1821. Saturday, JOHNSON, COOPER. If a defendant MR. Serjt. Onslow, on a former day in this Term, had obbe arrested by tained a rule nisi, that the defendant might be discharged out of the custody of the sheriff of Hertford, on entering the name of Josiah, instead of Josias, the Court will discharge him out of the custody of the sheriff, on his entering a common appearance, and undertaking to bring no ac tion against the plaintiff or sheriff. a common appearance, on an affidavit which stated, that he was described in the capias under which he was arrested, as Josiah, and that he was baptized by the name of Josias, and had always been known by that name. He referred to the cases of Smith v. Innes (a), and Wilkes v. Lorck (b), where similar applications had been granted. Mr. Serjt. Vaughan now shewed cause; and on his consenting that the defendant should bring no action either against the plaintiff or the sheriff, the Court made the rule (a) 4 Maul. & Selw. 360. Absolute (c). (b) 2 Taunt. 399. (c) In Kitching v. Alder*, where a defendant had been arrested by a wrong name, and given a bail bond, and moved to set aside the writ and proceedings, the Court of King's Bench required him to file common bail, and undertake not to bring any action. 1 Chit. Rep. 282. Saturday, WILLIAMS V. TAYLOR. A continuance By the rule, Michaelmas Term, 60 Geo. 3. every notice for of notice of bail, where time was not given by the Court, need not be served before three o'clock, as specified in the justifying bail in person, must be served before eleven o'clock in the forenoon of the day in which such notice ought to be served; except where an order of the Court for further time has been obtained, in which case it is sufficient to serve the notice before three o'clock in the afternoon of the day rule, Michael in which such order should be granted. mas Term, 60 Geo. 3. Held, by Mr. Justice RICHARDSON (the only Judge in Court), that a continuance of notice of bail, although time was not given by the Court, need not be served before three o'clock, as being within the spirit, though perhaps not within the letter of the rule. 1821. WILLIAMS v. TAYLOR BASSETT V. OSBORNE. THIS was an issue directed by the Vice Chancellor, on the 13th December, 1819, to try whether a second mortgage made by the plaintiff, was usurious or not, and it was further ordered, that the parties should proceed to trial at the Sit tings after Hilary Term, 1820. Monday, A defendant by the Vice Chancellor down to trial, on the ground that the plaintiff endeavour Mr. Serjt. Lens, on a former day in this Term, had ob- ed to delay it. tained a rule nisi, that the defendant might be at liberty to carry the record down to trial at the next Assizes, on an affidavit which stated, that he was desirous of trying the question, but that the plaintiff endeavoured to delay it; and he relied on the case of Humpage v. Rowley (a), as being precisely in point, Mr. Serjt. Vaughan was now about to shew cause: but the Court observed, that the plaintiff would not be damnified by this application, and that in Humpage v. Rowley, it was deemed so reasonable, that the rule was made absolute in the first instance. Rule absolute. Mr. Serjt. Vaughan then submitted, that as the order had been made so long since, it had in effect expired, and (a) 4 Term Rep. 767. 1821. SMITH v. Doe, d. JERSEY. the construction of the words of the instrument, and they were clearly not intended to express precisely and positively how what was required to be done should be done, that doubt may be best removed by ascertaining what a Court of Equity would have ordered to be done, on a question brought before them by a suit for a specific performance of a contract for a lease entered into in such loose terms as those: and I have no hesitation in saying, that they would, in decreeing the execution of a lease, have directed that it should contain a power of re-entry in all respects similar to that which is contained in the proviso in this lease, construing this loose clause precisely as it has been by the maker of the lease in question. So, I apprehend, a Court of Law would also have construed such a contract, if a question on the terms of such a power had been agitated before them. They would enquire in what manner a Court of Equity would have directed such a lease to have been drawn, and what form of lease was in received use amongst conveyancers of established character in business in such cases, and they would decide accordingly. Upon the whole, therefore, it seems to me, that the lease under your Lordships' consideration is valid-because it has been found by the special verdict that it was made in conformity with the former leases; and I consider the reference in the deed to such leases, as having the effect of requiring the new lease to be made and construed by reference to the contents of those former leases; and that they were properly taken by the tenant for life, as a guide to assist him in framing the instruments in the first instance; and if any question should afterwards arise as to its being a good execution of the power, I think the most effectual means of determining it, would be by investigation of the former leases, which have been admitted in evidence. If, on inspection of those leases, there should be found a similar power of re-entry reserved, or if no such clause should be found there, the power in the new lease be rea sonable and adequate, that would be sufficient to enable your Lordships to decide, that the new lease so framed, was good execution of the power to lease, the words of which ought not to be construed as meaning a precise and positive power of re-entry, as it has been contended it does, but a reasonable and ordinary power. Therefore, upon the particular words of the clause in the deed of settlement of 1757, and not on any general view of this case, I think that the lease in question ought to be supported, and that the judgment of the Court of Exchequer Chamber ought to be reversed, and that of the King's Bench affirmed. On the motion of the LORD CHANCELLOR, the House at once ordered the judgment of the Court of Exchequer Chamber to be Reversed. And the original judgment of the Court of King's Bench to be Affirmed. 1821. BASSETT v. OSBORNE. that it was necessary to apply to the Vice Chancellor for a second:-But the Court held, that it was a continuing order, and that another was not required. Monday, A recovery may be amend ed, by insert ing a "feefarm rent." TIMES, Demandant; MEREDITH, Tenant; EDWARDS, MR. Serjt. Bosanquet moved, that this recovery might be amended, by inserting the words "fee-farm rent ;"-on an affidavit which stated, that the vouchee was tenant in tail of such rent; that the deed to make a tenant to the præcipe, was sufficiently comprehensive to include it, as it conveyed all the freehold manors, messuages, tenements, and hereditaments of the vouchee, in the counties of Bedford and Buckingham, in the latter of which the rent issued;—that the manors were mentioned in the recovery, and the fee-farm rent was intended to be included, and that the parties were all alive. He referred to the case of Brett, demandant; Smith, tenant; Honeywood, vouchee (a); where a recovery was amended by inserting a rent-charge, which had long been treated as merged in the land by unity of possession. Fiat, (a) 1 Taunt. 484. |