« EelmineJätka »
a sale under an execution, a sum of money which lie having an interest, has not been returned as served. in the first instance retained on account of auction- O'Brien v. Fitzgerald, 1 Ir. L. Rep. 200, C. P. eer's fees, but which he subsequently claimed to be Goods seized under a fi. fa., and an arrear of entitled to on account of extra expenses incurred in rent due on the premises claimed by the landlord, laying on the execution, he was ordered upon motion the sheriff is not bound to specify in his return the to refund the sum so retained, and to pay over the goods seized, or the amount of their value; it is amount to the execution creditor, but in consequence sufficient if he state the amount of the rent clainned, of delay on the part of the latter in bringing for- and avers that the value of the property in execuward the motion ; the court withheld the costs of tion is not equal thereto. Needham v. Kelly, 3 Ir. the application. Hayden v. Barton, 5 Ir. L. Rep. L. Rep. 181, C. P. 410, Ex.
The sheriff is bound to return a sci. fa, though The court, in such a case, possesses a summary his fees for serving the writ have not been paid. jurisdiction over its officer which it will exercise He has no right to delay a Queen's writ for such upon motion without putting the party aggrieved to Deacon v. Scott, 3 Ir. L. Rep. 343, Ex.” his action against the sheriff. Ib.
The court will make an order on sheriffs to pay A sheriff may maintain an action for his fees for the costs of a conditional fine, entered against them executing a ca. sa. against either the plaintiff or de- for not returning a writ, together with the costs of fendant in the original cause of action. Bagot v. the motion, on which the order is obtained. Cash Malone, 5 Ir. L. Rep. 454, Q. B.
v. Robertson, 3 Ir. L. Rep. 352, Ex. A sheriff seizing and selling under a fi. fa. more A sheriff having returned to a testatum fi
. fa. than sufficient to satisfy the amount of the execu
“that the defendant hath not any goods in my tion, does not thereby render himself liable to an bailiwick, whereof I can cause to be levied the action of trespass. Hughes v. Browne, 7 Ir. L. Rep. damages, &c.” The court ordered him to amend 492, Ex.
his return with costs. Cowper v. Cullinane, 6 Ir. A sub-sheriff having made a levy under a writ L. Rep. 98, C. P. of fi. fa. was allowed, under the 9 & 10 Vic., 64, to A sheriff returned that he had seized goods anlodge in court the monies levied, deducting there- der the writ of fi. fa. to a certain amount in value; from the costs of the motion, he having been served but that he had been served with a notice by the with notices by claimants adverse to the plaintiff, landlord of a year's rent being due, amounting to a calling upon him, on pain of personal responsibility, much larger sum of which he had given notice to not to pay over these monies to the plaintiff. Burke the plaintiff
. Held, the plaintiff being desirous of v. Darcy, 9 Ir. L. Rep. 287, C. P.
issuing a ca. sa. should have issued a venditione er. An attachment for non-compliance with an order ponas, and was irregular in calling upon the sheriff of this court, will be issued to the sheriff, the court to amend his return by returning nulla bona. Anonytaking no notice of the sub sheriff. Ib.
mous, 6 Ir. L. Rep. 152, C. P. The court will always presume in favour of a If a sheriff's return be good on the face of it and sheriff, where there is a doubt as to the regularity there is no case of neglect or of clear collusion, the of the proceedings. Connell v. Mahon, Bi. D. & court will not order the sheriff to answer a hostile 0. 211, Ex.
affidavit but will leave the plaintiff to his remedy Where a capias had been placed in the hands of by action for a false return. Davis v. Roberts, 6 a sheriff for the arrest of a defendant, and he there. Ir. L. Rep. 206, C. P. upon waited on the defendant, and told him that a A sheriff's return to a testatum distringas set writ had been lodged with him for his arrest, and aside as being contrary to form. Kearn v. Lord the defendant thereupon paid to the sheriff the sum Charleville, 8 Ir. L. Rep. 223, Q. B. indorsed on the writ, in lieu of special bail, Held An attachment will not be granted against a shethat such a proceeding did not amount to an arrest. riff for not making a return to a writ of elegit the Browne v. Ibbotson, 9 Ir. L. Rep. 66, Q.B. [Per sheriff being ignorant where the lands were, and the rin, J. dissentiente.]
plaintiff refusing to point them out. Collins v. The court will not attach the sheriff for noncompliance with an order which has not been per
- "A return by the sherif' not in accordance with sonally served upon him ; service upon the return the usual practice of the court will be set aside. ing officer is not sufficient. Wilson v. Fair, 10 Ir. Kennedy v. M Killop, Bl. D. & O. 189, Q. B. L. Rep. 227, C.P.
The court will direct the sheriff to amend bis reReturns by Sheriff:]-A sheriff will not be or.
turn when he gives no answer or raises no question dered to make a return of a writ of ca. sa. against
as to the truth of the plaintiff's statements. Wit three defendants, where he has arrested two of
son v. Fair, Bl. D. & 0. 226, C. P. them, and the plaintiff entered into a compromise sci. fa. though his fees for serving it upon the beir
The sheriff will be compelled to return a writ of from him for part of the debt
, and then discharged L. Rep. 284, C. P.
and terre-tenants be unpaid. Lees v. Nolan, 9 Ir. him, and the other defendant escaped ; and where there were contradictory affidavits as to whether
Quære, if the sheriff be entitled to fees for serv. the bailiffs who affected the arrest were not special ing tenants of the lands other than those named and bailiffs of the plaintiff.
Dwyer v. M Keogh, 1 Ir. required to be served as terre-tenants in a list furL. Rep. 3, Q. B.
nished by the plaintiff to the sheriff. Ib. The sheriff will be directed to amend his return
A sheriff to whoin a writ of fi. fa. has been directed to a writ of sci. fan, if it appears that any person
and execution levied thereon, andwho made no return
during his sbrievalty, on motion by the defendant creditor, before the sale, which took place on the will be required to make a return to that writ, though 23rd of May. On the 15th of June, he presented more than six months out of office. Croker v. his petition to the Insolvent Court; on the followHughes, 9 Ir. L. Rep. 289, Ex.
ing day the order was made vesting his property in The court will as of course direct the sheriff's the plaintiff. In an action of trover against the return to a sci. fa. to be amended, where by mistake sheriff by the assignee, Held, that the sheriff was there was a return of nil instead of service. Hay not liable under the 48th section of the 3 & 4 Vic. den v. O'Ryan, 1 Ir. Jur. 264, Ex.
c. 107, and that the vesting order had no relation The practice that a sheriff, more than six to the date of the arrest. Lindsay v. Going, 1 Ir. months out of office, will not be required to make Jur. 278, Ex. Ch. a return to a writ directed to him whilst in office, In an action of trespass and false imprisonment applies only to motions on behalf of plaintiff
. Ib. against the sheriff, who pleaded the general issue, Where a notice of motion has been served upon the plaintiff's counsel stated the case to be an abuse a sheriff to compel him to return a writ of fi. fa. he in the mode of executing a writ of ca. sa., and gave will have to pay the costs though the return be filed in evidence, among other things, certain notices, before the motion is moved. Delany v. Meara, Bl. served by plaintiff on the defendant, which recited D. & O. 275, Q. B.
and admitted that she had been arrested on such To a writ of fi. fa. the sheriff returned the delivery writ. Held, that the defendant having omitted to of prior writs to his predecessor and to himself; prove said writ, the judge ought to have directed seizure by the predecessor, in whose hands goods the jury to find for the plaintiff. Deering v. Palremained for want of purchasers, and that there mer, 4 Ir. L. Rep. 421, C. P. were not any other goods and chattels within his bailiwick at the time of the delivery to him of the Anne c:"7, Ir. Held, that the defendant, not the
Sheriff's fees.]-On the construction of the 6th said annexed writ, or at any time since whereout he could levy the sum mentioned or any part thereof. riff. Cowper v. Goold, 2 Jones 475, Ex.
plaintiff, is liable to pay the poundage of the sheHeld a bad return. Prendergast v. Lord Glengali, I Ir. Jur. 69, C. P.
Actions for abuse of process.]—See TRESPASS. Actions against.)- A sheriff had levied money on an execution on a judgment, where the warrant had SKERRIES LIGHT-See Tolls. not been filed within 21 days, pursuant to the provisions of the 3 & 4 Vic. c. 105, s. 13, and paid over
SOLICITOR-See ATTORNEY. the amount levied to the assignees of the conusor, who had filed his petition in the Insolvent Court. The same solicitor should not be concerned for Held, that though this petition was afterwards dis parties whose rights and interests are adverse. And missed on the application of the insolvent, such dis. where the solicitor filed an answer for one party, missal did not divest the right of his assignee so as admitting the the claim of the other. Held, that to give a right to the executiou-creditor against the he could not maintain an action for the costs increditors for the amount of the levy. Madden v. curred, in his capacity as solicitor of the former. Ball, 8 Ir. L. Rep. 104, C. P.
O'Brien v. Graham, 5 Ir. L. Rep. 406, Ex. In an action against a sheriff, the first count in the declaration stated the recovery of a judgment by attained before judgment, the attorney will not be
Lien for costs.]—Where the object of a suit is the plaintiffs, the issuing of a fi fa. thereon, the permitted to proceed with the suit for the costs delivery of it to the sheriff, and that he seized there. alone; his lien does not arise till after judgment. under the goods of the debtor and levied the amount Lyons v. Wilkinson, 1 Ir. Jur. 270, Ex. and averred as a breach that he had not the money so levied in court on the return of the writ, nor had Actions for negligence.]—If an attorney be aupaid the same to the plaintiffs, and that he falsely thorized by his client to have a joint and several returned nulla bona. The second count after stat- bond and warrant of attorney executed by two ing the recovery of the judgment, the issuing of the persons, one of whom only executed it at the time, fi. fa, and the delivery of it to the sheriff, averred, no breach of duty arises from the non-entry of the that though there were before the return of this writ judgment, till it be executed by both ; and when goods of the debtor in the defendant's bailiwick, the duty has arisen, Is. damages is sufficient for a whereof he ought to have levied the money endorsed mere non-feazance. Baker v. Carroll, Bl. D. & on the writ, and assigned as a breach that he would O. 60, N. P. [Per Brady, C. B.] not levy the money and returned nulla bona. Held, Where an order of a court of equity directed a that supposing the false return to be an essential defendant to pay money before a certain day, and part of the evidence in such action, it was not one to indemnify a third party against his costs, his exclusively for a false return, and consequently the solicitor having money in hands for that purpose, plaintiffs might bring their action in the county in is guilty of a breach of duty in not paying it; but which the return was filed, or where the matters of he is not bound to indemnify. Nixon v. Hudson, fact necessary to be proved occurred. Hennesy v. Bl. D. & 0.65, N. P. [Per Brady, C. B.] Synge, 10 Ir. L. Rep. 184, Q. B.
Seinble-Where a declaration in case sets out an The sheriff seized, on the 23rd of April, under a order to pay money alone; and that produced, is writ of fi. fa. founded on a judgment upon a bond to pay money and indeinnify, it is no variance; and warrant of attorney. X. B. the insolvent, was and if the declaration set out both grounds, and arrested at his own request, at the suit of another but one is proved, the defendant is entitled to a
verdict; and if both be stated, the plaintiff should such a way as to meet general cases. show on which the attachment issued. Ib.
O'Donoran, 3 Ir. L. Rep. 88, Q. B. [Per Cramp
ton, J.] STAMPS-See DEED.
In construing the terms of a special act of par
liament, the court is bound to see that the trans. A letter of attorney, empowering a person to action sought to be affected by it, is within the receive rents, and serve notice to quit, requires plain and ordinary meaning of these terms. Attortwo separate stamp duties. Boothe v. M.Gowan, 4 Ir. L. Rep. 188, Ex.
ney General v. Cathew, 3 Ir. L. Rep. 149, Ex. Semble That a letter or power of attorney to Tenterden in Brandling v. Barrington, (6 B. & B.
My opinion is in accordance with that of Lord receive rents, and to distrain, being incidental and 475), “ That there is always danger in giving effece ancillary to the power to receive the rents, requires to what is called the equity of a statute ; it is much but one.
Ib. Upon the trial of an ejectment under the order safer and better to rely on, and abide by the plain of a court of Equity, the question to be tried being vided for other cases, had their attention been
words; although the Legislature might have prowhether an accepted proposal was for a term of 21 brought to them.” Reg. v. Savage, 3 Ir. L. Rep. or 31 years. given in evidence, though not stamped. Harding Leader, 4 Ir. L. Rep. 139, Q. B.
482, Q.B. (note.) (Per Perrin, J.] See Murphy v. v. Macnamara, 4 Ir. L. Rep. 190, Ex. Where leasehold premises were conveyed to a
Though I admit that the title of a statute cannot
control the manifest enactments of it, yet it is the trustee, in order, out of the rents, to
pay head-rent, and the costs incurred in an equity suit ; and also duty of the court to call it in aid, when it can throw the costs of the deed of conveyance, and of regis. Daniel v. Bingham, 4 Ir. L. Rep. 293, Q. B. [Per
a light on an ambiguity in any of its provisions. tering the same, and then to pay the sum of £300 with interest. Held, that a stamp for £1 10s. was
Torrens, J.] sufficient on such conveyance. Lysaght v. War. ren, 10 Ir. L. Rep. 269, Q. B.
STAYING PROCEEDINGS-See PRACTICE Premises were demised for three lives renewable for ever, at a yearly rent and fine. In a subsequent STET PROCESSUS-See Practice, (JUDG: part of the lease, the timber trees growing upon the premises were conveyed to the lessee. The
MENT AS IN CASE OF NON-SUIT.) stainp upon the lease was admitted to be sufficient for the lease and fine. Held, that the part of the
STOCK_See CHARGING ORDER. trees which had already been dernised, did not change the character of the lease, so as thereby to render it a conveyance; and consequently that no
STOPPAGE IN TRANSITU. additional stamp was required. Peacock v. O'Grady, I Ir. Jur, 363, Q. B.
By the custom in the spirit trade in the City of If there be no cause in court, the affidavit upon Stores, the party selling gives to the purchaser cer
Dublin where whiskey is bonded in the Queen's which a fiat is sought to be obtained, requires a two-shilling stamp; but if a cause be pending, no tain request notes, on the faith of which the price stamp is necessary. Plunket v. Plunket, 4 Ir. L. is paid, and which constitutes a sufficient authority Rep. 366, Q.B.
to the store-house keeper to deliver the whiskey to
the holder of them. The defendant having sold six STATUTES.
puncheons of whiskey to A. B., and baving got his
acceptance for the amount handed him six request Construction of:]-Held by five judges that in the notes. A. B. sold the same to the plaintiff, giving construction of statutes the court would rather strain hin the request notes, the plaintiff takes two pup. the words in order to arrive at the construction evi-cheons out of the stores, and on application for the dently intended by the policy of the Legislature than remainder discovered that the defendant had, on the either omit them, or declare the state of facts which acceptances of A. B., being dishonoured, taken out had occurred to be a casus omissus. Reg. v. Sug- the remaining four. Held, that trover lay at the den, 1 Ir. Jur. 58, Ex. Ch.
suit of the plaintiff for the four puncheons, and that Where two statutes have the same purview, he had such a possession as put an end to the stopand inflict differeut punishments for the same page in transitu. Croker v. Lawder, 9 Ir. L. Rep. offence, the punishments are not to be taken as
21, Q. B. cumulative, but the latter statute is to be taken as expressing the intention of the Legislature, and therefore, so far as relates to the punishment, repeal
SUBLETTING. ing the former one. Attorney General v. Dunn, 1 Quære, is letting in con-acre generally, a breach Ir. L. Rep. 357, Ex.
of a covenant against sub. letting. Lord Westmeath When the language of an Act of Parliament is v. Hogg, 3 Ir. L. Rep. 27, C. P. equivocal or obscure, usage, when universal and unvarying may be called in aid to explain it. Nagle
SUBPCENA-See ATTACHMENT. v. Ahern, 3 Ir. L. Rep. 41, Ex.
It is dangerous to look out of the words of the Act, (3 & 4 Vic. c. 105,) for an equity in particu- SUBSTITUTION OF SERVICE-See lar cases, the best equity is to construe the Act in
SUGGESTION-See Bond. Costs. clauses, conditions or agreements therein contained,
or any of the remedies for the recovery of, or the SUPERSEDEAS-See MANDAMUS.
enforcing of the said covenants, conditions, &c. on the part of the said G. T., but that the entire of the
said yearly rent shall still be, and continue payable SURETY-See WARRANT OF ATTORNEY. out of same, and the said covenants, &c. shall be, A bond (after reciting that R F. Q. had been and continue in full force, &c. as to all the residue appointed by the plaintiffs—as directors of the of said deinised premises, and not hereby surrenNational Bank-to be accountant at their bank, at dered; and that said G. T. shall have all the like L.; and that the defendant had, with other persons, said covenants as if these premises had not been
remedies for the recovery of said rent, and enforcing agreed to enter into the obligation as his sureties,) contained the following condition :—That the made, &c. Signed G. H.” . Held that this deed of said R. F. Q. should, from time to time, and at all surrender did not operate to destroy the right of retimes, faithfully account for, pay, and deliver up to entry. Thompson v. Home, 1 Ir. L. Rep. 179, Q. B. the court of directors of the said society, or to such
Covenant for rent due ; Plea, a surrender of the other person or persons as such court should ap- premises, and that the plaintiff accepted the same. point, and in such place as said court should direct, Replication, that the defendant did not surrender, all and every such sums of money as he, the said and that he did not accept the same, to which the R. F. Q., had been, or at any time thereafter should, defendant demurred for duplicity. Held, that the while he continued in the service of the said society, surrender and the acceptance constituted but one exclusively, or be employed for or on account of entire matter of defence, and that therefore the reany local bank in connection with them. Plea, per- plication is good. Purdon v. Dickson, 2 Ir. L. Rep. formance. Held, that it was not necessary, in an
351, Q. B. action against the surety of a defaulting accountant,
Quære, what is evidence of the surrender of a for the plaintiffs to aver in their replication that the lease by operation of law. Lord Shannon v. Lord directors had appointed a person by whom, or a Stoughton, 3 Ir. L. Rep. 521, Ex. Ch. place in which the accounts were to be taken. Stan
L. lessee pur autre vie assented to a new letting hope v. Mathews, 4 Ir. L. Rep. 125, C. P.
by the landlord of a part of the demised premises to Held also, on special demurrer
, that the plaintiff's M., who entered into possession accordingly, but having averred that R. F. Q. was employed by the there was no surrender in writing of the interest of said society as accountant in the branch bank at M., L. Held, that this constituted a valid surrender by and that he continued in the service of the said society | Act and operation of law within the statute of Frauds exclusively as such accountant from, &c. it was not (7 W. 3, c. 12, Ir.) of the interest of L. in the part necessary to aver an appointment of R. F. Q. to the
so demised to M. Lynch v. Lynch, 6 Ir. L. Rep. office of accountant at M., or that he had accepted
131, Ex. of the said office. Ib.
The doctrine of surrender by Act and operation Sureties in a bond with a trader under the 3 & 4 of law as laid down in Thomas v. Cook, (2 B. & Al. Vic
. c. 105, s. 8, conditioned to pay the amount of 119,) in the case of a chattel interest recognized and debt and costs, which might be recovered against applied to the case of a freehold. Ib. (See Creagh the principal, or to render himself, were allowed to
v. Blood, 3 Jon. & Lat. 133, Ch.] render him after judgment, in discharge of the con
As to the effect of a clause of surrender, see De ditions of the boud. Budd v. Coyne, 6 Ir. L. Rep. Burgho v. Gabbett, 1 Ir. Jur. 276, Q. B. 214, Ex.
On Public Buildings.]-See Rates. £1200 and £500 a-year, brought an ejectment for non-payment of rent in 1838, and gave this lease in evidence, the defendant gave in evidence a deed TEMPORALITIES (CHURCH ACT)-See which was produced by the attorney of the lessor
ECCLESIASTICAL LAW. of the plaintiff, pursuant to notice, and which ex- Where an order of the Lord Lieutenant and Privy pressed to be between G. H. of the one part and G. Council, made under the Church Temporalities Act, T. of the other, dated the 27th of July, 1829, and disappropriating the rectory of E. from the dignity two drawing-rooms, part of the demised premises, of the treasurership of the Cathedral Church of St. were thereby surrendered to G. T. It was executed M.; contained a recital distinguishing the rents from by G. H. alone, and contained the following proviso: the other revenues of the rectory, and where the • Provided always, nevertheless, and it is hereby operative words of the order in Council were “the declared and agreed by and between the said parties said parish or rectory of E., together with the recto these presents to be the true intent and meaning torial tithes thereunto belonging." Held, that acthereof, and the same are upon the express condi-cording to the construction of the order, the word tion that nothing herein contained shall in any man- “rectory” did not include the glebe lands, and therener prejudice or affect the covenant for payment of fore they did not pass to the Ecclesiastical Commisthe said yearly rent of £500, or any other covenant sioners, but continued annexed to the treasurership. iu said lease contained, on the part of the tenant, Foster v. Wilson, 7 Ir. L. Rep. 197, Ex.; S.C. affirm. his executors, &c. to be done, &c. or any of the ed, 16. 231, Ex. Ch.
The Lord Lieutenant and Privy Council have the ing the whole of the count. Pennefather v. Lee, I power, under the Church Temporalities Act, to make Ir. L. Rep. 25, Ex. a partial disappropriation by disuniting the tithes or Since the passing of the 1 & 2 Vic. c. 119, the glebe lands from the rectory. 16.
plaintiff, in an action for tithe composition, mos
show by his declaration, that he comes within some TENANT-See LANDLORD AND TENANT.
of the exceptions mentioned in that act ; otherwise the declaration will be bad upon general demurret.
Thus the counts for tithe composition, and for TENDER. tithes bargained and sold, contained in a declara.
, Lodgment of Money under Plea of:]—If a de- tion, which was entitled as of Hilary Tern, 1839 fendant bring money into court under a plea of ten- taken to the whole declaration was over-ruled, up
were held to be bad; but a general demurrer der, and the plaintiff do not take it out till the defendant establish a cross-demand for the costs of a account stated, which was held to be free from ob
on the ground of its containing a count upon an judgment in the action in his favour, the court will direct the money to be paid to him in liquidation of jection ; for though it described the plainti ai
rector, and the defendant as occupier of land within that demand. Dore v. 1 Ir. Jur. 271, Ex. A notice of motion to draw money lodged, upon
the parish, it did not necessarily follow that it was a plea of tender, where the action has not been dis- conversant about the tithe or tithe composition.
Plea, stating that parcel of the sum demanded contiuued is regular, and where the opposite party would not sign a consent, and appeared on the mo- for the three years immediately preceding 1834,
was claimed for arrears of tithe composition, due tion, it was granted with costs. Chadwick v. Daly, was held to be bad, the right to recover for those 5 Ir. L. Rep. 176, C. P.
years not having been barred by the implied operPleas of Tender.]-See PLEADING.
ation of the 1 & 2 Vic. c. 119. Beresford 1. Loughnan, 1 Ir. L. Rep. 364, Ex.
Where, in an action for tithe rent-charge, the TERM'S NOTICE TO PROCEED_See
plaintiff was described in the declaration as rector, PRACTICE.
and the proof was, that he was both rector and
vicar. Held to be no variance. Crosthwaite v. TIME.
Conlan, 5 Ir. L. Rep. 534, Q. B. Computation of Time.]-When part of a condi- What estate is liable. ]-A mortgagor in posses. tional order was that it should be served upon de- sion of mortgaged premises, chargeable with the fendant's attorney six days before term. The order tithe rent-charge prior to the execution of the was served upon the 19th of May, and Term began mortgage, and held under a lease of lives renewon the 24th. Held, that the service was bad, and able for ever, was held liable to such rent-charge. that a new order should be obtained. Murphy v. Crosthwaite v. Conlan, 5 Ir. L. Rep. 534, Q. B. Lord Carberry, 1 Ir. L. Rep. 9, Q. B.
[Perrin, J., dubitante.] Where a statute provided that notice of an appeal Semble—To render a party entitled to an equi. should be given to the adverse party at least " within table interest liable for the tithe rent-charge, it must one week” before such appeal was to be heard. Held be an interest of a clear, absolute, unquestionable that notice given on the 22nd for the 29th of the nature. Ib. same month was insufficient. Reg. v. Sweeny, 2 Ir. L. Rep. 278, Q. B.
Applotment.]—A. and B., joint commissioners appointed under 4 G. 4, c. 99, duly made and
lodged a certificate of composition in 1831, bat TITHE COMPOSITION.
made no applotment thereon, A. having been subPleading.]—Debt for tithe composition—The sequently appointed a sole commissioner under the rst count stated that T. R. and others, (tenants of the 2 & 3 W. 4, c. 119, adopted that certificate, the defendant), during a certain period, had been and duly made and lodged an applotment in 1833 in the occupation of lands specified in the applot- pursuant to the latter act ; B. afterwards affäred bis ment, and thereby made chargeable with the signature, in the registry of the diocese, to the apyearly sum of £8 16s. 8d., as tenants from year to plotment inade by A. alone, as sole commissioner
. year to the said defendant, who, as having the first Held, first, that the applotment of A, as sole comestate greater than such tenancy from year to year,
missioner under the 2 & 3 W. 4, c. 119, was invalid was liable to the coinposition. Plea—That all the and void ; and that at the time of such appointment, lands, whereof the said T. R. was tenant to defen- and of his making the applotment, as such sole dant, before the 6th of August, 1832, by indenture commissioner, his authority as one of the joint comof demise between defendant and T. R., were de missioners originally appointed under the 4 G. 4, mised to T. R. for a term still subsisting; and so
c. 99, was still subsisting and valid. Secondly, defendant saith, that during the period aforesaid, That the applotment made by A., as such sole he had not the first estate greater than a tenancy commissioner, notwithstanding his intention to act from year to year, in the said lands so chargeable in making it under the 2 & 3 W. 4, c. 119, must with the yearly sum of £8 16s. 8d., modo et forma, be taken to have been made by virtue of his valid as the plaintiff in his first count alleged. `Held, authority under the 4 G. 4, c. 99. Thirdly—That that the averment in the declaration was distribu- B. had authority, by affixing his signature to the aptive, and therefore, the plea was bad as not answer- plotment made by A. alone, to adopt it as his own