INSOLVENT DEBTORS.

INSURANCE.

INTERPLEADER.

I. What a sufficient Notice of Claim. 1. Quære, whether a notice from the solicitor that a fiat has issued against a party whose goods are in execution in the sheriff's hands, is a sufficient claim to entitle the sheriff to apply for relief under the interpleader act. Tarleton v. Dumelow, 843.

2. Quære, whether such an application should not, in vacation, since the 1 & 2 Vict., c. 45, s. 2, be made to a judge at chambers. Ib.

II. Costs of Motions under the 1 & 2 Will. 4, c. 58.

In an action against an auctioneer to recover back a deposit, the vendor claining to be entitled to the money, the defendant obtained a rule under the interpleader act. The third party subsequently abandoning his claim:-Held, that the defendant, having acted bonâ fide, was entitled to his costs out of the fund-the plaintiff having a remedy over against the third party. Pitches v. Edney, 582.

IRREGULARITY.

See Costs, I. 1.

ISSUABLE PLEA.

See PLEADING, V.

JOINT STOCK COMPANY. See DEED.

LANDLORD AND TENANT. 915

JUDGMENT.

I. Signing Judgment.

1. At a quarter past eleven on the morning after the time for pleading had expired, the defendant's attorney called at the office of the plaintiff's attorney, in Buckingham Street, Strand, for the purpose of delivering a plea. Being informed that a clerk had just gone to the Temple to sign judgment, the defendant's attorney hastened thither, and arrived at the office just as the judgment had been signed-Held, that the judgment was regular. Stafford v. Nicholls, 577.

2. A judgment signed on the morning after the time for pleading has expired, whilst the parties are attending a judge on a summons for time to plead returnable before the judgment is actually signedis irregular. Abernethy v. Paton, 586.

II. Entering and Docketting.

A rule for entering and docketting the judgment must be addressed to the party, and not to the attorney. Engler v. Twysden, 580.

III. As in Case of a Nonsuit.

Issue was joined in Trinity Vacation, and an insufficient notice of trial given for the adjourned sittings after Trinity Term; the defendant refusing to accept the notice, a second notice was given for the first sitting in this term: the plaintiff not proceeding to trial pursuant to this notice, the defendant in the same term moved for judgment as in case of a nonsuit:-Held, too soon. Clarke v. Goldsmid, 894.

LANDLORD AND TENANT.

I. Relative Rights and Duties. The declaration in an action by a landlord against his tenant, charged the latter with a breach of duty in not cultivating land in a good and husbandlike manner, and according to the custom of the country, in this, that he (amongst other things) contrary to the custom of the country, carried away hay without returning a proportionate quantity of manure. The defendant, as to so much of the declaration as charged him with carrying away the hay contrary to the custom of the country, pleaded that no such custom existed as

916 LANDLORD AND TENANT.

that alleged-Held, good on special demurrer. Hartley v. Burkitt, 497.

II. Covenant to Repair.

In covenant for non-repair of premises demised, it is competent to the defendant to shew the general state and condition of the premises at the time of the demise, but not to go into matters of detail. Young v. Mantz, 277.

LEASE.

I. What passes under “Appurtenances.”

1. In October, 1728, an ancestor of Lord Grosvenor made a lease for 97 years of certain ground to B. and A., which would expire at Lady-Day, 1824. In June 1799, the mother of the plaintiff became possessed of a portion of the ground (upon which a messuage had in the meantime been erected,) for 21 years; and in July, 1819, Lord Grosvenor, in whom the reversion in fee of the premises demised by the indenture of October, 1728, was then vested, demised the same with the appurtenances, to the plaintiff and his mother for 57 years from Lady-Day, 1824. The lease of July, 1799, under which the plaintiff's mother was in possession at the time of the execution of the lease of July, 1819, would expire at Midsummer, 1820: under that lease the plaintiff's mother and those under whom she claimed had for more than thirty years enjoyed a right of way over a passage adjoining their premises on the east side, for the purpose of using a coal-shoot therein, and for the purpose of repairing the eastern wall of the house and certain pipes for the conveyance of water to and soil from the house; all which (according to the finding of the jury) were necessary for the convenient and beneficial use and occupation of the messuage. At the time this lease was granted the possession of the soil of the passage was in Lord Hampden by virtue of an indenture of assignment of March, 1793, to expire at Lady-day, 1824. In September, 1822, Lord Grosvenor granted to Lord Hampden a reversionary lease of the soil of the passage in question (amongst other premises), to commence at Lady-day, 1824, for 61 years. The defendant was assignee of that lease:Held, that, at the time of the expiration of the original ground-lease at Lady-Day, 1824, there was no unity of possession in

LETTERS.

Lord Grosvenor both of the plaintiff's messuage and of the soil of the adjoining passage; but the several and distinct possession of the messuage in the state in which it had been before held, was continued in the less es named in the lease of July, 1819. Hinchliffe v. The Earl of Kinnoul, 650.

2. Held also, that the right of passing and repassing over the soil of the passage, and using it for the purposes above mentioned, passed to the lessees under the lease of July, 1819, as a necessary incident to the subject-matter demised. Ib. II. Implied Covenants.

Under the word "demise" is implied as well a covenant for title as a covenant for quiet enjoyment; but the whole is qualified and restrained by a subsequent erpress covenant for quiet enjoyment. Line v. Stephenson, 447.

[Atfirmed on error in the Exchequer Chamber-see 7 Scott.]

III. Proviso for re-entry in case of Insolvency.

The defendant held premises under a lease containing a proviso for re-entry by the lessor in case the lessee should become bankrupt or insolvent, or his term or interest in the premises should be taken in execution for any debt. The defendant took the benefit of the insolvent debtors act in January, 1836. This forfeiture was waived by the acceptance of rent by the lessor down to Christmas, 1837. In ejectment for breach of the condition, the demise being laid on the 26th January, 1838:-Held, that evidence that the debts enumerated in the defendant's schedule remained unsatisfied, and that the defendant had contracted a new debt, which he had been asked to pay, and had not paiddid not shew a continuing "insolvency," so as to constitute a breach of the condition. Doe d. Gatehouse v. Rees, 161. And see LANDLORD AND TENANT.

LEAVE AND LICENSE.

A plea of leave and license to erect and maintain a wall upon a given spot, is not supported by proof of a license to erect only. Alexander v. Bonnin, 611.

LETTERS.

See EVIDENCE, V.

LETTERS PATENT.

LETTERS PATENT.
See COVENANT, I. 1.
LIBEL.

Partial Justification.

To an action for a libel asserting that the plaintiff's vessel (which was advertised to convey passengers and freight to India) was unseaworthy, and had been sold to the jews to take out convicts, the defendant put in a plea justifying the charge of unseaworthiness:-Held, bad on demurrer, inasmuch as it left unanswered a material part of the charge. Ingram v. Lawson, 775.

LICENSE.

See LEAVE AND LICENSE.

LIEN.

One W., the master of a vessel belonging to the defendants, on the eve of a voyage, in consideration of an advance of 50l., by a memorandum dated the 23rd December, 1836, "made over to them as their property until the sum advanced should be repaid, his chronometer and all his nautical instruments then on board the vessel, they allowing him the use of the same for the voyage." The chronometer was at this time in the hands of the makers for safe custody and regulation: the transfer or charge was not communicated to them. W. used the chronometer for the voyage, and returned it to the makers as before, and afterwards pledged it to the plaintiff as security for a debt :Held, upon an issue under the interpleader act to try the property in the chronometer, that it vested in the defendants under the agreement of the 23rd December, 1836, until the advance was repaid. Reeves v. Capper, 877.

And see PAWNBROKER.

LORD MAYOR'S COURT.

Practice of.

1. In assumpsit for money had and received, the defendant pleaded a recovery against him of the debt sued for, by foreign attachment in the Lord Mayor's Court, London, in which attachment one Tyrie was the plaintiff, the present plain

MASTER AND SERVANT. 917

tiff defendant, and the present defendant garnishee; the plea setting out the custom as to foreign attachment, the material part of which was, that, after pledges found by the plaintiff in foreign attachment, and execution had and executed of the monies in the hands of the garnishee, the latter was discharged as against the defendant of the sum so attached and had in execution that the custom was confirmed by act of parliament-and, after setting out all the proceedings in the Mayor's Court, concluded with an averment that T. thereby had execution of the said sum, and then and there acknowledged himself satisfied, as by the record more fully appeared. The plaintiff replied, that he never had notice of the proceedings in the plea mentioned, that T. had not execution of the said sum according to the custom, that the monies of the now plaintiff in the hands of the now defendant were never had in execution as by the plea supposed, that no execution founded upon the said supposed judgment in the plea mentioned was ever executed, and that the now defendant paid the money, if ever it was paid, without compulsion and by connivance and collusion with T. The defendant thereupon joined issue. At the trial it was proved that no writ or precept of execution was issued or executed in the cause, or served upon the defendant in the foreign attachment, or on the garnishee, the now defendant:Held, that the custom does not require that any notice of the proceedings in the Mayor's Court should be given to the defendant in the attachment; and that the allegation in the replication, that there was no execution had and executed pursuant to the custom, was a good answer to the plea, and, being proved, was a complete defence to the action. Magrath v. Hardy, 627.

2. The partner of the attorney for the garnishee in the Mayor's Court is a competent witness to prove the custom, and the course of proceeding in the particular Ib.

cause.

LUNATIC.

See EVIDENCE, V.

MASTER AND SERVANT.

1. To a count in assumpsit for the

918 MASTER AND SERVANT.

breach of an agreement to continue the plaintiff in the employ of the defendants (members of a company) as an accountant, the defendants ple ded, that the plaintiff received monies of the company for which he neglected to account-that he made wrongful and improper payments on account of the company-that he made false, fraudulent, and improper entries in the books and accounts, and rendered false, fraudulent, and fabricated accounts of pretended payments-that he made false, fraudulent, and fictitious representations of things done by him as accountant that he refused to obey the commands of the defendants-that his accounts were so incorrectly, unskilfully, and improperly kept as to be utterly valueless to the defendants--and that he was unfit and incompetent to perforin the duties of an accountant. The plaintiff replied de injuriâ. At the trial the defendants proved that the plaintiff had made false entries in the books and accounts of the company, and had concurred with certain of the directors in making false representations as to the state of the company's affairs; wherefore the defendants discharged the plaintiff from their service-Held, that, the several allegations of misconduct in the plea being distinct and independent, the defendants, on proof of enough to justify their putting an end to the contract, were entitled to the verdict. Baillie v. Kell, 379.

2. Held also, that the fact of their having, at the time of dismissing the plaintiff, assigned a totally different reason for so doing, did not preclude the defendants from setting up the alleged acts of misconduct as a defence at the trial.

Ib.

3. To a common count for work and labor as an accountant, the defendants pleaded non assumpsit, and payment. It appeared that 1807. had been received by the plaintiff on account of salary :-Held, that the defendants were entitled to shew, in reduction of damages, that the plaintiff's conduct had been fraudulent, and that the sum received by him covered the actual value of his services, although there was no plea of fraud. Ib.

MERITS.

See BAIL, II. 1.

MISREPRESENTATION.

See SURETY.

NOTICE.

MONEY HAD AND RECEIVED. See INSOLVENT DEBTORS, II.

MORTGAGE.

I. Proof of Consideration.

On the transfer of a mortgage for 10,000l., with an additional advance of 4.0007., it was proved that the 10,000L were paid in bank-notes by the transferree to the original mortgagee by the direction and in the presence of the mortgagor, and the 4,000l. by a cheque to the mortgagor, as to which there was no proof that it was honored:-Held, that the payment of the 10,000l. was a sufficient consideration as against one claiming under a voluntary settlement. Doe d. Barnes v. Francis Roe, 525.

II. Stamp on Transfer.

On the transfer of a mortgage, with an advance of an additional sum:-Held, that an ad valorem stamp applicable to the additional advance is sufficient under the 3 Geo. 4, c. 117, s. 2, without any 17. 15s. transfer stamp. lb.

NEGLIGENCE. See ATTORNEY, II.

NEW TRIAL. See ATTORNEY, II.

NOLLE PROSEQUI.

Where a nolle prosequi is entered on a plea going to the whole cause of action, the defendant is entitled to judgment upon the whole record. Peters v. Croft, 897.

NONSUIT.

Judgment as in Case of-See PRACTICE, IX.

NOTICE.

I. Of Action, under 5 & 6 Will. 4, c. 10.

By a railway act, it was provided that no action should be brought against any person for any thing done or omitted to be done in pursuance of the act, or in the execution of its powers or authorities, unless twenty days' previous notice in writing should have been given by the party intending to commence and prosecute such action, to the intended defendant,

1. The court allowed the plaintiffs to amend their particulars, in au action for money had and received by the defendant whilst in their employ as clerk or agent at Mexico, by the insertion of fresh items arising within the period embraced by the former particulars, though ten years had clapsed-it appearing that the plaintiffs had been deluded by an account rendered by the defendant himself. Staples v. Holdsworth, 605.

2. In any case in which the plaintiff (in order to avoid the expense of a plea of payment) shall have given credit in the particulars of his demand for any sum or sums of money therein admitted to have been paid to the plaintiff, it shall not be necessary for the defendant to plead the payment of such sum or sums of money. Reg. Gen., Trinity, 1 Vict., 353.

3. But this rule is not to apply to cases where the plaintiff, after stating the amount of his demand, states that he seeks to recover a certain balance, without giving credit for any particular sum Ib.

or sums.

court compelled him to furnish particulars of the alleged payments. Ireland v. Thompson, 601.

IV. Of objections to a Patent under the 5 & 6 Will. 4, c. 83. s. 5-See PATENT.

PATENT. Particulars of Objections under 5 & 6 Will. 4, c. 83, s. 5.

Particulars of objections to a patent, under the 5 & 6 Will. 4, c. 83, s. 5, must be such as to convey to the plaintiff fair and reasonable information, and more definite than that conveyed by the defendant's pleas. Fisher v. Dewick, 587.

PAWNBROKER.

1. Where a pawnbroker is guilty of a violation of the statute 39 & 40 Geo. 3, c. 99, s. 6, by omitting to make the entries or to insert in the duplicates the result of the inquiries therein directed to be made, the contract of pledge is altogether avoided. Fergusson v. Norman, 794.

2. No lien is acquired by the pawnbroker under a contract so made. Ib.

PAYMENT.

I. Protected Payments-See Bankrupt.

II. Under Process of a Court.

The defendants sued one Shepherd in the Boston Borough Court; the latter deposited with the sheriff the amount of the debt and 107. for costs, under the 43 Geo. 3, c. 46, s. 2; the money was paid into court on the 13th September; on the 23rd, the plaintiffs in that action obtained the money under an order of the court, Shepherd having failed either to put in bail or to pay in an additional 10/. under the 7 & 8 Geo. 4, c. 71, s. 1; on the 28th a fiat issued against Shepherd, upon an act of bankruptcy committed on the 9th: -Held, that, notwithstanding the money was paid into court after the act of bankruptcy, the assignees of Shepherd could not recover it back; the creditors' right to it becoming complete on the debtor's failure to observe the conditions upon which he would have been entitled either to withdraw the money or to retain it in court to abide the event of the suit, and the payment having been made under the order of a court of competent jurisdiction. Reynolds v. Wedd, 699.