THE MASTER,
&C., OF
DOWNING
COLLEGE.
duced without the lord's consent:' Gilb. Ten. 182. This reasoning seems to be without the consideration, that, though the surrenderee hath nothing till admittance, yet, if the statute were allowed to execute the possession to the estate upon the surrender, the tenant would not be (as is implied in Gilbert's reason) introduced without the lord's consent; for, the surrender must be with the lord's privity, and he can no more refuse the admittance than the surrender. If the mode of the conveyance by surrender and admission was not evaded, the operation of the statute could not be prejudicial as to copyholds; but, in truth, the reason of the statute not extending to them, seems to be, that, from the nature of the tenure, and the mode of conveyance or transfer of copyholds, they do not stand in need of the operation of the statute, i. e. none of the inconveniences which occasioned the statute of uses, as to lands of inheritance at common law, exist as to copyholds." Here, the lord is asked to accept a surrender to the use of a person he knows not by this means, he will be ousted of a fine; and no provision is made to insure his having always a tenant on the roll. Edmund Foster may, if he wishes to realise his security, appoint to some one else, and so the lord may lose a fine upon the alienation. The case of Peachy v. The Duke of Somerset, 1 Stra. 454, shews that the lord is not bound to take notice of anything but what appears on the roll, and that he is not bound to take notice of the private agreements and trusts of parties. [Maule, J. Do you find any decided case where the lord has been sustained in his refusal to accept a surrender burthened with a trust?] None has been found. [Williams, J. A copyholder has a right to surrender to the use of his will, though there is no instance of such a surrender upon the records of the manor: Pike v. White, 3 Bro. C. C. 286; Church v. Mundy, 15 Ves. 403. Cresswell, J. I think there are manors,-Tinmouth, in
Northumberland, for instance,-where the lord will not accept surrenders to trustees.]
Byles, Serjt., in reply. It is objected that there is no provision here that the lord shall always have a tenant on the roll. The law, however, provides for that: the heir is always the tenant. And no hardship is imposed upon the lord; for, there is here a life beyond which you cannot go, viz. the life of the surrenderor. The true rule is laid down in Brook's Case, Popham, 125, which explains the reason why no case is to be found of the lord being upheld in his refusal to admit. In an ejectione firmæ brought by one Brook against Brook, the case was this:-John Wright, a copyholder in fee, 10 Eliz. surrendered his land into the hands of the lord, by the hands of tenants, according to the custom &c., without saying to whose use the surrender should be ; and at the next court the said John Wright was admitted, habendum to him and his wife in tail, the remainder to the right heirs of John Wright; and the wife of John Wright, now defendant, was seised from the time. of the admittance until this day. It was objected by the counsel of the plaintiff, that the surrender was void, because no use was limited, and therefore by construction of law ought to be to the use of the surrenderor; as, if a feoffment be made, and no use limited, it shall be to the use of the feoffor, or, as it is in Sir Edward Cleer's Case, 6 Co. Rep. 18, if a feoffment be made by one to the use of his last will, he hath the use in the mean time. Secondly, that the admittance was not available to pass an estate to the wife, for, she was not named in the premises, but only in the habendum, and the office of an habendum is, to limit the estate, and not the person, and therefore it is said in Throgmorton and Tray's Case, Plowd. Com. 145, that, if one be named to take an estate in the habendum, where he was not named at all
THE MASTER,
&c., OF DOWNING COLLEGE.
721. 6s. ;" and they further ordered
that "the arbitrators' charges and ex-
penses attending the reference, amount-
ing to 627. 14s. 10d., should be borne
in equal proportions by A. and B.;
and that the said sums of 72l. 68.
and 627. 14s. 10d., making together
1357. Os. 10d., should be paid, within
ten days from the execution of the
award, to C.: "-The court refused to
make a rule, under the 1 & 2 Vict.
c. 110, s. 18, ordering A. to pay the
721. 68. to B.,-there being nothing on
the face of the award to shew how the
payment to C. was to enure as a pay-
ment for the benefit of B.; although
there was an affidavit stating that C.
was agent for B.'s vessel, and acted as
his agent in the matter of the arbitra-
tion, and that the money was directed
to be paid to him as such agent. Ib.
V. Order under the 1 & 2 Vict. c. 110,
s. 18.
The court will not make an order
under the 1 & 2 Vict. c. 110, for pay-
ment of money directed to be paid by
an award, except in a case where an
attachment would have been granted.
In re Laing and Todd, 276.
ARTIFICER.
See TRUCK-ACT.
ASSAULT.
What amounts to.
The plaintiff being in the defendant's
workshop, and refusing to quit when
desired, the defendant and his servants
surrounded him, and, tucking up their
sleeves and aprons, threatened to break
his neck if he did not go out; where-
upon the plaintiff, apprehensive of vio-
lence, departed:-Held, an assault.
Read v. Coker, 850.
ASSURANCE.
See INSURANCE.
I. For Non-payment of Money,-See
ATTORNEY, II.
II. For Non-performance of an Award,
See ARBITRAMENT, V.
1. Production of Deeds of Client.]—
An attorney is not bound to produce,
or to answer any questions concerning
the nature or contents of, a deed or
other document intrusted to him pro-
fessionally by his client: and the judge
has no right to look at the instrument,
to see if the objection to produce it or
disclose its contents be well founded or
not. Volant v. Soyer, 231.
2. Secondary Evidence of Contents.]
A paper which the attorney admits
to have been delivered out of his office
as a copy of the deed, but which he
states he is unable of his own know.
ledge to vouch to be a copy,-is not
admissible as secondary evidence, upon
the attorney's refusal to produce the
original. Ib.
II. Non-Payment of Money pursuant
to a Rule.
The mere non-payment of money by
an attorney, pursuant to an order and
rule of court, is no ground for striking
him off the roll. Guilford v. Sims, 370.
And see CONTRACT, II.
I. Rights and Liabilities of Assignees.
Mortgagor and mortgagee of an un-
divided moiety of certain premises,
jointly with the owner of the other
moiety, demised the whole for twenty-
one years to one Green, the latter co-
venanting with the three lessors jointly
and severally to pay the rent reserved,
but not saying to whom. Green en-
tered upon the premises, and after-
wards became bankrupt. His assignees
having accepted the lease,-Held,-
deferring to the authority of Wakefield
v. Brown, 9 Q. B. 209,-that the de-
fendants were liable in covenant at the
suit of the three lessors, for rent accru-
ing while they were possessed of the
premises. Magnay v. Edwards, 479.
II. Fraudulent Preference.
1. A. obtained certain goods by pur-
chase from the sheriff under a writ of
fi. fa. at his own suit, founded on a
warrant of attorney for 6001. given to
him by one S. The writ was put into
the sheriff's hands on the 25th of May,
1839, and a bill of sale given to the
plaintiff by the sheriff on the 21st of
June, for 6001. On the 29th of May,
another writ against S. was put into the
sheriff's hands, at the suit of one M.,
for 621. A. paid M.'s debt; and the
assignment to him was under both
writs.
A. took possession of the goods; and,
on the 5th of October, 1849, B. seized
and sold them as a distress for rent due
to him from S.
S., on the 5th of October, 1849,
filed a declaration of insolvency, and
thereby committed an act of bank-
ruptcy; and, on the 8th,-the statute
7 & 8 Vict. c. 96, being then in force,
-a fiat was awarded against him,
founded on that act of bankruptcy,
under which fiat assignees were ap-
pointed.
In an action by A. against B. for an
irregular and excessive distress of the
goods so obtained by him, the defence
set up by B. was, that A. had procured
the goods by way of fraudulent prefer-
ence, and that S. caused them to be
taken in execution with intent to de-
feat or delay his creditors, being then
indebted to some in a sum sufficient to
constitute a good petitioning-creditor's
debt and it was proved, that, on the
14th of June, 1851 (which was after
the commencement of this action), the
assignees under the fiat gave notice to
A. that they meant to treat the warrant
of attorney, judgment, and execution,
as void, and should claim the goods
against B., as being wrongfully taken
under a distress; and that they also
gave notice to B. that they had brought
an action against A. to try the vali-
dity of the warrant of attorney, and
had recovered 2307., the value of the
goods seized under A.'s writ; and re-
quiring B. to pay to A. the value of
the goods distrained, and claiming from
B. the damages for the illegal distress,
the subject of this action :—
Held, upon a bill of exceptions, that,
as the adjudication of bankruptcy pro-
ceeded on the bankrupt's own applica-
tion, the assignees could not treat the
alleged fraudulent preference, or taking
in execution, as an act of bankruptcy;
but that they were entitled to treat it as
a fraudulent preference, or an execution
procured by the bankrupt in contempla-
tion of bankruptcy, under the old law,
prior to the 6 G. 4, c. 16,—and conse-
quently voidable, upon the established
principle, that fraud only gives a right
to avoid a contract or purchase, that
III. Order under 12 & 13 Vict. c. 106,
8. 125, for Sale of Goods in the Pos-
session, Order, and Disposition of the
Bankrupt.
1. An order by a commissioner in
bankruptcy "that all goods and chattels
which at the time the said A. B. became
bankrupt, were, by the consent and
permission of the true owner thereof,
in the possession, order, or disposition
of the said A. B., whereof the said A. B.
was reputed owner, or whereof he had
taken upon himself the sale, alteration,
or disposition as owner," should be sold
for the benefit of the creditors,-is not
a compliance with the 125th section of
the 12 & 13 Vict. c. 106; it must spe-
cify the particular goods which are to
be so sold. Quartermaine v. Bittleston,
133.
2. Such an order is properly made
upon an ex parte application. Ib.
3. Quare, whether the order should
recite the circumstances which gave
the commissioner jurisdiction to act. Ib.
BARON AND FEME.
See HUSBAND AND WIFE.
BILL OF EXCHANGE.
I. Notice of Dishonour.
1. Time for.]—A bill indorsed by A.
to B., and by B. to C., became due on
Saturday, the 15th of November, and
was presented, and dishonoured. C.
gave notice of dishonour to B., on
Monday, the 17th, and to A. on the
following day,-B. having given no
notice.
In an action by C. against A.,-
Held, upon an issue on a plea travers-
ing the notice of dishonour, that the
notice was too late. Rowe v. Tipper,
249.
2. By an Agent.]-The bill was
placed in the hands of D. for the pur-
pose of receiving payment:-Held,
that D. was sufficiently authorised to
give a notice of dishonour on behalf of
the holder. Ib.
II. Accommodation Bill.
In assumpsit by indorsee against ac-
ceptor, the defendant pleaded that he
accepted the bill for the accommoda-
tion of the drawer, who negotiated it
for his own use, and paid it at matu-
rity; and that the bill was delivered
by the holder to the drawer, who,
without the consent of the defendant,
and without having it re-stamped, in-
dorsed and delivered it to the plaintiff.
It appeared, on production of the bill,
that the defendant's name was written
on the back, and that there was a
memorandum on the face of it denoting
the time of its maturity; and it was
proved that the bill was delivered by the
drawer to the plaintiff after that date:
-Held, no evidence to shew that the
bill had been negotiated by the drawer,
and paid by him at maturity. Jewell
v. Parr, 909.
III. Bill obtained by Fraud.
In an action by the indorsee against
the acceptor of a bill of exchange, in
order to raise a presumption that the
|