1817. 2 Stark. 230. Ellenborough, C. J. Ivey, it will be presumed that a conveyance has been executed. Doe d. Bower7. Agreement to sell or assign cove-man v. Sybourn, 2 Esp. 499. Kenyon, nant by vendee, that on default in pay- C. J. 1796. ment of any instalment of the purchase And the court of K. B. refused a rule money, vendor shall not be compellable to set aside nonsuit. Ibid. and 7 T. R. 2. to assign. Vendee in possession makes default. He is thenceforth a mere tenant by sufferance. Doe d. Moore v. Lauder, 1 Stark. 308. Ellenborough, C. J. 1816. 14. But where no such presumption can be made, an ejectment on the demise of the cestui qui trust, cannot be supported. Godfrey d.- v. Hudson, 2 Esp. 499, n. Kenyon, C. J. 1788. S. P. Goodtitle d. Jones v. Jones, 7 T. R. 47. 8. Said to have been ruled that distress and continuance in possession And see Doe d. Sherren v. Wroot, 5 might be a waiver of any forfeiture existing at the time of distress. Doe d. East, 132. S. C. 1 Smith, 363; WeakTaylor v. Johnson, 1 Stark. 411. El-ley d. Yea, bart. v. Rogers, 5 East, 138; lenborough, C. J. 1816. Massey v. Touchstone, 1 Ca. temp. ReN. This is not stated to have been a desdale, 67. Doe v. Lawrence, 4 distress for rent accruing subsequently Taunt. 23. to the forfeiture and the fact may be inferred to be otherwise. And see Zouch d. Ward v. Willingale, 1 H. Bla. 311. F. N. B. 179. A. 9. So if the landlord bring an action for the subsequent rent and the tenant pay the amount into court. Roe d. Crompton v. Minshal, 2 Selv. 677. A. (b) How proved. (And see USE AND OCCUPATION.) 10. After proof of title in A., and possession down to 1814, the bare fact of possession by B. in 1815, will not raise the presumption, that B. is seized in fee. Doe d. Pitcher v. Anderson and another, 1 Stark. 263. Ellenborough, C. J. 1816. 15. A reversionary termor dies intestate pending the first lease; the title of the lessor of the plaintiff derived under such termor, must be considered, with reference to the statute of limitations, as accruing on the determination of the first lease, not on the subsequent taking out of letters of administration. Fairclaim v. Little, Burrough, J. Salisbury Summer Assizes, 1818. 16. The declarations of a person found in possession, are admissible to prove a breach of covenant by underletting. Doe d. Hindly v. Rickarby, 5 Esp. 4. Alvanley, C. J. 1803. 17. But it is not sufficient to prove that the defendant, a stranger, is found in possession, and has declared that the premises were demised to him by another stranger. Doe v. Payne, 1 Štark. 86. Ellenborough, C. J. 1815. 11. A party claiming under a lease And see EVIDENCE, G. (c) 5. H. from mortgagor and mortgagee, cannot (c) 12. make out his case by shewing that the 18. To prove the title of the lessor of lease is lost, and producing the counter-the plaintiff, by his admission to a part, and proving its execution by the copyhold, it is not sufficient to shew that lessee, without shewing that the original a person of that name was admitted lease was executed by the mortgagee. without further evidence of identity. Doe d. Clark v. Trapaud, 1 Stark. 281. Doe d. Hanson and others v. Smith and Ellenborough, C. J. 1816. another, 1 Campb. 196. Ellenborough, C. J. 1808. 12. A presumptive title to a waste, arising from the possession of adjoining closes, cannot be set up against positive acts of ownership exercised by the lord of the manor. Curzon and another v. Lomax, 5 Esp. 60. Ellenborough, C. J. 1803. And see Doe v. Vernon, 7 East, 8. S. C. 3 Smith, 6. Hennel v. Lyon, 1 B. and A. 182, Peaceable v. Watson, 4 Taunt. 16. Ante, DEED, B. (a) 2. 19. A party who came into possession under the lessor of the plaintiff, cannot 13. Where trustees are bound to con-object that the title of the latter is under lease from the crown, whereof seventy an assignment. Doe v. Parker, Peake's years were unexpired; though in 1Evidence, 304. Kenyon, C. J. StafAnn 1. c. 7. crown leases for more than ford, 1788. fifty years or three lives, are void. Doe d. Biddle v. Abrahams, 1 Stark. 305. Ellenborough, C. J. 1816. 20. A., lessee under a void lease from tenant for life, pays rent to the remainderman; B. takes an assignment of the lease, with notice of such payment. Semble, that B. is estopped from disputing the title of the remainder-man. Johnson v. Mason, 1 Esp. 89. Kenyon, C. J. 1794. 21. In ejectment by assignee of a term conveyed to secure an annuity, a regular memorial will be presumed. Doe d. Griffin v. Mason, 3 Campb. 7. Ellenborough, C. J. 1811. 22. In ejectment by an executor, the defendant's answer in chancery, admitting "that he believed that the testator was possessed of the leasehold premises mentioned in the bill," is evidence that the testator had an interest which would vest in the lessor of the plaintiff. d. Digby v. Steel, 3 Campb. 115. lenborough, C. J. 1811. B. DEMISE. B. (a) Time of demise. (Sav. 28. pl. 46.) 27. In a lease containing the usual clause of re-entry, the lessee covenants generally to keep the premises in repair; and it is further provided, that within three months after notice he shall repair the defects pointed out in such notice. The demise may be laid before the expiration of the three months. Roe d. Goatly v. Paine, 2 Campb. 520. Ellenborough, C. J. 1810. And see Horsfall v. Testar, 7 Taunt. 385. 1 Moore, 89. 28. A receipt for rent up to a particular day is prima facie evidence of the Doe commencement of the tenancy at that El-time of the year. Doe d. Castleton and others v. Samuel, 5 Esp. 173. Ellenborough, C. J. 1804. S. C. not S. P. Adams, Ej. 141. 23. Held that a party claiming as 29. But this presumption may be vendee of sheriff under a fi. fa. must rebutted, by shewing that the tenant prove the judgment. Hoffman, assignee has held on after the expiration of an of Phelps, v. Pitt, 5 Esp. 22. Ellen-old term, which commenced at a differborough, C. J. 1803. ent period. Ibid. 24. It was held, however, that even Acc. Doe v. Lea, 11 East, 312. where the lessor of the plaintiff claimed 30. After the expiration of notice to as a purchaser from the sheriff selling quit the glebe a sequestration is pubunder a fieri facias at the suit of such lished. A demise by the rector laid on lessor, it was enough to prove the writ. a day subsequent to the expiration of Doe dem. Bland v. Smith, 2 Stark. 199, the notice, and preceding the publicaHolt, 589. Wood, B. York Summer tion is good, though the bishop had Assizes, 1817. previously indorsed the writ "Let seBut the court of K. B. set aside a questration issue." Doe d. Morgan, verdict which had been taken for the clerk, v. Bluck, 3 Campb. 447. Ellenplaintiff. Ibid. borough, C. J. 1813. And see Gilb. Ev. 33. Martin v. Podger, 5 Burr. 2631. S. C. 2 Bla. 791. Savage v. Smith, 2 Bla. 101, 4. 25. Submitting to a distress is an admission of the landlord's title. Panton, widow, v. Jones, 3 Campb. 372. Bayley, J. Gloucester, 1813. And see USE AND OCCUPATION, Co. Litt. 320, a. Dixon v. Harrison, Vaugh. 39. 26. Assignee of reversion may make title by receipt of rent without proving B. (b) Form of demise. 31. Under a demise of the whole, an undivided moiety may be recovered. Doe d. Bryant et alt. v. Wippel, 1 Esp. 360. Kenyon, C. J. 1795. S. P. Sav. 27, pl. 65. 32. Ejectment lies on the several demises of joint tenants. Doe d. Lulham and others v. Fenn, 3 Campb. 190. Ellenborough, C. J. 1812. And see Doe d. Whayman v. Chaplin, | Cooke and another, 3 Campb. 512. 3 Taunt. 120; Roe d. Raper v. Lons- Ellenborough, C. J. 1814. dale, 12 East, 39; Doe d. Marsack v. Read, ibid. 57; Doe d. Clark v. Grant, ibid. 221, 3. 39. But proof of such service is sufficient without shewing any priority between the defendant and the tenant in possession. Doe d. Scholefield and others B. (c) Actual demise, when necessary to V. Alexander, 3 Campb. 516. Ellenborough, C. J. 1814. be proved. 33. Lessee of a corporation, &c. need not produce the deed of demise. Furley d. Mayor, &c. of Canterbury v. Wood, 1 Esp. 198. Kenyon, C. J. 1794. C. PREMISES, HOW DESCRIBED. C. (a) Situation. 40. To shew a house that is situate in the parish mentioned in the declaration, it is prima facie evidence, that the place is watched by the watchmen of that parish. Doe d. Gunson v. Welch, 4 Campb. 264. Ellenborough, C. J. 1815. 41. But it is not sufficient, that upon inquiries made before bringing the ejectment, the neighbours stated that the house was within the parish. Ibid. E. ACTION FOR MESNE PROFITS. 34. Premises described in the declaration, as lying in the united parishes of St. George the Martyr and St. George's, Bloomsbury, are proved to be situated in (And see Co. Litt. 55, b. Ib. n. 370. St. George's, Bloomsbury. The variance Y. B. M. 33 H. 6, fo. 46, pl. 30, 111.) is fatal, although the parishes were united by act of parliament, for the purpose of a joint provision for the poor. Goodtitle d. Pinsent v. Lammiman, 6 Esp. 128. 2 Campb. 274, S. C. Ellen-more costs than damages, unless the borough, C. J. 1809. D. POSSESSION OF DEFENDANT. 35. It is no objection to plaintiff's right to recover, that the defendant entered into possession originally as servant to another. Doe d. Cuff v. Stradling, 2 Stark. 187. Bayley, J. 1817. And see Doe d. James v. Staunton, 2 B. and A. 371. S. C. 1 Chitty, 118. E. (a) What recoverable in. 42. If in this action the plaintiff recover less than 40s. he is entitled to no judge certify. Doe v. Davis, 1 Esp. 358. Kenyon, C. J. 1795. And the court of K. B. discharged a rule for allowing full costs. 6 T. R. 593. 43. After judgment by default in ejectment, the costs of such judgment may be recovered in this action. Ibid. Acc. Gulliver v. Drinkwater, 2 T. R. 261. 44. Where the ejectment is defended, and taxed costs are paid, the extra costs cannot be recovered in this action. Ibid. E. (b) Evidence. 36. Where a party is admitted to defend as landlord, the plaintiff must still prove that the person served with the declaration was tenant in possession at the time of such service. Doe d. 45. In an action against the landlord, Turner v. Wallinger. Holroyd, J. it should be shewn, that he had notice Dorchester Spring Assizes, 1819. of the proceedings in ejectment. Hunter v. Britts, 3 Campb. 455. Ellenborough, C. J. 1813. 37. But the defendant is estopped by his rule, from denying that he stands in the relation of landlord to such tenant. Ibid. 46. But a subsequent promise to pay the rent and costs is sufficient. Ibid. 38. Where a party defends as land- 47. If the plaintiff has been let into lord, it must be shewn that he is in possession by the defendant, the execureceipt of the rent and profits, or that tion of a writ of possession need not be the declaration was served on the tenant proved. Calvart v. Horsfall, 4 Esp. in possession. Fenn and Phillips v. 167. Ellenborough, C. J. 1802. And see Thorp v. Fry, Bull. N. P.]tract for the sale of goods for ready. 87. S. C. Selw. 722, n. F. N. B. 179, money, though immediately followed by F. note (c). Siderf. 239. ESCAPE. A. VOLUNTARY. (a) What shall be. B. REMEDY BY ACTION. (a) Pleadings. (b) Evidence. A. VOLUNTARY. A. (a) What shall be. 1. B. being in custody at the suit of A. upon joint process against B. and C., a rule is made for the discharge of B., entitled "A. against B." omitting C. A discharge under this rule is an escape. White v. Jones, marshal of K. B. 5 Esp. 161. K. B. T. T. 1804. S. C. 5 East, 292, and 2 Smith, 77. B. REMEDY BY ACTION. B. (a) Pleadings. an agreement to take a bill at three 5. It would be otherwise where the credit formed part of the original contract. Ibid. 6. Declaration avers, that I. S. was brought by habeas corpus before a judge of K. B. who committed him to the custody of the marshal, "as by the said writ of habeas corpus, and the return thereof, and the said commitment thereon now remaining in this court, more fully appears." The production of the writ from the king's bench prison, where it was filed, will not support the action. Turner v. Eyles, Esp. 8. Alvanley, C. J. 1803. 5 And the court of C. P. discharged a rule for setting aside nonsuit. Ibid. and 3 Bos. and Pull. 456. Sed vide Wigley v. Jones, 5 East, 440. S. C. 1 Smith, 458. 1 Saund. 39, n. 7. An escape is sufficiently shewn by the cepi corpus and non-appearance. Fairlie v. Birch and another, sheriff of Middlesex, 3 Campb. 397. Ellenborough, C. J. 1813. B. (b) Evidence. 8. An acknowledgment of the debt. 2. Declaration for an escape states, that the original defendant was arrested, by the original defendant, is sufficient "under a writ indorsed for bail, by vir- to charge the sheriff. Sloman, executrix, tue of an affidavit now of record." This v. Herne, knt. et alt. sheriffs of London, is made a material averment, and must | 2 Esp. 695. Kenyon, C. J. 1798. 9. So any evidence which would be be proved by the production of the affidavit. The production of the writ so sufficient to charge the original defendindorsed, is not sufficient. Webb v. ant. Ibid. Herne and Williams, sheriff of Middlesex, 2 Esp. 671. Eyre, C. 1798. And the court of C. P. refused al rule to set aside nonsuit. Ibid. and 1 Bos. and Pul. 281. 3. But such averment appears to be unnecessary. Ibid. And see Whiskard v. Wilder, 1 Burr. 330, 2; Hill v. Heale, 2 New Rep. 196, 9, 201. 4. Declaration for an escape states, that the original defendant was arrested for goods sold. This averment is sup And see ante, B. (a). ESTOPPEL. A. BY ACT OF PARTY. B. BY MATTER OF Record. A. BY ACT OF PARTY. 1. A., tenant for life, grants a void ported by evidence of an absolute con-lease to B., who, on the death of A., pays rent to C., the remainder man, but | direct proof of the defendant's appointafterwards assigns his lease to D., with ment need not be given, where he has notice of the payment of the rent to C. described himself as major-commandant Upon an avowry for a distress by C., his in his returns to the war office. Rer v. title need not be proved. Johnson v. Gardner, 2 Campb. 513. Ellenborough, Mason, 1 Esp. 89, 91. Kenyon, C. J. C. J. 1810. 1794. 11. A. mortgages to B., and afterwards 2. And semble, that in ejectment, D. sells to C., who also mortgages to D., would be equally precluded from deny-reciting that B. had conveyed to him ing C.'s title. Ibid. free of incumbrances. Without a strong case of fraud, this recital is conclusive evidence that the first mortgage was 3. A party who has given a draft for the amount of a tradesman's bill, cannot dispute the reasonableness of the satisfied. Jones, administrator of Pritchcharge. Knox v. Whalley, 1 Esp. 159. ard, v. Williams, 2 Stark. 52. EllenKenyon, C. J. 1794. borough, C. J. 1817. 4. In an action by the assignee of a lease, against the assignor, evidence of the execution of the assignment in which the original lease is adopted, renders any proof of the latter instrument unnecessary. Nash v. Turner, 1 Esp. 217. Kenyon, C. J. 1794. B. BY MATTER OF REcord. 12. The record of a judgment in an action by A. against B. and C., for obstructing a watercourse, is conclusive evidence And see PLEADING, H. (a). of the rights of the parties, in another 5. A bankrupt who goes round to his action by A. against B., and other percreditors to solicit their votes in the sons justifying under him, for a similar choice of assignees, and acquiesces un-obstruction. Strutt v. Bovingdon and der the commission during three years, others, 5 Esp. 58. Ellenborough, C. J. is estopped from bringing an action to 1803. try the validity of the bankruptcy. Like Sed vide Incledon v. Burges, 1 Show, v. Howe and Rogers, 6 Esp. 20. Mans-47; Outram v. Morewood, 3 East, 346, field, C. J. 1806. Acc. Flower v. Heeber, 2 Ves. 236. 6. A bailee cannot set up the title of a stranger against his bailor, Anon. cited, 3 Esp. 115. Gould, J. Maidstone. Acc. Y. B. East. 7 H. 6, fo. 22, pl. 3. 7. But he may shew that the goods were sent to the plaintiff by a third person, to whom they belong. Laclouch v. Towle, 3 Esp. 114. Kenyon, C. J. 1800. 8. Warehouseman, at the request of vendor, acknowledges that he holds the goods at the disposal of the vendee; he cannot withhold them on the ground that the vendee became bankrupt before the property was completely vested in him. Stonard v. Dunkin another, 2 Campb. 344, Ellenborough, C, J. 1810. 9. A plaintiff is not estopped by a statement contained in an invoice of goods sold, respecting the period of credit, where such invoice is not delivered with the goods, or under a judge's order. Bacon v. Chesney, 1 Stark. 192. Ellenborough, C. J. 1816. 10. On the trial of an information for defrauding government by false musters, EVIDENCE. A. RECORDS. (a) In what cases evidence. B. COURT ROLLS, C. OTHER LEGAL PROCEEDINGS, D. STATE PAPERS, |