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ing according to benefits. State, etc., v. Village of Passaic. Opinion by Bedle, J.
in favor of the defendants in Osborn's books of exactly the same amount, as if the premium had been paid to him in bank notes. All that they were enti- 2. There is no valid objection against assessing the tled to from Osborn was a certified check, payable in cost of flagging sidewalks on the principle of frontage, New York, for the balance of his account; and so long but under such a power the estimate must not include as he charged himself with all the premiums it was auy part of the expense of substantial grading (excanothing to them in what mode or form he received the vation and filling) of that part of the street occupied by payment from the parties indebted, provided it were the sidewalks. Incidental grading for the mere purpose a real and reasonable payment. If the requisite fund of flagging may be included, but not the substantial was seasonably in Osborn's hands, and seasonably ap-grading of any part of the street, although included in propriated by him, under the direction of the assured, the sidewalks. State, etc., v. Mayor, etc., of Jersey City. to this specific use, the effect was the same as a pay- Opinion by Bedle, J. ment in its most literal form. Taylor v. Merchants' Ins. Co., 9 How. 403. The evidence had a manifest tendency to prove that funds belonging to the firm, and which the assured had a right to make use of in paying the premium, were in Osborn's hands, with a distinct understanding and agreement between him and the assured that the premium should be paid out of those funds; that Osborn reported to the firm at one time, that he had in his hands more by thirty dollars than money enough to pay this very premium; that the assured not only directed that the money should be so applied, but believed on the representation of Osborn himself that it had been so applied; that there was not only no objection but presumably an expectation and consent on the part of the firm that this application should be made; that Osborn had been furnished with the customary receipt as a voucher of the payment and held it in his hands with authority to deliver it to the assured at any moment that he told the assured that he, Osborn, had the receipt in the usual form, and that the result of the transaction was precisely the same, in the dealings between Osborn and the defendants, as if he had received the amount directly from the hands of the assured in bank bills. As all this occurred on or before the day when the premium became due, the jury would, in our judgment, have been authorized in finding, upon this evidence, that in substance and effect the premium was seasonably paid to Osborn, the authorized agent of the defendants, and that the assured had, therefore, fulfilled the condition of the policy.
According to the terms of the reservation, therefore, judgment is to be entered for the plaintiff.
NEW JERSEY SUPREME COURT DECISIONS.*
When two or more persons, though not acting in concert, occasion an injury, they are severally liable for the consequences. Where a house was badly built in consequence of the joint neglect of the architect and the contractor, a suit founded on such neglect, will lie against the architect alone. Nor will the fact that the owner of the house refused to pay the contractor a part of the money due to the contractor on the ground that the house was badly built, bar such suit. Newman v. Fowler. Opinion by Beasley, Ch. J.
ASSESSMENT FOR STREET IMPROVEMENT.
1. An assessment made under charter of village of Passaic, which provides that the whole cost of the improvement shall be assessed upon lands fronting on the improvement, in proportion to the benefit received by each lot, is illegal, as it requires such lots to bear the whole burden of the cost without limitation to actual benefits, and the mode of its distribution merely, be* To appear in 8 Vroom's Reports.
1. If a deed be read falsely to a man too infirm to read it himself, or if the contents be untruly stated to him, it may for that reason be avoided at law; but if he be simply misinformed as to its legal effect, it cannot be avoided in a court of law, but a court of equity will correct or reform the deed. Eaton v. Eaton. Opinion by Scudder, J.
2. The degree of evidence required to defeat such deed should be sufficient to carry strong conviction to the minds of the jury of its truth. Ib.
3. The test of capacity to make a deed is, that a person should have the capacity to understand the nature and effect of the act in which he is engaged, and the business he is transacting. Ib.
4. The deed of conveyance of a person of unsound mind, executed before an inquisition and finding of lunacy, if taken in good faith, is voidable only and not void. Ib.
5. A voidable deed may be ratified by acts of acquiescence after the disability is removed; but the acts of confirmation to establish the deed must show an intention to confirm it with knowledge of its character and that it is voidable. Ib.
A mandamus is not the proper remedy whereby to enforce the payment of moneys due from a municipal corporation for work and labor. State ex rel. Little v. Union Township. Opinion by Beasley, Ch. J.
PRIVILEGE FROM SERVICE OF PROCESS.
A party to a suit in chancery, who resides in another State, and comes into this State to give testimony in his own behalf before a master in chancery, is, while necessarily attending before the master and going to and returning from the place where such examination is held, privileged from the service of a summons in a civil cause, without any subpæna ad testificandum being served. Durgan v. Miller. Opinion by Depue, J. RIGHT OF TAKING FISH, ETC., IN TIDE WATERS -MIXTURE OF GOODS.
1. The right of fishing and taking oysters in the tidal waters of this State is prima facie common to all the people of this State. But the legislature may grant a right of enjoyment in lands under tide waters to private individuals for the purpose of fishing and planting oysters, to the exclusion of the public right therein. Wooley v. Campbell. Opinion by Depue, J.
2. Several lessees under the act entitled "An act to authorize the plauting of oysters on lands covered with water in Shark river, and for the protection of the same" (acts, 1861, p. 436), may, by agreement, use jointly the lands which have been granted to them severally for the purpose of planting oysters; and, in such a case, having joint property in the oysters planted, may join in an action to recover damages for taking their joint property. Ib
3. The doctrine that one mixing his goods with those of another, so that a separation is impossible, loses his property, is a doctrine that is adopted to prevent fraud, and is not applied except in favor of an innocent party against a wrongdoer. A person who is himself a wrongdoer is not entitled to the benefit of this principle. Ib.
COURT OF APPEALS ABSTRACT.
This action was brought to recover an alleged loan of $500 by the firm of B. & M., plaintiff's assignees, to defendant. Before that firm was formed defendant made his note for $500 for the accommodation of M. The note had been renewed from time to time, M. furnishing the money to take it up, and receiving a new note, which he had discounted. After the firm was formed the notes were made payable to it, and were taken up by firm checks. Defendant finally notified M., upon giving a new note, that he would not renew it again; that when it was due the transaction must end. When the note became due B. drew a firm check, payable to defendant, and delivered it to M., who handed it to defendant, who used it to take up the note. The action was tried by a referee, who found that defendant received the check, not as a loan, but as a performance of M.'s individual obligation to provide for the note at maturity. Held, that the production of the firm check did not furnish evidence of a loan, but that unexplained the presumption was that it was given for a firm debt, and that upon the facts found the use of the check in payment of the note must be deemed to have been assented to by B.
Plaintiff claimed that B. drew and delivered the check on condition it was to be transferred to defendant upon bis giving a new note. There was no finding by the referee on this subject. Held, that the question whether the fact, if found, would entitle plaintiff, as assignee of the firm, to recover the amount of the check as on a loan by the firm could not be considered, as the fact of the conditional delivery was not conclusively established by the evidence, and as it was not so found. Ross v. Whitefield. Opinion by Andrews, J.
RELEASE OF SURETY.
This action was brought upon an undertaking given on appeal to the Court of Appeals. In an action against Fowler as owner, and B. & F. Woods as lessees of certain premises, to recover damages for injuries received by falling through a coal hole in front of the premises left uncovered through the alleged negligence of the defendants, plaintiff recovered judgment against all the defendants, and they appealed to the General Term, where the judgment was affirmed. The Woods appealed to the Court of Appeals and gave the undertaking in suit. After the decision by the General Term, Fowler paid plaintiff $2,500, and received from him an instrument in writing which stated substantially that plaintiff had recovered a judgment for $6,184.03 against the defendants jointly, and that defendant Fowler being desirous of compromising said joint indebtedness and of obtaining his personal and individual discharge therefrom, without prejudice to plaintiff's right to proceed against the other defendants, that in pursuance of "an act for the relief of partners and joint debtors," passed April 18, 1838, and of the several acts amendatory thereof (chap. 581, Laws of 1838; chap. 348, Laws of 1845), and in consideration of $2,500 paid by Fowler to plaintiff, the
latter exonerated him from all individual liability, by reason of said judgment or of his being one of the joint debtors therein, but without prejudice to plaintiff's rights against the other defendants in said judgment. Defendants claimed that the case was not within said act for the relief of partners and joint debtors, and that the instrument was in effect a release of one of several joint debtors and so discharged them all. A verdict was directed for plaintiff for the amount of the judgment less the $2,500 so paid. Held, that conceding (though not now so adjudged) that the case was not within the provisions of said acts, the instrument was not a technical release, as it was not under seal (Rowley v. Stoddard, 7 J. R.); and to discharge all it must be such, and it was not tantamount to a release which is in effect an admission of payment, as its whole tenor is at enmity with such an admission; and it did not operate as an accord and satisfaction, as a payment of a less sum than the actual debt when the amount is not disputed is no satisfaction, unless there follow a release by deed, but that if not effectual under the statute it was an agreement to be enforced according to the intent of the parties as manifested by the words used, and therefore it did not discharge the Woods; also held, that the fact that the instrument directed the clerk to discharge the judgment did not affect the question, as, if the case did not fall within the act, the clerk was not authorized to discharge the judgment; if it did, then the instrument was effectual as prescribed by the act. Irvine v. Milbank et al. Opinion by Folger, J.
This action was brought against defendant as surviving partner of the firm of E. & Son. Plaintiff, as a witness in his own behalf, was allowed, upon the trial, to testify to a conversation between the deceased partner and himself. Held, error, under section 399 of the Code. Green v. Edick, survivor, etc. Per curiam opinion.
NEGLIGENCE-RIGHT TO RECOVER DAMAGES WHERE DEATH IS INSTANTANEOUS. In Sullivan v. Union Pacific R. R. Co., 1 Central Law Journal, 595, the United States Circuit Court, District of Nebraska, decided an important question relative to the right to recover damages in case of instantaneous death caused by negligence. The petition in the case represents "that the plaintiff is the father of one James Sullivan, who was an employee of the defendant at $2 per day, which was received by the plaintiff; that his said son was seventeen years of age; that, while in the service of the defendant, he was, by its negligence, 'caught between the cars of the defendant and was fatally bruised and wounded, from which he died within six hours.' The facts, intended to show that the death of the son was caused by the fault of the defendant, are fully stated in the petition, but it is not necessary to refer to them at length. The plaintiff claims as damages, the value of his son's services from the date of his death until he would have become of age, and also $20 for medical services, $10 for nursing and $250 for burial expenses, amounting, as alleged, to the sum of $3,412, for which judgment is asked."
There was a demurrer on the ground that the petition showed no cause of action. The opinion in the case is by Dillon, circuit judge, and is as follows:
"The plaintiff sues in virtue of his relationship of father, for the loss of the services of his minor son,
and for special damages, which were occasioned by his alleged wrongful death through the negligence of the defendant. There is no statute in Nebraska giving such an action, and counsel concede that, at the time the present cause of action arose, there was no statute in the State like Lord Campbell's act, 9 & 10 Vict. c. 93. This action must be maintained, therefore, if at all, on general or common-law principles. In commencing our inquiries, let us ascertain the exact character of the action. When a minor child is injured by the tort of another, pecuniary damages result to his father as master entitled to his services, as well as to the child itself. Hence, two distinct actions may be brought. One by the parent or master for the loss of services, and another by the child, by its next friend or guardian, for the injury to itself. These are familiar and undisputed principles. But in the latter case, if the child should die in consequence of the injury, the cause of action did not, by the common law, survive, and by that law, no right of recovery, for the damages resulting from the death, existed in favor of his personal representatives or next of kin. It was to remedy this defect in the law, that is, to give an action to the personal representatives, where death ensued from the wrongful acts of another, that Lord Campbell's statute was passed. This is manifest both from its recitals and its provisions. It did not provide for the case of masters, and their rights are not touched by it.
"But if injury, caused by the tort of the defendant, is so great that death ensues immediately, does the law deny the master or parent all remedy, when, if the injury had been less, there would be, as we have just seen, a remedy at least to some extent? And when death ensues, whether sooner or later, does that limit the time down to which the loss must be estimated? The consequences of the injury where death happens, affect the father until the child would become of age, and to give damages only until the death, is to recognize the right of the father to compensation for the injury to him, but to stop part way in measuring the compensation.
"It is evident that since the father is entitled in law to the services of his child until majority, and
since the wrongful act which causes the death of the child, deprives him of such services, we have here that damage and pecuniary injury which, on general principles, give a right to compensation. If such right does not exist, it is on the wrong-doer to show why. No attempt is made, and the attempt cannot successfully be made, to show that justly, the father in such case should have no compensation, or only a partial compensation, down to the date of the death. Accordingly, the civil law, and the French and Scotch law, recognize the right to maintain actions like the one at the bar.
"To defeat the right of action, reliance is placed by the defendant solely upon the proposition, that the common-law doctrine, as Lord Ellenborough is reported to have expressed it, in a case hereafter adverted to, is, that in a civil court, the death of a human being cannot be complained of as an injury.' Baker v. Bolton, 1 Campb. 493, 1808. It may be observed, that strictly the complaint of the plaintiff is not for the death of his son, but for the wrongful act, which, by producing the death was the cause of his pecuniary damage. This is, perhaps, what Lord Ellenborough means, and I now proceed to inquire whether this is a doctrine of the common law, established so early, and so firmly as to be binding upon the American courts, and to be changed only by the legislature.
"This makes it necessary to refer to the English decisions. This I shall do with all possible brevity, and shall then notice the leading American cases upon the subject. Whoever examines the cases critically, will, I think, come to the conclusion that an American court, in a State where the question is untouched, is at liberty to adopt a rule which is consonant with its sense of justice, and is not bound to regard the doctrine contended for by the defendant as binding upon it.
"Is it, then, a principle of the common law, that where the death of the servant immediately ensues from the wrongful act of another, there is no remedy for the master, and that where it ensues therefrom afterward, the master's loss cannot be estimated beyond the period when the death occurred?
"Such a principle cannot be vindicated on considerations of reason, justice or policy, and I could only consent to recognize it upon being satisfied that it was one of the rules of the common law, so long and so well settled, that the courts are bound to accept and apply until it is changed by legislative action.
"The earliest case upon this subject is Higgins v. Butcher, Yelv. 89.
"If the child of the plaintiff had, by the wrongful act or neglect of the defendant, been disabled from work, but not killed, it is clear that the plaintiff would have his action for the loss of service. Fort v. Union Pacific Railroad Co., 17 Wall. 553. So, if the child thus injured was disabled from work thereby, and remained disabled for a year and then died, it is also clear, and has been several times decided, that the father or master could recover for the loss of his services down to the date of the death. Hyatt v. Adams, 16 Mich. 180; Baker v. Bolton, 1 Campb. 493.
"The plaintiff's wife died of an assault and battery upon her by the defendant, and the plaintiff brought an action for the damages. The views of the court are thus expressed by Tanfield, J.: 'If a man beat the servant of J. S. so that he dies of that battery, the master shall not have an action against the other for the battery and loss of service, because the servant dying of the extremity of the battery, it is now become an offense to the crown, being converted into a felony, and that drowns the particular offense and private wrong offered to the master before, and his action is thereby lost.' Obviously, the denial of the master's right is here placed upon the ground that the death of
"The negative of this proposition has never been ju- the servant having been feloniously caused, the pridicially denied.
vate injury is merged in the public offense. This would not apply to any case in which the act producing the death, though negligent, was not criminal, and at this day would not be a ground on which to defeat a private remedy otherwise existing.
But the leading case to establish the doctrine maintained by the defendant is the nisi prius case of Baker v. Bolton, before mentioned, decided by Lord Ellenborough, in 1808. The plaintiff and his wife were upset while traveling on a stage coach of the defendants, and both were injured, and the wife died in about a month. The plaintiff, inter alia, sought to recover damages in respect of the loss of his wife's services, and Lord Ellenborough directed the jury that 'the damages, as to the plaintiff's wife, must stop with the period of her existence,' and the reason given was
that in a civil court, the death of a human being cannot be complained of as an injury.' He cites no cases and enters into no discussion, and does not profess to rest upon precedent. The case was determined in 1808, and if it is the origin of the doctrine contended for by the defendant, it was decided at so late a period as not to be binding upon the courts of this country as part of the common law. I admit that it does hold the doctrine that the date of the death of the servant limits the period to which the loss of the master must be estimated.
"The direct question did not again arise in England until as late as 1873, when Osborn v. Gillett, Law Rep., 8 Exch. 88, came before three of the judges of the Court of Exchequer. Two of the barons against one dissenting, there held that a master cannot maintain an action for a tortious act which caused the immediate death of the servant, and this holding, so far as it was placed upon precedent, was rested upon Baker v. Bolton. The opinions covered the whole ground, and it seems to me that the better reasons were with the dissenting baron. The majority felt bound by Baker v. Bolton, but, as above suggested, it has no such authoritative force in this country. Whether the case was carried upon error does not appear. If it were, the judgment might well be affirmed, and yet an American court would be at liberty to decline to accept and apply its doctrine. It is noticeable that no attempt was made by the majority to vindicate the doctrine they felt bound to follow.
The earliest and leading American cases are Carey v. Berkshire R. R. Co., and Skinner v. Housatonic R. R. Co., 1 Cush. 475, 1848. One of these actions was by the plaintiff as widow, for the loss of the life of her husband, and the other by a father for the loss of service of his infant son, whose death was caused by the negligence of the company.
"It is not a little remarkable that the court treats the cases as involving the same principle, although the wife has no legal right to the service of the husband, nor common-law right to recover for his death? and following Baker v. Bolton, the court decided that in neither of the cases could the action be maintained.
"Another case is Eden v. Lexington, etc., R. R. Co., 14 B. Mon. 204, 1853, in which the husband sued for loss of service of his wife, who was instantaneously killed by the alleged tortious act of the defendant. The case seems justly open to the criticism of Bramwell, B., in Osborn v. Gillett, supra. Liability was de nied except damages down to the time of the death, on the strength of Baker v. Bolton, and the common-law rule asserted in that case is supported, by the judge delivering the opinion, to rest on the untenable ground that the public wrong merges the private injury.
In a similar action the Supreme Court of Michigan held that the husband could recover damages down to the death of the wife, but not beyond that event. This ruling was in accordance with what the court regarded as the common-law rule, declared in Baker v. Bolton, and is quite at loss to discover its reason or philosophy.
"On the other hand, in Ford v. Monroe, 20 Wend. 210, where the plaintiff's son was killed, there was a recovery for loss of services down to the period when he would have become of age, but the right to recover to this extent seems to have been assumed without question. The question was not decided in Pack v.
New York, 3 Comst. 489, 493; and was expressly reserved by the Court of Appeals in Whitford v. Panama Railroad Co., 23 N. Y. 465, 1861. But in Green v. Hudson River R. R. Co., 2 Keyes, 294, 1866, the Court of Appeals followed the doctrine of Baker v. Bolton. See Plummer v. Webb, Ware, 80.
"The authentic evidence of what the common law is, must be found in the judicial reports. It will be seen that all the cases, English and American, on this subject, rest upon the nisi prius decision, in 1808, of Lord Ellenborough in Baker v. Bolton. Considering that it is not reasoned and cites no authorities, and the time when it was made, and that the rule it declares is without any reason to support it, my opinion is that it ought not to be followed in a State where the subject is entirely open for settlement. It would be different if the rule had been settled in England by a long course of decisions, made prior to the settlement of this country, as in that event the courts here would find it more difficult to receive it.
"In view of the tenor of the cases, some of which, however, are not well considered, and all of which rest upon Baker v. Bolton, it requires some courage to disregard them; but as the rule they assert is incapable of vindication, and cannot be shown to be deeply rooted in the common law, my judgment is, that I am free to decide the rights of parties without applying it.
"With an amendment, in one respect, the petition sufficiently sets forth that the death of the son was caused by the negligence of the defendant, its servants and agents."
The demurrer was overruled.
DIGEST OF RECENT ENGLISH DECISIONS.
35 & 36 Vict. c. 74, 88. 2, 3: "Declare such admixture." The third section of 35 & 36 Vict. c. 74, enacts that,
any person who shall sell any article of food . knowing the same to have been mixed with any other substance, with intent fraudulently to increase its weight or bulk, and who shall not declare such admixture to any purchaser thereof before delivering the same and no other, shall be deemed to have sold an adulterated article of food .. under this act." Held, that a person who had sold mustard admixed with flour and tumeric, substances not injurious to health, declaring at the time of such sale that he did not sell the article as pure mustard, had been guilty of no offense under 35 & 36 Vict. c. 74, and that it was not necessary in order to comply with section 3, that he should declare the nature and proportion of the substances admixed. Pope v. Tearle, L. R. IX C. P. 499.
Forged indorsement of a check made payable to order, 16 & 17 Vict. c. 59, s. 19. The 19th section of 16 & 17 Vict. c. 59, which protects the banker upon whom a check is drawn against the forgery of the indorsement of the person to whose order it is made payable, does not extend to protect any other person who takes the check upon the faith of such forged indorsement. Ogden v. Benas, L. R. IX C. P. 513.
Selection of site: opening vault: nonparishioners: contract. A vicar of a parish, being freeholder of the church and churchyard, may make a special contract
for the payment of a fee, other than the customary burial fee (if any), for the burial of a non-parishioner in a particular vault in the parish church. Ex parte Blackmore, 1 B. & Ad. 122, followed. Neville v. Bridger, L. R. IX Ex. 214.
Preliminary expenses: articles of association: ratification. The articles of association of a joint stock company provided that the company should defray such expenses incurred in its establishment as the directors should consider might be deemed and treated as preliminary expenses, to an amount not exceeding 2,000l. The plaintiffs, who were promoters of the company, had incurred preliminary expenses in the establishment of the company. Held, that no action would lie at the suit of the plaintiffs against the company for non-payment of such preliminary expenses in accordance with the articles of association. Melhado v. The Porto Alegre, New Hamburgh and Brazilian Railway Company, L. R. IX, C. P. 503.
Dramatic piece: dramatizing a novel: representation without consent of proprieior: 3 & 4 Wm. 4, c. 15, ss. 1 and 2. H. wrote and published a novel which he afterward dramatized. He assigned the drama to the plaintiff, but it was never printed, published or represented upon the stage. G., in ignorance of H.'s drama, also dramatized the novel in a different form, and assigned his drama to the defendant, who represented it on the stage. Held, that A having published his novel, any one might dramatize it, and although the two dramas were founded upon the novel written by H., the representation upon the stage of the drama written by G. was not a representation of the drama written by H.; and that the plaintiff could, therefore, not recover penalties from the defendant, under 3 & 4 Wm. 4, c. 15, 88. 1 and 2. Toole v. Young, L. R. IX, Q. B. 523.
Disparaging statement about goods: false and malicious publication. The defendants falsely and without lawful occasion, published a statement disparaging the quality of the plaintiff's goods, and special damage resulted from the publication. Held, actionable. Young v. Macrae, 3 B. & S. 264; 32 L. J. (Q. B.) 6, distinguished. The Western Counties Manure Company v The Lawes Chemical Manure Company, L. R. IX, Ex. 218.
Agent "intrusted with the possession of goods," within 5 & 6 Vict. c. 39— agent a warehousekeeper as well as a broker. To constitute a person “an agent intrusted with the posssession of goods," within the factors' acts, he must be intrusted with them in the character of such agent, that is, for the purpose of sale. If, besides the character of agent, he also carries on an independent business as a warehousekeeper, goods intrusted to him for the purpose of warehousing them are not "intrusted" to him as agent within the meaning of the acts. One Slee carried on a business of a woolbroker at Liverpool, and also that of a warehousekeeper. In this latter capacity, he was in the habit of receiving from the plaintiffs, merchants in London, bills of lading for wools, with directions to warehouse them and await instructions as to the disposal of them. These wools consisted of both sheep's and goats' wool. Slee was not a goats' wool broker; and, as to the sheep's wool, he sold it only under specific instructions sent to him by plaintiffs in respect of each trans
action. Having wools of the plaintiffs of both description in his warehouses (but not having received any specific instructions to sell either), Slee pledged both with the defendants' bankers, for a loan, giving them a letter undertaking to hold the wools as trustee for them. Held, that Slee was not "an agent intrusted with the possession" of wools within the true meaning of the factors' acts. Cole v. North-Western Bank, L. R., IX., C.P., 470.
Inclosure act-reservation of rights of sporting to lord of manor.-An inclosure act directed the commissioners appointed thereby to allot to the lady of the manor, her heirs and assigns, a certain proportion in value of the lands to be inclosed in lieu of, and as a full compensation for, the rights and interest of such lady of the manor in and to the soil of the said lands, and to allot the residue among the other persons entitled to rights of common; and it was enacted that the several allotments should be vested in the allottees respectively in full bar and satisfaction of all rights of common and other rights and interests whatsoever in, over, and upon the said lands (except such manorial rights as were thereinafter reserved to the lady of the manor, her heirs and assigns); and that all rights of common should cease over the said lands. The reservation clause provided that nothing in the act contained should prejudice the right, title, or interest of the lady of the manor, her heirs and assigns, in or to the seigniory or royalties incident or belonging to the manor; but that she might hold and enjoy all rents, quit-rents, and other rents, reliefs, duties, customs, and services, and all courts, perquisites, and profits of courts, rights of fishery, and liberty of hawking, hunting, coursing, fishing, and fowling within the said manor, and all tolls, fairs, marts, markets, stallage, goods and chattels of felons or deodands, etc., royalties, jurisdictions, franchises, matters, and things whatsoever to the said manor, or to the lord or lady thereof, incident or belonging, or which had been theretofore held and enjoyed by the lady of the manor or any of her ancestors (other than and except such common right as could or might be claimed by the said lady of the manor as owner of the soil and inheritance of the said commons or waste grounds. Held (by Cockburn, C. J., Bramwell, B., Mellor, J., and Amphlett, B.; dissenting, Cleasby and Pollock, B.B.), affirming the decision of the court below, that the act did not reserve to the lady of the manor the right of shooting which she formerly possessed over the lands allotted under the act by virtue of her ownership of the soil. Sowerby v. Smith, L, R., IX., C. P. (Ex. Ch.), 524.
LANDLORD AND TENANT.
Covenant to pay Outgoings" - duty to make drain. In a lease of a house and premises by defendant to plaintiff, the plaintiff covenanted with the defendant to "bear, pay, and discharge the sewer rate, tythes, rent-charge in lieu of tythes, and all other taxes, rates, assessments, and outgoings whatsoever which at any time or times during the said demise should be taxed, rated, charged, assessed, or imposed upon the said demised premises, or any part thereof, or upon the landlord or tenant in respect thereof, or on the rent thereby reserved" (excepting landlord's property tax). Held, that the plaintiff could not recover from the defendant the expenses of making a drain, which