1. Right of Enjoyment — Interruption.] Although an interruption in the enjoyment
of an easement for a less period than a whole year does not prevent altogether the
operation of sect. 2 of stat. 2 & 3 Will. 4, c. 71, instances of such interruption are
material for the consideration of the jury, on the issue whether the enjoyment has
been of right. Eaton v. Swansea Water Company, 340.

2. Evidence.] In case against a waterworks company, incorporated by act of Parlia-
ment, for the obstruction of a watercourse, the issue being, whether the enjoyment
of the watercourse by plaintiff had been of right, evidence was given for defend-
ants that they had at different times interrupted plaintiff in taking water from the
watercourse; and a servant of plaintiff having removed a stone which prevented
the water from flowing into plaintiff's meadow, an information was laid by defend-
ants against the servant for drawing off water from the waterworks made by virtue
of their act, contrary to the form of the said act, and he was convicted. Plaintiff's
son attended, at his father's desire, before the magistrates, and paid the 1s. fine
imposed on the servant; and plaintiff did not appeal against the conviction, an
appeal being given by the company's act:

-

Held, that the information and conviction were admissible against the plaintiff. Ib.
See NUISANCE, 2, 3, 4.

EJECTMENT.

1. Tenants in Common General Verdict.] Where, in an action of ejectment by
tenants in common, it appeared that other parties, whose numbers were not ascer-
tained, were also jointly interested with the lessors of the plaintiff in the prem-
ises:

-

Held, dissentiente Platt, B., that the lessors of the plaintiff were not entitled to a gen-
eral verdict, but that the jury were bound to say to what portion of the premises
the lessors of the plaintiff were entitled. Doe d. Hellyer v. King, 517.
2. Irregular Judgment — Writ of Restitution.] Lessor of the plaintiff in ejectment
obtained an irregular judgment under which possession was delivered to him. The
judgment was afterwards set aside, and a rule was obtained for restoring possession
to H., whose tenant had been dispossessed; and that H. should be admitted to de-
fend as landlord. H. entered into the consent rule, and delivered a plea. The
rule could not be served upon the lessor of the plaintiff, by reason of his abscond-
ing:
Held, first, that H. was entitled to a writ of restitution. Secondly, that H. was suffi-
ciently made a party to the record. Whittington v. Hards, 317.

ELECTION.

Vole of Moderator.] At an election of clerk to a board of guardians, twenty-one
guardians were present besides the chairman; eleven voted for G., and ten for D.;
the chairman did not vote : -

Held, that it was the duty of the chairman to vote, and, therefore, G. was not elected
by a majority of the guardians present. Regina v. Guardians of St. Martin's-in-
the-Fields, 361.

See COUNCILLOR.

ENCLOSURE ACT.

1. Reservation to Lord of the Manor "Any Coals or Minerals."] At the time of
the passing of an enclosure act, the soil and freehold of the common land was
vested in the lord of the manor, subject to certain rights of common, and he was

Common Law, Admiralty, &c.

also entitled to the coals and minerals, and unopened stone quarries, &c., under
the said common lands, as part of the said freehold. The act did not recite the
particular rights of the lord, but enacted that certain allotments should be made to
the commoners in lieu of their rights, and to him as lord of the manor, for his right
"to and in the soil" of the said common lands, and also to and for the damage and
injury he would sustain by being obliged to make satisfaction to the proprietors of
the lands for digging coals or minerals; and it also enacted, "that if the lord
should enter on any of the lands for the purpose of digging, getting, &c., 'any
coals or other minerals,' he should make compensation for damage done," &c.
There was no express reservation of the mines or minerals to him. The allotments
were made pursuant to the act :-

Held, that the lord of the manor, for the time being, was entitled to the mines and
minerals under the land so enclosed, paying compensation to the owners of the
allotments for any damage done by working the mines. Micklethwait v. Winter,

526.

Held, also, that stones got from quarries are minerals. Ib.

Pleading.] Case - The declaration stated that the plaintiff and the defendant were
attorneys; that the defendant falsely represented to the plaintiff that he, the de-
fendant, was authorized by one Fennell to bring an action, in Fennell's name,
against one C. and B., and that he was authorized by Fennell to retain the plaintiff
to bring the action; that the plaintiff brought the action; that the defendant was
not so authorized, and that the plaintiff was compelled to discontinue the said
action and to pay costs. Other counts charged the defendant with similar acts
with reference to other parties.

Plea That the plaintiff was not employed, and did not act as such attorney.
Replication That the plaintiff ought not to be admitted to plead the said plea, be-
cause a judge's order was made for taxing the plaintiff's bill of fees in the action,
in the declaration mentioned, delivered to the defendant and one Oldershaw, and
one A. Jenkinson, and for the master to certify what was due; that the defendant
and A. Jenkinson should be at liberty to dispute their retainer; that the master
allowed 1967. 13s. 5d.; that the plaintiff sued the defendant, Oldershaw, and A.
Jenkinson, for determining the question of the retainer, and recovering the sum of
1961. 13s. 5d.; that the question of the retainer being referred to the master, he
certified that such retainer by the defendant, Oldershaw, and A. Jenkinson, was
proved, whereupon the plaintiff signed judgment against the three parties for 2471.
3s. 10d.; and that the plaintiff's bill of fees was for fees due to him for work done
by him in bringing the actions in the declaration mentioned:

Held, that the replication did not state a case of estoppel, and was bad. Callow v.
Jenkinson, 533.

EVIDENCE.

1. Admissions of Master and Crew.] In a cause of damage, the allegation responsive
to the libel pleaded as an exhibit a paper signed by the master and crew of the
ship proceeding in the cause, and a declaration of the mate of the same ship. The
mate and rest of the crew were interested in the suit in respect of their clothes,
which had gone down in the ship:-

Held, that admissions and declarations of the mate and crew were not admissible, but
that the admissions of the master were admissible. The Midlothian, (sd.) 556.

Common Law, Admiralty, &c.

2. Negligence Scienter.] Case for an injury done to the plaintiff by the defend-
ant's bull. The plaintiff, whilst walking along a public street, wearing a red hand-
kerchief, was attacked and injured by the defendant's bull, which was being driven
along the street. The defendant stated, after the accident, that the red handker-
chief was the cause of the injury, for that he knew the bull would run at any thing
red. He also stated, on another occasion, that he knew that a bull would run at
any thing red: —

Held, that this was evidence for the jury in support of the averment of the scienter.
Hudson v. Roberts, 514.

3. Easement Interruption 2 & 3 Will. 4, Stat. 71, s. 2.] Although an interrup-
tion in the enjoyment of an easement for a less period than a whole year does not
prevent altogether the operation of sect. 2 of stat. 2 & 3 Will. 4, c. 71, instances of
such interruption are material for the consideration of the jury, on the issue whether
the enjoyment has been of right. Eaton v. Swansea Waterworks Company, 340.
4. In case against a waterworks company, incorporated by act of Parliament, for the
obstruction of a watercourse, the issue being, whether the enjoyment of the water-
course by plaintiff had been of right, evidence was given for defendants that they
had at different times interrupted plaintiff in taking water from the watercourse;
and a servant of plaintiff having removed a stone which prevented the water from
flowing into plaintiff's meadow, an information was laid by defendants against the
servant for drawing off water from the waterworks made by virtue of their act,
contrary to the form of the said act, and he was convicted. Plaintiff's son at-
tended, at his father's desire, before the magistrates, and paid the 1s. fine imposed
on the servant; and plaintiff did not appeal against the conviction, an appeal being
given by the company's act:

-

Held, that the information and conviction were admissible against the plaintiff. Ib.
5. Cross Examination.] A witness, a clerk at a booking office, stated that a bankrupt,
before his bankruptcy, sent goods to him, directed by initials only, and that after-
wards the bankrupt and the plaintiff called and saw the goods, when the bankrupt
told the witness he had sold them to the plaintiff. The point in dispute was the
bona fides of the sale: -

Semble, that the witness might be asked, on cross examination, the following ques-
tion: "Would you have acted upon the order of the plaintiff as to the delivery
of these goods?" Morgan v. Whitmore, 506.

6. Date of Documents.] A receipt, and also a delivery order, given by the plaintiff to
a witness a month after the sale, but dated on the day of the sale, and not other-
wise shown to be in existence before the sale:

Held, dubitante Pollock, C. B., to be admissible, as affording some evidence of the sale
having taken place on the day of the date of the documents. Ib.

7. Entry in Book of deceased Steward.] In ejectment for twenty-two acres, parcel of
the manor of II., it appeared that the whole manor was settled on the Earl of A.,
in 1559, when a lease of it was granted to Lord L. for one hundred years, and that an
act of Parliament passed restraining the Earls of A. from alienating their property.
In 1825, an act was passed to enable the Duke of N., the heir of the Earls of A., to
sell, and the manor of H. was then sold to the lessor of the plaintiff. In order to show
that the lands sought to be recovered were identical with those included in the
lease of 1559, (there being no trace of any original deeds dealing with the prop-
erty later than 1559,) a book, found in the muniment-room of the Duke of N., was
tendered, purporting to be that of one S., a steward of the Earl of A. in 1610 and
1620, in which, under the former date, was an entry of a lease of these lands from
S. and L. to one H., of an assignment from H. to P., and a minute by S. that "P.'s
widow hath assigned to Sir E. C., who yet claimeth ten years to come:
Held, that the entries were not admissible as evidence of reputation, as to the extent
of the manor, or as entries made by a deceased person in the discharge of his duty,
or as secondary evidence of the documents referred to. Doe d. Padwick v. Witt-
comb, 487.

8. Abstract of Title.] An abstract of title stating the recitals in certain deeds, and
relied upon by the defendant when before a master in chancery in a suit in which
he was plaintiff, is admissible against him in an action as evidence of the matters
recited, without producing the deeds. Pritchard v. Bagshawe, 371.

Common Law, Admiralty, &c.

9. Secondary.] A deed was delivered to T., with instructions not to give it up to
any one but S. and R. M. together, and it was given up by T. to S. and R. M.
many years after. P. and B. were the trustees named in it. At S.'s death the deed
was not found on her premises, but no proper search in the repositories of the
trustees was proved: -

Held, that the deed was intended to be operative, but that the search was insufficient
to let in secondary evidence. Doe d. Richards v. Lewis, 400.

10. Declarations.] Held, also, that declarations made by S. as to the contents of the
deed were not admissible as cutting down her title. 1b.

11. Insane Witness.] A lunatic, under confinement in a lunatic asylum, is admissible
as a witness, if the judge considers him competent in point of understanding, and
to be aware of the nature and sanction of an oath. Regina v. Hill, 547.
12. Cross Examination.] The lunatic may be examined and cross examined, and
witnesses called on either side, in order to determine the question of competency;
but when admitted, it is for the jury to determine whether his testimony is affected
by his insanity, and what degree of weight is to be attached to it. Ib.

13. The terms of a bill of exchange cannot be altered by a parol contract. Besant
v. Cross, 389.

See ALTERATION OF INSTRUMENTS, 1, 2. FRAUD, 2. NUISANCE, 5.

Dead Body.

EXECUTION.

See BANKRUPT, 4.

EXEMPTION.

See RATES.

EXHUMATION.

A faculty to exhume a corpse, with a view to its identity, may be de-
creed. Pope, in re, (Ec.) 585.

EXPRESS MALICE.

See SLANDer.

FACTORIES.

1. 7 & 8 Vict. c. 15.] In order to constitute an offence under the 21st section of 7 &
Vict. c. 15, relating to labor in factories, it is not enough that the mill gearing was
not securely fenced at the time when the accident occurred, and when the ma-
chinery was in motion; it must be made to appear that the machinery was at that
time in motion for some manufacturing purpose. Coe v. Platt, 491.

2. Quare, whether that section renders the leaving the mill gearing unfenced an
offence generally, or only so far as children or young persons are concerned. Ib.

1. To an action for goods sold, the defendants pleaded a release, to which the plain-
tiff replied that the release was obtained by fraud of the defendants, and issue was
joined on a traverse of the replication.

Common Law, Admiralty, &c.

It appeared by the evidence that the defendant, being indebted to several persons,
and amongst others to the plaintiff, proposed a composition of 6s. 8d. in the pound,
which was agreed to by the majority of the creditors in number; but the plaintiff,
who was not present when the 6s. 8d. was agreed to at a meeting of the creditors,
refused to concur unless he was paid 13s. 4d. in the pound upon part of the debt,
and the other part was paid in full. Upon receiving notes for the amount agreed
upon, and the positive assurance of the defendants that no other creditor than
himself was preferred, and that no one of them was to have any thing beyond the
6s. 8d., he signed a release for his whole debt. The assurance of the defendants
that no other creditor was preferred was untrue, as there was no doubt but that
they had preferred other persons besides the plaintiff:-

Held, by Wightman, J., that it was no answer upon this issue to show that the plain-
tiff himself had also contracted for a preference, in fraud, not of the defendants, but
of the other creditors, and that the defendants could not set up a counter fraud by
them and the plaintiff, by which they colluded to deceive other persons, as an an-
swer to a charge of fraud practised by the defendants upon the plaintiff, which
would have the effect of depriving him of part of his original just right. Malla-
lieu v. Hodgson, 280.

2. By Coleridge, J., and Erle, J., that the replication was not proved, because the
whole stipulation for a preference being a fraud on the part of the plaintiff towards
other creditors, no part of it could be legally relied on by him as forining a mate-
rial inducement for this deed; and that the fact of the plaintiff having obtained a
preference for himself not vitiating the release as against himself, the defendant
having also given a preference to others, was no fraud upon the plaintiff. Ib.
3. To counts upon three several promissory notes, the defendants pleaded that they
were indebted to the plaintiff in 9891. 7s., and had accepted four bills of exchange
for the amount, drawn by the plaintiff and payable to his order; that the defend-
ants compounded with their creditors, and that the plaintiff agreed to the composi-
tion, receiving a preference beyond the other creditors, and executed a release of
his debt; that it was his duty to take up the four bills of exchange, but that he
neglected to do so, and the owners of the bills threatened to sue the defendants,
who, in order to induce the plaintiff to take them up, gave him the promissory notes
in these counts mentioned, and that there was no other consideration for the giving
of the notes. The plaintiff replied de injuria absque tali causa:
Held, under the above circumstances, that the plea was proved; that, as the fraudu-
lent preference of the plaintiff did not make the composition void as against him,
there was no sufficient consideration for the giving the notes, as the plaintiff was
bound to protect the defendants from the consequences of liability upon these
bills. Ib.

4. In procuring Consent to Marriage.]

See MARRIAGE.

FRAUDS, STATUTE OF.

See ACCEPTANCE.

FRAUDULENT CONVEYANCE.

In Contemplation of Marriage.]

-

See DEED, 1, 2.

FRAUDULENT SALE.

Fraud of first Vendee Subsequent Sale to innocent Vendee.] A sale of goods ef-
fected by the fraud of the buyer is not an absolutely void transaction, but the seller
may elect to treat it as a contract. If he does not treat the sale as void before the
buyer has resold the goods to an innocent vendee, the property will pass to that
vendee. White v. Garden, 379.

GOODS SOLD AND DELIVERED.

See ACCEPTANCE.