appeared at nisi prius that it hap- pened after the action brought, it seems that the defendant cannot avail himself of the defenee under such a general plea, which is only given by the statute in case any bankrupt who has conformed to the law shall afterwards be arrested or impleaded for any debt due before such time as he became bankrupt. Tower v. Cameron, East. 45 G. 3. 413
7. Where the defendant in replevin made cognizance for two years and a quarter's rent in arreat; and al- leged that for a long time, viz. for two years and a quarter, ending at Christmas, 1803, the plaintiff held and enjoyed the premisses as tenant thereof to A. B. by virtue of a cer- tain demise, &c.; to which the plaintiff pleaded in bar, that he did not hold and enjoy the premisses as tenant thereof to A. B. by virtue of the supposed demise modo et for- ma, it is sufficient to entitle the defendant to a verdict on such issue if he prove that the plaintiff held of A. B. from the 23d of December, 1801, and to recover for two years rent. Forty v. Imber, E. 45 G. 3.
6. In assumpsit by the vendor against the vendee of land for not accept- ing it and paying the purchase- money, the plaintiff averred that he was seised in fee of the land, and that the defendant agreed to pur- chase it on having a good title, and that his title to the said land was made good, perfect, and satisfactory to the defendant, and that he, the plaintiff, had been always ready and willing, and offered to convey the lands to the defendant, but that the defendant did not pay purchase- money; and, on demurrer, held, That such general allegation of title in the plaintiff, and that his title was made good and satisfactory to the defendant, and that the plaintiff was ready and willing, and offered to convey to the defendant, were a sufficient performance of the agree- ment on his part to entitle him to VOL. VI.
recover for a breach of the defend- ant's part in not paying the pur- chase-money. Martin v. Smith, T. 45 G. 3. 555
9. In declaring upon a contract, not under seal, consisting of several distinct parts and collateral provi- sions, it is sufficient to state so much of it as contains the entire consideration for the act, and the entire act or duty which is to be done (including the time, manner, and other circumstances of its per- formance) in virtue of such consi- deration; the breach of which act or duty is complained of; but such part of the contract which respects only the liquidation of damages after a right to them has accrued by a breach of the contract, is not ne- cessary to be set forth in the decla- ration, but is only matter of evi dence to be given to the jury in reduction of damages. Clarke v. Gray, Trin. 45 G. 3.
564 10. Therefore, assumpsit may be main- tained in the common form of de- claring against a carrier for the loss of goods which were of above 51. value, and were not in fact paid for accordingly; although it were part of the contract, proved by general notice fixed up in the carrier's office and presumed to be known and as- sented to by the plaintiff, that the carrier would not be accountable for more than 51. for goods, unless en- tered as such, and paid for accord- ingly.
11. Every plea to the jurisdiction of the Court ought to give some other Court by which the matter may be tried. Therefore, it is not sufficient for a native of Ireland, charged with the publication of a libel in Middle- sex, to plead to the jurisdiction of B. R. that Ireland before the Union was governed by its own laws, and not by the laws of Great Britain, and that since the Union it is yet governed by its own laws, &c.; and that there always have been and now are courts and jurisdictions in Ireland distinct from those in G. B. and competent for the trial of all M m offence
offences committed by the natives resident there; and that the defend- ant is a native of and was resident in Ireland at the time of the offence alleged and that the subject-mat- ter of the supposed libel related to things in Ireland; for the objection, if any, going to the total want of jurisdiction in any of the courts of this part of the kingdom to try the defendant for such an offence, it should either be taken advantage of by a plea in bar, or by evidence under the general issue. Rex v. Johnson, Justice, Trin. 45 G. 3.
3. In debt on bond, conditioned to perform an award, the plaintiff must assign a breach under the stat. 8 and 9 W. 3, c. 11, and cannot have judgment for the penalty, and take 2. out execution for the single sum awarded, though the measure of damages be ascertained by the award. Welsh v. Ireland, T. 45 G. 3.
See Principal and Factor, No. 1.
POOR RATE, See Replevin, No. 1. Under a local act, 10 Ann. c. 6, for rating persons to the relief of the poor in Norwich for lands, &c. stock, and personal estates in the parish, &c. and money out at inte- rest, they are not liable to be rated for government stocks or funds, which are no more than perpetual annuities, the principal of which can never be recalled by the holder from government, though redeem- able at the pleasure of the latter. Rex v. The Churchwardens and Overseers of the Parish of St. John Maddermarket, in Norwich, Hil. 45 G. 3.
POOR RELIEF.
An order of two justices founded on the stat. 5 G. 1, c. 8 (for provid- ing for the families of absconding men out of their estates) should state how much of the goods or rents of the fugitive should be seized by the parish officers; and the subse- quent order of confirmation by the Sessions should specify the quantum of relief to be appropriated out of the goods and rents so seized, and limit a period for such appropria- tion, supposing such prospective or- der to be good, and that the order is not to be confined to the discharge of expences already incurred by the parish. Stable v. Dizon, Hil. 45 G. 3.
And quare, if the original order be defective in the particular mention. ed, whether the Sessions can make it good by an order of confirmation directing the parish officers" to re- ceive 71. 16s. rent of the rents and profits, &c. towards the discharge of the parish for providing for the party's wife," &c. ib. 3. But, at any rate, a payment of one sum of 71. 16s. is a sufficient com- pliance with such order, on the only ground of construction on which it can be supported; and the tenant in whose hands the rent was seized cannot justify, in covenant by his landlord for rent in arrear, the re- taining a second sum of 7. 16. out of the second year's rent, upon the supposition that such order of Sessions extended to enable the pa- rish officers to receive so much an nually out of the rents; for in that view the order would be bad in law upon the face of it, as an indefinite order for the annual payment of such a sum, without any limitation of time, or until further order.
1. The mere cancelling in fact of a lease is not a surrender of the tenant thereby granted, within the statute of frauds, which requires such sur- render to be by deed or note in writ
ing, or by act or operation of law; nor is a recital in a second lease, that it was grounded in part consi- deration of the surrender of a prior lease of the same premisses, a sur render by deed or note in writing of such prior lease; it not purporting in the terms of it to be of itself a surrender or yielding up of the inte- rest: though in some instances the acceptance of a second lease for part of the same term before demised may be a surrender of such prior term by operation of law; and this even though the second lease be voidable, if it be not merely void d; but where. tenant for life with a special power of leasing, reserving the best rent in consideration (as re- cited) of the surrender of a prior term of 99 years (of which above 50 were unexpired) and certain charges to be incurred by the tenant for re- pairs and improvements, &c. grant- ed to him a new lease of the pre- misses for 99 years by virtue of the power reserved to her, or any other power vested in or in anywise be- longing to her, which new lease was void by the power for want of re- serving the best rent: held, That the second lease, which was intend- ed and expressly declared to be granted by virtue of and under the power; and being apparently not intended by the parties to be carved out of the estate for life of the lessor, being void under the power, should not operate in law as a sur- render of the prior term, as passing an interest out of the life-estate of the grantor, contrary to the mani- fest intent of the parties: and con- sequently that the prior term, tho' the indenture of lease were in fact cancelled and delivered up when the new lease was granted, might be set up by the tenant of the premisses in bar to an ejectinent by the remainder-man after the death of tenant for life, however such second lease might have ope- rated by way of estoppel as against the lessor during her life. Roe d. The Earl of Berkeley v. The Arch-
bishop of York, Hilary, 45 Geo. 3.
2. Where an estate was conveyed to a trustee, habendnm to him and his heirs, to the use of such person and for such essate as V. should by deed, &c. appoint; and for want of such limitation to the use of W. and his heirs and the same conveyance reserved a certain fee-farm rent to the chief lord, and contained a cove- nant by W. his heirs and assigns for the payment of it: held, That W. took a vested fee. liable to be divest- ed by the execution of his power of appointment; and W. having con- tracted to sell the estate afterwards, by indentures of lease and release, to which he and his trustee were par ties, after reciting the former con- vevance, the trustee, by direction of W. did grant, bargain, sell, and re- lease; and W. did grant, bargain, sell, alien, release, ratify, and con- firm, and Also direct, limit, and ap- point to the purchaser and his heirs all their estate, title, interest, use, trust, &c. in law and equity, sub- ject to the reserved rent, and to the performance of covenants on the part of V. to be performed; and the purchaser also covenanted with W. to pay the said rent, and to in- demnify and save him harmless : held, That the purchaser took the estate by the appointment of, and not by conveyance from W.: the instruments (a lease and release) though more commonly and pro- perly adapted to pass an interest, and containing words of grant for that purpose, yet professing in terms to be an appointment; and the trus- tee having joined in it by the direc- tion of IV. which was unnecessary if it had been intended that the pur- chaser should take an estate derived only out of the interest of W.; and it being obviously for the benefit of the purchaser to take by appoint- ment; and such appearing upon the whole to have been the inten tion of the parties; and held, in consequence, That the defendant (the heir, devisee, and executar of M m 2 the
ceeding has been adopted where the steward of the court is an attor ney. Cocks v. Harman, E. 45 G. 3. 404
6. Though the venue be changed by the defendant upon a false affidavit, yet the plaintiff cannot bring it back to the county where it was first laid, without the usual undertaking to give material evidence in that coun ty. Price, Bart. v. Woodburne, E. 45 G. 3. 433
3. The granting of day rules to pri- soners in the K. B. prison during 7. term is in the discretion of the Court on application, the same as before E. 30 G. 3; but prisoners upon such day rules must return at or be- fore 9 o'clock in the evening. Re- gula Generalis, H. 45 G. 3.
2 The Court will enter an exonere- tur on the bail-piece on payment of the sum sworn to and costs, though less than the sum acknowledged to be due, as well where the action is by original as by bill. Jacob v. Bowes, E. 45 G. 3.
3. An appearance entered after the essoign-day, and before the day of full term, may be entered as of the preceding term; and, therefore, a non pres entered after the second term, for want of declaring before the end of such second term, is good. Prigmore v. Bradley, E. 45 G. 3.
314 4. Rule absolute in the first instance for changing the venue from an English to a Welsh county on the usual affidavit. Hopkins v. Lloyd, East. 45 G. 3, and Hughes y. Hughes, Hil. 45 G. 2. 5. The Court refused to proceed sum- marily against a steward, who was an attorney, to compel him to ac- count before the Master for receipts and payments in respect of a mort- gaged estate, and to pay the balance to his employer, and to deliver up upon oath all deeds, writings, &c. relative to the estate; this being the proper subject of a bill in equity, and not a case for a mandamus to compel a steward of a manor to de- liver up court rolls, &c. in lieu of which this summary mode of pro-
The lessor of the plaintiff in eject- ment, suing in forma pauperis, will be dispaupered in case of vexatious delay. Doe d. Leppingwell, suing in forma Pauperis, v. Trussel, E.
8. The irregularity of giving a rule to plead before the delivery of the de- claration is waved by putting in any plea, though a nullity; but such in- operative plea having been put in without authority by a new attor ney for the defendant, without any order to change the attorney, the judgment which had been signed as for want of a plea was set aside. Perry v. Fisher, Trin. 45 G. 3.
PRINCIPAL AND FACTOR.
A factor cannot pledge the goods of his principal by indorsement and delivery of the bill of lading, any more than by the delivery of the goods themselves; though the in- dorsee knew not that he was factor; and where goods were consigned on the joint account of the consignors and consignee, and a bill of lading was sent to deliver the goods to the consignee or his assigns; who after- wards indorsed and delivered it to the defendants, upon condition of
One of the ships of a squadron is de- tached by the commanding flag- officer to lie off a certain place within the limits of the station, from whence the captain, without any further orders for that purpose, though he had written for such to his superior officer, and waited for them some time, takes upon him on his own responsibility (though from laudable motives which were after- wards approved of by the Admi- ralty) to depart, and to proceed as convoy with the homeward-bound trade; and in the course of the voy- age home, out of the limits of his station (but nothing turned on the question of limits) he takes a prize : held, That the superior flag-officer who had before the capture suc- ceeded the one by whom the order for being detached had been ori- ginally issued (admitting him to stand in the same situation in point of right) was not entitled to share the flag-officer's share of 1-8th given by the King's proclamation to a Bag-officer directing or assisting in a capture by a ship under his com-
QUO WARRANTO,' Information in Nuture of,
1. The stat. 15 Car. 3, c. 17, creating the corporation of the Bedford Le- vel, directs, That they shall appoint a registrar, &c. and other officers at their pleasure; the duty of which registrar is to register titles to land within the level; and he takes an oath of office: held, That an infor mation in nature of quo warrantḍ does not lie against such an officer; he being a mere servant of the cor. poration, and his office not affect- ing any franchise or other authority holden under the crown. Rex v The Corporation of the Bedford Level, E. 45. G. 3.
2. But an information in nature of quo warranto was granted against several for exercising the office of comissioners for paving the town of Taunton, under an act of the 9 G. 3, to whom a power was given to im- pose rates and taxes on the inhabit- ants. Rex v. Badcock and others, H. 22 G. 3. 359
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