2. Erasure in Affidavit.]—The court allowed a certificate of acknowledgment and affidavit of verification (taken in New South Wales) to be received and filed, notwithstanding an erasure in a material part of the affidavit,— there being satisfactory evidence (by affidavit) that the erasure was made before the acknowledgment and affidavit were taken and sworn. In re Mary Bingle, 449

The jurat of an affidavit of the due taking of an acknowledgment at Sydney had an interlineation in the body of it, and an erasure in the jurat:-The court refused to allow it to be filed. In re Tierney, 761

3. Certified Copy of Affidavit made Abroad.]— Where an acknowledgment of a married woman, under the 3 & 4 W. 4, c. 74, was taken at Milan, the court allowed a certified copy of an act of the Imperial Royal Civil Tribunal of that city to be received in lieu of the affidavit verifying the certificate of the commissioners,-upon the production of an affidavit from a competent party showing that by the law of that country depositions on oath are always deposited amongst the records of the court, and office or certified copies only delivered out to the parties. In re Marianne Clericetti,

762

4. Irregularity in the taking of.]—An acknow

the commissioners, and the documents were not filed:

After the lapse of thirteen years, the court allowed the certificate to be received and filed, upon an affidavit by the surviving commissioner, stating that it had always been his practice, and, as he believed, that of his cocommissioner, to make all requisite inquiries of the married woman before taking the acknowledgment, and that, from the circumstance of his having signed the certificate and memorandum, he verily believed that all proper inquiries had been made on this occasion, though, from the lapse of time, he was unable positively to state what the answers were. In re Barbara Warne,

767 5. Notarial Certificate.]—The court dispensed with the notarial certificate in the case of an acknowledgment taken at Corfu, under the 3 & 4 W. 4, c. 74,-it being sworn that there was no English notary in the island. In re Elizabeth Hurst, 410

under the 3 & 4 W. 4, c. 74, was taken in the year 1842, and the certificate and memorandum thereof duly signed by the commissioners; but, by some inadvertenco on the part of the solicitor employed in the transaction, there was no affidavit of verification by

tract to pay a certain sum of money upon the death of a person in consideration of the due payment of certain annual premiums during his life. It is not a contract of indemnity. Dalby v. The India and London Life-Assurance Company, 365

3. Godsall v. Boldero, 9 East, 72, overruled. Ib. 4. The rules of a society established for the mutual assurance of traders against bad debts, after stipulating for the payment of premiums, provided, amongst other things, that, "if the premiums on any policy should not be paid within fifteen days after the same should fall due, the directors might, with the approbation of the council, either declare such policy void, or enforce the payment of such premiums."

In a declaration on a policy, the plaintiffs averred that they had done all things necessary on their part, and had been ready and willing to do all things according to the said policy, rules, and regulations, which it was necessary that they should be ready and willing to do, and that all things had happened which it was necessary should happen, to entitle them to be paid by the society the loss thereinafter mentioned, and that a reasonable time for payment thereof had elapsed. It then went on to aver that a loss had been incurred, and that the defendants refused to pay-Held, that this general averment was sufficient, without showing the various steps required by the rules of the society to entitle the assured to recover a loss. Bumberger v. The Commercial Credit Mutual Assurance Society, 676 5. The defendants pleaded, that, after the making of the policy, and more than fifteen days before the commencement of the suit, a certain premium became payable by the plaintiffs and was not duly paid, whereupon the directors of the society, with the approbation of the council, cancelled the policy, and declared the same void, whereof the plaintiffs had notice-Held, that the plea disclosed a sufficient answer to the plaintiffs' claim. Ib.

INTERPLEADER.

In the County Court,-See COUNTY COURT, III.

IRREGULARITY.

See PRACTICE, IV.

JOINT-STOCK COMPANY.
Execution against a Shareholder.

1. The 66th section of the 7 & 8 Vict. c. 110, enables a creditor to enforce a judgment obtained against a joint-stock company completely registered, by execution against shareholders.

The 50th section of the winding-up act, 11 & 12 Vict. c. 45, provides, that, after the ap

pointment of an official manager under that act, all actions brought against the company or any person duly authorized to be sued as nominal plaintiff on behalf of the company, shall be brought against the official manager. And the 12 & 13 Vict. c. 108, s. 1, extends the provisions of the last-mentioned act to all partnerships consisting of more than seven members:

Held, that a judgment obtained against the official manager can only be enforced against a shareholder, where the action is one which could be brought against the company as a company, or against some person authorized to be sued on their behalf; and, consequently, that the provisions of the winding-up acts do not apply to the case of an action against a non-registered company. Pritchard v. The London and Birminghum Extension, Northampton, Daventry, Leamington, and Warwick Railway Company,-In re Weiss,

331

2. To entitle a judgment-creditor of a railway company to a scire facias against a shareholder, under the 8 & 9 Vict. c. 16, s. 36 (the Companies Clauses Consolidation Act, 1845), it is not enough to show that a fi. fa. has been issued. against the company, and returned nulla bona: the affidavit must go on to allege circumstances to satisfy the court that due diligence has been used by the plaintiff to discover property of the company out of which he might obtain satisfaction of the judgment. Hitchins v. The Kilkenny and Great Southern and Western Railway Company,

JUDGE'S ORDER.

For Leave to Discontinue.

459

The plaintiff having obtained a judge's order to discontinue "on payment of costs," and having acted upon the order, by attending the taxation under it,-the court refused to allow him to abandon it. Benge v. Swain,

JUDGMENT.

784

In Trover, Effect of. Semble,-per Jervis, C. J.,-that a judgment in trover vests the property in the goods in the defendant, from the time of the conversion. Buckland v. Johnson, 145

LAND TAX.

See LANDLORD AND TENANT, I.

LANDLORD AND TENANT.

I. Land-tax and Sewers-rate.

A. demised land to B. upon a building lease, at the yearly rent of 60%., clear of all rates, assessments, &c., the sewers-rate, land-tax, and landlord's property or income-tax only excepted, with the usual covenants for the payment of rent, &c. B. having by building on the land increased its rateable value to

3007. per annum :-Held, that he was only entitled to deduct the sewers-rate and landtax upon the original rent, and not in respect of the improved value. Smith v. Humble, 321 II. Use and Occupation.

A. entered into an agreement (in writing) with B. to take certain premises, at a certain yearly rent, the premises to be put into repair by B., and the rent not to be payable until the repairs were completed. A., by his tenant, occupied the premises for six months, and then quitted, the stipulated repairs not having been done:-Held, that B. was entitled to maintain an action for use and occupation, as upon an implied agreement to pay so much as the occupation might be reasonably worth. Smith v. Eldridge, 236

III. Year's Rent under 8 Anne, c. 14. A landlord, having distrained for rent, was induced to withdraw the distress, by the tenant's assurance (which was false) that a particular debt had been satisfied. The creditor having proceeded to judgment and execution, the tenant's goods were seized by the sheriff: Held, that the landlord was entitled to a year's rent, under the statute 8 Anne, c. 14. Wollaston, App., Stafford, Resp., 278

IV. Deserted Premises.

2.

these latter words "fair valuation" having been substituted in the draft lease for "consuming price."

In an action by A. against B. to recover the value of hay and wheat straw left by the former at the expiration of his tenancy, it appeared that a valuation had been made by an umpire, who was the only witness called at the trial, and who stated that he had valued, not at a "consuming price," nor a "market price," but at a "fair valuation;" and the jury returned a verdict in accordance with his valuation :

Held, that there was nothing from which the court could see that the valuation had been made upon an erroneous principle; and, what was a "fair valuation" being a question for the jury, there was no ground for interfering with the verdict. Cumberland v. Bowes, 348

Whether the court could properly notice the

substitution of the words "fair valuation" for "consuming price," in the draft lease,quære?

Ib.

3. Held, also, that the valuation of the umpire was not invalidated by the circumstance of his having altered it after he had delivered it out, by striking out an item which ought not to have been included therein. Ib. VI. Dilapidations,-See ECCLESIASTICAL

VALUATION.

VII. Lease procured by Fraud,-See FRAUD.

vested in the Lord Mayor or one Alderman sitting in the justice-rooms at the MansionHouse or Guildhall, so as to enable them to exercise the power in the same manner as a "police-magistrate" sitting in one of the metropolitan police-courts may, under the 3 & 4 Vict. c. 84, s. 13, exercise it. Edwards v. Hodges, 477 V. Valuation on Expiration of Tenancy of a Farm.

1. A. held a farm of B., subject, amongst others, to the following covenants contained in a draft lease under which a former tenant had held,-1. to house the produce on the farm, and to thresh, feed, and fodder the same thereon, and not to sell or dispose of any part thereof, except as after mentioned,—2. that A. should be at liberty to sell hay and wheat straw (except that of the last year's produce), bringing back for every load of hay or straw two loads of manure,-3. that A. should, on the determination of the tenancy, leave all the hay, straw, and manure arising during the last year of his tenancy for the use of B. or of the incoming tenant, being paid for the hay and wheat straw at a fair valuation,—|

LANDS CLAUSES CONSOLIDATION ACT,

1845.

LETTERS-PATENT.

-although the declaration merely averred an infringement in general terms. Talbot v. La Roche, 310

LIEN.

Application and Extent of.

By agreement between A., a publican, and B., a brewer, it was stipulated that A. should deposit the lease of his house with B., as security for an advance of 150%., for which A. had given B. a promissory note, payable on demand; and B. engaged not to call upon A. to pay the 150%., or any part thereof, for two years, upon condition that the interest thereon should be duly paid half-yearly, that the rent should be paid agreeably to the covenants of the lease, and that A. should take of B. all the beer consumed upon the premises, and pay for it every twenty-eight days. The agreement then provided, that, in case of failure on the part of A. to perform any or either of the above conditions, after fourteen days' notice, B. should be at liberty immediately to put the note in force, and if not paid, with interest, to sell the lease; and that all expenses attending such sale, together with the principal and interest due on the note, should be deducted from the amount realized by such sale, as also any account that might be then due and owing for beer :

Held, that, the power of sale not having been exercised,-on payment, or tender, of the principal and interest due on the note, A. (or his assignee) was entitled to maintain detinue for the lease; and that B. could not set up a lien on it for a balance due on the beer account. Chilton v. Carrington, 95

MINES AND MINERALS.

By an enclosure-act, reciting that the defendant was lord of the manors of A. and B., it was enacted that nothing therein contained should be construed to defeat or prejudice his rights as such lord; but that the lord, his heirs and assigns, should hold and enjoy all manorial rights, and also all mines, minerals, and quarries, &c., belonging to the said manors, in as full and ample a manner as if the act had not been made; "and also full and free liberty at all times hereafter of making, &c., and of granting to any other person or persons any wagon-ways or other ways in, over, or along the commons or waste land (intended to be allotted and enclosed), and to do every other act now in use, or which shall hereafter be used or invented, which shall be necessary to be done for the purpose of winning, working, leading, and carrying away the said mines, minerals, and quarries within and under the said last-mentioned commons, &c.; and also for the leading, carrying, and conveying the coals and the produce of any other mines and minerals from or under any other lands and grounds whatsoever :”—

Held, that the words "produce of any other mines and minerals" did not mean the produce of mines and minerals other than coals, but the produce of mines and minerals other than the "mines, minerals, and quarries" before mentioned; and consequently, that the defendant had a right to use a railway constructed by him under the power so given to him, for the purpose of carrying coke, such coke not being made from coal worked ou of the waste which was the subject of the enclosure. Bowes v. Lord Ravensworth, 512 [A writ of error is now pending.] And see PARTNERS.

In the years 1762 and 1763, two several terms of 1000 years each were created, for mortgage purposes; and, the mortgage debts having been satisfied, these two terms were in 1773 assigned to one Hill, in trust to attend the inheritance, for the benefit of J. C., the elder (the great-grandfather of the plaintiff), who was then seised in fee. In 1778, the estate was limited in striet settlement, on the marriage of J. C. the younger (the plaintiff's grandfather); and, in 1813, by a settlement made by the plaintiff's father and grandfather, the estate was limited to the plaintiff's father for life, with remainder to such of his children as he should appoint: but in neither of these settlements was any notice taken of the outstanding terms. In 1840, the plaintiff's father, assuming and covenanting that he was seised in fee,-sold the estate to one M. D., with whom the defendant was assumed to be identical; and on that occasion the two satisfied terms of 1000 years each were assigned, by the executors of Hill, to a trustee for M. D. to attend and protect the inheritM. D. had no notice, at the time of the purchase, of the settlement of 1813. In 1844, the plaintiff's father duly executed the power conferred on him by the settlement of 1813, and thereby limited the estate, after his death (which took place in 1853), to his eldest son, the plaintiff in fee.

ance.

In ejectment brought by the plaintiff to recover the premises :

Held, that the mere circumstance of the omission of all mention of the two terms for 1000 years in the conveyances of the estate subsequent to 1813, would not justify the court (even if, on the authority of Doe v. Hilder, 2 B. & Ald. 782, it would have warranted a jury) in presuming their surrender; and that, inasmuch as a court of equity would not have restrained the setting up of those terms by M. D. in a court of law, they must be considered as still subsisting, notwithstanding the statute 8 & 9 Vict. c. 112; and consequently the plaintiff was not entitled to recover, because those terms preceded the estate acquired by him under the settlement of 1813, and therefore the title to the legal possession for the remainder of the terms was not in him, but in the assignee thereof. Cottrell v. Hughes, 532

OYER.

See PLEADING, IX.