deaths; and that by the Act of Explanation (17 & 18 Car. 2), it was enacted, that nothing in the Acts of Settlement or Explanation should be understood to give, restore, or confirm to any Irish Papist, any advowson or right of patronage, but that all such should vest, remain, and continue in his Majesty, his heirs and successors, until the conforming of such Papist; and after such conforming, should re-vest in the person so conforming, and his heirs. It was then averred, that King Charles the Second, being seised of the said advowson, did, by patent of the 19th of December 1681, reciting the Act of Explanation, and that Rickard, Lord Dunkellin (the eldest son of William, the seventh Earl), had renounced the communion of the Church of Rome, aud had embraced the Protestant religion, and had thereby put himself in the capacity of obtaining a mark of the said King's favour, grant to the said Lord Dunkellin, and his heirs, continuing Protestants, inter alia, the said advowson of K. It then averred a presentation of said advowson by said Lord D., which was the presentation relied on. Held, that the words in the Act of Explanation, providing that the advowson of Irish Papists should "remain and continue" in the King until conforming, were introduced, to retain and preserve that species of property in the Crown, until the conforming of the Irish Papist who had forfeited it, and, therefore, that it was not competent for Charles the Second to grant the advowson to Lord D.; and that, consequently, the declaration was bad, in not showing a presentation which could be referred to the title relied upon. C. P. The Executors of the Marquis of Winchester v. The Bishop of Killaloe. 107 4. Held also, that the declaration was bad, in not having shown the payment of the money in the patent specified, to Lord M., at the time, and in the manner in the patent mentioned to have occurred prior to the grant to Lord D. Ibid 5. Held also, that the declaration was defective, in not having averred that Lord D. was a Protestant, or had 6. conformed, at the time of the patent of 1681. Ibid The title of the plaintiff, as stated in the declaration, was a term of 500 years, created by settlement of 1785, which was not to commence until the determination of a previous term of 300 years, created by a private Act of the 10 G. 3, and "the trusts of which said term," (it was averred), "had been long since satisfied, and the said term ceased and determined." Held, that the declaration was bad, in not having shown in what event or events that term was to cease or determine, or that any event or events had occurred upon which the term did cease and determine. Ibid 7. Quære, did the said declaration show that a good title to present to the said vicarage was vested in any person, anterior to, or at the time of, the presentation on which the plaintiff relied? Ibid 8. A declaration stated, that in consideration that the plaintiff and one E. B., now deceased, had, at the special instance and of the defendant, then and request there given and made to the defendant a proposal of £15 a year, and a fine, for certain lands, then and there undertook and promised the plaintiff, and the said E. B., to complete a purchase of the estate, and to execute a lease of the premises; and averred as a breach, that the defendant did not effect and complete the purchase of the said estate, nor execute a lease of the premises. Special demurrer, that there was averment of a performance of precedent matter by the plaintiff, or of a special request by the plaintiff to the defendant to execute the lease; and that there was no averment of a reasonable time having elapsed, or that a conveyance had been tendered by the plaintiff to be executed. Held, that the declaration was bad. Q. B. Dolan v. M'Ternan. no 175 9. In an action of covenant by the devisees of the lessor against the executrix of the lessee, the declaration stated, that heretofore, to wit, on the 21st February 1834, A was seised to her and her heirs of a D freehold pur autre vie in the premises, and that heretofore, to wit, on the 21st February 1834, she (A) demised for a year to R. D., who "thereby then and there became possessed of the said premises for the said term, the reversion therein and expectant thereon belonging to the said A; and thereupon afterwards, to wit, upon the 22nd February 1834," A, by indenture, re-leased for three lives to R. D., with a covenant for perpetual renewal, and at a fixed rent. And thereupon the said A, after the said R. D. became and was so seised of the premises, &c., "and after the said A became and was seised of the reversion thereof expectant on the said estate so re-leased as aforesaid, and during the continuance of said demise, and of the said last-mentioned reversion, to wit, on," &c., devised to the plaintiffs. The declaration further stated the deaths of A and R. D., probate of his will to the defendant, and breach of covenant by non-payment of rent. Plea:-That A, "at the time of the making" of the re-lease, was seised only for her life, and so continued until her death; and that after the making of the re-lease, and before the expiration of the said term, she died, whereupon the term created by the indenture ceased, absque hoc, "that before the making of the said indenture" A was seised to her and her heirs modo et formâ, &c. Upon general demurrer, Held, Firstly, that a devisable reversion was sufficiently disclosed by the declaration. Secondly, that the plea was bad as tendering an immaterial issue. C. P. Church v. Dalton. 355 10. In covenant for rent in arrear, the declaration averred that the defendant covenanted to pay the yearly rent of £156 over and above all taxes, charges, and impositions whatsoever, quit-rent and Crown-rent excepted. Breach, that two years' rent was in arrear, without any exception or reference to the quit and Crown-rent. On special demurrer, Held, that the breach was sufficient. L. E. Allen v. Linehan. 291 11. The omission of the ad damnum clause from the conclusion of a decla ration, is a cause of special demurrer. L. E. O'Connor v. Deehan. 506 12. A declaration concluding "to the damage of the plaintiff in one hundred," omiting the word "pounds;" Held bad on special demurrer. L. E. Paxton v. Martin. 508 13. In covenant for rent by devisee of reversion against lessee, the declaration stated, that by indenture made between P. B. of the one part, and defendant of the other part, P. B. did demise, grant, set, and to farm-let unto the defendant, his heirs, &c., a farm of land, to hold for the life of M. F.; and from and after his death, for the term of nineteen years. Held, on demurrer, that the demise was well pleaded, notwithstanding the want of an express averment of livery of seisin, that being implied in the statement of the demise. L. E. Aldworth v. Riordan. 559 16. In covenant for rent, the declaration stated, that B., in his lifetime, by indenture, made between him of the one part, and C of the other part, did "demise, grant, set, and to farm-let, re-lease and confirm unto D., his heirs," &c., certain lands to hold "for and during the natural lives and life therein mentioned, and the survivor of them," at a certain rent, which D. covenanted to pay; by virtue of which demise, and by force of the statute for transferring uses into possession, D. afterwards entered into the demised premises, with the appurtenances, and became and was seised thereof for the said term so to him granted as aforesaid." Held, on demurrer, that notwithstanding the reference to the Statute of Uses, the deed could only operate at common law, and that the term "demise" imported livery of seisin. L. E. O'Shea v. Dooley. 564 17. Semble, that although no estate passed by the indenture, yet the grantee having entered under it, and covenanted for payment of the rent, he was liable to the grantor upon his covenant. Ibid 18. Where the deed is merely inducement to the action, and title is not deduced, it is not necessary in the declaration to plead the instrument according to its legal effect. Ibid 19. In covenant by executor of lessor against lessee for rent reserved on a lease for lives, the lives named in the lease need not be stated in the declaration, nor the continuance of them averred. III. Subsequent Pleadings. Ibid 20. To a declaration in indebitatus assumpsit against an administratrix, containing counts for use and occupation, and the money counts, the defendant pleaded to the whole declaration, that before she had any notice of the said demands, and before she had any notice of the making of the said promises, she had fully administered. Held bad, as tending an immaterial issue, and as surplusage. Q. B. Commissioners of Education v. Lough167 21. Held also, that surplusage, tending to embarrass the pleading, is ground of special demurrer. Ibid nan. 22. Quare-Would such a plea to the count for use and occupation, be a good plea? Ibid 23. A judgment recovered in replevin is not a bar to an action of trespass for the same taking and detention of goods which formed the subject of the replevin suit. C. P. Atkinson v. Nesbitt. 271 24. At the Sittings after Term a cause having been called on for trial, the defendant filed a plea in the nature of a plea puis darrein continuance, alleging 25. that the matter of defence arose "after the several supposed causes of action accrued ;" in an affidavit contemporaneous with and in verification of the plea, defendant stated that the matter of the plea had arisen within eight days last past next before the pleading of the said plea. Held, that the plea was ill, there being no precise averment that the matter of defence had arisen after the last continuance; and Semble, that even if the averment in the affidavit had been sufficient, it could not be read in support of the plea. Ibid The entry on the record of the award of respite of the jury, amounts to a continuance. Ibid 26. Continuances are from day to day, as well as from Term to Term. Ibid 28. In an action of covenant by the devisees of the lessor against the executors of the lessee, the declaration stated, that heretofore, to wit, on the 21st of February 1834, A was seised to her and her heirs of a freehold pur autre vie in the premises, and that heretofore, to wit, on the 21st of February 1834, she (A) demised for a year to R. D., who "thereby then and there became possessed of said premises for the said term, the reversion therein, and expectant thereon, belonging to the said A; and thereupon afterwards, to wit, upon the 22nd of February 1834," A, by indenture, re-leased for three lives to R. D., with a covenant for perpetual renewal, and at a fixed rent; and thereupon the said A, after the said R. D. became and was seised of the premises, &c., "and after said A became and was seised of the reversion thereof, expectant on the said estate so re-leased as aforesaid, and during the continuance of the said demise, and of the said last-mentioned reversion, to wit, on," &c., devised to the plaintiffs. The declaration further stated the deaths of A and R. D., probate of his will to the defendant, and breach of covenant by non-payment of rent. Plea:-That A "at the time of the making" of the re-lease was seised only for her life, and so continued until her death; and that after making of the re-lease was seised only for her life, and so continued until her death; and that after the making of the re-lease, and before the expiration of the said term, she died, whereupon the term created by the indenture ceased, absque hoc, "that before the making of the said indenture" A was seised to her and her heirs modo et formâ, &c. Upon general demurrer, Held, Firstly, that a devisable reversion was sufficiently disclosed by the declaration. Secondly, that the plea was bad, as tendering an immaterial issue. C. P. Church v. Dalton. 355 29. To a scire facias in 1846, to revive a judgment recovered in 1811 by W. against L., which scire facias stated the recovery in 1827 of a judgment in an action of debt by the executors of W. against L. for the amount of the judg ment debt of 1811, and of another judgment debt due from L. to W.; and contained an averment that witness to the deed of assignment, made an affidavit at the foot of the memorial of the true perfection of the deed of assignment and memorial before the officer, &c., where the judgment was entered secundum formam statuti, and that therefore the judgment was not duly assigned secundum formam statuti, is bad as amounting to a plea of nul tiel record. Ibid 32. Like law as to a plea (to the same scire facias) alleging, that it is stated in the memorial, that the deed of assignment bears date the 19th of June 1843, and that it is not stated in the memorial, that the deed was perfected on any other day, as appears by the record of the memorial, and averring that the deed was not perfected on the 19th of June 1843, but was, in fact, perfected on another day. Ibid 34. To a sci. fa. on a judgment, the return alleged that the conuzor, at the time of the reudition of the judgment, was seised of a descendible freehold, but did not aver it to be still subsisting: plea by the heir that A B was seised in fee before the issuing of the sci. fa. ; and being so seised before the issuing of the sci. fa., to wit, on, &c., demised to the heir for one year, and so from year to year; by virtue of which demise, which is still subsisting, the heir is still possessed, and that the conuzor was not at the time of the rendition of the judgment seised of a descendible freehold still subsisting. Replication, that he was seised at the time of rendition of judgment modo et formâ as in sci. fa. and return stated. Quære, first, whether the replication is bad for not averring the descendible freehold to be still subsisting; secondly, whether the plea is bad, being a plea by the heir of non-seisin in the ancestor? a 30. A judgment in an action of debt upon a judgment has not, upon the latter, the same effect as a judgment of revivor by scire facias. Ibid 31. To a scire facias upon a judgment setting forth an assignment by deed of the judgment debt "according to the form of the statute in such case made aud provided, as by the memorial and record of the same enrolled, &c., manifestly appears," a plea that no one witness to the memorial who was Ibid 35. To a scire facias to revive a judgment, the defendant, in a plea of the Statute of Limitations (3 & 4 W. 4, c. 27, s. 40), averred, "that no part of the principal money secured by the said judgment, or any interest thereon, was paid at any time within twenty years," &c. The plaintiff replied the payment of a sum of money "as and for so much of the interest which had accrued due and payable upon or on account of the said judgment." Held, that this replication was naught. (BALL, J., dissentiente.) C. P. Kealy v. Heir and Tertenants of Bodkin. 383 39. A dilatory plea will not be set aside on the ground of its not being filed in time, without an affidavit to that effect. Ibid 40. Trespass for taking, detaining, and impounding goods, and that thereby the goods were lessened and damaged; the plea applied to the taking, &c., and left the lessening and damaging unanswered; the plaintiff pleaded over without marking judgment of nil dicit for the part of the declaration uncovered by the plea. Held, that he had not thereby worked a discontinuance. C. P. Atkinson v. Nesbitt. 271 41. The entry on the record of the award of respite to the jury, amounts to a continuance. Ibid 42. Continuances are from day to day, as well as from Term to Term. Ibid POLICY OF ASSURANCE. See VENUE, 3. In an action upon a policy of assurance effected in Ireland with an English company, the policy containing a proviso that the trustees of the company shall be answerable only within the jurisdiction of the English Courts for the sum assured, the Court will not make an order to substitute service of the process upon the agent resident in Ireland. L. E. Lynskey v. The Asylum Life Assurance Company. 299 POOR-LAW GUARDIANS. See MANDAMUus, 7. POSTEA. See AMENDMENT, 5. POSTPONEMENT. The case having been argued for the plaintiffs, a postponement sought upon the ground of the defendant's attorney having been suddenly summoned to London, was granted, upon the terms of the latter paying the costs of the day, and not charging them to his client. C. P. Church v. Dalton. 355 PRESENTMENT. See CERTIORARI, 4. MALICIOUS INJURY. PRINCIPAL AND SURETY. 1. A, in 1833, being indebted to B for rent, B distrained, whereupon C became surety that A would pay the rent in December following, or re-deliver the goods to B. A did not do so, and B recovered judgment against C on foot of this guarantee, and compelled C to pay the debt by instalments. Held, that to an action by C against A for a breach of this special agreement of indemnity, and also for money paid to his use, A could not plead the Statute of Limitations, the payments on foot of the judgment rocovered by B having been made within six years before the commencement of the action. Q. B. Considine v. Considine. 400 |