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bound the assignee, though the lessee, in this part of the deed, covenanted only for himself and his executors and administrators; and that the payment of 4001. to the lessee was no ground for construing this covenant as limited to him personally.

2. It was sufficient, on this record, to aver that the lessor was always ready and willing to furnish timber, without stating that he actually did furnish it.

3. A covenant to yield up in repair at the end of a term runs with the land, and binds an assignee, though not named.

4. Breach of a covenant to cultivate according to the custom of the country is sufficiently averred by stating that defendant did not so cultivate, without specifying instances.

Held also, that the plea was bad, for that the condition precedent to the defendant's obligation to repair was sufficiently performed if he was ready and willing to supply timber when required.


17 Com. B. 644. County Court-Appeal-Absence of Evidence to justify the Verdict. Where a County-Court judge, in stating a case for the opinion of this Court, under the 13 & 14 Vict. c. 61, s. 14, sets out evidence which shows a total absence of foundation for the conclusion at which he has arrived, the Court will reverse his decision.

8. REvis v. SMITH. 18 Com. B. 126. Defamation-No Action lies against a Man for a Statement made on Oath

in a Court of Justice. This was an action for a libel contained in an affidavit by the defendant in some proceedings in Chancery; the declaration alleging the libellous statement to have been made "falsely and maliciously, and without any reasonable or probable cause.”

The declaration being demurred to, all the authorities were cited in the argument before the Common Pleas, and the learned judges unanimously decided in favour of the demurrer, and that the action was without principle or analogy to sustain it, tending to trammel witnesses in giving evidence in courts of justice.

9. WILSON V. EDEN AND OTHERS. 18 Q. B. 474. Devise-Stat. 7 Wm. 4 & 1 Vict. c. 26, s. 26— When Leasehold Estates

will pass under a General Devise of Realty. Sir Robert Eden, by his will, made in 1815, but confirmed by a codicil in 1841 (see stat. 1 Vict. c. 26, s. 34), after directing payment of his debts, and funeral and testamentary expenses, and giving certain annuities, with which he charged his real estate, and certain legacies, bequeathed “all the rest, residue, and remainder” of his "personal estate, goods, and chattels, whatsoever and wheresoever," to his brother, Mr. Morton Davison, "absolutely, to and for his own use and benefit." He then devised as follows: "I give and devise all and singular my manors or lordships, rectories, advowsons, messuages, lands, tenements, tithes, and hereditaments, situate, lying, arising, or being, at or near,” &c., in the county, &c.; " and a parcel of land purchased by me

» of M. L., at, &c., in the county, &c.; "and all other my real estates in the said counties of,” &c.," and elsewhere in Great Britain; and all my estate and interest therein,” to trustees, to hold the same (subject to the said annuities) to the use of the said Morton Davison for life, remainder to the issue of the said Morton Davison in tail male; in default of such issue, to Sir W. Eden and his heirs.

At the time of making his will, and at his decease, testator was possessed of freehold estates in both the said counties, and of lands held under certain church leases in one of them, which had been, according to the usual practice of the lessors, renewed every seven years.

These leaseholds were distinct from, but near, and in some places contiguous to, the freeholds.

Some of them were let and occupied with the freeholds, at undivided yearly rents ; cottages, ornamental and otherwise, were built upon part; and on part were buildings occupied by labourers employed upon the freehold estates.

On a case stated from the Court of Chancery, the Court of Queen's Bench held that, under stat. 7 Wm. 4. & 1 Vict. c. 26, s. 26, the leasehold estates in question passed under the general devise of the realty, there being no contrary intention apparent on the will.

10. THOMPSON v. TOMKINSON. 11 Exch. 412. EjectmentCommon Law Procedure Act, 1852Right of Party to come

in and Defend. This was an action of ejectment, in which application was made to the Court of Exchequer to allow William Gilbert, who

had himself recovered judgment in ejectment for the property in dispute upon a forfeiture of a lease, but had not actually obtained possession, to come in, under stat. 15 & 16 Vict. c. 76, s. 172, and defend the action; but the Court refused the rule, on the ground that no writ of possession had been executed, and non constat that the applicant might ever get possession.(See Croft v. Lumley, 4 E. & Bl. 274, 614.)

11. Marcon v. BLOXAM. 11 Exch. 586. Equitable DefenceMortgage-Covenant Plea on Equitable Grounds

Replication on Équitable Grounds-Account in Equity. In this action, which was brought on a covenant in a mortgage-deed, by Susannah Arnold (the defendant's testatrix) and Henry Arnold, for payment of 2,8001. and interest, the defendant pleaded, on equitable grounds, setting out the deed, which recited the will of George Arnold, whereby he bequeathed (inter alia) his furniture, plate, books, pictures, &c., subject to the payment of his debts, to Susannah Arnold for life, and after her decease, to Henry Arnold. The deed also recited a decree of the Court of Chancery, by which it was ordered that the furniture and other articles aforesaid should be sold, and the proceeds paid into court; that the books and pictures had been valued at 2,0501., at which sum Henry Arnold had agreed to purchase them; and that to enable him to do so, the plaintiffs had agreed to lend him 2,0501., and a further sum of 7491. 58., upon the security of the joint and several covenant of Susannah Arnold and Henry Arnold, and an assignment (inter alia) of the furniture, &c. The deed then witnessed that Susannah Arnold and Henry Arnold assigned (inter alia) the furniture, plate, pictures, and books, to the plaintiffs as security for 2,8001., with a power of sale in default of payment, the plaintiffs to hold the proceeds of sale in trust to pay the expenses, and then to apply the monies in satisfaction of the principal and interest due. The plea then averred that the plaintiffs sold the furniture, &c., and received sufficient to satisfy the principal and interest, which they ought to have applied accordingly. The plaintiffs replied on equitable grounds, except as to 2,0851, 18s. 4d., the parcel of plaintiffs' claim, that the valuation of the plate and furniture was not complete at the time of the execution of the deed, and that they were afterwards valued at 7061. 88., at which sum Henry Arnold agreed to purchase them; that by an indenture between Henry Arnold and the plaintiffs, after reciting (inter alia) that 2,8001. and interest was due to the plaintiffs; that Susannah Arnold had died, and that, in order to enable Henry Arnold to pur. chase the plate and furniture, the plaintiffs had agreed to lend him 6001., Henry Arnold assigned to the plaintiffs all the property mentioned in the deed, to secure the 2,8001. and interest, and 6001. and interest, together with a power of sale. The replication then stated that the plaintiffs sold the plate and furniture, and, after expenses, realized 1,1271. 158.; and that there was due, under the indenture, in respect of the 6001. and interest, 6381. 58. 6d. ; that Henry Arnold, not having paid into the Court of Chancery the 7061. 8s. for the purchase of the plate and furniture, the plaintiffs, in order to pay the same, retained, out of the money realized by the sale, 7061. 88.; and that the sums of 6381. 58. 6d. and 7061. 88., being deducted from the proceeds of the sale, the plaintiffs never realized more than 2,0881. 188. 4d., which was only sufficient to pay a part of the plaintiffs' claim in the declaration. The Court of Ex-. chequer held that, in taking the account in equity, the plaintiffs were not entitled to deduct from the amount for which the property sold, the 6001. and interest, for that would, in effect, be to tack the mortgage of 2,8001. to the mortgage of 6001., which could not be done, since the equity of redemption was in different persons; but that the plaintiffs were entitled to deduct the 7061., since the whole property was not in their possession, and they had no right to sell it until the 7061. 88. was paid into court.

12. Wood v. DEVANIS. 11 Exch. 493. Equitable Replication -- Common Law Procedure Act-- Power of Court of Common Law to give Relief on Matters affecting written Agreement without the Agreement being reformed.

This was an action on a policy of assurance in the Equity and Law Life Assurance Society. The policy made the plaintiff's proposal and declaration as to the assured's life a part of the contract, and avoided the contract, if these were untrue. The plea alleged that the plaintiff's said declaration contained a certain false and untrue statement. The plaintiff in his replication set up the defendants' prospectus that every policy should be indisputable, except in cases of fraud, and negatived the fraud in the plaintiff's said proposal and declaration. The rejoinder did not deny these facts, but merely alleged that the defendants did not make such representation at the time of effecting the policy, or at any other time except by the prospectus. To this there was a demurrer, and the Court of Exchequer unanimously held the rejoinder bad, and the replication setting up the prospectus good.

*** Jacobs v. Richards, 18 Beav. 303, and Graham v. Ackroyd, 10 Han. 192, show that it is an established rule of Equity, that when there is a valid instrument, the Court will give effect to it; and if either party relied on something not included in the instrument, he must get it reformed. The Court in the first instance decided that the prospectus relied on in the replication could be set up without the written agreement being reformed, the prospectus being set up under circumstances which rendered it inequitable that such a defence should be pleaded.

13. Davis V. JONES. 17 Com. B. 625. Evidence-Parole Evidence to supply Omission of Date in written Contract.

This was an action for a wrongful distress; and the right of the plaintiff to distrain turned on a written agreement, by which the plaintiff agreed to take certain premises for three years, at a rent of 301., payable quarterly. The instrument was silent as to the time from which the rent was to commence, and there was evidence that the date was filled in after the execution by the defendant; and also that, contemporaneous with the execution, a parole agreement was entered into, by which the rent was only to commence from the completion of certain repairs. The Court of Common Pleas held, in compliance with Murray v. Earl of Stair (2 B. & E. 82), that such parole evidence was admissible.

14. REG. v. LEGGATT. 18 Q. B. 781.

Habeas Corpus by Husband to regain Custody of Wife. This was a rule calling on Mr. Leggatt, at the instance of Mr. Sandilands, to show cause why a habeas corpus should not issue to bring up the body of the applicant's wife, who was not on good terms with the applicant, and voluntarily resided with Mr. Leggatt, her son. On cause being shown, the Court of Queen's Bench discharged the rule, holding that where a wife is, by her own desire, living apart from her husband, and is under no restraint, the Court will not grant a habeas corpus on the application of the husband, for the purpose of restoring her to his custody.-(See Re Cochrane, 8 Dowl. 630; and Rex v. Mead, 1 Burr. 542.)

15. ATTORNEY-GENERAL v. Ruck11 Exch. 763.

Information-Joinder of Counts--Arrest of Judgment. This was an information against the defendants, under the Customs Act, 8 & 9 Vict. c. 87, charging, in the three first counts,

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