which she took one part as heir of her father, and the remainder as heir of a niece, her father's grand-daughter), devised" all her moiety of and in all her late father's messuages," &c.: Held, that the devisee took, as well the estates which descended from the niece, as those which descended immediately from the testatrix's father. Doe on the demise of Newton v. Taylor, M. 8 G. 4. Page 384

DISTRIBUTIVE SHARE.

See EXECUTOR, 2.

EJECTMENT.

See LANDLORD AND TENANT.

EVIDENCE.

1. The fact of a pauper's remembering himself, when four years of age, in the parish of A., is no evidence that he was born there. The King v. The Inhabitants of Trowbridge, T. 8 G. 4.

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2. An acknowledgment of a debt made by a debtor after arrest, but before an escape, is evidence against the marshal, in an action for the escape. Per Bayley J. Rogers v. Jones, T. 8 G. 4. 86 3. Where a party declared upon

two written agreements, by the second of which variations were made in the first, and there were also counts upon each separately; and it appeared, when the instruments were produced in evidence by the plaintiff, that the first only was stamped: Held, that the second could not be read in evidence to support the plaintiff's case, but might be looked at, in order to ascertain whether the first was altered by

it; and that, therefore, the plaintiff could not exclude the second agreement, and proceed upon the counts setting out the first only. Reede v. Deere, T. 8 G.4. Page 261

4. Where, in case the declaration stated that plaintiff delivered a trunk to the defendant, to be put into a coach at Chester, in the county of Chester, to wit, at, &c., and safely carried to Shrewsbury, and that through defendant's negligence it was lost, and it appeared in evidence that the trunk was delivered to the defendant at the city of Chester, which is a county of itself, separated from the county of Chester at large, but within its ambit: Held, that this was not a material variance, but that the declaration was supported by the evidence, as no evidence was given of the existence of any other place called Chester. Woodward v. Booth, T. 8 G. 4.

301

5. The presumption is, that waste land which adjoins to a road belongs to the owner of the adjoining inclosed land, whether he be a freeholder, leaseholder, or copyholder, and not to the lord of the manor. Doe on the demises of Pring and Another, v. Pearsey, T.8 G. 4. 304 6. Trespass for breaking and entering the plaintiff's close, and treading down the grass, &c., and breaking and destroying the hedges and fences of the plaintiff, &c. The defendant, as to all the trespasses, pleaded that the plaintiff's close was parcel of the manor of C., and that a certain messuage and four acres of land was parcel and a customary tenement of that manor, and that there is and from time whereof,&c., there hath been a custom within the manor, that the customary te3 K 3

nant

nant of that tenement shall have common of pasture upon the plaintiff's close; that J. S., being seised of the said customary tenement, and having occasion to use his common of pasture, entered the close in which, &c., and put his cattle in; and because the hedges and fences had been improperly erected, defendant threw them down. The plaintiff in his replication took issue upon the custom, and new assigned, that the defendant entered for other purposes than those mentioned in the plea: Held, first, that upon the issue joined upon the replication, the plaintiff was at liberty to prove a custom for the lord of the manor to inclose parcels of the waste, and a grant to him of the locus in quo under such custom, and that it was not necessary that that cus tom should be specially replied.

Held, secondly, that a custom for the lord of a manor to inclose the waste without limit or restriction, being inconsistent with the rights of the commoners, was bad in point of law, but that a custom to inclose (even as against common of turbary) parcels of the waste, leaving a sufficiency of common, was good, and that it lay on the lord or his grantee to shew that a sufficiency of common was left.

When the lord or his grantee erects fences upon the common, the commoner may by law de. stroy the fences; and, therefore, the fact of the defendant's hav ing entered upon the plaintiff's close, and thrown down the whole of the fences which he had erected, when they might have entered upon the close without throwing down any part of the fences, was held not to be evidence that they entered for other

purposes than those mentioned in the plea, and did not warrant the jury in finding a verdict for the plaintiff on the new assignment. Arlett v. Ellis and Others, T. 8 G. 4. Page 346

7. Where an agreement referred to a clause in a former agreement, and provided that it should extend to the new agreement, as if it had been repeated therein : Held, that the clause referred to, could not be considered as annexed to the new agreement, so as to make an additional stamp necessary, on the ground of the agreement, with the clause, containing more than 1080 words. Attwood v. Small and Others, M. 8 G. 4. 390 8. By the special memorandum of a declaration, it was stated, that the plaintiff, administratrix, on the 20th of January, brought her bill into the office of the clerk of the declarations of King's Bench, according to the course and practice of the court, and filed the same as of Michaelmas term. Plea, that at the time of exhibiting the bill the plaintiff was not administratrix, upon which issue was joined. It ap peared that the defendant was neither an attorney nor a pris soner in the custody of the marshal. The bill was delivered on the 20th of January. The letters of administration were granted on the 10th of January: Held, that upon the issue joined the verdict was properly found for the plaintiff, the latter having been administratrix at the time when the bill was exhibited. Wooldridge, Administratrix, v. Bishop, M. 8 G. 4.

406 9. A customer deposited a sum of. money with a banker, and received a note, by which the banker promised to pay the prin

cipal at ten days' sight, with three per cent. interest to the day of acceptance. The banker paid interest on the note, but at the same time told the customer that he would not in future pay more than two and a half per cent., and in his presence altered the terms of the note, by striking out three and inserting two and a half: Held, first, that the word

acceptance" meant sight, and that it need not be left with the maker for acceptance; secondly, that the payment of interest was evidence to shew that a principal sum was due, and that the note was admissible in evidence to shew the terms on which the deposit was made. Sutton v. Toomer, M. 8 G. 4. 10. In debt on an

Page 416 award, the execution of the submission by all the parties must be proved. Ferrer v. Oven, M. 8 G. 4. 427 11. The statute 1 G. 4. c. 119. s. 11. enacts, that no suit in law be proceeded in, further than an arrest on mesne process, by any assignee of an insolvent's estate, without the consent of creditors, and approbation of one of the commissioners of the insolvent court: Held, in an action brought by an attorney to recover his bill of costs incurred in an action at the suit of such an assignee, that it was incumbent on the attorney to prove that the consent of creditors, and the approbation of one of the commissioners of the insolvent court had been ob tained, or, at all events, that he had informed his client that such consent was necessary. Allison, Gent., one, &c. v. Rayner, M. 8 G.4. 441 12. Where a high constable presents persons for a nuisance in a highway, he must go before the grand jury, and give his evidence

on oath. The King v. Bridgewater and Taunton Canal Company, M. 8 G. 4. Page 514 13. In an action of trover against the sheriff, for goods taken in execution, it is sufficient for the plaintiff to give in evidence, the warrant issued by the undersheriff, under the sheriff's seal of office, and he is not bound to prove the writ. Gibbins v. Phillips, M. 8 G.4. 535 n. (a).

14. A parish certificate, dated the 7th of September 1758, purported, in the body of it, to have been granted to a pauper and his family by two churchwardens and two overseers. It was signed and sealed by two overseers, and by one churchwarden only. The churchwardens for the year 1758 were nominated at Easter, and were proved to have been sworn into office on the 15th of September, at the visitation; but there was no direct evidence of their having been sworn into office before that time. The cer tifying parish, after the date of the certificate, had frequently relieved the pauper, and different members of his family, while they were residing in other parishes: Held, that in favour of such an ancient certificate, which had been treated by the certifying parish as valid, the Court would presume, that the churchwarden who executed the certificate was sworn before he exe cuted it, and, therefore, that it was duly executed by him as churchwarden: Held, secondly, that the execution by two over. seers and one churchwarden was an execution by the major part of the churchwardens and overseers, within the statute 8 & 9 W.3. c. 30. The King v. The Inhabitants of Whitchurch, M. 8 G. 4.

4

M

573

15. Parol evidence of the fact of tenancy is admissible, although the tenant hold under a written agreement. The King v. The Inhabitants of Holy Trinity, Hull, M. 8 G. 4.

16. It was proved by a pauper that he had been bound apprentices twenty-three years ago, to A, B.; that indentures were signed and sealed, and that he served seven years, and that A. B. had the indentures; that when the apprenticeship expired, the pauper asked 4. B. for the indentures, and he said the parish officers had them: Held, that the declarations of A. B., who might have been called as a witness, were not admissible in evidence, and that parol evidence of the contents was not admissible. 1 The King v. The Inhabitants of Denio, M. 8 G. 4. 620 17. Where a party examined before commissioners of bankrupt admitted that he had received a sum of money on account of the bankrupt, after an act of bankruptcy, but not that it was a subsisting debt: Held, that this was not evidence sufficient to support a count on an account stated with the assignees.

Query, Whether an admission obtained by such compulsory examination can be used as evidence in such an action. Tucker and Another, Assignees, v. Bar* row, M. 8 G. 4. ** 623

18 Where a parol agreement was made between A. and B that the former should let, and the latter take, certain premises upon the terms and conditions contained in a lease of the same premises granted by A. to C.: Held, that in an action by A. against B. för rent and non-repair, the lease could not be read

I have in my hands three bills, which amount to 120% 10s. 16d., which I have to get discounted or return on demand." Mullett v. Huchisou, H. 8 & 9 G. 4. 639 20. Where an examination of a soldier, taken before two magistrates, was tendered in evidence to prove his settlement, but it did not appear by the examination itself, or by other proof, that the soldier, at the time when he was examined, was quartered in the place where the justices had jurisdiction: Held, that it was not admissible. The King v. The Inhabitants of All Saints, Southampton, H. 8 & 9 G. 4. 785 21. Upon an issue whether a certain messuage is situate within a chapelry, a person who occupies rateable property within the chapelry is a competent witness to prove that it is. Marsden and Another v. Stansfield, H. 8 & 9 G. 4. 815

The plaintiff in an action on the statute 9 Anne c. 14. s. 2. `recovered treble the value of money lost at play; the loser not having sued within the time prescribed by the statute, a writ of error was brought by the defendant, and judgment was affirmed, without costs: Held, that the poor of the parish where the offence was committed were entitled to one moiety of the sum recovered, without deducting costs. Willan v. Taylor, T. 8 G. 4.

GAOL RATE. See POOR RATE, 5.

GROUSE.

111