them as assignees of B., a bankrupt: Held, that the petitioning creditor's debt was sufficiently proved by the production of the proceedings under the commission (no notice of an intention to dispute it having been given), and that it was not incumbent on the plaintiffs to give any other evidence that the petitioning creditors were the assignees of B. Skaife, Assignee, v. Howard, H. 4 & 5 G. 4. Page 560 14. Debt on bond conditioned for the payment of money by instalments. Plea, that defendant by W., as his agent, made unlawful contracts for buying and selling shares in the public stocks; that these contracts were not specifically performed, but that W., as the agent of the defendant, voluntarily paid 500l. for differences against the form of the statute, and that for securing the repayment of that money to W., the defendant gave his promissory note to W., and that long after the same became due, W. indorsed it to the plaintiffs, and that the plaintiffs afterwards threatened to commence an action upon the note against the defendant; and the defendant, in fear of the action, did, at the request of the plaintiffs, give the bond in question, which the plaintiffs accepted in lieu of the promissory note, and the money secured thereby, they well knowing that the note had been made by the defendant on the occasion and for the purpose in the plea mentioned: Held, that this plea was an answer to the action, inasmuch as the plaintiffs took the promissory note after it was due, and had notice of the illegality of the original consideraton before the bond was given. At the trial it appeared in evidence, that the note was given to W. to cover a sum which he, as broker, was to pay for losses on stock-jobbing transactions: Held, that this evidence did not support the plea, which stated that the note was given to secure the repayment of money actually paid by W. Amory and Another v. Meryweather, H. 4 & 5 G. 4. Page 573 15. Defendant having been convicted of perjury, a rule nisi for a new trial was obtained; whilst that was pending, the defendant shot the prosecutor, and on shewing cause against the rule, an affidavit was tendered of the dying declaration of the latter, as to the transaction out of which the prosecution for perjury arose: Held, that it could not be read; for that dying declarations are admissible only where the death is the subject of the charge, and the circumstances of the death the subject of the declaration. The King on the Prosecution of James Law v. William Mead, H. 4 & 5 G. 4. 605 16. Where a libel charged the plain tiff with various acts of cruelty to a horse, and amongst others, with knocking out an eye, and the defendant pleaded that the charge was true in substance and effect; the jury having found that it was true in all particulars, except that the eye was not knocked out: Held, that the justification was not proved, and that the plaintiff was entitled to a verdict on that plea Weaver v. Lloyd, E. 5 G. 4. 678 17. In case for obstructing the plaintiff's ancient windows, it appeared that the plaintiff and defendant had premises adjoining eath other; the plaintiff's house was about four feet within the boundary of her premises. Some witnesses had known it for thirty-eight years, and during all that time there had been windows looking towards the adjoining premises. For a long 824 series of years before the defendant | 20. A parish certificate, purported purchased them, those premises had belonged to a family living at a distance, and it was not proved that any member of that family had ever seen them, and they had been occupied by the same tenant for the last twenty years. About two years before the action brought, defendant purchased them and built a house, thereby darkening the plaintiff's rooms: Held, that the circumstance of the plaintiff's house not being at the extremity of her premises, did not affect the question, and that after an enjoyment of thirty-eight years, in the absence of any contradictory evidence, the windows were to be considered as ancient windows, and that plaintiff consequently was not entitled to recover. Cross v. Lewis, E. 5 G. 4. Page 686 18. It is a good defence to an action for a malicious arrest, that the defendant, when he caused the plaintiff to be arrested, acted bonâ fide upon the opinion of a legal adviser of competent skill and ability, and believed that he had a good cause of action against the plaintiff. But where it appeared that the party was influenced by an indirect motive in making the arrest, it was held to be properly left to the jury to consider whether he acted bona fide upon the opinion of his legal adviser, believing that he had a good cause of action. Ravenga v. Mackintosh, E. 5 G. 4. 693 19. A communication made by a client to his attorney, not for the purpose of asking his legal advice, but to obtain information as to a inatter of fact, is not privileged, and may be disclosed by the attorney, if called as a witness in a cause. Bramwell and Another, Assignees, v. Lucas and Others, E.5 G.4. 745 to be granted in 1761, by A., the only churchwarden, and B., the only overseer of the parish: Held, that it must be taken to have been a good certificate, because it may be intended in favour of such an instrument, that by custom there was only one churchwarden in the parish, and that two overseers had been originally appointed, but that one of them died, and that the certificate was granted before the vacancy in the office was filled up. The King v. The Inhabitants of Catesby, E. 5 G. 4. Page 814 21. A promise made after the commencement of an action, is not sufficient to sustain a replication that the defendant (who had pleaded infancy) ratified his contract after he came of age. Thornics v. Illingworth, E. 5 G. 4. 22. Upon the trial of an appeal at the quarter sessions, the respondent parish proved relief granted to the father of the pauper by the ap pellant parish before the year 1815. The appellant parish tendered an order of sessions made in the year 1815, quashing an order of justices for the removal of the brother of the pauper to the appellant parish. And they tendered parol evidence to shew that the ground of the decision of the court of quarter sessions was, that the father of the pauper had not at that time any settlement in the appellant parish, and, consequently, that the son had not any derivative settlement there: Held, that even if parol evidence was admissible to prove the ground of the decision of the sessions, still that the order of sessions was not evidence that the father of the pauper was not settled in the appellant parish in 1815, because the father's settlement was a matter that arose collaterally laterally on the trial of the first appeal. The King v. The Inhabitants of Knaptoft, E. 5 G. 4. Page 883 23. Where, in case a plaintiff alleged in his declaration that he was possessed of a messuage and premises, and by reason thereof entitled to the use of a stream of water running 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 different 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 the want of a sufficient quantity of water. Williams v. Morland, E. 5 G. 4. 910 24. Trespass for breaking and entering the plaintiff's close. Plea, prescribing in right of a messuage and land for a right of common of pasture on a down or common whereof the close, &c. before the wrongful separation thereof was parcel, and justifying the trespass, because the close in which, &c. was wrong Re fully enclosed and separated from the residue of the common. plication, 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 enclosed from the common, and occupied and enjoyed during all that time in severalty and adversely to the persons holding the messuage and land, in respect of which the right of common was claimed. Rejoinder, that the close in which, &c. had not been occupied or enjoyed for thirty years or upwards in severalty or adversely to the person holding 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 upwards of thirty years; or if it was a dividable allegation, it was confined in its meaning to that spot in which the trespass had been committed; and the jury having found that that spot had not been enclosed thirty years, it was immaterial whether the rest had been so or not. Richards v. Peake, E. 5 G. 4. Page 918 EXCEPTION. See DEED, 1. EXECUTION. EXECUTION. See PRACTICE, 4. 6. EXECUTORS. See ADMINISTRATOR, 1. ASSUMPSIT, 9. LIMITATIONS, STATUTE OF, 1. SHIP, 2. FIXTURES. 1. The owner of a freehold house, in which there were various fixtures, sold it by auction. 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 articles, 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. Colegrave v. Dias Santos, T. 4 G. 4. Page 76 2. Lessee, who has erected fixtures for the purpose of trade upon the demised premises, and afterwards takes a new lease to commence at the expiration of his former one, which new lease contains a covenant to repair, will be bound to repair those fixtures, unless strong circumstances exist to shew that they were not intended to pass under the general words of the second demise. Quære, whether any circumstances dehors the deed can be al leged to shew that they were not intended to pass? Quære, whether limekilns, erected for the purposes of trade, are removable? Thresher v. The East London Water Works, H. 4 & 5 G.4. Page 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 maintained without actual re-entry and with out 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. Dee, dem. Harris, v. Masters, M.4G. 4. 1. 490 FRAUDS, STATUTE OF. 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 10., but the whole amounted to 70l. 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, together with the goods, when A. refused to accept them: Held, first, that this was all one contract, and therefore within 29 Car.2. c.3. s. 17. Secondly, that there was no delivery and acceptance of any of the goods so as to take the case out out of the operation of that section. Baldey v. Parker, T. 4 G. 4. Page 37 2. By the conditions of a sale by auction, the purchaser was to pay 30 per cent. upon the price, upon being declared the highest bidder, and the residue before the goods were removed. A lot was knocked down to A., as the highest bidder, and delivered to him immediately. After it had remained in his hands three or four minutes, he stated that he had been mistaken in the price, and refused to keep it. No part of the price had been paid : Held, that it was a question of fact for the jury, whether there had been a delivery by the seller, and an actual acceptance by the buyer, intended by both parties to have the effect of transferring the right of possession from one to the other. Phillips v. Bistolli, M.4 G. 4. 511 An indictment stated that a certain way was an ancient common highway, and that a certain part situate in an extra-parochial hamlet was out of repair, and that the inhabitants of the extra-parochial hamlet ought to repair it: Held, that this indictment was bad, as it did not allege that the inhabitants of the hamlet were immemorially bound to repair; nor that the hamlet did not form part of a larger district, the inhabitants of which were bound to repair. Quære, Whether the inhabitants of the hamlet would be liable to repair at common law, if the indictment had contained the latter allegation. The King v. The Inhabitants of Kingsmoor, T. 4 G. 4. 190 licence, is liable to the penalty im- By the eighth section of the general posed by the 50 G. 3. c. 41. upon VOL. II. inclosure act, (41 G. 3. c. 109.) 3 S when |