It seems a more difficult speculation to assign a reason for the distinction, why this indulgence should be granted to the tenant, when the seisin under which the demandant claimed was laid in a past reign, and not when laid in the existing reign. The authorities do not give any account of the origin of the practice. But it may be supposed, that the frequent change of dynasty consequent upon the contested claims of the houses of York and Lancaster, with the attainders and forfeitures, and reversal of such attainders and forfeitures, at each succession of the prevailing party, frequently rendered an inquiry into the seisin in a former reign a very complex and difficult question: therefore *it was deemed reasonable that such question should be cleared up, before the tenant should [*674 put the validity of his title to trial. But Brooke, in his Abridgment, Droit, p. 32, does not appear to regard this distinction; for he says, "At that time issue may be tendered upon the seisin by the new statute of limitations, viz. 32 Henry VIII. cap. 2." And, since that statute, it seems unnecessary to alledge in what reign the seisin was. Booth, Real Actions, 99.

Upon the question, what seisin will support a fine with proclamations, so as to bar strangers to the fine, it seems as if the old authorities, beginning with Plow den and Dier, are calculated rather to throw difficulty into the way of deciding upon this subject; and this difficulty arises upon the use of the expression, that the fine shall bar a stranger whose estate is turned to a right; which is an indefinite word, as here used, for it may mean a right of entry, or a right to bring a possessory action, or the mere right where the possessory action is gone. The apparent contradiction of terms in the early reports has probably arisen from an endeavor to reconcile the doctrine of the still earlier authorities with that system of modern conveyancing, which was the consequence of the statute of uses, and which has left no other external marks of a legal possession, than the actual occupancy, or receipt of the rents and profits-or the evidence of deeds or assurances giving a title consistent with the occupancy or receipt of the rents and profits by another person; as in the case of mortgagee or trustee. But, before the statute of uses, when the performance of services in kind by the tenants was a substantial profit to the lord of the seignory upon which the tenures depended, and was important to the lord, that the possession of every tenement should be ascertained and recorded, the evidence of the legal estate of the tenant was his investiture of the tenancy in the lord's court, as des cribed by Lord Mansfield in his judgment upon the case of Taylor ex. dem. Atkyns v. Horde, 1 Burr. 60.

So that in those early times, when the spirit of feudal tenures was strictly acted upon, a disseisin was a totally different proceeding from what it possibly can be at this day; if, indeed, such a thing can exist, under the present system of title to lands, as a disseisin *against the election of the party put out of possession. This is admitted by con veyancers to be doubtful.

[*675

But now it is considered, that an adverse possession, not commencing by being derived under the title to which it is adverse, will support a fine with proclamations, so as to bar a stranger at the end of five years. The case of Doe ex dem. Foster v. Williams, Cowp. Rep. 621., though the present question was not then directly in point, is sufficient to de termine this point. There the heir brought his action against the intruder, who had levied a fine before the five years had elapsed, but failed upon the ground that he had not made an actual entry to avoid the fine; thus proving, that the intruder, who had taken the rents of the property, had acquired such an estate, as would render his fine effectual for every purpose against a stranger to the fine. In the late case of Doe v. Perkins, 3 Maule and Selwyn, 271, it has been decided, that a tenant, holding over his term without paying of rent, cannot, by a fine with proclamations, bar the right of the landlord or his heirs; which is reason of his possession commencing under, and being, in its origin, derived out of the title in opposition to which the fine is set up.

END OF HOLT.

AN

INDEX

TO THE

PRINCIPAL MATTERS.

ABANDONMENT.

See INSURANCE, 2, 4, 11, 15.

ACTION.

See ASSUMPsit.

1. In an action on the case for falsely representing the character of another, by rea

to give the plaintiff the whole money; and that such sum is not to be considered penalty, but as damages ascertained between the parties. Barton v. Glover. 43

ASSAULT.

See EVIDENCE. TRESPASS.

ASSUMPSIT.

See STATUTE OF FRAUDS, 1.

son of which false representation, he ob-1. A. contracts to sell to B. 50 tons of hemp, tained credit of the plaintiff; it is necessary to prove against the defendant both fraud and falsehood, viz. that the representation which he made was false, and that the defendant knew it to be false at the time he made it. Falsehood without fraud is not sufficient. Ashlin v. White.

387

2. A messenger under a commission of bankruptcy sues the assignees for his costs and expenses, and obtains a judgment against them. One of the assignees pays the debt and costs under the judgment. He has a right to an action of contribution against his co-assignee, and is not bound to show that any funds came into his hands from the bankrupt's estate. Hart v. Biggs. 245

3. A person who takes in horses to agist. does not, like an innkeeper, insure their 2. safety he is answerable only in case of negligence. Broadwater v. Blot.

AGENT.

547

See PRINCIPAL AND AGENT. Where a person binds himself in an agreement to pay a certain sum of money in case of the breach of the terms of it on his part, and it is therein stated, "that the sum mentioned is to be considered as liquidated damages:" semble, that in an action upon the agreement, the jury are bound/3. VOL. 111.-34

to be shipped from Cronstadt or St. Pe tersburg; the ship's name to be declared as soon as known, and to arrive before the 31st of December. On the 5th of September, A. gives notice to B. that the hemp was shipped on board the Lively; on the 20th he sends a second notice, that if the quantity did not come by the Lively, he would make it up from the cargo of another vessel. On the 29th, A. gives a third notice that 20 tons would come by the Lively, and the rest by another ship. B. accepts the 20 tons, but refuses to receive any more. Held, that B. was bound to receive the remainder of the hemp, unless he could show that he had sustained some special damage by A.'s nonperformance of the precise terms of the contract. Thornton v. Simpson.

164

In an action by the steward of a manor,
for a particular rate of fees claimed to be
due to him from a tenant on his admis-
sion to six several copyholds, if he fails
to establish a custom for his charges '
may, notwithstanding, resort to a quantum
meruit. Held, afterwards, by the court,
that where a person is admitted to several
distinct copyhold tenements, the steward
of the manor is not entitled, without prov-
ing a custom, to full fees on each admis-
sion, separately; but he may stand on his
quantum meruit, Everett v. Glyn.
Where the broker makes a mistake in
(265)

1

the contract, describing in the bought and

ANIMAL.

sold notes goods to be sold by A., B. & C. In an action for keeping a dog accustomed

which he believed to be the real name of
the firm which employed him; which firm,
in fact, from a recent alteration that the
broker was not privy to, consisted of A.,
D. & E. only. Held, that the purchaser
of the goods was not at liberty to avoid
the contract on this account, after having
treated the contract as subsisting, upon a
subsequent communication, unless he
could show that he had been prejudiced,
or had lost the benefit of a set-off. Mitchell
v. Lapage.
253
4. Where work is done upon a special con-
tract and for estimated prices, and there
is a deviation from the original plan by
consent of parties, the estimate is not ex-
cluded, but is to be the rule of payment
as far as the special contract can be
traced; and for any excess beyond it, the
party is entitled to his quantum meruit.
Where work is done under a special contract,
the plaintiff is not precluded from re-
covering under the counts for work and
labor generally; unless there be some-1.
thing in the term of the special agree-
ment which, either by stipulation or ne-
cessary intendment, prevents him. Rob-
son v. Godfrey.
236

5. An action for money had and received
will not lie to recover back a sum paid
upon trust, unless it be shown, that the
trust is closed, and that a balance remains
in the hands of the trustee.
Roberts.

Case v.

500

6. An auctioneer is not liable to pay interest upon a deposit kept in his hands, during the investigation of a title. He is to be considered as a mere agent, unless he specially engage as a principal in the sale. Lee v. Munn.

569

to worry, and which had worried plaintiff's sheep, it is not necessary to prove that the dog had previously worried sheep. If the dog be proved to be generally mischievous it will be sufficient. And the declaration need not be special. Sed quære 1 Lord Raymond, 110. Hartley v. Harriman. 617

AUCTIONEER.

See ASSUMPSIT, 6.

B.

BAILIFF.

See SHERIFF.

BANKRUPT.

See BROKER, 3. TRUSTEE, 1.

If the petitioning creditor be privy and assenting to the execution of a deed by traders, by which they make an assign ment of all their property, though such assignment be fraudulent, and an act of bankruptcy, upon which other creditors, not privy and assenting, may sue out a commission, he is estopped; and having assented to the deed, though he did not execute it, he cannot set it up as an act of bankruptcy. Burrough v. Gooch. 2. An uncertificated bankrupt may sue as trustee for his assignees; and the deten dant cannot object to the action, unless they interpose. If a broker deliver a bought and sold note which materially differ, there is no valid contract. Cumming v. Roebuck.

3.

13

172

A trader directs his servant, that if any one should come whilst he was at dinner, or engaged in business, she should deny him. Held, that such instructions did not amount to a direction for a general de nial; and, therefore, although a creditor called and was denied, it was no act of bankruptcy. Shew v. Thompson. 159 4. A trader having business both in England and in Spain, has a right to go to the latter country to look after his concerns; and though his creditors are there. by delayed, it is no act of bankruptcy Warner v. Barber.

5.

175

A., before his bankruptcy, discounts cer tain bills of exchange with B. & C., his bankers. They gave him immediate credit for the value of the bills in his ac count, minus the discount. A balance was likewise struck before the bank. ruptcy, and whilst the bills were yet running, in favor of A. (when the bankers admitted they had in their hands 9344 88. 8d. due to A., giving him credit for the

bills then running,) A. becomes a bankrupt, and the bills are dishonored. Held, that in an action against the bankers for the balance admitted to be due to A. before his bankruptcy, they have a right to set-off against such claim, the amount of the dishonored bills, it being a mutual credit under the 5 Geo. II. c. 30, s. 28. Gowen v. Tritton. 408

6. First, In an action of tort against several, if there be evidence against some only, and none against others, it is discretionary with the judge at nisi prius, whether he will direct the acquittal of such defendants, against whom there is no evidence, at the close of the plaintiff's case, for the purpose of making them witnesses for the co-defendants. But such an intermediate acquittal is not a matter which the defendant's counsel can claim of right. Secondly, an uncertificated bankrupt hires | a shop; goods are supplied in the name of his son, but principally upon the father's guaranty. Held, that his assignees were liable to an action of trespass at the suit of the son, for seizing them as the goods of the bankrupt.

Living.

Davis v.
275

house and three acres of land; buys pigs, and consumes part in his family, and sells the rest at a neighboring market. He makes no show as a dealer, and is proved not to have bought more than 14 pigs in any one year. Held, that he was a trader within the bankrupt laws. The smallness of the profit is no consideration, and one act of buying and selling is sufficient to constitute a trader. Newland v. Bell. 22

11. A. and B. are traders; they employ an attorney, who is likewise employed by D., a creditor of their firm, and who afterwards becomes petitioning creditor under a commission of bankrupt issued against them. The attorney advises A., B. & C., to become bankrupts; and, in order to procure an act of bankruptcy, he takes D. with him to the respective houses of A., B. & C. having first concerted with them that they should respectively deny themselves when D. called. Held, that although D. was not privy to such denial, yet, inasmuch as the attorney was the agent of D. as well as of A., B. & C., and accompanied him for the purpose of procuring such denials; such denials were fraudulent acts of bankruptcy, and could not support a commission on which D. stood as the petitioning creditor. Prosser v. Smith.

442

12. A trader may make a transfer of his goods, on the eve of bankruptcy, to a creditor, who compels him so to do by any threat; but a voluntary and fraudulent preference is an act moving from the trader, whereby he elects to favor a particular creditor. Reed v. Ayton. 503 13. An attorney who becomes a general depositary of the money of his clients, and of other persons, which he invests upon securities, charging, in addition to his fees for preparing the securities, a compensation, (no matter by what name,) and who unites this occupation with the business of a conveyancer, &c. is a trader within the meaning of the bankrupt laws. Hutchinson v. Gascoigne.

7. In an action by the assignee of a bankrupt claiming property which the bankrupt is alleged to have had in his possession, order, and disposition, as the reputed owner at the time of his bankruptcy, it is competent for the defendant, who has given a valuable consideration for the property, to give evidence of a contrary reputat on, and to resist the claim of the plaintiff under the statute 21 Jac. 1. c. 19. s. 11, upon those grounds. Gurr v. Rutton. 327 8. Assignees are not concluded by putting up the premises to sell; they may make an experiment to see if the lease be beneficial. But in a case where they put up the premises to auction, found a purchaser and received deposit; but the contract of sale afterwards went off, without the assignees showing any reason why they did not enforce the sale: Held. that they were liable to the payment of rent, as "assignees of all the estate and interest, &c." of the bankrupt in the premises. Hastings v. Wilson. 9. the petitioning creditor and not the solicitor, is liable to the messenger under a commission of bankrupt, for the costs and expenses attending it. The solicitor is an agent merely, and is not to be regarded as a principal as regards the messenger; and although he make himself responsible to the messenger, the petitioning creditor will not, therefore, be discharged, without the express consent of the messenger to discharge him. Hart v. White. 10. A. (an officer of the army) retires to 16. Where the creditor acts adverse to the the country, where he rents a dwelling. views and wishes of the trader, and by

290

3761

507

14. Where the defendant pleads his certifi cate in bar, the plaintiff is at liberty to give evidence, at nisi prius, of gaming, in order to vitiate the certificate. The 12th and 7th sections of the 5th Geo. II. c. 30, are to be construed as if incorporated. But the plaintiff must confine his evidence to one act, and elect whether he will give in evidence of one loss amounting to 54., or of several losses amounting to 100l. Hughes v. Morley.

520

15. Goods sent to a trader upon sale and return, in the common acceptation of that mode of dealing, will pass to his assign ees, under the statute 21 Jac. 1. Gibson v. Bray. 556

urgency, and importunity, obtains a trans-
fer of property, to cover his liability
upon a bill then running, (which bill he
had discounted,) although such transfer
be made on the eve of bankruptcy, it will 5.
not be a fraudulent transfer and prefer-
ence on the part of the trader. Arbouin
v. Harbury.

blank, was lost. Held, that although the See STOPPAGE IN TRANSITU, 1. FREIGHt, 3. bill had been drawn more than six years, A. has some rum in the West India Docks, the plaintiff was not entitled to recover, without producing it at the trial. Poole V. Smith.