what he had
months afterwards, fixed a copy of a de previously sworn in an answer in Chan-
claration in ejectment to the door: Held, cery: Held, that an examined copy of
that the service was not sufficient, but that answer was admissible to contradict
that the landlord should have treated it him, and that it was not necessary to
as a vacant possession. Doe on the de produce the original answer. Ewer v.
mise of Lord Darlington v. Cock and others, Ambrose and Baker, E. 6 G. 4,

25
E. 6 G. 4.

259 3. A plaintiff is bound to accept from a de-
2. Where a lease contained covenants to fendant in custody under a ca. su. the
keep the premises in repair, and to re debt and costs, when tendered in satis-
pair within three months after notice, faction of his debt, and to sign an au-
and a clause of re-entry for breach of thority to the sheriff to discharge the
any covenant, and the premises being defendant out of custody. And an nc-
out of repair, the landlord gave a notice tion on the case will lie against a plain-
to repair within three months: Held, tiff for having maliciously refused so to
that this was a waiver of the forfeiture do; and the refusal to sign the discharge
incurred by breach of the general cove is sufficient prima facie evidence of ma-
nant to keep the premises in repair, and lice in the absence of circumstances 10
that the landlord could not bring eject rebut the presumption. Crozer v. Pilling
ment until after the expiration of the and Moore, E. 6 G. 4.
three months. Doe on the demise of 4. The delivery of a newspaper to the
Morecroft v. Meux and others, T. 6 G. 4. officer at the stamp office is a sufficient

606 publication to sustain an indictment for
3. Copyhold lands were granted to A. for a libel in that paper. The King v. Amph-
the lives of herself and B., and in rever. lit, E. 6 G. 4.

35
sion to C. for other lives. A. died, hav- 5. Where the plaintiff in assumpsit al-
ing devised to B., who entered and kept leged that in consideration that he would
possession for more than twenty years. buy a quantity of sheathing copper of
On his death C. brought ejeciment : the defendant at a certain price, defend.
Held, that the action was barred by the ant undertook that it should be good,
statute of limitations, for that C.'s right sound, substantial, and serviceable cop-
of possession accrued on the death of per: Held, that this warranty was not
A., inasmuch as there cannot be a gen proved by showing a purchase of copper
eral occupant of copyhold land. Doe on sheathing at the ordinary market price,
the several demises of Foster and others v. no express warranty having been given.
Scott, M. 6 G. 4.

7061 Quære, Whether such evidence would

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26
138

have been sufficient to prove an allega-l that it must be taken after verdict, that
tion that the defendants promised that the inquest was so found. Lambert v.
the article sold should be reasonably fit Taylor and another, Executors, E. 6 G. 4.
for sheathing copper. Gray and another
v. Cox and others, E. 6 G.

4

1 08 7. Plaintiff claimed a right of common for
6. In assumpsit against executors, declara-l all his commonable cattle. The proof

tion stated that testator made his pro- was, that he had turned on all the cattle
missory note, and thereby promised to that he kept, but he had never kept any
pay J. Y. on demand 2001., and delivered sheep: Held, that this was evidence of
the note to him, whereby testator became a right for all commonable cattle, which
liable to pay, but did not pay, and at the ought to have been left to the consider-
time of his death was indebted to J. Y. ation of the jury. Manifold v. Penning-
for the amount of the sum secured by ton and others, E. 6 G. 4.
the note, and interest. It then averred, 8. An attorney, town clerk, and clerk of the
that afterwards, and after the death of J. peace for the borough of L., in the county
Y., the money specified in the note being of L., upon the dissolution of a partner-
and remaining wholly due and unsatis ship which had existed between him and
fied, to wit, on, &c., at, &c., before A. B., two other persons, entered into an agree-
one of the coroners for the county of N., ment to pay to one of them (C. D.) a cer-
it was found upon view of the body of J. tain sum of money, and to use his eodea-
Y., then and there lying dead, by the vors to procure for him one-fonrth of the
oaths of honest and lawful men of, &c., prosecutions arising in the town clerk's
that the said J. Y. seloniously did kill and office. In an action by C. D. on this
murder himself, as by the inquisition be agreement, it appeared that the magis-
fore the coroner remaining of record trates of the borough of L. commit some
more fully appearel, by reason of which offenders to be tried at the borough ses-
said inquisition, and by force of the sions, others at the county sessions, and
felony, the said J. Y. forfeited to the king others at the county assizes: Held, that
the promissory note and the money due the agreement extended to all prosecu-
thereon. The declaration then set forth tions “ arising in the town clerk's office,"
a grant under the king's sign manual to wherever they might be tried, and that
the plaintiff of the note and money due letters written before the agreement was
thereon, as mentioned in a certain other signed, could not be given in evidence to
inquisition, and that his majesty delivered show that the parties intended the agree-
the note to the plaintiff, of which the del ment to be applicable to the prosecutions
sendants, after the death of the testator, at the borough sessions only. Hughes v.
had notice. Breach nonpayment by tes- Statham, E. 6 G. 4.

187
tator, or the defendants, since his death. 9. The pauper, who rented a farm in C.,
Plea, first, non-assumpsit testator. Se assigned it to P. upon trust, to cultivate
condly, that the note became due and it and pay the pauper's debts, &c. The
payable to J. Y. in his lifetime, and that lease expired in 1817; no settlement of
ihe canses of action did not accrue to accounts took place, but P., without the
him within six years before the exhibit-| authority of the pauper, then hired a
ing of the bill; upon which plea issue house in H. at the yearly rept of 181., to
was taken and joined. Thirdly, nul tiel which the pauper and his family re-
record of the inquisition taken before the moved; and they resided there for more
coroner, upon which issue was taken. than two years. The pauper never paid
Fourthly, that there was no such grant any rent or taxes, but P. was rated and
as alleged in the declaration. The issue paid the rent and taxes: Held, that the
on the plea of the statule of limitations pauper gained a settlement in H. by the
having been found for the defendants, occupation of the house.
and all the other issues for the plaintiff, The owner of the house died before the
it was held, on motion to enter a nonsuit, appeal was heard, and a witness proved
first, that it was not necessary for the a declaration made by hiin during the
plaintiff to produce al the trial the inqui-l period when the pauper occupied ine
sition mentioned in the king's grant, in house, that he had let it to him, and that
asmuch as that was an office of instruc P. had guaranteed the rent. Quære, whe-
tion only, and not of entitling; the title ther this declaration was properly re-
of the crown having accrued by the ceived in evidence. The King v. The In-
felony under the coroner's inquisition. habitants of Chediston, E. 6 G. 4. 230
Secondly, that the grant under the sign 10. In assumpsit by an executrix on a pro-
manual was sufficient to pass the pro- missory note for 1001. made in 1814, and
perty in the note.

payable to her testator, and for money
Held, thirdly, assuming it to be neces- had, &c., it appeared on the production
sary in order to vest the chattels of a felo of the note, that it had a threepenny re-
de se in the crown, that the coroner's in- ceipt stamp, and a one pound agreement
quest should be found by twelve men, stamp, and there was indorsed upon it a

329

receipt for a penalty of 51. and 17. duty.l tier in so doing he was guilty of any mal-
The proper stamp for such a note in ice in fact. Bromage v. Prosser, E. 6 G. 4.
1814, was a three shilling stamp: Held,

247
that as it appeared upon the face of the 12. Where in an action by an indorsee
note that it had been issued without hav- against the indorser of a bill of exchange
ing affixed to it a stamp equal in amount dishonored on presentment for payment,
10 that required by law, the commissie the declaration contained an averment
oners had no power after it had been is that the bill was accepted by the drawee:
sued, to affix to it another stamp, and Held, that this was unnecessary, and that
therefore, that it was not receivable in the plaintiff need not prove it. Tanner
evidence either in support of the count for v. Bean, T. 6 G. 4,

312
the promissory note, or of the money 13. Where in an action by the indorsee
counts. The defendant, on being applied against the maker of a promissory note
to by the plaintiff for payment of interest, payable with interest on demand, the
stated that he would bring her some on the plaintiff having proved that he gave value
following Sunday: Held, that although for it, the defendant tendered evidence of
this was an admission that something was declarations made by the payee when the
due, still as it did not appear what the note was in his possession, that he
nature of the debt was, or that it was die (the payee) gave no consideration for it
to the plaintiff as executrix, or in her own to the maker: Held, that this evidence
right, or that it was one for which assump was inadmissible, as the plaintiff could
sit would lie, the plaintiff was not entitled not be identified with the payee, and the
to recover even nominal damages, and a note could not be treated as over-due at
nonsuit was entered. Green, executrix, the time of the indorsement. Barough v.
v. Davies, E. 6 G. 4.
235 White, T. 6 G. 4.

325
11. In an action for words spoken of the 14. Where an indictment charged the de.

plaintiffs in their trade as bankers, it was fendant with conspiring falsely to indici
proved that A. B. met the defendant and A. B. with intent to extort money, and the
said, “I hear that you say that the plain-i jury found them guilty of conspiring to
tiff's bank at M. has stopped. Is it true?"| indict with that intent, but not fulsely :
Defendant answered, “ Yes it is. I was Held, that enough of the indiciment was
told so. It was so reported at C., and found to enable the court to give judg.
nobody would take their bills, and I came ment. The King V. Hollingberry and
to town in consequence of it myself." It others, T. 6 G. 4.
was proved that C. D. told the defendant 15. The owner of a check drawn upon a
that there was a run upon the plaintiffs'l banker for 501., having lost it by acci-
bank at M. Upon this evidence, the dent, it was tendered five days after the
learned Judge, after observing that the date to a shopkeeper in payment of goods
defendant did not appear to have been purchased to the value of 61. 108., and
actuated by any ill will against the plain he gave the purchaser the amount of the
tiffs, directed the jury to find their ver check, after deducting the value of the
dict for the defendant, if they thought that goods purchased. The shopkeeper the
the words were not maliciously spoken: next day presented the check at the
Held, upon a motion for a new trial, that banker's, and received the amount: Held,
although malice was the gist of the ac that in an action brought by the person
tion for slander, there were two sorts of who lost the check against the shop.
malice, malice in fact and malice in law; keeper, to recover the value of the check,
the former denoting an act done from ill the jury were properly directed to find
will towards an individual; the latter a for the plaintiff if they thought the de.
wrongful act intentionally done, without fendant had taken the check under cir-
just cause or excuse; and that in ordi cumstances which ought to have excited
nary actions for slander, malice in law the suspicions of a prudent man: Held,
was to be inferred from the publishing secondly, that the shopkeeper having
the slanderous matter, the act itself being taken the check five days after it was
wrongful and intentional, and without any due, it was sufficient for the plaintiff to
just cause or excuse; but in actions for show that he once had a property in it,
slander, prima facie excusable on account without showing how he lost it. Down
of the cause of publishing the slanderous v. Halling, and others, T. 6 G. 4. 330
matter, malice in fact must be proved : 16. An order made by the court for the re-
Held, therefore, in this case, that the lief of insolvent debtors, and delivered to
Judge ought first to have left it as a ques. the jailer, in whose custody the prisoner
tion for the jury, whether the defendanul was, is evidence of his discharge under
understood A. B. as asking for informa-l statute 53 G. 3, c. 102, s. 10. Neal v
tion, and whether he had uttered the Isuacs, T. 6 G. 4.

335
words merely by way of honest advice to 17. Declaration for an escape stated that
A. B. to regulate his conduct, and if they the plaintiff in Easter term, 5 G. 4, in the
were of that opinion, then, secondly, whe- King's Bench, recovered against one H.
VOL. X.-113

103

W. 79). as by the record appeared; that given in evidence. Bevan v. Jones, Esq.,
in Trinity term, in the fifth year afore. T. 6 G. 4.
said, such proceedings were had in the 20. Declaration in assumpsit stated that the
said court, that it was considered that the defendant warranted a horse to be sound,
plaintiff should have execution against the proof was, that the defendant war.
the said H. W. for the damages afore ranted the horse to be sound, every where,
said, according to the force, form, and except a kick on the leg: Held, that this
effect of the said recovery, by default of was a qualified, and not a general warm
the said H. W., as by the record of the ranty, and that there was a variance be-
said last mentioned proceedings still re-l tween the warranty proved, and that
maining in the said court appears: and stated in the declaration. Jones v. Cow-
thereupon, on, &c., in Trinity term, in the ley, T. 6 G. 4.

445
filib year aforesaid, the said H. W. was 21. In an action for a false return to a writ
committed to the custody of the marshal of mandamus, it was alleged to be a cus
in execution for the damage aforesaid, tom in a parish that, whenever a certain
and escaped. Plea, not guilty. At the perpetual curacy should be vacant by
trial, the plaintiff proved the original reason of the death of the curate or other-
judgment in the King's Bench, and that wise, the parishioners should elect a fit
a committitur issued thereon, but he did person to succeed him, and that a va-
not prove any judgment in scire facias. cancy having occurred, plaintiff was duly
It was held, that the allegation of the elected by the said parishioners accord-
judgment in scire facias was immaterial, ing to the custom. At the trial it appeared
and need not be proved. Bromfield v. that at a meeting of the parishioners
Jones, Esq., T. 6 G. 4.

380 duly convened for the purpose of such an
18. Where a bill of exchange was disho election, it was decided, before the elec-
nored by the acceptor, and due notice

tion began, that parishioners who had not
of the dishonor was given to the differ-

paid church rates should not be allowed
ent parties, and the indorsee having com-

to vote. In consequence of this resolu-
menced actions by original against the

tion several persons who had the legal
acceptor, and a prior indorser afterwards

right of voting did not tender their votes,
took from the acceptor a warrant of at-

and the votes of others who did tender
torney for the debt and costs, payable by

their votes, were rejected on the ground
jostalments. (The last of the instal-

that they had not paid the church rate :
ments being payable before the time Held, that a party elected by a majority
when in the ordinary course of proceed-

of the persons whose votes were received
ings he could have obtained judgment at this meeting, was not duly elected by
against the acceptor:) Held, in the ac the parishioners according to the custom.
tion against the indorser, that the taking At the election every parishioner ten-
of the warrant of attorney from the ac-

dering a vote gave a card, containing
ceptor, being a matter arising after the

only the name of the candidate for whom
commencement of the action, it was not

he voted; Semble, that this mode of elec-
bar to the action generally, and therefore,

tion was illegal. Faulkner v. Elyer, T. 6
that it was not receivable in evidence

G. 4.

449
under the general issue.

22. Case for an injury done to plaintiff's
Quære, whether the taking of the war-

reversionary interest in land, by cutting

and carrying away branches of trees
rant of attorney from the acceptor was,
under the circumstances, a giving of time,

growing there; second count in trover
so as to discharge the other parties to the

for the wood carried away. It appeared

in evidence, that the land was let by the
bill. Lee v. Levy, T. 6 G. 4. 390

plaintiff to the occupier, under a written
19. Where a declaration,against the marshal agreement: Held, that in order to sup-

for an escape, alleged that one S. S. was port the first count, the plaintiff was
arrested and gave bail, that afterwards bound to produce it.
bail above was put in before a judge at The plaintiff proved that the defendant
chambers, “ as appears by the record of carried away some branches of the trees,
the recognizance," that S. S. surrendered but gave no evidence of the value: Held,
in discharge of the bail, and afterwards that he was entitled to dominal damages
escaped : Held, that the plaintiff was on the count in trover. Cotterill v. Hobby,
bound to prove that bail was put in as T. 6 G. 4.

465
alleged, and that the averment was not 23. In an action on a promissory note
made out by the production of the fila against a party who had indorsed it for
zer's book, the entry therein importing the accommodation of the maker, it ap-
that the recognizance was taken before a peared that the plaintiff, the indorsee, had
single judge, an examined copy of the signed an agreement to accept, from the
entry of the recognizance of bail, stating maker of the note, 5s. in the pound in
that the recognizance was taken before full of his demand, on having a collateral
the court at Westminster, having also beenl security for that sum from a third per.

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