Wil-
910

father of the pauper was not settled in the
appellant parish in 1815, because the father's
settlement was a matter that arose collate-
rally on the trial of the first appeal. The
King v. The Inhabitants of Knaptoft, E. 5
G. 4.
883
23. Where, in case, a plaintiff alleged in his
declaration that he was possessed of a mes-
suage and premises, and by reason thereof
entitled to the use of a stream of water run-
ning through the premises for supplying the
same with water; and that defendant erected
a certain dam higher up the stream, and
thereby prevented the water from running in
its usual course, in its usual calm and smooth
manner, and thereby the water ran in a dif-
ferent channel, and with greater violence,
and injured the banks and premises of the
plaintiff; and on issue joined on a plea of not
guilty, the jury found that the plaintiff's
banks and premises were not injured by the
dam erected by the defendant; but added,
that defendant had no right to stop the water
in the summer-time; the Judge ordered the
verdict to be entered for the defendant :
Held, that the verdict was right, for flowing
water is publici juris, and an individual can
only acquire a right to it by appropriating so
much of it as he requires for a beneficial
purpose, and therefore, the plaintiff could
not recover damages for the mere erection
of a dam, but was bound to allege and prove
that he had sustained an injury from he
want of a sufficient quantity of water.
liams v. Morland, E. 5 G. 4.
4. Trespass for breaking and entering the
plaintiff's close. Plea, prescribing in right
of a messuage and land for a right of com-
mon of pasture on a down or common. where-
of the close, &c., before the wrongful sepa-
ration thereof was parcel, and justifying the
trespass, because the close in which, &c.,
was wrongfully enclosed and separated from
the residue of the common. Replication,
that the close in the declaration mentioned.
in which, &c., was a close called Burgey
Cleave Garden, and had for thirty years and
more been separated, and divided, and en-
closed from the common, and occupied and
enjoyed during all that time in severalty and
adversely to the persons holding the mes-
suage and land, in respect of which the right
of common was claimed. Rejoinder, that
the close in which, &c., had not been occu-
pied or enjoyed for thirty years or upwards
in severalty or adversely to the person hold-
ing the messuage and land, in respect of
which the right of common was claimed.
The jury found that part of the garden had
been enclosed within the thirty years, and
that the alleged trespass was committed in
that part of the garden only: Held, that
upon this finding the defendant was entitled
to the verdict, because the words of the issue,
the close in which, &c., was either an entire
or a divisible allegation; if it was an entire
allegation, it comprehended the whole of the
enclosure to which the name of Burgey
Cleave Garden attached, and in that case
the plaintiff was bound to prove that the
whole of the garden had been enclosed up-
wards of thirty years; or if it was a divida-
ble allegation, it was confined in its meaning
to that spot in which the trespass had been
committed; and the jury having found that
VOL. IX.

54

1. The owner of a freehold house, in which
there were various fixtures, sold it by auc-
tion. Nothing was said about the fixtures.
A conveyance of the house was executed,
and possession given to the purchaser, the
fixtures still remaining in the house: Held,
that they passed by the conveyance of the
freehold; and that even if they did not, the
vendor, after giving up the possession, could
not maintain trover for them. A few arti-
cles, which were not fixtures, were also left
in the house; the demand described them
together with the other articles, as fixtures,
and the refusal was of the fixtures demanded:
Held, that upon this evidence the plaintiff
could not recover them in this action. Cole-
grave v. Dias Santos, T. 4 G. 4.

76

2. Lessee, who has erected fixtures for the
purpose of trade upon the demised premises,
and afterwards takes a new lease to com-
mence at the expiration of his former one,
which new lease contains a covenant to re-
pair, will be bound to repair those fixtures,
unless strong circumstances exist to show
that they were not intended to pass under the
general words of the second demise.

Quære, whether any circumstances dehors
the deed can be alleged to show that they
were not intended to pass?

Quære, whether lime-kilns erected for the
purpose of trade are removable? Thresher
v. The East London Waterworks, H. 4 & 5
G. 4.
608

FORFEITURE.

Where a lease contained a proviso, that if the
rent was in arrear for twenty-one days, the
lessor might re-enter, although no legal or
formal demand should be made:" Held,
that the rent having been in arrear for the
time specified, an ejectment might be main-
tained without actual re-entry and without
any demand of the rent. After trial the
court will not relieve the tenant by staying
proceedings in the ejectment, upon payment
of the arrears of rent and costs. Doe dem.
Harris v. Masters, M. 4 G. 4.
490

FRAUDS, STATUTE OF.
1. A. went to the shop of B. and Co., linen-
drapers, and contracted for the purchase of
various articles, each of which was under the
value of 101., but the whole amounted to 70%.
A separate price for each article was agreed
upon; some A. marked with a pencil, others
were measured in his presence, and others
he assisted to cut from larger bulks. He
then desired that an account of the whole
might be sent to his house, and went away.
A bill of parcels was accordingly sent, to-
gether with the goods, when A. refused to
accept them: Held, first, that this was all
2N2

ceeds in payment of these expenses: Held,
that the underwriter was not answerable for
this loss. Sarquy v. Hobson, T. 4 G. 4. 7
2. In covenant upon a policy of insurance upon
the life of A., payable six months after due
proof of his death, the assured are not enti-
iled to recover interest upon the principal
sum insured, from the expiration of six
months after due proof of the death of A.
Higgins v. Sargent, Esq., and Others, M. 4

G. 4.
348
3. Where a ship is so much injured by perils
of the sea as not to be repairable at all, or
not repairable without an expense exceeding
her value when repaired, the assured may
recover for a total loss without giving notice
of abandonment. Cambridge v. Anderton,
E. 5 G. 4.
691
INTEREST.

See INSURANCE, 2.
JUDGE'S CERTIFICATE.
See COSTS, 2, 6.

JURISDICTION.

1. The Court of Admiralty have, in a cause of
possession, jurisdiction to take a vessel from
a mere wrongdoer, and to deliver it to the
rightful owner; and, therefore, where it ap-
peared upon a rule nisi for a prohibition to
restrain the Admiralty Court from proceed-
ing in a cause of possession, that the proctor
for the defendants had merely asserted them
to be owners generally, and the other party
had put in an allegation, by which it appeared
that he was the registered owner, and that
the vessel had wrongfully come into the
possession of the defendants, and the latter
had not pleaded any title, the court dis-
charged the rule for a prohibition. In the
Matter of Blanshard, Baxter, and Others,
T. 4 G. 4.

JURY.

244

1. Prisoners committed to jail for trial, who
are able but refuse to work, are not entitled
by law to have any food provided for them
by the public; and, therefore, where a
magistrate reported, as an abuse, to the jus-
tices at the quarter sessions, that untried
prisoners had been compelled to work at the
treadmill, and the justices at sessions or-
dered that the treadmill should be applied 'o
the employment of other prisoners as well
as those sentenced to hard labour; and that
those committed for trial who were able to
work, and had the means of employment
offered them by which they might earn their
support, but who refused to work, should be
allowed bread and water only, this court re-
fused to grant a mandamus to compel the

justices to order such prisoners any other
food. The King v. The Justices of the North
Riding of Yorkshire, M. 4 G. 4.

286

2. In assumpsit for money had and received,
it was proved that Yarmouth has been a
borough from time immemorial, and that
until the time of Queen Anne, the chief offi.
cers of the corporation were two bailiffs; and
various charters had confirmed to them all
the fees before received by them. By statute
1 Ann. st. 2, c. 7, all fees payable to the
bailiffs were to become payable to the mayor
when the style of the corporation should be
changed, which was done by her charter in the
following year. At a meeting duly holden be-
fore the defendant, then mayor, (he being by
virtue of his office a justice of the peace,) and
another justice for granting and renewing
the licenses of publicans, the plaintiff applied
to have his license renewed, and upon hav-
ing it done, was required to pay amongst other
fees the sum of 4s. to the mayor, which was
proved to have been regularly paid for a
period of sixty-five years: Held, first, that
the defendant was not entitled to take any
such fee; for the payment for sixty-five
years did not raise a presumption that it had
been immemorially paid to the bailiffs or
mayor of Yarmouth, inasmuch as licenses
were not granted until the reign of Ed. 6,
and the defendant, as justice of peace, was
not entitled to any fee for granting the license.
Secondly, that the defendant was not entitled
under the 24 G. 2, c. 44, to notice of the ac-
tion about to be brought against him, for
that the fee could not have been taken by
him as a justice, colore officii. Thirdly, that
the payment was not voluntary, so as to
preclude the plaintiff from recovering the
money in this action. Morgan v. Palmer,
E. 5 G. 4.
729

KING'S BENCH PRISON.
See PRACTICE, 6.

LANDLORD AND TENANT.

64

an

1. Where a lease of premises described them
as abutting on an intended way of thirty
feet wide," which was not then set out, and
the soil of which was the property of the
lessor; and an under lease was granted, de-
scribing the premises as abutting on
intended way," not mentioning the width:
Held, that the under-lessee was entitled to
a convenient way only, and could not main-
tain an action against the owner of the soil
for narrowing the road to twenty-seven feet,
no actual injury having been sustained. The
underlease was of premises together with
all ways thereunto appertaining." A right
of way over the original lessor's soil would
not pass by those words. Per Holroyd, J.
Harding v. Wilson, T. 4 G. 4.

2.

3

96

Where A., who held premises under a lease
which expired at Midsummer, refused to
give up the possession at that time, and in-
sisted upon notice to quit, and afterwards
continued in possession till Christmas, and
paid rent at Michaelmas and Christmas:
Held, that this was conclusive evidence of a
tenancy, and that the landlord was entitled
to recover a quarter's rent due at Lady-day.
100
Bishop v. Howard, T. 4 G. 4.

Plaintiff demised by indenture to B. (de-
fendant's testator) certain premises, to hold
for eleven years, from the 29th September,

1809. B. covenanted. amongst other things,
that he would not, during the lease, sell or
convey away from the premises any of the
straw which, during the leased term, should
grow upon the premises, (except wheat-straw
and rye-straw,) and that for every load of
hay, wheat-straw, and rye-straw, which
should be sold or removed off from the pre-
mises during the thereby leased term, he
(B.) would bring back a cart-load of dung;
and plaintiff covenanted, that it should be
lawful for B. to have the use of the barns,
&c., for receiving his crops of corn and hay
which should grow upon the premises in the
last year before the end of the term thereby
granted, and for certain other purposes, until
the 1st day of May next after the expiration
of the said term, without paying any rent for
the same. The fourth breach assigned was
that B., during the said leased term, to wit:
on September 30th, 1820, and on divers
other days between that day and May 1st,
1821, did remove off from the premises large
quantities of hay, wheat-straw, and rye-
straw, without bringing back a cart-load of
dung for each load of hay and straw. Plea
to so much of that breach as relates to re-
moving hay, &c., during the said leased
term, that B. did bring back a load of dung
for each load of hay, &c., removed; and
demurrer to the residue of that breach.
Joinder in demurrer. Defendants also
pleaded to all the breaches except the fourth,
and to so much of that as related to re-
moving hay, &c., during the said leased
term, a release of all causes of action, except
such as plaintiff had in respect of B.'s not
bringing back to the premises manure for the
hay, &c., removed after the 29th September,
1820. Demurrer and Joinder: Held, that
the plea to the fourth breach answered the
whole of that breach, and that therefore the
demurrer to the residue was bad: Held also
that the leased term continued for certain
purposes until the 1st of May, 1821; so that
the release did not extend to all acts of re-
moval done during the leased term; and
therefore the plea of release did not answer
so much of the fourth breach as it affected
to answer, and being bad in part was bad in
toto. Earl of St. Germain's v. Willan,
T. 4 G. 4.
216
4. Where a tenant occupied, under an agree.
ment containing a variety of provisions, and
amongst others, that he should keep the pre-
mises in tenantable repair: Held, that the
landlord might declare generally "that the
defendant became tenant, and in considera-
tion thereof undertook to repair," without
setting out the agreement. Where A. held
premises under a lease containing a clause
of re-entry for want of repairs, and after-
wards underlet a part to B., who undertook
to repair within three months after notice for
that purpose; the premises underlet being
out of repair, A.'s landlord threatened to
insist upon the forfeiture if they were not
repaired, and A. gave notice to B. to repair.
The premises, at the expiration of three
months from that time, remaining out of re-
pair, A. entered and repaired: Held, that he
might recover from B. the sum expended on
that occasion. After the repairs were done
by A., but before the commencement of the
action, B. sold his interest in the premises

5. Where a lease contained a proviso that if the
rent was in arrear for twenty-one days, the
lessor might re-enter, although no legal or
formal demand should be made:" Held, that
the rent having been in arrear for the time
specified, an ejectment might be maintained
without actual re-entry, and without any de
mand of the rent. After trial the court will
not relieve the tenant by staying proceedings
in the ejectment upon payment of the arrears
of rent and costs. Doe dem. Harris v.
Masters, M. 4 G. 4.

6.

490

Lessee, who has erected fixtures for the pur-
pose of trade upon the demised premises,
and afterwards takes a new lease to com-
mence at the expiration of his former one,
which new lease contains a covenant to re-
pair, will be bound to repair those fixtures,
unless strong circumstances exist to show
that they were not intended to pass under the
general words of the second demise.

Quære, Whether any circumstances de-
hors the deed can be alleged to show that
they were not intended to pass.

Quære, Whether lime-kilns, erected for
the purpose of trade, are removable. Thresh-
er v. The East London Waterworks, H. 4 & 5
G. 4.

608

1. A libel imputed that his majesty laboured
under mental insanity; and it stated that
the writer communicated the fact from au-
thority. Upon the trial of the information,
the publication of the libel was proved. It
was admitted by the defendants that the
statement in the libel was untrue, and they
did not offer any evidence to show that they
had any authority for making it; and the
Judge in his charge to the jury having stated
that it was a criminal act to assert falsely of
his majesty, or of any other person, that he
was insane, and it being admitted by the de-
fendants themselves that the fact stated in
the publication was false, in his opinion it
was a libel: Held. that this direction was
correct in point of law, and that the Judge
was warranted in saying that the defendants
had admitted the charge contained in the
libel to be FALSE; for assuming that there
might be a distinction between a mere un-
truth and a criminal untruth, and that the
term "false" applied only to the latter, still
as the defendants had stated that they com
municated the fact from authority, and had
not proved that they had any such authority,
they must have been guilty of a criminal un
truth or falsehood by stating as a fact, the
knowledge of which they had derived from
authority, that which was untrue, and for
which they had no authority.

The jury having retired for a considerable
time, returned into court, and desired to
know whether it was necessary that there
should be a malicious intention in order to
constitute a libel; to which the Judge an-
swered, "The man who publishes slander-
ous matter calculated to defanre another,
must be presumed to have intended to do that
which the publication is calculated to bring
about, unless he can show the contrary; and
it is for him to show the contrary:" Held,
that this answer was correct in point of law,
and that the Judge was not bound to answer
in the affirmative or negative the abstract
question put to him; and assuming that a
malicious intention is necessary to constitute
a libel, that intention is to be inferred from
the mischievous tendency of the publication
itself, unless the defendant shows something
to rebut such inference, and therefore that
the publication of a libel of mischievous ten-
dency having been proved, and the defendant
not having shown that he published it from
authority, the jury were bound to find that
he published it with a malicious intention.
The King v. Harvey and Chapman, M. 4
G. 4.

LIEN.

257

1. An attorney has a lien upon papers be.
longing to a bankrupt, not only for his bill
for business done, but for the costs of an ac-
tion brought against a bankrupt, subsequent-
ly to the issuing of the commission, to re-
cover the amount of his bill. Lambert v.
Buckmaster, H. 4 & 5 G. 4.
616

2. A bill in equity was dismissed with costs.
The plaintiff brought an action for the same
cause, and recovered a verdict. The costs
in equity may be set off against the judg
ment, subject to the lien of the attorney.
Harrison v. Bainbridge, E. 5 G. 4.

800

LIMITATIONS, STATUTE OF.
1. A. and B. made a joint and several promis
sory note. A. died, and, ten years after his
death, B. paid interest upon the note. In
an action brought upon the note against the
executors of A., it was held that the pay-
ment of interest by B. did not take the case
out of the statute of limitations, so as to make
A.'s executors liable. Atkins and Others,
Executors, v. Tredgold and Others, Execu
tors, T. 4 G. 4.

23

2. A., by means of a misrepresentation, received
of B. and several other persons. his tenants,
various sums of money, to which he was not
entitled. B. applied to him to have the
money which he had so paid returned, say.
ing that he and the other tenants had been
induced to pay more than was due. A. re-
plied, that if there was any mistake it should
be rectified: Held, this obviated the statute
of limitations as to payments made by the
other tenants as well as by B.

Plaintiff, an administratrix, after the death
of the intestate, made one such wrongful pay-
ment as before mentioned, out of the assets;
Held, that she might recover it in her repre-
sentative character.

Upon a replication, that the defendant did
romise within six years, to a plea of the
tatute of limitations, fraud in the defendant
cannot be set up as an answer to the plea.

1. Prisoners committed to jail for trial who
are able, but refuse to work, are not entitled
by law to have any food provided for them
by the public; and therefore where a ma-
gistrate reported, as an abuse, to the justices
at the quarter sessions, that untried prison-
ers had been compelled to work at the tread-
mill, and the justices of sessions ordered
that the tread-mill should be applied to the
employment of other prisoners, as well as
those sentenced to hard labour; and that
those committed for trial who were able to
work, and had the means of employment
offered them by which they may earn their
support, but who refused to work, should
be allowed bread and water only, this Court
refused to grant a mandamus to compel the
justices to order such prisoners any other
food. The King v. The Justices of the North
Riding of Yorkshire, M. 4 G. 4.

2.

286

One

By charter, a borough was constituted a
body corporate, to have perpetual succession
by the name of the mayor and free burgesses
of the borough of F. Nine of the free bur-
gesses were to be chosen aldermen.
of the aldermen was to be called mayor.
The mayor and aldermen were to form the
common council; a person learned in the
laws of England was to be recorder. The
charter then authorized the mayor and re-
corder, or their respective deputies, and the
rest of the aldermen of the borough for the
time being, or the greater part of them, (of
whom the mayor and recorder, or their re-
spective deputies, were to be two,) from time
to time, and at all times thereafter, as often,
and when to them should seem fit and ne-
cessary, o nominate, choose, and prefer so
many, and such persons to be free burgesses
of the borough, as they pleased, and to those
free burgesses so to be chosen, to administer
an oath for their fidelity to the borough.
Nine persons were nominated as the first
aldermen, one person as recorder, and five
persons the first free burgesses; and in case
any one or more of the aldermen should die,
or be removed from his office, the mayor, re-
corder, justices of peace, and the rest of the
aldermen, or the greater part of them, to
elect one other of the free burgesses, inha-
bitants of the borough, for an alderman, to
supply the number of nine. The alderman
so chosen taking the oaths before the mayor,
recorder, or one of the justices of the peace
of the borough for the time being, or before
two or more aldermen, or for want of mayor,
recorder, justices, and aldermen, before three
or more free burgesses, inhabitants of the bo-
rough, to execute the office, and the mayor,
the ex-mayor, the recorder, and their depu-
ties, and the senior alderman, and the senior
free burgess were to be justices of the peace.
It appeared by affidavits, that the body corpo-
rate had for three years been reduced to the
number of six aldermen and four free bur-
gesses, and that one of the aldermen was in a