e

t the trial the verdict was for the defendant on those sues. It appeared that the port in question was gulated by an Act of Parliament, the 4th Wm. 4, 43, which requires all vessels coming into the port take pilots on board, the pilots being appointed by harbour master, and together with the crew ting under his orders; at the time therefore that e accident happened to the vessel she was not under -e care of the master and crew, as alleged in the ea. The pleas admit that the plaintiff performed s part of the contract; and the defendant excuses e non-performance of his part, by reason of the cident; that however is no answer. Rule nisi.

HEWISON V. STANTON. faster and servant-Dismissal in the middle of a quarter-Apportionment of salary—Immaterial issue. Covenant on articles of agreement under seal, hereby the defendants covenanted to employ the aintiff as a foreign traveller for five years, at a salary 2001. a year, payable on the 1st of July and the st of October, and the other corresponding quarters every year; 1st breach, the wrongfully discharging aintiff from the service of defendants; as to which here was a plea that the plaintiff was rightfully disarged; 2nd, the non-payment of salary accruing e under the articles during the time the plaintiff =emained in the defendants service,-" being a large im of money, to wit, the sum of 100l. to wit, for No quarters, &c." The 13th plea, which was leaded as to the salary due on the 1st of October, =cated that after the 1st of July and before the 1st of Ictober, the plaintiff of his own wrong, and without he licence of the defendants voluntarily left, quitted, nd disclaimed the service of the defendants, and eased to be in their employment. Replication, traversing that the plaintiff voluntarily

eft the defendant's service.

question at the trial was, whether the lord of the in secondary evidence (Doe dem. Gilbert v. Ross, 7
manor was entitled to six separate heriots, viz. one in Mee. & W. 102), the facts as to the entries of
respect of each tenement, or to a single heriot only, baptism were properly elicited in cross-examina-
on the death of the tenant. It appeared that this tion; but it is quite a novelty in practice at
was not a copyhold manor; the tenements were free- Nisi Prius that evidence elicited on cross-ex-
hold, and the tenant was seized in fee; but on the amination gives a right to reply. [Lord DEN-
part of the plaintiff certain presentments were put MAN, C. J.-It is quite a new question of prac
in, not relating to the particular lands in question, tice whether allowing a reply is a ground for a new
but to other lands within the manor, for the purpose trial. Far too much weight is attached to the reply.]
of shewing that the lord was, by the custom of the In Huckman v. Fernie (3 Mee. & W. 511), Alderson,
manor, entitled to a separate heriot upon each tene- B. speaks of "the advantage of a reply." [Chilton,
ment; that evidence was objected to, but received by Q. C. stated that the plaintiff's counsel had the
the learned judge, who told the jury that the evidence general reply.] [Lord DENMAN, C. J.-Then surely
in support of the claim consisted of the presentments, there can be no ground to complain. I have often
modern usage, and tradition.
thought it very desirable that both sides should be
heard after all the evidence is given.]

Kinglake, Serjt. now moved for a rule for a new trial, on the ground of the improper admission of evidence and misdirection. The evidence ought to have been limited to the particular lands; the distinction is between heriot custom and heriot-service; the latter is like rent, and depends upon express reservation, or prescription which presumes such reservation. It cannot be affected by custom with regard to other lands; for there is no ground to presume the reservation of the same rent as to different lands. Citing 2 Watk. on Copyholds, 141, Rule nisi.

By the COURT.--All the points deserve consideration, except the last; but we cannot think there is any doubt as to the correctness of what took place at the trial in that respect.

Rule nisi upon all the points, except the last.

1

DOE dem. v. SAMPSON. Partibility of verdict in ejectment. Ejectment. At the trial, before Tindal, C. J. at the last Surrey assizes, a plan was exhibited of the property sought to be recovered, part of which was DOE dem. -v. DAVIS and OTHers. Evidence-Declarations of bastard-Interest-Proof of coloured green, and part yellow. In the course of the cause, the counsel for the lessors of the plaintiff handwriting-Practice at Nisi Prius. If a learned Judge at Nisi Prius thinks fit to allow a stated that he could not support their claim as to the reply upon certain facts elicited by cross-examina-part coloured yellow, and as to that no proof was tion of the defendant's witnesses, the plaintiff still given; but a general verdict was entered for the lessors of the plaintiff. having the general reply upon the whole evidence, it is no ground for a new trial.

Shee, Serjt. now moved for a rule to shew cause

the defendant as to so much as the lessor of the

Ejectment by the lessors of the plaintiff, claiming why the verdict should not be entered for the dein right of their wives as co-heiresses of Walter Da- fendant as to that part. Since the rule 74 of Hil. T. vis. At the trial the question turned upon the le-2 Wm. 4, the Courts, upon the equity of that rule, all, the jury on the 1st breach found that the plain- lessors of the plaintiff being confessedly entitled to plaintiff fails to prove. (Doe v. Errington, 4 Dowl.. At the trial before Lord DENMAN, C.J. at Guild- gitimacy or illegitimacy of one Elizabeth Stevens, the have allowed the verdict in ejectment to be entered for iff was rightfully discharged on the 9th of September, recover, if she were illegitimate. On their part evi-P. C. 603; Doe v. Webber, 2 Add. & Ell. 448; Doe and on the 2nd they gave a verdict for 501. one dence of reputation in the family was given to esta- dem. Bowman v. Lewis, 13 Mee. & W. 241.) quarter's salary due on the 1st of July, and an ap-blish her illegitimacy. On the part of the defendants, Lord DENMAN, C.J.-Can it not be set right by portioned part of the next quarter's salary up to the an original certificate of the marriage of John and lay of dismissal, or if that could not be then 100% as Ellen Davis on the 25th January, 1757, was put in; to confine the verdict to the part proved; and if he the judge's notes ? Apply to the Lord Chief Justice for two complete quarters; and so the verdict was and in order to prove the identity of Elizabeth Ste- declines to do so, we think you ought to have a rule. vens as a child of that marriage, a London solicitor was called, who proved that he had, in 1839, been Rule nisi, unless the learned judge should limit the verdict as suggested. employed to see whether Mrs. Stevens could make a good title; that he had received from her the certificate of marriage; that she did not know for what purpose he wanted it; but that she told him that her mother gave it to her, and had said that it was the certificate of her marriage. Further, a conveyance of Mrs.

entered.

Watson, Q.C. moved, on behalf of the defendants, for a rule to shew cause why the damages should not be reduced to 50l, or the judgment arrested. First, there could be no apportionment in this case; the only question was, whether the plaintiff continued in the service to the end of the second quarter; and as he did not, he could only recover the 501. Second, on the 13th plea, an immaterial issue is taken, viz. whe-Stevens's reversion to the person who was then the last ther the plaintiff voluntarily left the service; the material allegation is, that he ceased to be the servant in the interval between the days mentioned; and of that there is no traverse. Rule nisi.

CROSS v. EWELL.
Revival of debt after bankruptcy-Absolute or con-
ditional promise-Practice-Compelling the produc-
tion of a letter.

Assumpsit on a promissory note.
Pleas: 1st, Non fecit; 2nd, Bankruptcy of de.

Efendant after the note became due.

Replication to the second plea, that, after the bankruptcy, defendant ratified and confirmed the promise

tenant for life, and wished to convert his life interest into a fee, was given in evidence as a recognition of her title by the tenant for life; and, in order to esta blish that the above-mentioned certificate was a genuine document, the clerk of the parish was called; and he stated that he did not know when the curate, whose name appeared upon it, died; but that, from frequent inspection of the register, he had formed a notion of that curate's handwriting, and believed the certificate to have been signed by him. It had been opened by the defendant's counsel that Elizabeth Stevens was the only child of the John and Ellen Davis named in the certificate; but it was elicited, upon cross-examination, that the register in which that marriage appeared contained subsequent entries Rejoinder; That defendant did not promise modo of the baptism of several children of that marriage, et formâ. and that none of those children were named ElizaAt the trial, before Coleridge, J. at the last Croy-beth. In consequence of that evidence being received, don assizes, it appeared that the promise to pay after the learned judge allowed the counsel for the defendthe bankruptcy was contained in a letter; upon the ants to address the jury upon it, the plaintiff then construction of which, it was contended, on behalf of having the general reply. Verdict for the defendants. the defendant, that the promise was conditional only; E. V. Williams now moved for a rule to shew cause that, therefore, it did not support the replication; and that at all events the plaintiff was bound to shew a performance of the condition; but the learned judge held it an absolute promise, and the verdict was found for the plaintiff.

in the declaration.

Chambers, Q.C. moved for a rule to shew cause why that verdict should not be set aside, and a verdict entered for the defendant upon that issue, or for a nonsuit. He had no copy of the letter, but, according to his note of it, taken at the trial, the promise was in these words:-"We shall be happy to pay you, after you have taken a dividend on the estate." That is clearly a conditional promise; but even if it were doubtful, such promises are to be construed in favour of the party contracting to revive the debt: citing 6 Geo. 4, c. 16, s. 131; Fleming v. Hayne (1 Stark, N. P. C. 370).

Lord DENMAN, C.J.-All depends upon the terms of the letter. We think the proper course will be to give the other party immediate notice, that unless they produce the letter they cannot have judgment. Afterwards (Wednesday, Nov. 12),

Rule nisi granted. DAMERELL V. PROTHEROE. Trover-Heriot-custom and heriot-service-Evidence. Trover for six heriots, in respect of six several tenements held by the deceased tenant; tried before Erle, J. at the last assizes for the county of Devon, when a verdict was found for the plaintiff, The main

WILKINSON v. AGAR.
Tenants in common-Parol license to cut turf-
Prescription.

Trespass, quare clausum fregit.

Pleas (amongst others): That the close was not the close of the plaintiff; leave and license; and also pleas under 2 & 3 Wm. 4, c. 71, s. 1, setting up a prescriptive right to cut turf; in one plea alleging the enjoyment for thirty years, in the other for sixty. Replication, traversing the leave and license, and the custom; New assignment.

Pleas, not guilty; and leave and license. Replication, a traverse of the leave and license. At the trial, before Cresswell, J. at York, it appeared that the plaintiff was one of sixty-three persons who were tenants in common of a manor in Yorkshire, purchased by them of Sir Henry Otway, who held it under a grant from James I.; that one of the co-tenants had given a parol license to the defendants and others to cut turf on the waste, which was parcel of the manor; but the locus in quo, though within the manor, was at some distance from the place where the turf had been usually cut. Upon the issue on the plaintiff's possession, the learned judge thought that it was not made out, and reserved leave to move to enter the verdict on that issue for the defendant. On most of the other issues the verdict was for the

defendant.

Pashley now moved, on behalf of the defendant, pursuant to leave reserved, and contended that the possession of the plaintiff was not such as entitled him to maintain trespass against those claiming under his co-tenant in common; citing Cubitt v. Porter (8 B. & C. 257; Com. Dig. Estates, K. 8). Rule nisi.

why the verdict should not be set aside, and a new
trial had, on the ground of the improper reception of
evidence, and that the defendant's counsel had been
improperly allowed to address the jury at the close of
the evidence. 1st. The account given by Elizabeth
Stevens to the witness with regard to the certificate
was inadmissible on two grounds; first, that the de-
clarations of a bastard are not evidence, and the Martin. Q. C. on the following Saturday (Nov. 8)
whole question in this cause was whether Elizabeth moved for a cross rule for a new trial, on the ground
Stevens was or was not a bastard (Doe dem. Bam- of misdirection; to enter the verdict for the plaintiff
ford v. Barton, 2 Moo. & Rob. 28); second, that, by on the issue of leave and license, pursuant to leave re--
making herself out legitimate, she entitled herself to served; and for judgment non obstante veredicto, or in
a vested reversion at that time; and although there arrest of judgment, upon objections arising on the
was no lis mota, still declarations are inadmissible, record. First, a parol leave and license to cut turf and
which go to support the declarant's right to a present carry it away for sale is void. (Wood v. Leadbiller, 13
estate or interest. (Monckton v. The Attorney-M. & W. 838.) Secondly, the evidence of custom did
General, 2 Russ. & Mylne, 147; Doe dem. Davies v. not apply to the locus in quo, but to another part
Lowndes, 6 M. & G. 514.) 2ndly. The convey- of the manor; and the learned judge misdirected
ance was no evidence; if it were, parties might at any the jury, in telling them to take that evidence
time make evidence of title for themselves. 3rdly. into consideration. Thirdly, a leave and license
The evidence of handwriting was inadmissible. Evi-
dence of that description can only be received where
the ordinary means of proof fail; that was not the
case here; in 1760 the curate was alive; there was no
evidence when he died, but the distance of time was not
so great but that persons might have been called who
could recollect him very well, and speak directly to hi
handwriting. The Fitzwalter peerage case (10 C. & F.
956) is distinguishable, Lastly, there being no degrees

by one tenant in common to destroy the soil is illegal and void. (Co. Litt. 300.) Lastly, the plea of prescription is bad; it sets up a right to cut turf for the purpose of burning and consuming it as necessary fuel in and upon the messuage and farm ; but messuage does not necessarily mean house; and common of turbary must be prescribed for in respect of an ancient house. (Potter v. North, 1 Saund. 353 n.; Clayton v. Corby, 5 Q.B. 415.) The proper

course is to move that judgment for the defendant be
arrested, so far as the bad pleas are concerned.
Rule nisi.

GOOD v. COCHRANE.
Pleading-Proof of introductory_averments-Copy-
right Act-License to publish-Evidence-Stamp.
Assumpsit.-The declaration stated, that whereas
one C. Pope was the author and publisher of a book
called "The Yearly Journal of Trade;" and whereas
the plaintiff had advanced 100l. on the security of the
copyright, which had been conveyed to the plaintiff
by indenture of mortgage, the defendant agreed with
the plaintiff to pay him 100l. for permission to pub-
lish the said work, alleging non-payment.

At the trial before Wightman, J. in Middlesex, verdict for the plaintiff.

Pearson now moved for a rule nisi for a new trial, or to enter the verdict for the defendant, and in arrest of judgment. First, there was no proof of the introductory averments in the declaration, which formed part of the consideration for the contract. (Raikes v. Todd, 8 Ad. & Ell. 846.) Secondly, the contract was contained in letters, which were inadmissible, because unstamped. Thirdly, the license to publish was not in the form prescribed by 5 & 6 Vict. c. 45, s. 11. Lastly, the declaration was insufficient for not alleging any enjoyment of the right agreed for. Lord DENMAN, C.J.-That is clearly unnecessary. Upon the other points, Rule nisi.

Wednesday, Nov. 12.
MARSHALL v. FOL.

Is time of the essence of a contract that the amount of
a promissory note shall be determined by a valuation
of a crop of corn upon a fixed day, so that no valuation
on any other day is admissible?
This was an action upon a promissory note, tried
at last York assizes, in which the plaintiff had ob-
tained a verdict ; and

the death of the defendant's husband, and that the
jury ought to have been directed to find accordingly.
Doe dem. Bennett v. Turner (7 M. & W. 226), 3 & 4
Wm. IV. c. 27, s. 7, were cited.

The verdict was also against evidence, for there was
no evidence of a continued occupation of the wharf
and dock.
Rule on both points.

WILLINGTON v. BROWN.
Lease of tolls.

An agreement for the letting of tolls under 3 Geo. 4, c.
126, s. 55, need not shew that the meeting at which
they were let was held according to all the formalities
of the statute.

An agreement which recites that A B is to rent the tolls
of trustees, and having an attestation clause," Wit-
ness our hands and seals, trustees of the said roads,"
is proof against a surely who executes subsequently to

such clause that the lessors are trustees.
Assumpsit by plaintiff, on behalf of the trustees of
tolls, against surety of a toll-renter, tried at the
last Warwick assizes, before Sir F. Pollock, C.B.
Verdict for plaintiff, with leave to move for a nonsuit;
pursuant to which,

Humfrey, Q.C. now (Nov. 8) moved, on the ground
that there was no evidence that the agreement was
made by the trustees, and also in arrest of judgment
for defective declaration. The action being brought
under the 3 Geo. 4, c. 126, ss. 55, 57, by one no party
to the agreement, it is essential that the contract
should have been according to the statute. The only
evidence offered that the lessors were trustees was
the concluding clause of the agreement, as fol-
lows:-

"Witness our hands and seals, trustees of the said
roads.
"E. DICKENSON,
"E. PALMER.' ??

Although the defendant subsequently signed the agree-
ment, he is not bound by this statement. (Pearse V.
Morrice, 2 A. & E. 84.) [WIGHTMAN, J.-He may
not be estopped from disputing it, but is it not some
evidence?] The language used both by Taunton, J. and
Patteson, J. in Pearse v. Morrice (2 A. & E. 84) is

against this view. [Lord DENMAN, C.J.-Here it is
recited that the lessee was to take from the trustees.]
Unless actually signed by the trustees, it is void; and
this then should have been proved.

shewed that lands and rights "not usually la
were contained in the last lease.
To be turned into a special u

FORD V. BEECH.
Set-off.

Is a plea of set-off divisible when pleaded to fp.
declaration, consisting of counts upon bila
change and indebitatus counts?
Knowles, Q. C. moved, pursuant to lear:
aside the verdict for the plaintiff, and enter th
defendant. The first two counts were upotre
sory notes; the third, upon a bill accepted
fendant for 2101. of which 1951. was admit
paid; the fourth for money lent; filta, je
stated. Pleas-To first and second, de
making; to third, denial of acceptance; up
the verdict was for the plaintiff. On the iss
assumpsit, the verdict was for the defectat
fifth plea was to the first and second
and shewing a special agreement for the
pension of the bills if another payment va
This was found for the defendant. Then
thus only 151. left unanswered, and the de
ant had pleaded a set-off, admitted to be
than that sum, to the whole declaration.
trial, Wightman, J. thought that, upon the n
ings, the defendant was bound to shew a set-d
greater amount than the whole declaration.
now objected that there was no difference bet
indebitatus count and a count upon a bill ere,
the purposes of set-off. The judgments in
Butlin (7 A. & E. 595) do not bear out the mo
note. Tuck v. Tuck (5 M. & W. 109), and Le
Bailey (ibid. 382), shew the rule to be th
whole cause of action is covered by seren
the verdict should be for the defendant. T
MAN, J.-All the cases are on indebitatus est

where the specific sum is claimed.] The
held a good distinction in debt. [WIGHT
The rule has been released as to that.]

SHANK . SWEETLAND.
Practice.

Where counsel by mistake more for a new train t

Watson, Q. C. now moved for a rule nisi to enter a verdict for the defendant, or for a new trial. The defendant had pleaded specially to the amount of the note (except 31. 5s. paid into court), that the note was given for 411. Os. 8d. in the month of April, as the value of a crop of corn, and deposited as a security with a third party; and a special agreement made, that two witnesses, appointed by the plaintiff and defendant, should value the corn upon the 1st of August, and the amount receivable the promissory note be fixed according to the valuation; and averred that the valuation was made, to wit, upon the 1st of August, and the amount reduced to 31. 5s. which was paid into court. The plea was proved at the trial, if a valuation upon the 2nd of August would suffice. The agreement set out is not shewn to have been court, although after the four first days.

upon

Rolfe, B. reserved the point, and it was contended that such valuation was sufficient.

Lord DENMAN, C. J.-Have you any case? It is certainly monstrous that the action should be brought; but the valuation was to be upon the 1st of August, and it took place upon the 2nd.

Watson, Q. C.-The ground for a new trial was the rejection of a document purporting to be a copy of the valuation, with an acknowledgment that it was subject to the reduced valuation. It was dated August 20, and was rejected because unstamped. Lord DENMAN, C. J.-My brother Coleridge does not feel quite satisfied as to the first point; the rule, therefore, may be on both points. Rule accordingly.

DOE dem. NORTON v. NORTON.
Ejectment.

Ejectment for coalshed, dryhouse, and cartshed.
Verdict for the plaintiff.

Hall moved for a rule nisi to set aside the verdict, and for a new trial, on the grounds of surprise, misdirection, and as against evidence. The questions turned upon the construction of several devises in

Lord DENMAN, C. J.-At present I am inclined to
think it sufficient, as being some evidence; but if my
brother Patteson retains his doubts, the rule will be
granted.
Humfrey, Q.C. then moved in arrest of judgment.
made as required by the Act. It is only said "at a
meeting." It is, therefore, void under sec. 55.

Cur, adv. vult.

On a subsequent day, Lord DENMAN, C. J. said,
My brother Patteson does not adhere to the doubts
expressed in Pearce v. Morrice, and we think that
there was evidence against the defendant, although
he is a surety. The mention of the lessors being trus-
tees, and the execution by the defendant subsequent
to the attestation, amounted to an admission of title
as against the defendants. And as to the objection in
arrest of judgment, we think the declaration sufficient.
formalities required by the statute.
It is not necessary to set out a meeting with all the

Rule refused.

wrong court, the motion will be allowed to be re in the right court, although the four days for have expired.

Cockburn, Q.C. in moving for a rule aside the verdict for the defendant in this against evidence, stated that he bad, by mish chequer, and prayed to be allowed to move it in made the motion the day before in the Court of

Lord DENMAN, C.J.-Under these circumstar we have allowed rules to be moved for. Rule grant

DOE dem. RUSHWORTH V. WILLIAMSON,
Ejectment-Evidence of seisia.
Semble, coparceners must all join in a demo
Declarations by a deceased tenant that he held w

are admissible as evidence that A was seized")
-Where a person has left England thirty!
years, and a witness, not a relation, states
knew him before he left England, that he bu
relations, and that he has never heard him
as being alive,—there is evidence to
go
to the
his death without male issue.

Ejectment. Verdict for plaintiff, with lear defendant to move to enter it for defendant cak issues except the first.

BAINBRIDGE v. LAX. Trespass-Accord and satisfaction-Repleader. Trespass quare clausum. Verdict for plaintiff. Knowles, Q. C. (with whom was Reid) moved Pashley moved pursuant to leave, and also jæv trial for misdirection. There were various dee to set aside the verdict, and for a repleader. The but it was submitted that only upon the firs defendant pleaded, secondly, that, after the committal of the trespasses, &c. there had been divers the lessors of the plaintiff succeed, as they claims disputes between him and the plaintiff, and that parceners, and must therefore all be joined as demise. all matter in difference, including the cause of In the others only some of them.

the will of W. Norton, and the identity of the parcels, action, had been referred to arbitration, and that joined. They claimed as heirs to a devisee in

which were elucidated by a plan produced. Rule.

it was awarded that he should pay the plaintiff 51. under a will of 1793, by which successive esta
in full satisfaction; that the 51. was paid in such life in tail male were given to four different Car
The replication traversed the agree-Books He cited Selwyn N.P. 724;
and upon failure of issue male,

satisfaction.
ment to refer. Issue thereon and verdict for plaintiff.
It was now submitted that this was an immaterial v. Bates (Lord Raym. 64).
issue, for there was an express averment of the ac-

Rule

DOE dem. GOODY v. CARTER and ANOTHER. Ejectment. Statute of Limitations-Tenant at will-Specific occupation. Ejectment for two cottages, garden ground, wharf, and dock; tried before Coleridge, J. at the Essex ceptance of 51. as satisfaction, and if the whole al- and the jury ought to have been so directed. C Summer Assize. Verdict for the defendant generally,

which

for misdirection.

Lush now moved to set aside, as against evidence, As to one cottage judgment had gone by the default. As to the rest of the premises, it appeared that J. Carter, the father-in-law of the

fendant Carter, had, prior to 1824, entered into posses. sion under an agreement to purchase. In 1824 it was conveyed to him-in 1829 he mortgaged it by demise to the person through whom the lessors of the plaintiff claimed. Prior to 1824 J. Carter gave permission to his son, the husband of the present defendant, to build a cottage. The son did so, and continued

in possession until 1835, when he died. His widow has continued in possession ever since. His lordship left it to the jury to say whether there had been

21 years;

Pashley moved also on the ground of mist tion.-There was no evidence of seisin of the test Lister was called at the trial, whose father had in possession of the fields, and he was asked if ever heard his father say of whom he held the His answer, that he had heard him to say that a it under the testator, was considered evidence seisin. Cur. adv. vult. Rule granted.

legation about the agreement was struck out, there
would be a good answer. Peto's case (9 Rep. Com.
Dig. Accord), and Chitty on Pleading, were cited.
There are some old entries of traverse of accord, but
they have been referred to by my learned friend, Mr.
Rew, and they will be found not to be authorities for

this plea.

On this day (Nov. 12),

Friday, Nov. 7.

DOE dem. EGREMONT T. WILLIAMS.

Ejectment.

But this was only evidence that the witnes father was not seized, and not evidence as to Peaceable v. Watson (4 Taunt. 16; doct in Roscoe, p. 433), and Carne v. Nicholl (1 B. N. [Lord DENMAN,

was.

430), are distinguishable.

referred to Davis v. Pearce (2 T. R.). COLERIDGE Ejectment tried before Mr. Baron Platt, at Exeter. there ne d J.-You were born at least thirty years too late r Verdict for defendant, with leave to move to enter proof of the death of the tenants for life. Oasire verdict for plaintiff, pursuant to which

Charles's was a soldier, and the other a bankr

Crowder, Q.C. now moved.-The power of leasing afterwards transported, having left England in t found for the defendant. It was now submitted that to the pattern lease of 1749. The present lease was dence offered of their deaths without issue male w by the mortgage of 1829 a new tenaney at will, or a in 1831. It was submitted that there was no question that Lister, not being any relation mate with the tenancy by sufferance, was created, or, at any rate by for the jury, but that a comparison of the two leases them before their departure, was intimate with the

1

ODL

his credit in the account between them, are evidence
from which the jury may infer that the bill of ex-
change was duly protested, and that due notice of
such protest was given.

elations, and had never heard them spoken of as
being alive since. It was submitted that some in-
quiries ought to have been made. (He cited Wilson v.
Hodges, 2 East, ; 1 Ld. Raym. 999; Richards
. Richards, 15 East, 294.) [Lord DENMAN, C. J. This was an action upon a bill of exchange for 1001.
-Does not this evidence raise that sort of presump-drawn by the defendant at Halifax, in Nova Scotia,
ion that there is no moral doubt upon the point?] upon Messrs. Capron and Co. in London, in favour
It is submitted that some inquiries ought to have of the plaintiffs, but which the drawees refused to
>een made. (Thorn v. Bell, 2 Dyer, 185.)
accept. The only material pleas were, 1st, that the
Lord DENMAN, C. J.-I have no doubt that this bill was not duly protested for non-acceptance; and,
vas admissible as some evidence, and the jury came 2nd, that the defendant had not due notice of protest
o a correct conclusion.
Rule refused. for non-acceptance. At the trial before Erle, J. it
appeared that the bill, when produced, had not at-
tached to it the protest of the notary, but a protest
was produced which had been drawn up on that day
and antedated. Three letters of the defendant, written
by him to the plaintiff, and dated respectively the 3rd
July, the 3rd August, and 12th October, 1844, were
put in evidence, as admissions dispensing with the
proof of protest and notice of same. In the letter of
the 3rd August was the following: "I have at length
received your letter, with the account of the money
transactions between us; I find it all correct, with
the exception that you have not credited me with a
bill for 501. sterling, which I drew on the 17th October,
1842; I consequently have not given instructions to
my agent to pay the bill for 1001. till that matter is
set right." And in the letter of the 12th October,
1844, after telling the plaintiff that he cannot under-
stand how the plaintiff could have said that the 501.
was explained, the defendant thus proceeds: "As I
said to you before, if you send home a cheque for the
501. sterling to England, will cause the 100!. bill to
be paid immediately, and we shall then be square."
The learned judge was of opinion that these letters
were evidence of the admission of a liability by the
defendant, from which the jury might infer that pro-
test and notice thereof had been duly given. The jury
found for the plaintiff. A rule nisi having been ob.
tained last term for a new trial, on the ground of

BERTHELOT v. LARDIN. Practice Delivery of issue. Channell, Serjt. moved to set aside the verdict for laintiff, upon the following facts. The replication originally delivered by the plaintiff had an informal conclusion to the third plea, and in the issue delivered here was no joinder upon the third plea. On July 21 summons was taken out to set aside the issue for rregularity. It was not attended by the plaintiff, but ot renewed. The plaintiff then took out a summons o award. The defendant returned the issue and demurred to the replication. An order was then made hat on payment of costs of demurrer the plaintiff night amend. Costs were paid; but plaintiff never mended the issue, and a second issue was delivered. A summons was then taken out to set aside the notice of trial, but it was dismissed. At the trial defendant appeared under protest. Rule nisi.

BUSINESS OF THE WEEK.
Wednesday.
SUTTON v. M'GUIRE.-Flood moved for new
trial.
Cur. adv. vult.
Friday.

DOE dem. PENNINGTON . BARRETT. Ejectment.-Verdict for defendant.-Channell, Serjt. moved, pursuant to leave, to set aside the verdict and enter it for the plaintiff. This turned upon the validity of certain leases from the Dean and Chapter of Canterbury, and the identification of the premises demised. There was also a question of fact as to a yearly tenancy by virtue of payment to the holder of the leases, on which the Court said they would see the Lord Chief Justice Tindal. Subsequently the Court granted the rule.

FAIRHEAD U. BASSETT.-Knowles, Q.C. moved to set aside the verdict for the plaintiff, and for a new trial, on affidavits contradicting the principal witness. Rule nisi, not to go into the new trial paper. BAINBRIDGE U. LAX.-Knowles, P. C. moved to set aside the verdict for the plaintiff, and for a reCur, adv. vult. pleader. TYTHERLEY V. BENNETT.-Jones moved for a new trial upon affidavits.

Rule nisi, not to go into the new trial paper. JACOBS v. DAVIES.-Rule nisi for new trial for

DE MEDINA V. GROVE.-Shee, Serjt. (with whom was V. Lee) shewed cause against rule nisi, for nonsuit or for a new trial, for misdirection. Watson, Q. C. (with whom was Corrie) contrà. Cur, adv. vult. GILLETT v. WHITMARSH.-The Solicitor-General and Lush shewed cause. The Attorney-General and Hoggins contrà. Cur, adv. vult. ROGERS v. BRENTON.-Further hearing fixed for Thursday week.

The Lord Mayor and Sheriffs came into court. Master Bunce was appointed attorney for the mayor, aldermen and commonalty. The usual invitation to dinner was given and accepted.

misdirection,

Byles, Serjt. (Phinn with him) now shewed cause.-
The direction of the learned judge was right. In the
first place, it is clear from the authorities that either
presentment for payment of a bill, or protest for non-
payment, or notice of protest or of dishonour, may all
be proved by admission; and in the next place, the
letters put in evidence proved such admission. In
Croxon v. Worthen (5 M. & W. 5), on an issue

joined in an action by indorsee against maker of a
promissory note, on the fact of presentment, a pro-

mise made by the defendant to pay the bill after it be-
the issue. To the same effect are Patterson v. Becher
came due was held to be prima facie evidence to prove
(6 Moore, 319); Gibbon v. Coggon (2 Camp. 188);
Greenway v. Hindley (4 Camp. 52); Booth v. Jacobs
(3 Nev. & M. 351); Wilkins v. Jadis (1 M. & Rob.
41); and Curlewis v. Corfield (1 Q. B. 814). So in
Brownell v. Bonney (1 Q. B. 39), due notice of dis
honour was allowed to be inferred by the jury from a
declaration by the defendant that he should pay the
bill and should not avail himself of the informality of
notice. The case of Burge v. Legge (5 M. & W. 418),
which was cited on moving for the rule, differs from
the present, as the evidence there was of what had
taken place before the bill became due, and was only
accordingly a dispensation of the necessity to give

notice.

Dowling, Serjt. in support of the rule, contended that the letters in the present case did not amount to an absolute admission of liability, but only a conditional one, dependent on the settlement of the transaction between the plaintiff and defendant as to the 501. and that therefore it was no such admission as fell within the principle of the cases which had been cited on the other side.

TINDAL, C. J.-It appears to me that this rule must be discharged. The action is brought on a foreign bill of exchange by the payee against the drawer; and the pleas are, first, that the bill was not duly protested for non acceptance; and, secondly, that the defendant had not due notice of the protest. The question is, whether the evidence which was offered by the plaintiff in support of the issue on these pleas was properly receivable, and the jury rightly directed as to the inference they might draw from them. I approve of both. The rule is rightly laid down in the case of Patterson v. Becher, which goes to the foundation of the present question. What Mr. Justice Richardson says in that case is, in my opinion, quite correct; where he says-"Even if the instrument in question had been properly declared on as a foreign bill, it has been decided in the case of Rogers v. Stevens that a promise to pay, after a bill or note becomes due, will dispense with proof of presentment and notice of dishonour. So it will dispense with the proof of protest, as it will amount to an admission on the part of the defendant that the plaintiff had a right to resort to him upon the bill. So in Legge v. Thorpe, it was held that if the drawer of a foreign bill of exchange had no effects in the hands of the drawee, and had no reasonable grounds toexpect that the bill would be honoured, a protest is unnecessary to charge such drawer." Now, in the present case, the question turns on the effect to be given to these letters. It seems to me

that the party writing them was conscious that he had had notice of the protest, or that he could not use it as an answer against the payment; for if a party is aware of an answer available to him, and instead of using it puts his refusal to pay upon a ground foreign to and different from that, it must be taken to be an admission by him that what was otherwise a good ground against his being liable does not in fact exist. Now, these letters, instead of mentioning the preliminary circumstance, that is to say, a want of notice of protest having taken place, mention only the defendant's readiness to pay the 1007. bill if the plaintiff will satisfy the defendant as to the 501. bill. They are silent altogether both on the fact of want of protest and want of notice; and, therefore, upon the authority of the case which I have cited, I am of opinion that they amount to an admission that both the protest and notice were given. The case of Wil. kins v. Jadis is also in point, and a stronger case than the present.

COLTMAN, J.-I am of the same opinion. If a promise to pay were necessary in the admission, it is said, on the part of the defendant, that this will not do, because it is only a conditional one; but a promise to pay is not necessary; it is sufficient if there is that admission of liability from which it may be inferred that notice of protest was duly given.

MAULE, J.-The case of Patterson v. Becher is expressly in point. The letter of the 12th October from the defendant, after referring to the bill of 501. which had not been explained to his satisfaction, speaks of two sides of an account, and as to the bill of 1007, the one now in question states only the particular mode in which the defendant says it shall be paid, that is to say, he insists only on his right to deduct the 501. bill out of it; although, therefore, the promise to pay may perhaps be conditional, yet the statement is unconditional as to the defendant's liability to pay on the bill. Now the defendant could not be liable on the bill, unless the bill had been protested, and notice of it duly given; therefore the admission as to liability must be an admission as to There is consequently no doubt that the these. question was properly left to the jury. ERLE, J. concurred. Rule discharged.

Wednesday, Nov. 12.

SMITH V. FREDERICK Nesbitt.

The defendant, the assignor of a judgment debt recovered against a beneficed clergyman, and in respect of which a writ of sequestration had issued, covenanted to pay the proceeds, which should be first realized and be at the disposition of the defendant under the sequestration, forthwith upon the receipt thereof, to the plaintiff. Moneys having been realized under the sequestration, it was held not to be a condition precedent to the defendant's obligation to pay, that the moneys had been received by the defendant.

a

The declaration was in covenant, and alleged that judgment had been recovered by the defendant against the Reverend Charles Wetherell, rector of Byfield, for a certain debt due to the defendant, and that a writ of sequestrari facias, directed to the bishop of the diocese, had been issued to sequester the profits of the benefice until the debt due to the defendant had been levied. The declaration also alleged that the debt on which such judgment had been recovered was in fact due to Henry Nesbitt, and that the defendant was only trustee thereof for Henry Nesbitt; and, after alleging that Henry Nesbitt was indebted to the plaintiff in 300l. and that the judgment debt due from the said Charles Wetherell had been assigned to the plaintiff as security for the same, set forth a covenant by the defendant with the plaintiff, his executors, administrators, and assigns, that he, the defendant, his executors or administrators, should and would pay over the first-fruits or proceeds which should be first realized and be at the disposition of the defendant, his executors or administrators, under or by virtue of the said sequestration, or on account of the said judgment debt so due as aforesaid from the said Charles Wetherell, forthwith upon the receipt thereof, to the said plaintiff, in part or full satisfaction, as the case might be, of the said sum of 300l. and interest thereon. The declaration then alleged that divers moneys, amounting to the sum of 400l., being firstfruits and proceeds, were realized, and were at the disposition of the defendant under and by virtue of the said sequestration, and on account of the said judgment debt so due as aforesaid from the said Charles Wetherell, which were sufficient to have paid and satisfied the debt due to the plaintiff. Breach: the nonpayment of the same or any part thereof to the plaintiff.

To this declaration the defendant demurred specially, on the ground that it was not alleged that the first-fruits or proceeds had been received by the defendant.

Byles, Serjt. (Cleasby with him), in support of the demurrer.-The covenant by the defendant is only to pay over the proceeds forthwith upon the receipt thereof; and therefore a receipt by the defendant of the proceeds was a condition precedent to his obligation to pay, and no such receipt is averred in the declaration.

It ap

[MAULE, J.-The covenant means, that as soon as in this case should be entered for the defendant.
money has been received under the writ of sequestra-Originally there was a good deposit of the deed, and
tion so as to be at the defendant's disposal, the de- there has since been nothing to invalidate it.
fendant will pay it to the plaintiff.] The sequestra- pears that in 1838 there was an acceptance of a bill
tor under this writ of sequestrari facias makes no for 1,000l. due from the bankrupt to the defendant,
return until he has received sufficient to satisfy the and which, according to the then existing state of the
debt, or he has received all that he can or is likely to law, was valid; such a discount as this then being a
receive; and it was therefore intended by the cove- legal transaction. When, therefore, the defendant
nant that the person should be liable to pay only on said he would allow no further time without further
actual receipt of the money under the sequestration. security, and the deed of assignment was conse-
TINDAL, C. J.-As soon as the sequestrator quently placed in his hands, he held a valid security
received the money, it was the business of the de- for the debt of 1,000l. The 1,000l. acceptance was
fendant to get it, and pay it over to the plaintiff, or afterwards renewed, but such renewals were made
otherwise the plaintiff might be prevented from without reference to the prior valid transaction. The
receiving it, through the defendant's own voluntary whole transaction was completed before the 2 & 3
Vict. c. 37, by which the provisions of the prior Acts,
exempting bills of exchange from the laws relating to
usury, are extended, with this proviso, that nothing
therein contained shall extend to the loan or forbear-
ance of any money upon security of any lands, tene-
ments, or hereditaments, or any estate or interest
therein. That statute does not appear to me to affect
any bygone transaction, and therefore the present
transaction stands as if that statute had not been
passed.

act.

Channell, Serjt. for the plaintiff, was not heard.
Judgment for the plaintiff.

BELL and OTHERS, Assignees, v. COLEMAN. The defendant, having discounted a bill of exchange at ten per cent. refused to renew it when it was due, without having further security; the party seeking to renew, thereupon, and prior to the statute 2 & 3 Vict. c. 37, deposited with the defendant an annuity-deed chargeable upon certain property in land, and several renewals of the bill subsequently from time to time were made: Held, that, independent of 2 & 3 Vict. c. 37, the deposit of the deed was not affected by the usury laws, and therefore was valid.

This was an action of trover brought by the plaintiffs, as assignees of John Lionel Hood, a bankrupt, to recover damages for the conversion of an indenture dated 16th day of March, 1830, and being an assignment to the bankrupt of an annuity of 100l., portion of an annuity of 5151. chargeable upon certain closes, fields, beds of rock-salt, salt-brine pits, works, and privileges specified in the deed. At the trial before Tindal, C.J. at the Middlesex sittings after Easter Term 1841, a verdict was found for the plaintiffs for 5,000l. damages, subject to the opinion of the Court upon a case, in which it appeared that on or about the 2nd May, 1837, the defendant discounted a bill for 5001. dated the same day, drawn by one Frederick Lock on, and accepted by, the bankrupt, payable three months after date, and for such discounting the defendant took 127. 10s.; and that on the 5th of the same month, the defendant discounted another bill for the like amount, and drawn and accepted in the like manner, and that for such discounting the defendant also received 127. 10s. These bills not being paid, were renewed by an acceptance by the bankrupt for 1,500l. the defendant giving a memorandum that it was only to secure 1,000l. Subsequently to this, and in February 1838, on the defendant requiring further security, it appeared that Lock, who was the solicitor to the bankrupt, and held for him the deed of assignment of the annuity for which this action was brought, deposited the deed of assignment" with the defendant as security for the 1,000l. so due to him. In March 1838, the bankrupt accepted a bill for 1,000l. drawn on him by Lock, in lieu of the former bill for 1,500l. and there were aftewards several

renewals of such 1,0007. bill, and on such renewal, as well before as after the deposit of the deed of assignment, the defendant charged and received interest at the rate of 10l. per cent. per annum. It being admitted that Lock had authority from the bankrupt to pledge the deed, the only question was, whether the pledge was valid by reason of the Statutes of Usury.

Channell, Serjt. (Petersdorff with him), for the plaintiffs, contended that the statutes of 3 & 4 Wm. 4, c. 98, s. 7, and 1 Vict. c. 80, and also 2 & 3 Vict. c. 37, which had rendered legal usurious interest taken upon bills of exchange, did not make this transaction legal, for here there had been renewals, which might be considered new loans, from time to time, and the last loan was made not only upon the bill of exchange but on the deed of assignment, or was, at all events, made in consideration of the defendant forbearing to sue upon the debt then due to him, and came, therefore, within the proviso of the last of those Acts, which provided that a loan or forbearance of money upon security of any lands, tenements, or hereditaments, or any estate or interest therein, should not be exempt from the Usury Laws.

The following cases were cited: Ex parte Knight, re Pownall (1 Deac. 459); Berrington v. Collis (5 Bing. N. C. 332); Hodgkinson v. Wyatt (4 Q. B. 749).

Talfourd, Serjt. (Crompton with him), contrà, contended that this was altogether independent of the statute 2 & 3 Vict. c. 37, as the last renewal of the bill was before the passing of that Act. The transaction was legalized by the prior statutes exempting bills of exchange from usury before that statute; and as there was existing a valid and legal debt on the bill of exchange from the bankrupt to the defendant, the taking a security afterwards could not invalidate it. Berrington v. Collis was a loan on the security of the leasehold property, and therefore differed from the present case. He relied on Doe dem. Haughton v. King (11 M. & W. 333), as being in principle an express authority in favour of the defendant. Channell, Serjt. replied.

reason given by my brother Parke, in Doe dem. Haugh.
COLTMAN, J.-I am of the same opinion. The
ton v. King, is conclusive as to this case. He there
says, "Where there is a bona fide discounting of a bill
of exchange or a promissory note (and the jury, by their
verdict, find that to have been the real transaction
between these parties), I think that, without referring
at all to the modern enactments on the subject of
usury, the transaction is legal; and as the discount-
ing of the note was a fair and legal transaction, the
collateral security given to protect it must equally be
valid."

ment.

owed 1,000l. on a bill of exchange, which the credi-
MAULE, J.-This is a case in which the debtor
tor had discounted. The debt was a lawful debt, and
the creditor had a right to insist on immediate pay-
should not call immediately for his money on his
That being so, it was agreed that the creditor
taking a deed of annuity as security for it. Now, the
2 & 3 Vict. c. 37, cannot invalidate this, because it
does not invalidate any bygone transaction; it is,
therefore, quite clear that the taking of this security
is not within the Usury Laws.
ERLF, J. concurred.

Judgment for defendant.

moved to enter verdict for defendant, or to reduce the
MARTINDALE v. FAULKNER.-Sir Thomas Wilde
amount found. Case cited: Lewis v. Primrose (13
Law J. N. S. Q. B. 269).

Rule nisi.

HEARNE U. TURNER.-Sir Thomas Wilde moved

for new trial on affidavits, on ground of surprise and
admission of an incompetent witness. Rule nisi.
SOUCH v. STRAWBRIDGE.-Sir Thomas Wilde
verdict for plaintiffs for 157.
moved to set aside verdict for defendant, and to enter
Compton (1 Smith's Leading Cases, 143).
Case cited: Peter v.

Saturday.

Rule nisi.

Wednesday, Nov. 5.

DOE dem. JOHN HALL T. WOOD.

New Trial-Ejectment—Administrator-The
be more than a mere permission to occupy tora.
presumption of a tenancy from year to year. :
This was an action of ejectment to recovere
belonging; and it appeared that the defendant
sion of a baker's shop, and other premises the
possession as the husband of the widow of c
liam Hull, who died in 1842. William Hall
Hotham, which expired in 1831, but he had esca
ginally taken the premises under a lease from
in possession up to the time of his death, para.
rent to Lady Hotham; and after his death t
(who afterwards married the defendant Wa
tinued in possession, she also paying the rea

Hotham.

On the 15th of March, 1844, letters of admit tion to the estate of William Hull were takes wat his brother John, the present lessor of the pla the demise being laid on the 26th of February, s having been made on behalf of the lessor of the plan two days before which time a demand of possess tiff, John Hull. At the trial, the plaintiff had a w dict.

M. Chambers, Q.C. now moved to enter a p and contended that John Hull had no right whe it was submitted there was no term here which to the premises; his claim was as administrator, vest in him. The lease had expired, and the had held by the permission of Lady Hotham. to year, John Hull would be entitled to it. PARKE, B.-Suppose this was a tenancy fro

Chambers. That might be, but here the in tenancy by the widow was not to the administ but with Lady Hotham, as the widow had a paid the rent to her, up to the time when the act was brought.

ROLFE, B.-Suppose this were a beneficial for one thousand years, at a peppercorn rent, c SNELLING v. GOURLEY.-Talfourd, Serjt. shewed be said that the administrator has lost his rig cause. C. Jones, Serjt. in support of rule.

Rule discharged.
moved for a new trial
PONTIFEX v. WILKINSON.-Sir Thomas Wilde
Cur. adv. vult.

Monday.
shew cause why it should not be referred to the
STILES . MEEK.-Byles, Serjt. obtained a rule to
Master to ascertain whether certain charges made by
Sheriff of Gloucester were, under 7 Wm. 4 & 1 Vict.
c. 55, reasonable and proper. Case cited: Slater v.
Haines (7 M. & W. 413)."

Tuesday.

Rule nisi.

ROBERTSON v. JACKSON.-Channell, Serjt. and
Shee, Serjt. (Bovill with them), for the defendant; Sir
Thomas Wilde (Wilde with him) for plaintiff.

Rule for a new trial; part heard.

REGISTRATION

APPEALS.

Tuesday, Nov. 11.

CITY OF LONDON.

CROUCHER, Appellant; BROWNE, Respondent.
Practice-Time for delivery of the paper-books.
Grove, in this case, and the other seven cases of

this by neglecting to take out letters of administrat for two years? The administrator was certain some time or other, tenant from year to year, do you get out of that?

Chambers.-Then I contend that the facts be had given up the term to the widow, or that set were sufficient to shew, either that the administra tenant from year to year to him, and therefore t six months' notice was required to determist 2 tenancy. Here there is a mere demand of pos which is not sufficient upon which to lay a demis a tenancy from year to year.

C

PARKE, B.-Here it is clear that the administrat on his taking out letters of administration, be possessed of a tenancy from year to year of premises. He sets this up as a prima facie | and it was for you to show the legal terminatio that tenancy, or that the widow was his sub-tea from year to year.

tion of the administrator.

Chambers. Then I contend that the paymen rent quarterly by the widow constituted her a tea from year to year to the administrator, and that fact of its being paid to Lady Hotham made no dife ence; that may be presumed to be done by the dire appeal from the revising barrister for London, applied case. It is said that Wood, the husband of the wi By the COURT.-There must be no rule in th that the judges' clerk might be allowed to receive the is tenant to Lady Hotham: that is not so; the w paper-books on behalf of the appellant. The books might have taken out letters of administration to had been tendered on Saturday last, but as Thursday husband; and if she had done so, the term H was the first day appointed for the appeals, the judges have vested in her: as she did not do so, John H clerk refused to receive them, there not being four as next of kin, did; and at that time be b TINDAL, C.J.-It appears to me that the verdict The case had been entered in time, and it was sub- it can make no difference whether this was a ben clear days before the day appointed for argument. a right immediately to demand possession;

cial lease at a peppercorn rent, or a tenancy
om year to year, at a rack rent. This being so,
bat has he done to alter this state of circumstances,
and divest himself of this immediate right to posses-
on ? Can it be inferred that there was an under-
ase from John Hull to the widow? We think not.
here was a mere permission to occupy. The plain-
ff proved a prima facie case, by shewing his legal
tle, and a demand of possession; and it was for the
fendant to rebut this case. That he did not do.
ichardson v. Langridge (4 Taunt. 128) is a valuable
se to shew that the widow gained no tenancy from
ar to year by the permission to remain in the
use, but at most a tenancy at will. It is clear that
ere must be something more than a mere permis-
on to occupy to raise the presumption of a tenancy
>m year to year.
Rule refused.

Thursday, Nov. 6.

DE dem. HUTCHINSON . THE MANCHESTER,
BURY and ROSSENDALE RAILWAY COMPANY.

railway company having offered a price for land
which they were authorized by their Act to take, and
called on the owner to make out his title, he refused
to do so. They then had the value assessed by a
jury, and without any fresh notice to make out his
title, they paid the money found by the jury into
Chancery, and took possession of the land.
eld, in ejectment by the owner that he was entitled to
a notice after the assessment by the jury, and that
the Company had failed to comply with the requisites

of their Act.

Baines, to set aside the verdict for the plaintiff,

d enter a verdict for the defendants. The

estion turned upon the construction of clauses the Company's acts, and occurring in all railway ts, with respect to the mode of acquiring possession the Company, when they cannot agree with the ndowner as to the price of his land. The company id offered the plaintiff a price for his land, and

lled on him to make out his title. He refused to cept the price, or shew any title. The Company en had a jury summoned, and an assessment took ace, when the jury found the land to be of a higher due than the Company had offered. The Company en, without again calling on the plaintiff to make out a tle, paid the money into Chancery, and took possession the land. The learned judge was of opinion on e trial that the plaintiff was entitled to a fresh otice to make out his title after the assessment, and at until such notice had been given, and refusal ade, the defendants were not entitled to possession pon merely paying the money into Chancery, and ie plaintiff had a verdict.

The COURT were of the same opinion.

Rule refused. HUGHES v. BUCKLAND. Right of fishery-Seizing nets-Notice of action. Jervis, to set aside verdict for defendant, and enter t for plaintiff, with 51. damages. Action for assaulting the plaintiff and seizing his shing-nets.

The question was concerning a right of fishery, laimed by one, under whose orders the defendant was cting. The learned judge, Parke, B. at the trial, eft it to the jury to say whether the defendant's maser had a fishery where the nets were seized, and also whether he believed he was acting with bona fides. They ound against the fishery, but found the two last questions in the affirmative. The learned Judge then uled that the defendant was entitled to the protecion of the statute 7 & 8 Geo. IV. c. 29, and ought to have had notice of action, and also that the action should have been brought in the county where the Assault took place.

This ruling, it was now argued, was wrong.
Cases cited-Blatchford v. Kemp (1 H. Bl.);
Greenway v. Hind (4 T. R. 55); Daniel v. Wilson (5
F. R.); Weller v. Toke (9 East, 364); Prestige v.
Woodman (1 B. & C. 12); Wedge v. Berkeley (6 A.
& E. 66); Butler v. Ford (1 C. & M. 162); Bush v.
Green (4 Bing. N. C. 41); Jones v. Williams (3 B. &
C. 762); Leinster v. Borrow (1 P. & D.); Hopkins v.
Crow (4 A. & E.); Currie v. Clipperton (10 A. &
E.); Jones. Gooding (2 M. & W. 736); Davey v.
Warne (Law T. Court of Exchequer, 29 May, 1845).
Rule nisi.

Friday, Nov. 7.

DRAPER v. CROFTS. New trial. This was an action brought against Crofts and one Bartlet, for the use and occupation of certain premises. Bartlet let judgment go by default. At the trial against Crofts, it appeared that Crofts had joined with Bartlet in taking a lease of the premises in question, for a specific demise of three years, Bartlet alone occupying them. After the expiration of this term, Bartlet held them over for three quarters of a year, and the question was whether Crofts (who it was admitted, was not cognizant of Bartlet's holding over) was liable for this holding over of his joint lessee. The plaintiff having had a verdict, Greenwood now moved for a new trial on the ground of misdirection, and that the verdict was against evidence.

Cases cit d, Hirst v. Horn (6 M. & W. 393);
Rule nisi.
Harding v. Easthorn (1 Esp. 57).

GOODEN v. HANNE.
New trial.

This was an action on a promissory note; verdict
for the defendant.

Fish now moved for a new trial; and it appeared
that at the trial the case was taken as undefended,
and a witness (a clerk) called to prove the defend-
ant's handwriting. He stated that a person came
to his master's office, who called himself James Hanne,
and signed the note; but on cross-examination by the
learned judge who tried the cause, he stated that he
never saw the person before, and did not, in fact,
know that he was the party declared against. The
learned judge thereupon left it to the jury to say
whether they were satisfied as to the proof that
it was the defendant's handwriting to the note, and
they found for the defendant. This, it was submitted,
was a misdirection, as a prima facie case had been
proved for the plaintiff, which it was for the defendant
to rebut.
Cases cited: Rodil v. Ride (4 Q. B.626); Sewel v.
Evans (ib.).
Rule nisi.

BROWN and OTHERS v. WILKINSON.
New trial.

This was a writ of inquiry before the secondary,
damages 1367.; and it appeared that the plaintiffs
were the owners of a steam-ship called the Aberdeen,
which had been run down by a brig belonging to the
defendant, and injured to the amount of the verdict
found by the jury. It further appeared that at the
same moment at which the steamer received this in-
jury, the brig was also so much injured as to sink
immediately.

Fish now moved for a new trial, on the ground that
as the defendant had lost his vessel by a blow re-
ceived at the same moment that the injury was given
to the plaintiff's steamer, he was protected by the
"Act to limit the responsibility of Shipowners'
(53 Geo. 3, c. 159); for under that Act compensation
for the damage done could only be recovered to the
amount of the value of the defendant's vessel, which
in this case had been lost. [ALDERSON, B.-But
the value of the defendant's vessel must be taken at
the time it did the injury to the plaintiff's vessel.]
Admitting that to be so, what was its value at that
time? Clearly not one farthing, for it received its
death-blow at the same moment that it injured the
plaintiff's vessel.

Case cited: Wilson v. Dickson (2 B. & Al. 2).
Rule nisi.

HURLY V. BAKER.
Motion to set aside a nonsuit.
This was an action for money had and received, to
recover 100l. which had been paid as a deposit on the
intended purchase of an estate; and it appeared that
the plaintiff having entered into negotiations for the
purchase of an estate of one Salter, deposited 1007. with
the defendant, as agent of Salter, and at the same time
a memorandum of agreement was signed by Hurly
and Baker, whereby Baker agreed to sell the said
estate to Hurly, the plaintiff, on various conditions
(on which nothing turned); and it was further agreed
that all the parties should sign a contract for carrying
the same into effect. At the trial the receipt of the
money by Baker was clearly proved, and an attorney
of the name of Gribble was called, to shew that the
contract for the purchase was mutually abandoned,
and that the estate had been sold to another party.
On cross examination, however, he stated that a
contract had been signed, in pursuance of the memo-
randum of agreement, when it was objected that it
must be produced; this not being done, the plaintiff
was nonsuited.

Kinglake, Serjt. now moved to set aside this non-
suit, on the ground that the only question in the cause
was, whether the estate had been sold by Baker (as
agent to Salter) to the plaintiff. Now it was clear,
from the evidence of Gribble, that the bargain was
off, and that the estate had been sold to another
party, and therefore the plaintiff was clearly entitled
to recover back his deposits, on shewing that the
negotiations for the purchase was at an end.

By the COURT.-We think there should be no rule
here. It is clear that the memorandum contem-
plated a contract. and you should have produced that
contract to shew that you were entitled to have the
money returned. It was proved by the witness
How do
Gribble that a contract had been signed.
we know but that it provided that in the event of the
purchase going off, the 100l. was to be forfeited?
Rule refused.

EDWARDS AND ANOTHER v. RANDLE.
Channel, Serj. and M. Chambers, Q.C. obtained
cross rules in this case. The one nisi for a new trial,
and the other to increase the damages.

Rules nisi accordingly.

LILYWHITE V. DEVEREAUX.
This was an action brought to recover certain
rent, and also the price of certain articles of furni-
ture alleged to have been sold to the defendant. A ver-
dict having been found for the plaintiff, damages 921.

HART V. PRENDERGAST.
Statute of Limitations-Fresh promise.
Lush, to enter verdict for defendant.
Plea-Statute of Limitations.

The question was, whether the following letter was sufficient to take the case out of the statute :

"Sir, having no longer any connection with the excise, I only this day received your note, which will account to you for my apparent remissness in not either calling on you, or earlier replying. I assure you I will not fail to meet Mr. H. on fair terms, and I have now a hope that before a week from this date I shall have it in my power to pay him a portion of the debt, and then we can settle about the liquidation of the balance. Case cited: Morrell v. Frith (3 M. W. 402). Rule nisi.

BUSINESS OF THE WEEK.

PRATT v. HAWKINS.
Statute of Limitations-Alias and pluries writs.
Russell Gurney for a nonsuit or new trial, or to
amend the nisi prius record at the cost of the plaintiff

or his attorney.

The question was, whether the successive writs had been properly entered of record, so as to save the Statute of Limitations, according to the Uniformity of Process Act. Case cited: Whittlev. Manby (1 M. & W.)

Rule nisi. PITCH v. TUTING and OTHERS.—· to reduce the damages to a shilling, or enter verdict for defendants. Rule nisi. MEARING V. HELLING.-Humfrey, to enter verdict for plaintiff, or for judgment non obstante veredicto. Rule refused. GIBBS v. RALPH.-Shee, Serj. to stay proceedings. Rule nisi. SQUIRE and ANOTHER v. WHITBREAD.-Martin, for a new trial, on the ground of misdirection. Rule refused. STACEY . HENLEY.-Barstow, for a new trial on affidavits. Rule nisi. ROTHERY v. TOPPING.-M. Chambers, for a new trial, on the ground of misdirection, improper reception of evidence, and verdict against evidence.

Rule refused on the two first grounds; on the last cur, adv. cult. GORMAN . BODY.-F. Robinson, to set aside a nonsuit, and for a new trial. Rule refused. JOHNSON . LEWIS.-Locke, for a new trial, on the ground of a perverse verdict. Rule nisi. THOMAS v. GREEN.-Smithies, to set aside exe. cution. Rule nisi. HARRISON . RoscoE.-Atkinson, to set aside verdict for plaintiff, and, pursuant to leave reserved, to enter a verdict for defendant.

Rule nisi. RAE and ANOTHER v. DANIELS.-Peacock, to set aside verdict for plaintiff and enter it for defendant.

Thursday.

Rule nisi. Part heard. Part heard.

SMITH V. HOLMES.
INGRAM v. HARRIS.
The Court rose at half-past one to prick the
sheriffs.

FARRINGDON v. FARRINGDON.-M. D. Hill,
for a rule to enter a verdict for the plaintiff. Rule nisi.
FLIGHT V. SEABROOK.-Crowder, for a new trial.
Rule refused.

Friday.
CROWTHER V. ELKINTON.-M. Chambers, Q.C.
Cur, adv. vult.
moved for a new trial.
TAYLOR v. DAVIS.-Crowder, Q.C. moved to set
aside the nonsuit in this case on affidavits.
Rule nisi.
NORTON T. EDGELEY.-Martin, Q.C. moved to
set aside the verdict on the ground of rejection of
evidence, and on affidavits.
Rule nisi.
MAYOR OF POOL v. WHITT.-Cockburn, Q.C.
moved for a new trial, on the ground of surprise.

Rule nisi.
BROMHEAD v. HALL.-Cockburn, Q. C. moved
for a new trial, on payment of costs, on the ground of
Rule nisi.
discovery of evidence.
KYNASTON and OTHERS v. DAVIS.-Cockburn,
Q.C. moved to enter a nonsuit. Cur. adv. vult.
MARROW v. CHAPPLE.-Knowles, Q.C. moved
for a new trial, on the ground of misdirection.
Rule nisi.
DUKE OF PALMELLA V. THE SOUTH-WESTERN
RAILWAY COMPANY.-M. Chambers moved for a
new trial.
Cur. adv. vult.
Saturday.
PYLE . PARTRIDGE.-Cockburn, for a new trial.
Cur. adv. vult.
KNIGHT . THE MARQUIS OF WATERFORD.-
Watson, to set aside verdict for defendant and for
new trial.
Rule nisi.