584 LANDLORD AND TENANT.

ignorance of the real state of the defendant's title; but if the landlord relies on a particular derivation of that title, the reason of the rule ceases; and this applies not merely to the case where the landlord relies upon that particular derivation of title in pleading, but where he founds his right of action upon it at the trial in statement and in proof; and that, as the plaintiff made a due execution of the power part of his case at the trial, he was bound to prove it.

Secondly, that, assuming that the acts of ownership showed exclusive possession by the defendant, the period (four years) over which they extended was not sufficient in law to found the presumption of a due execution of the power.

Thirdly, that the evidence did not prove exclusive possession by the defendant, but was as consistent with the non-existence as the existence of a deed executing the power; and therefore that the plaintiff was not entitled to have either issue left to the jury. C. P. Shee v. Gray

296 2. An action was brought for the interruption and hindrance of the plaintiff in his fishery, &c., which had been let to him by the defendant by parol for a year. The defendant having traversed the fact of the letting of the fishery to the plaintiff-Held (CHRISTIAN, J., dissentiente), that though an incorporeal hereditament, there was such an agreement by the plaintiff to hold, what was equivalent to land, under the defendant, in consideration of a rent for a period not exceeding a year, as would by the combined operation of the 3rd and 4th sections of the Landlord and Tenant Law Amendment Act (Ireland) 1860 create the relation of landlord and tenant, and that the action was maintainable.

Held, per CHRISTIAN, J., that the 2nd section of the Statute of Frauds,

LAND CLAUSES CONSOLIDATION ACT.

Case stated. By a Special Act, a Railway Company were permitted to construct certain works, under conditions more onerous for the Company, than the similar provisions of the Land Clauses Act required. This Special Act contained no provisions for the future repair of the works so constructed, but provided that nothing therein should exempt the Company from the provisions of any General Act.

The Company having fulfilled the conditions as to the construction of the work, contended that their liability ceased. Held, that the Land Clauses Act applied, and the Company were bound to keep the works in repair. Q. B. Great Southern and Western Railway Company appellants, Benson respondent

453

LEASEHOLD CONVERSION ACT. See LIMITATIONS, STATUTE OF, 2.

LIBEL.

See DEFAMATION. PLEADING, 4.

LICENSE.

See LANDLORD and Tenant, 2.

LIFE ESTATE.

See WILL, 1.

LIMITATIONS, STATUTE OF. See PLEADING, 2.

1. In ejectment by the survivor of two joint-tenants against the devisee of the other, it appeared that, about twenty-seven years before the bringing of the ejectment, the plaintiff and

LIMITATIONS, STATUTE OF.

the defendant's testator, who were joint-tenants under a lease, made an equal partition of the demised premises by parol, and that the moiety allotted to the defendant's testator, and which was the subject of the ejectment, had been in the exclusive occupation of the defendant's testator, and afterwards of the defendant, from the date of the partition until the bringing of the ejectment.

Held, that the exclusive occupation of the defendant and his testator for such a length of time had barred the plaintiff's right, under the joint operation of the 2nd, 3rd and 12th sections of the Statute of Limitations (3 and 4 W. 4, c. 27).

The 12th section of the Statute of Limitations applies not only to the case where one of several joint-tenants has been in possession of "the entirety" of the whole of the lands held jointly, but also to the case where such tenant has been in possession of "the entirety" of any portion of such lands; and the words in that section, 66 For more than his or their undivided share or shares of such land," apply as well to the case where one of several joint-tenants has been in possession of more than his undivided share in

any portion of the lands held jointly, as to the case where he has been in possession of more than his undivided share in the whole of such lands.

The case of Tidball v. James (29 L. J., N. S., Exch. 91), observed on and explained. C. P. Murphy v. Murphy 205

the said towns and lands, according to the number of profitable acres adjudged by Commissioners' certificate."-Held that the words in the fee-farm grant granted an undivided proportional share in the mountain, in the proportion that the lands in the fee-farm grant bore to the lands in the patent.

Held, overruling the Court of Queen's Bench, that execution of, and payment of rent under lease, raises presumption of possession under such lease, so as to bar the Statute of Limitations,

Held also, that the Book of Distributions is evidence of title.

Held, by PIGOT, C. B., that a grant made to K., in trust for and on behalf of G., a lunatic, does not make K. a trustee within the 17th section of the Renewable Leasehold Conversion Act.

Held also, by PIGOT, C. B., that if a lessee allows his right against trespassers to be barred by the Statute of Limitations, such right may be revived by fee-farm grant on the expiry of the lease. Ex. Ch. Poole v. Griffith 238

MANDAMUS.

1. Application for a mandamus to F., an arbitrator appointed pursuant to the Railways Act (Ireland), 1851, to award compensation for injuries to H.'s land, occasioned by certain works of the C. & Y. Railway Company. F. duly made his final award as to said works, in July 1859. The particular works affecting H.'s property were completed in August 1860. H. though duly noticed of the arbitrator's proceedings, made no claim for compensation till November 1862.—Held, that H.'s laches precluded the Court from exercising any discretion in his favour.

Held also (hesitante, FITZGERALD, J.), that an arbitrator cannot be compelled to amend or supplement his award, after it has been finally made

74

2. B, a shareholder duly registered, having paid one call, transfers his shares to one L. F. an infant. The Company refusing to register such transfer, B applied for a mandamus.

pay certain salaries to process-servers appointed by the Recorder of Galway. Held, that the writ should go, inasmuch as, under the Civil-bill Act, Recorders had the same rights as to the appointment of process-servers as Assistant-Barristers. Q. B. Regina v. Ritson

MASTER AND SERVANT. See NEGLIGENCE, 1.

551

514

3. B, a duly registered shareholder, having paid one call, transferred his shares to C, a pauper. The Company refusing to register said transfer, B applied for a mandamus.

Held, that such transfer, though made to relieve B from liability, was allowed by the statute, if there was no trust for the benefit of B.

Held also (dubitante FITZGERALD, J.), that the facts that C was a pauper, in the employment of B, and that the deed of transfer stated a consideration, though none passed, were not sufficient to render the transfer merely colorable.

• Held also (dubitante FITZGErald, J.), that though the granting a writ of mandamus is discretionary with the Court, the fact that the object of the transfer was to relieve B from liability would not justify the Court in leaving C to his action under the Common Law Procedure Act 1856.

Held also, that the 8 & 9 Vic., c. 16, s. 14, does not render a deed invalid in which a larger consideration is stated than actually passed.

Held also, that where untrue consideration is stated in the deed, the fact that no consideration passed will not render the instrument a deed of gift liable to stamp-duty as such. Q. B. Same v. Same

525

4. This was an application for a mandamus to compel the Inland Revenue to

2.

NEGLIGENCE.

servant, for injuries sustained by reason of the incompetence of a fellowservant, or the negligence of the master, there must be more than some evidence of negligence. Mere conjecture and facts consistent with pure accident, and with an error of judg ment, as well as with negligence, should not be sent to the jury. E. Murphy v. Pollock

224

Action under Lord Campbell's Act. Plaint, that defendant undertook to carry one M. B. in a certain omnibus, safely, &c., but by reason of the negligence, &c., of the defendant, said omnibus was precipitated into a lock of a certain canal, and the said M. B. was thereby deprived of existence. Defence:-That said M. B. was not deprived of existence by being precipitated into the said lock, or by any negligence of the defendant, after said omnibus was so precipitated, but by the act of a third person not authorised nor employed by the defendant, nor under his control, who, after said omnibus was so precipitated, wilfully let the water into said canal.

Replication:-That the precipitating the said omnibus into the said lock, through the negligence of the defendant, materially contributed to the event whereby, &c.; and the said M. B. would not have been deprived of existence, except for such precipi tation. Demurrer thereto.

Held, that, although the death of M. B. was not caused immediately by

2. In an action for the breach of an agreement to execute a lease of lands to the plaintiff, of which he had formerly been in possession, as tenant from year to year; and also for false representation and fraudulent concealment, with regard to the existence of a memorandum of agreement for the lease, the defendant, after issue joined, applied to the Court for leave to plead the Statute of Limitations to the first count, in addition to the defences already on the file.-Held [CHRISTIAN, J., dissentiente], that, inasmuch as the plaintiff had allowed

himself to be evicted without seeking specific performance of the supposed agreement, and that there were counts on the record on which the plaintiff might recover in case the defendant were guilty of actual fraud in the transaction, that the plea ought to be allowed to be pleaded. Held also, that the plea of the Statute of Limitations is a defence on the merits.

Held, per CHRISTIAN, J., that the defendant, having lapsed his opportunity of pleading the above defence in the first instance, was not entitled to the favor of the Court. C. P. Arch421 bold v. Earl of Howth

3. To an action of assault and battery, a certificate under the 24 & 25 Vic., c. 94, s. 44, may be pleaded, together with a plea that the assault was committed to prevent a breach of the peace. E. Lawler v. Kelly App. 1 4. The plaint alleged the printing and publishing of certain libellous words. The defendant pleaded that the said words were part of two separate articles published in the defendant's newspaper, and that "the said articles were, and each of them was and is a bona fide comment," &c. Held bad,

the defendant allowed to amend " and the said words were," &c. Q. B. Travers v. Potts App. 11

PRACTICE. See PLEADING, 2.

PRISONERS, CONFESSION OF.
See CONFESSION.

PRIVILEGED COMMUNICATION.
See DEFAMATION.
PLEADING, 4.

QUASHING CONVICTION BY
JUSTICES, COSTS OF.
See COSTS, 7.

RAILWAY COMPANY. See LAND CLAUSES CONSOLIDADATION ACT. MANDAMUS, 1. 2, 3.

66

Held also, that it could not be aided by an alternative condition, whereby the Company offered to undertake the risk of conveyance only in consideration of an additional payment of £20 per cent. on the low rate of charge;" but refused to entertain any "claim for damage sustained by any animal conveyed at such additional rate, unless the injury" was "stated and pointed out to the Company's agent at the time of unloading," that condition also not being in itself just or reasonable. Q. B. Lloyd v. Waterford and Limerick Railway Co. 37

2. Action for not delivering cattle within a reasonable time. B booked cattle from D. to L. without inquiring of the Company as to the hours of the trains. The cattle arrived at R., some distance from L., in due course at 12.30 a.m., but no train left for L. till 10 a.m., when they were forwarded. On a previous occasion B had booked cattle for L. which were forwarded from R. at 3 a.m. This train had been discontinued without any public announcement. The Company never published time-tables of their goods or cattle trains, their arrangements for those trains being contained in a book only used by the Company's servants, and which contained the alteration in question. At the trial, the Judge told the jury that the Company were bound to give the public notice of the change of hours in the departure of their trains.

Held, a misdirection, that the previous dealing, even though coupled with the absence of time-tables, did

REGISTRY APPEALS.

not make the old arrangement as to the starting of the train from R. an element of the contract. Q. B. Bollands v. Manchester, Sheffield, and Lincolnshire Railway Company 560

RATING.

See FRANCHISE, MUNICIPAL, 1, 2. RECORDERS', RIGHT OF, TO APPOINT PROCESS SERVERS. See MANDAMUS, 4.

2. 13 & 14 Vic., c. 69 (Parliamentary Voters Act, s. 113).

The name and address of the person objected to must be indorsed upon both the notices of objection brought to the postmaster.

An objector gave in evidence a notice of objection, duly stamped by the postmaster, with the name and address of the voter objected to indorsed upon it. The duplicate notice of objection, unindorsed, was delivered by post to the voter, in an envelope directed to the same address as the indorsement of the stamped notice.Held, that the notice served was not a "duplicate," and was not duly "directed" to the party objected to (FITZGERALD, B., and DEASY, B., dissentientibus). Ex. Ch. Moriarty appellant, Wynne respondent; Ahearne appellant, Wynne respondent 359 3. 13 & 14 Vic., c. 69, ss. 22 and 55.

The sufficiency of a voter's qualification is to be determined by the Chairman. When he is satisfied, no appeal lies, even if the voter have parted with some of the lands in respect of which he was originally