1841.

SIMPSON

บ.

DISMORE.

Exch. of Pleas, granted in this case. There was ample evidence to go to the jury of the identity of the plaintiff with the person named in the license. We find him acting as an apothecary, prescribing and dispensing medicines to his patients, and then producing a certificate or license for that purpose in his name, from the body empowered by law to grant it. That is quite sufficient evidence of identity to go to the jury.

GURNEY, B.-It is certainly sufficient evidence of identity to call on the defendant for an answer to it.

ROLFE, B., concurred.

Rule refused.

Nov. 8.

Lands being

held by G. as tenant from year to year to D.,

D., who died in

1837, devised

the same to

term of 140

years, upon

to permit his

DOE d. DAVIES and Others v. EVANS.

EJECTMENT to recover the possession of a messuage and lands in the county of Carmarthen. There had been a former ejectment brought by the same parties, in which a verdict had been found for the defendant, on the ground trustees for the that there was no determination of the tenancy of one Thomas Griffiths in the premises in question; and that trust (inter alia) was the principal point in the present case. This cause was tried before Erskine, J., at the last Summer Assizes for the county of Carmarthen, when it appeared that, prior to and during the year 1837, Griffiths had been and continued tenant to one John Davies of the premises sought to be recovered, and had paid him rent for the same; and that John Davies, who died in that year, devised the property in question to certain persons, who were the lessors of the plaintiff in this action for the

wife E. D. to take the rents and profits thereof during her life. G.

paid the rent to

E. D. the widow, after D.'s death, from 1837 to 1840,

and on receive

ing a notice to quit from her in

March 1840, stated that he did not think

term of 140 years, upon trust (inter alia) to permit his

she would turn him out of possession, as she had promised he should continue on as tenant from year to year:-Held, in an action of ejectment brought by the trustees for the recovery of the premises, that this was sufficient evidence of a disclaimer by G. of the title of the trustees, to warrant the jury in finding a verdict for the plaintiff.

1841.

DOE

d.

DAVIES

V.

EVANS.

wife, Elizabeth Davies, to take the rents and profits thereof Exch. of Pleas, during her life. The widow received rent from Thomas Griffiths from 1837 to 1840, and in March in that year she sent him a notice to quit the premises. Evidence was given at the trial, and not objected to, that Thomas Griffiths, on receiving the notice to quit, said he did not think Mrs. Davies would turn him out of possession, as she had said that he should not be removed, but continue on as tenant from year to year. It was objected for the defendant, that as the legal estate was in the trustees of the will of John Davies, they alone were the lessors of Griffiths, and as such entitled to give notice to quit, and as they had not given any notice, there was no proof of the determination of Griffiths's tenancy. The learned Judge refused to stop the case, but directed the jury to consider whether Griffiths held the premises as the tenant of the trustees or of the widow, Mrs. Davies; telling them, that if he was not tenant to Mrs. Davies, he had disclaimed the title of the trustees, and therefore no notice to quit by them was necessary to entitle them to recover. The jury thereupon found their verdict for the plaintiff, the learned Judge giving leave to the defendant to move to enter a verdict for him, if the Court should be of opinion that there was no evidence of the determination of the tenancy of Griffiths.

E. V. Williams now moved accordingly.-There ought to have been a notice to quit given by the trustees, in order to determine the tenancy of Griffiths. What was said by him on receiving notice to quit from Mrs. Davies, could not amount to a disclaimer of the title of the trustees; neither would the payment of rent to a cestui que trust be any proof of disclaimer of their title. They and they only had the legal estate, and had power to determine the tenancy.

PARKE, B.—I think no rule ought to be granted in this

VOL. IX.

E

M. W.

Exch. of Pleas, case. The statement of Griffiths, not being objected to, was

1841.

DOE
d.

DAVIES

V.

EVANS.

admissible in evidence, and that was, that Mrs Davies had promised him that he should not be removed, but continue as tenant from year to year; that affords some evidence of his having agreed to hold under the tenant for life, whereby he disclaimed the title of the trustees. And that, accompanied by his having paid rent to her, is evidence to go to the jury of attornment to the tenant for life, and of repudiation of the title of the trustees. In a case like the present, slight evidence would be sufficient to remove a mere technical objection.

The rest of the Court concurred.

Rule refused.

Nov. 18.

WIGDEN and Another v. BIRT.

On an applica- ON the first day of this term, Cowling applied in this

tion under the

4, c. 62, s. 31, for leave to

issue execution on a judgment in the Court of

stat. 4 & 5 Will. case, under the stat. 4 & 5 Will. 4, c. 62, s. 31, for leave to issue execution upon a judgment obtained in the Court of Common Pleas at Lancaster. The affidavit on which he moved (which was entitled in the Court of Common Pleas at Lancaster) stated, that "the defendant is not now a resident in the county of Lancaster, but resides in tinctly that the the county of Middlesex, and hath not any goods or chatresident within tels within the jurisdiction of the said Court of Common the jurisdiction Pleas at Lancaster." He admitted that this affidavit did

Common Pleas at Lancaster, the affidavit

must state dis

defendant was a

of that Court at

the time of the not in terms follow the language of the statute, which enjudgment or of

and then had

goods and chat

action brought, ables the superior Courts to issue execution on a judgment in that Court, where the party against whom it has been recovered "shall remove his person or goods or chatsince removed tels from and out of the jurisdiction of the said Court of

tels there, which he has

out of the jurisdiction.

It is

not sufficient to state that he is not now a resident in the county of Lancaster, and has not any goods or chattels within the jurisdiction; or, that he is not now a resident there, and has removed all his goods and chattels out of the jurisdiction since the judgment.

The affidavit must be entitled in the superior Court.

1841.

WIGDEN

v.

BIRT.

Common Pleas at Lancaster," but urged that substan- Each of Pleas, tially it was the same, and shewed sufficiently that the defendant must have removed within the meaning of the statute, since the writ must have been directed to him as of the county, and he must have been served within the county. He stated also, that some of the officers of this Court differed in opinion as to whether the affidavit should be entitled in the Court below or in this Court.

The Court, however, held the affidavit to be defective, inasmuch as it did not state that the defendant had ever been a resident within the county of Lancaster, or that he had removed any goods or chattels out of the jurisdiction. He might have been there by accident. It was better to adhere to the language of the statute. They held also that the affidavit ought to have been entitled in this Court.

Cowling afterwards (Nov. 11) renewed his application on an affidavit (entitled in this Court) in the following terms:-" that the defendant is not now a resident in the county of Lancaster, but resides in the county of Middlesex, and has removed, since the judgment in this action, all his goods and chattels from and out of the jurisdiction of the said Court, &c., and has not now any goods or chattels within the jurisdiction of the said Court, whereon the plaintiff can levy the amount of his said judgment," &c.

The Court thought the affidavit still defective, in not stating expressly, that at the time of the commencement of the suit, or before judgment, the defendant was resident within the jurisdiction of the Court of Common Pleas at Lancaster, and then had goods there which he had subsequently removed.

And now, the affidavit being amended by stating, that at the time of the commencement of the action, and at

1841.

WIGDEN

Exch. of Pleas, the time of the judgment, the defendant was a resident in the county of Lancaster, and then had goods and chattels within the jurisdiction of the Court, and that he had since removed all his said goods and chattels out of the jurisdiction of the said Court," &c., &c.

v.

BIRT.

The rule was granted.

Nov. 18.

A plaintiff does not waive his

right to an attachment against the sheriff for not

duly returning a writ of fi. fa., by directing him, after the expiration of the rule to return the writ,

to proceed with

the execution,

which had been suspended by an adverse claim.

HOWITT v. RICKABY.

W. H. WATSON moved for a rule calling upon the

defendant to shew cause why an attachment against the sheriff, for not returning a writ of fieri facias, should not be set aside, with costs. His affidavits stated, that the writ was delivered to the sheriff on the 22nd of June, and on the 28th he was required, by a judge's order, to return it. On that day, a claim was made by a third party to the goods; but that claim being afterwards barred, the plaintiff's attorney, on the 8th of July, directed the sheriff to proceed with the execution. The writ was returned by the sheriff on the 21st of September. It was now contended, that by the direction, on the 8th of July, to proceed with the execution, the plaintiff had waived his right to attach the sheriff for not returning the writ pursuant to the order of the 28th of June.

PARKE, B.-In a case of this kind, subsequent obedience to the rule to return a writ is no answer to an application for an attachment. The sheriff ought to have returned the writ at the expiration of the rule. The plaintiff, wishing to assist him, afterwards directs him to go on with the execution; but that is no waiver of his right to have an attachment. The attachment may be set aside on payment of costs.

Per CURIAM,

Rule accordingly.