H. S., and to the use and benefit of him and his children." J. B. and his wife had five children, one of whom died in the lifetime of the testator, another died after his death under twenty-one, and a third attained twenty-one and died unmarried and intestate. The two surviving children after the death of the testator's widow, and of their parents, executed a disposition under the 3 & 4 Will. 4, c. 74, for barring all remainders in the estates at B.:-Held, that these two children took an estate in fee-simple, as tenants in common, in the estates in question. Spry v. Bromfield, the beer is consumed, are liable to be distrained for the rent of the house. Joule v. Jackson, 450 EJECTMENT. See LIMITATION ACT. Service of Declaration. Service of a declaration was effected by passing the copy of the declaration and notice under the door of the dwelling-house, the party being in the house at the time, and refusing to open the door, or listen to the explanation given of the object and nature of the service: -Held, sufficient. 545 v. Roe, Doe d. Lowndes EVIDENCE. 439 Secondary Evidence-Short-hand Notes-Fine. Where a deed is in the hands of an (5). Power of Sale to Executors. A testator devised among his children (naming them), one half of his property at his decease, whether in houses, lands, or other effects, to be equally divided among them and their heirs, according to the judgment of his executors, whom he empowered to sell or dispose of the whole or any part, ac-attorney, who holds it not merely as atcording to their opinion, for the bene-torney, but as a security for money owfit of his children, as they severallying to him from his client, and the atarrived at the age of twenty-five, and not before, unless his executors should think it prudent to divide it before. The testator then gave the remaining half of his property to his wife for her life, and to leave it at her death by her will among his children; but if she made no will, then to be equally divided among his children and their heirs-Held, that the power of sale given to the executors extended only to the moiety first devised among the children and their heirs. Bragg v. Ryland, DISCONTINUANCE. DISTRESS, 59 What Goods exempt from. Brewer's casks sent to a publichouse with beer, and left there until torney, being called on a subpœna duces tecum, refuses to produce the deed on the ground of his own lien, the party is entitled to give secondary evidence calling for the production of the deed of its contents. There are no degrees of secondary evidence; but where a party is entitled to give secondary evidence at all, he may give any species of secondary evidence within his power. Where, on a former trial of the title to the same property, on an ejectment by the same lessors of the plaintiff against a different defendant, a deed was given in evidence on the part of the defendant, and the limitations in it were stated in Court by the defendant's counsel:-Held, that a copy of the short-hand notes of that statement was not receivable in evidence on the part of the same lessors of the plaintiff, in a second ejectment against another party. Quære, whether such evidence would have been receivable, if the parties to the action had been the same? Where, in ejectment, evidence was received in favour of the plaintiff which was inadmissible, but all objections and exceptions were reserved for the opinion of the Court above, by the consent of both parties:-Held, that the defendant was not entitled to a new trial without payment of costs, on the ground of the reception of this evidence, if the legal evidence admitted shewed the title to be in the lessors of the plaintiff; as, upon such a reservation, the Court are called upon to decide whether the lessors of the plaintiff are entitled to recover or not. the furniture. In October, 1829, the widow caused the furniture to be valued, in order to her taking out administration to L., which she afterwards did. In 1838, the furniture was sold by the defendant, (who had married another daughter of L.) with E.'s concurrence. In 1840, (disputes having arisen about the distribution of the proceeds), E. took out administration to her mother:-Held, that E. could not maintain trover for the furniture, without having taken out administration de bonis non to L. Elliott v. Kemp, FINE. See EVIDENCE. Discontinuance by. 306 By a will, in 1789, an estate was An examined copy of the record of a fine, levied with proclamation, is as good evidence of the fine as the chiro-devised to A. G. M. for life, with regraph itself certified by the officer. A fine was proved to have been levied of the estate in question, in 1790, and the lessors of the plaintiff gave in evidence a deed of conveyance of part of the property in 1802, by the conusor of the fine to a purchaser, which stated that the fine was levied to the use of himself in fee. This deed was received without objection on the part of the defendant:-Held, that it was good evidence as a declaration of the uses of the fine, although it was not proved that the defendant derived title under the conusor. Doe d. Gilbert v. Ross, 102 EXECUTOR AND ADMINISTRATOR. Property of Administrator in Goods of Intestate. L. was possessed of furniture and other property, and on his death, intestate, in 1827, the furniture was removed by his widow to another house, in which she resided, until her death in 1832, with her daughter E., and continued during that period to use mainder as he should by deed or will appoint, and in default of appointment, remainder to the heirs of his body, with remainders over. In 1790, A. G. M. and afterwards died without issue:— levied a fine to the use of himself in fee, Held, in an ejectment by the lessors of the plaintiff, claiming as heirs at law of A. G. M., that the fine created a discontinuance, and gave a tortious fee to A. G. M., and that his heir at law was consequently entitled to recover in ejectment, the remainders over being devested, and the rights of the remaindermen only capable of being enforced by real action. In such a case the statute 3 & 4 Will. 4, c. 47, s. 38, preserves the right of the remaindermen to bring a formedon. Doe d. Gilbert v. Ross, 102 GUARANTEE. See BILLS AND NOTES, (1). For Indemnity from Bond. A declaration in assumpsit stated, that in consideration that R. J. in his lifetime (of whom the plaintiff was administratrix) would execute a bond to W. J. in the penal sum of £600, the GUARANTEE. INDEBITATUS ASSUMPSIT. 651 defendant undertook that he would save | urged that they should lend their names harmless and indemnify R. J., his executors and administrators, from any loss or damage by reason of his executing the bond: the declaration then averred the execution of the bond by R. J., his death, and the grant of administration to the plaintiff, and that the plaintiff, as administratrix, became liable to pay and satisfy the bond to W. J., of which the defendant had notice; but that the defendant did not indemnify the plaintiff, as such administratrix, from loss or damage, by reason of the execution of the bond; by means whereof the plaintiff, as administratrix, was called upon, and forced and obliged, to pay, and did pay to W. J. the sum of £310, secured by the bond, and a further sum for the costs of an action against her, &c. Plea, that the plaintiff, as administratrix, was not called upon, or forced, or obliged, to pay, nor did she pay to W. J. the monies in the declaration mentioned, nor was she damnified as therein mentioned, in manner and form, &c. The bond, when produced on the trial, appeared to be subject to a condition for repayment of the sum secured, with interest, 66 at or before the expiration of six months' notice to be given to pay the same:" and there was no proof of such notice having been given. It appeared, however, that the defendant had notice of the action being commenced against the plaintiff on the bond (which was stayed by a Judge's order on payment of debt and costs), and did not come in to defend it :-Held, that this was sufficient to entitle the plaintiff to recover on the above issue. The defendant's undertaking was contained in two letters, addressed to C. J., the brother of the plaintiff's intestate R. J., in the first of which he pressed C. J. to join, and to induce his brothers to join, in a security for the repayment of money to be advanced to the defendant for carrying on a suit in Chancery and in the second he again for this purpose, and added," I should HUSBAND AND WIFE. Rights of Husband in Property of Wife. The property in wearing apparel bought for herself by a wife living with her husband, out of money settled to her separate use before marriage, and paid to her by the trustees of the settlement, vests by law in the husband, and it is liable to be taken in execution for his debts. Carne v. Brice, 183 INDEBITATUS ASSUMPSIT For Work and Labour, when maintainable. R. having undertaken, by a written contract, to build for the Corporation of Henley a house on a farm occupied by A, engaged S. to do the carpenter's work; and the following agreement was made and signed by R. and S., and witnessed by A:-" It having been arranged that A. shall build a new house on the farm occupied by Mr. A., it is hereby agreed and understood between the said R. and S., that S. shall do all the carpenter's work, &c. under the inspection and control of the said A., and that the amount of the said work shall be paid by Mr. A. to S. only, and that this agreement shall be his guarantee for so doing." On the same day, A. wrote to S. as follows:-" It having been agreed that R. shall build a new house on the farm occupied by 652 INSURANCE. JOINT STOCK BANKING CO. me, and that, by an agreement this day | to the office of that fact, and in the shewn me between you and S. you are to event of his omitting to do so, that his do the carpenter's work, &c., and that account would be debited for the the payment, when done, is to be made amount, after the fifteen days had exby me to you, and to no other person, ac-pired. No notice was given to the cording to plan and specification, I here- Company of the non-payment of the by undertake to pay the same, by having premium within the fifteen days; it was a proper discharge:"-Held, that S., therefore entered in their books as paid having done the work, could not main- on the 15th of March, and the agent was tain an action of indebitatus assumpsit debited for the amount :-Held, first, for work and labour against A. for the that the mere debiting the agent with value of it. Sweeting v. Asplin, 165 the premium could not be considered as a payment to the Company by the assured; secondly, that as the agent had no authority to contract for the Company, the fact of his receiving the money after the expiration of the fifteen days, and the entry in the Company's books, debiting him with the amount, were no evidence of a new agreement between the Company and the assured. Acey v. Fernie, INFANT. See PROCHEIN AMY. INSOLVENT. Arrest of, after Discharge. Where an insolvent, being arrested after his discharge for a new debt, agreed, on A.'s becoming his bail, to give him a bond for £300, in which amount was included a debt of £80, which had been inserted in the insolvent's schedule:-Held, that the insolvent was not entitled to be discharged out of custody, having been taken in execution in an action by A. upon the bond, in which he had suffered judgment to go by default. Denne v. Knott, INSURANCE. 143 Nonpayment of Premiums. Upon a policy of assurance on the life of A., the premium became due on INTERPLEADER ACT. 151 The defendant having bought a rick of hay from the plaintiff, (who was the executor de son tort of M. S.), before payment of the price, received a notice the administrator of M. S., and defrom a third party, stating that he was manding payment of the sum for which it had been sold. The defendant being subsequently sued by the plaintiff for the price of the hay:-Held, that he was not entitled to relief under the In terpleader Act, 1 & 2 Will 4, c. 58, James v. Pritchard, s. 1. PANY. 216 the 15th of March, but was not paid JOINT STOCK BANKING COMuntil the 12th of April, when the country agent of the Insurance Company, through whom the insurance had been effected, gave a receipt for the amount of the premium. The instructions given by the Company to the agent were, that the premium on every life policy must be received within fifteen days from the time of its becoming due; if not paid within that time, that he was to give immediate notice (1). Declaration by Manager. In an action brought by the public officer of a joint-stock banking copartnership, established under the 7 Geo. 4, c. 46, it is sufficient to state in the declaration, that the plaintiff is the manager of a certain joint-stock copartnership established for the purpose of banking, and that he has been duly LANDLORD AND TENANT. named and appointed as the nominal plaintiff on behalf of the copartnership, under the provisions of the statute, without stating expressly that he has been named as manager, or that the copartnership has been established under the provisions of the act. Christie v. Peart, 491 nant's fixtures continues only during his original term, and during such further period of possession by him as he holds the premises under a right still to consider himself as tenant. Where, therefore, the term pursuant to a proviso in the lease, was forfeited by the bankruptcy of the lessee, and the lessor entered upon the assignees, in order to enforce the forfeiture, and (2). Execution against. Where a plaintiff obtains judgment against the public officer of a joint-three weeks afterwards the assignees stock banking copartnership, pursuant of the lessee, still continuing in posto stat. 7 Geo. 4, c. 46, s. 9, he may session, removed and sold a fixture put issue execution against the defendant up by the lessee for the purposes of without first suing out a scire facias. trade; and the jury found that it was Harwood v. Law, not removed within a reasonable time after the entry of the lessor :-Held, that they had no right so to remove it, and that the lessor might recover it in JURY. 203 Affidavits of Jurors, when receivable. Affidavits of jurors as to what took place in open court on the delivery of their verdict, are receivable. Roberts v. Hughes, 399 LANDLORD AND TENANT. LIMITATION ACT, (1), (2). A tenant held a house and land from year to year, the land from the 2nd of February, the house, &c., from the 1st of May. On the 16th of February, 1838, a notice to quit was served on him, requiring him to quit and deliver up the farm at the end of his present year's holding:-Held, that this was a good notice to determine the tenancy in the spring of 1839; it not being shewn on the part of the tenant that the land was not the principal subject of the holding. A notice to quit, given by a person authorized by one of several lessors, joint-tenants, determines the tenancy as to all. Doe d. Kindersley v. Hughes, 139 trover. Where the plaintiff, being the owner of a woollen mill and steam-engine, let to the defendant a room in the mill, together with a supply of power from the steam-engine by means of a revolving shaft in the room :-Held, in an action for double value, under stat. 4 holding over after the expiration of a Geo. 2, c. 28, against the tenant for notice to quit, that in estimating such supplied could not be included.` Rodouble value, the value of the power binson v. Learoyd, LARCENY By Finder of Goods. 48 tion, a bureau in which he afterwards (2). Tenant's Right to remove Fixtures. The right of a tenant to remove te--Held, that if the buyer had express |