M •« — ^- tf THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES "A m J \ \i- '•y REPORTS OF CASES ARGUED AKD DETERMINED IN THE €n0li3^l) Courts of Common Itato* WITH TABLES OF THE CASES AND PRINCIPAL MATTERS. EDITED BY THOMAS SERGEANT anb JOHN C. LOWBER, Ebqrs. OV THB PHILADELPHIA BAB. VOL. XV. CONTAINING CASES In the King's Bench and Common Pleax, m 1827-9. PHILADELPHIA : PH. NICKLIN AND T. JOHNSON, LAW BOOKSELLERS. No. 175, ChcBtniit Street. 1830. JUDGES DURING THE PERIOD COMPRISED IN THIS VOLUME. -««■— Of the Court of King^s Bench. Charles Lord Tenterden, C. J. Sir John Bayley, Knt. Sir George Sawley Holroyd, Knt. Sir Joseph LittledalE; Knt. Of the Court of Common Pleas. The Right Hon. Sir William Draper Best, Ld. C. J. Hon. Sir J AMES Allan Park, Knt. Hon. Sir James Burrough, Knt. Hon. Sir Stephen Gaselee, Knt. Attorneys General. Sir Charles Wethkrall, Knt. Sir James Scarlett, Knt. Solicitors Genei-al. Sir Nicholas Conyngham Tindal, Knt. Edward Burtenshaw Sugden, Knt. Vol. XV. ••♦ A TABLE OP THE NAMES OF THE CASES REPORTED IN THIS VOLUME. A. Abbey v. Sill 452 , Sharpy. 413 Aked V. Stocks 60 Alcock V. Cooke 462 Allan, Phillips^v. 269 Allen V. SugTue 297 V. Morrison 298 Allison V. Hayden 90 Ames, Maggs v. 45 Amner v. Cattell 419 Andrews v. Dally 74 Archbishop of Canterbury V. Tappen 174 of Tuam V. Kobeson 350 Archer v. Hale 42 Armitage V. IJcrry 518 Arnold v. liishop of llath and Wells 459 Ashley Hay, Inhabitants of, Uex v. 151 Atkinson v. Hell 216 Axford V. I'crrit 82 n. Rackwell, Smith v. 62 IJailcy V. Cidvcrwcll • 261 l}aint)ridge, (;f):ites v. 368 IJarham, Fnhal/itants of, Rci v, 157 Barr, Strothcr v. 391 Barham v. Farcbrother 79 Hate, Mirblam v. S24 Haxter, F,x ()arto, 2.34 Hatlhews v. (.alindo 88 Meaty, Itipgett v, 434 lleavan v. Harris 96 Beaumont, Handle v. 68 Bcddinpfon v. Hcddington 449 Ik-lchcr V. SikcB 186 Hell, Atkinson v. 216 V. Hilton 90 V. Jacobs 68 V. Miirpliy 74 Spark CSV. 113 Benedict, Scaton v. 3.i4 Hrnnrt, Hoiirnc v. 27 V. Kdwardi, 329 Bennet v. Dawson 88 Benson v. Hippius 38 Bent, Cox v. 410 Benton, Ilarrod v. 202 Berrv, Armitage v. 518 Berwick upon Tweed, Justices of. Rex V. 230 Biggs V. Fellows 248 15ilson, Gains v. 24 Bilton, Hell v. 90 Birmingliam, Inhabitants of. Rex v. 151 Bird V. Holbrook, 91 Bishop of Bath and Wells, Arnold v. 459 of Kxetcr, Gully v. 68, 360, 408 ]?lackburn v. Blackburn, 14 Blake, Knowlcs v. 517 Blakey, Hanson v. 54 Hlandfonl, Carpenter v. 301 Hlatiuicre, Hunt v. 83 Holland v. Nash, 157 Bourne v. Bennet, 27 Bousfield V. Godfrey, 485 Bray, Doc v. ' 339 Brazier V. Jones, 162 Hrcnton, Howe v. '335 Hriant, iMiilpot v. 126 Briavclls, Hinidred of, Elsmore v. 266 Bridges v. Smyth, ^ 481 Bright, Jones v. " 529 Britten v. Hughes, 502 Ihitish Museiun v. Payne, 69 Hromvard, Rex v. ' 210 Brooke v. Noakcs, 289 Brooks, Rex v. 229 Brown, How.ard v. 13 I{evett V. 345 Bryan v. Whistler, 219' Bryant v. Sir J. I'eriing, 483 Buck, Nott V. 403 Hurdeii v. Ilalton, 37 HucUinghani. Justices of, Rex V. 240 Burgess, Frfoman v. 25 Burleigh v. StoK, 151 Burns v. Carter, 488 TABLE OF CASES. Biishnell v. BuszarJ v. Levi, Capcl, Calvert V. Proud, V. Toinlin, Capcl, Huszanl v. Cartloii, Vere v. Carpenter v. lilaiulford, V. Cresswell, Carr, Field v. Carter v. Carter, V. Sanderson , Hums V. Carrutliers v. Payne, Case, South Carolina Bank v. Cattel, Anmer v. Cliatfield V. I'arker, Cholmely v. Paxton Cliives, Ditcham v. Clu'istie V. Hamlet Cluistcluirch, London, Inhabitants of. Rex V. Churchill v. Crease, Clark, Doe dem. Thompson and oth- ers V. Clay, Coe v. Coaks, Jay v. Coats V. Bainbridg-e, Coe V. Clay, Cole V. Eagle, Coles V. Hulme, Collins V. Wilson, V. Price, Colvin V. Newberry, Commissioners of Sewers for, &c. Rex V. Cook, Thomas v. Cooke, Alcock v. Combe, Rex v. Cooper, Groocock v. Thorpe v. Cope, Furness v. Corlett, Costello v. Cornish v. Searell, Come, Preece v. Costello V. Corlett, Cox V. Bent, Crease, Churchill v. Creed, Doe dem. Daviesv. Cristal, Ferguson v. Crofts V. Stocklcy, Crole, Parker v. Crowder v. Long, , Lovick V. Crowland, Inhabitants of, Rex v. Cubitt V. Porter, CuUiford, ex parte, v. Warren, Culver well, Bailey v. D. Dally, Andrews v. Davis v. Russell, v. Wilkinson, Dawson, Bennett v. Dawhng, dem.; Selby, vouchee, Deane, Seago v. 459 169 70 343 169 483 301 22 348 479 371 488 447 256 419 290 364 121 414 526 409 492 323 368 492 251 299 70 389 179 237 462 155 198 387 3 87 47 267 353 47 410 409 459 454 356 371 309 165 330 211 203 261 74 463 77 88 27 39 De l^laquiere, Hunt v. I)c Crcspigny v. Wellesley, Denton, Fairlic v. Dcsborough, Everett v. , Lindenau v. Dickinson, Henman v. Dicas v. Jay Ditcluun V. Chivis Dixon v. llovill Doe v. Bray V. Clark V. Dyeball V. Lawson V. Fletcher V. Maisey V. Martyn V. Prigg V. Robinson V. Watt V. Wolley Doe dem. Davies v. Creed Dixon V. Willis F'isher v. Giles Southouse V. Jenkins Stevens V. Scott Tilt V. Stratton Douglas V. Forrest Donne v. Martyr Drummond, Elvin v. Dunn, Maclean v. Duvergier v. Fellows Dyeball, Doe dem. Lawrie t. E. Eagle, Cole v. Earle v. Ilolderness Edge V. Parker Edmonds v. Lowe Edwards, Bennet v. Edwinstow, Inhabitants of. Rex v. Elliott, Willes v. EUis, Macbeath v. V. Schmtrck Elsmore v. l"he Hundred of Briavells Filvin v. Drummond Elwortliy v. Maunder Ely, Bishop of. Rex v, Evans v. Whylfi Everett v. Desborough , Rex V. 535 474 246 518 306 409 447 121 104 339 331 154 312 151 335 276 206 222 225 150 459 492 485 506 59 36 113 154 24 129 436 154 251 41 328 250 329 327 13 79 526 266 24 450 158 514 518 158 Fairlie v. Denton 246 Falmouth Earl of, Swann v. 264 Lord, V. George 449 F'arebrothcr, Bartram v, 79 Fellows, Duvergier V. 436 Uiggs V. 248 Ferguson v. Cristall, 454 Field V. Carr, 348 Firth V. Thrush, 242 Fletcher, Doe dem. Watson v. 151 Forrest, Douglas v. 113 Foss, Goldstein v. 53 Fothergill v. Walton, 123 Fo}-, Penny v. 146 TABLE OF CASES. Frazer, Limerick and Waterford Rail- way Co. V. 14 Freeman v. Burgess, 25 Froud, Calvert v. 70 Fumell V. Thomas, 411 Fumess v. Cope, 387 G. Gains v. Bilson, 24 Galindo, Batthews v. 88 Gallimore, Vickers v. 415 Garner v. Shelly 510 George, Lord Falmouth v. 449 , Whitnash v. 295 Gibbons v. Phillips, 260 Gibbs V. Stead, 288 Gibson, Wadsworth v. 76 Gifford V. Yarborough (Lord), 403 Giles, Doe dem. Fisher v. 485 GUkes, Rex v. 261 Glenister, Helps v. 295 Godfrey, Bousfield v. 485 Goldstein v. Foss, 52 Grant, Routledge v. 99 Great Bolton, Inhabitants of, Rex v. 154 Great Driffield, Iniiabitants of, Rex v. 528 Great Sheepy, Inhabitants of. Rex v. 154 Greet, Rex v. 240 Gregory, Ex parte, 251 Grimman v. Legge, 229 Groocock v. Cooper, 198 Grubb vouchee, Martin dem. 403 Gully V. Bishop of Exeter, 68, 360, 408 Gumey, Wells v. 336 H. Hadley, HoU v. 367 Hale, Archer V. 42 Hall, Siordet v. 87 Halton, Burden v. 37 Hamlet, Christie v. 414 Handley v. Levy, 323 Hanson v. Blakey, 54 Hargreavcs, Tcrrington V. 5i3 Harris v. Bcavan, 96 Harrison, Mount v. 11 Harrod v. Hentoii, 202 Hart, Stephenson v. 47 Hastclow v. Jackson, 204 Hawks V. Salter, 125 Haydon, Allison v. 90 Hay ward v. M right, 242 Hc-'lpsv. (llcnister, 295 Helyar, Price v. 87 Henk-y v. Sopcr, 147 Heniy v. Mayor and Burgesses of Lyme, 376 Hfnman v. Dickinson, 409 Hcn-ing, Witliington v. 492 Heywood v. Watson, 55 Hills v. Street, 358 Hippius, Benson v. 38 Hipswcli, Iniiabitants of, Rex v. 267 Holman, Robinson v. 73 Holdcmcss v. Sliarkriu, 315 Holbeach, I.oukfs v. 26 Holdcrncss, Earlc v. 41 Holbronk, Bird v. 91 HoU V. Hadley, Hooker, Lawrence v. Home, Riley v. Howard v. Brown, Howden, Rowe v. Hovill, Dixon v. V. Stephenson, Hubbard v. Jackson, , Maugham v. , Teague v. V. Wilkinson, Hudson V. Revett, Hughes, Britten v. Hulme, Coles v. Humphrey, Tucker v. Huntv. Blaquiere, V. De Blaquiere, , Knight v. Hutchinson, ex parte Lady, Jackson, Hastelow v. , Hubbard v. Jacob, Bell v. Jacobs v. Latour, Jay, Dicas v. v. Coaks, Jenkins, Lester v. , Doe dem. Southouse V. Jones V. Kcnrick, V. Bright, V. Studd, , Brazier v. , Pattison v. 36r 345 422 13 69 104 515 12 147 234 276 467 502 299 63 83 535 488 87 204 12 68 388 447 323 232 506 231 529 103 162 303 K. Keates v. Whieldon, 144 Kenrick, Jones v. 231 Kent, Justices of, Rex v. 324 The King v. The Sheriff of London, 27 Kingston-upon-IIull Dock Company, V. La Marche, 153 Knigiit V. Lee, 83 V. Hunt, 488 Knowles v. Blake, 517 Kymcr v. Lai-kin, 371 La Marche, Kingston-upon-IIulI Dock (Company v. 153 Lancashire, Justices of. Rex v. 309 Langston v. Pole, 428 Larkin, Kymer v. 371 Latour, Jacobs v. 388 Lawford, Inhabitants of. Rex v. 216 Lawrence v. Hooker, 34.5 Lawson, Doe dcni. Lidgbird v. 312 Ledlicttcr v. Salt, 91 Lees v. WhUcoinh, 357 Legge, (Jrimman v. 229 Legli, Kniglit v. 83 Lenny, Whalf v. 347 Lester v. Jenkins, 232 Levi, Biislincll v. 459 Levy, Handley v. 323 Lew, Inhabitants of, Rci v. 326 Li 11, Abbey v. 452 TABLE OF CASES. Llmerkk niid M'aterford Ruihvuy Co. V. Fniser, 1/mdcnau v. Dcsboroiigh, Lloyd V. Sij^ouriicy, , Sit-'ounu'v V. Loakcs, llolbcach v. London (.ias Liglii and Coke Co., Rtx V. Loutli, Inluibitants of, Kcx v. Long, Crowdcr v. Lovick V. Ch'owdcr, Lowe, Edmonds V. Lucas V. Nockclls Lusty, llowlos V. Lyme, Mayor and Burgesses of, Hen- ly V. Lyon, Taylor v. M. Macbeath v. Ellis, Mackie v. Warren, Maclean v. Dunn, Macklin v. ^^■aterilOuse, M'Dougal V. Robertson, 31, Maggs V. Ames, Magrave v. White, Maisey, Doe dem. Roby v. Mars, Tenon v. Martyn, Doe dem. Brune v. Martyr, Donne v. Martin, dem. ; Grubb, vouchee, Mayhew, Seely v. Mattishall, Inhabitants of. Rex v. Maugliam v. Hubbard, Maviiden, Inhabitants of, Rex v. Maunder, Elworthy v. Michlam v. Bate, Monmouthshire, Justices of. Rex v. Morland v. Pellat, Morris, Radbourn v. Morrison, Allen v. Moses V. Richardson, Mount V. Harrison, Murphy v. Bell, Munay v. Reeve.s, 14 306 527 319 26 153 210 309 165 260 132 28 376 461 79 408 129 421 106 45 252 335 324 276 154 403 72 334 147 155 450 324 167 332 98 298 254 11 74 254 N. Nash, Holland v. New, Pitt V. Newbcny, Colvin v. Newman, Page v. Nightingale, AVilcoxon v. Noakes, Brooke v. Norton V. Pickering, Noticy V. Buck, Nockells, Lucas v. Nott V. Buck, Nunn, in the matter of, , W(jod V. Nurse, Paul v. Page V. Newman, . Parker, Chatfield v. , Edgar v. V, Crole, 157 325 179 274 57 289 314 178 132 403 325 346 273 274 290 338 371 Pattison v. Jones, Paul V. Nurse, Paxton, Cholmcly v. Payne, Carruthersv. -" , British Museum v. Pellat, Morland v. Penny v. Toy, Perring, Sir J., Bryant v. Perrett, Axford v. Phillips V. Allen, , Gibbons v. Philpot V. Briant, Pickering, Norton v. , Scales V. Pinney v, Pinney, Pitt V. I^ew, Pole, Langston v. Porter, Ciibitt v. Pratt V. Swain, Preece v, Corrle, Price, Collins v. V. Ilelyar, 303 273 364 447 69 332 146 483 82 369 260 126 314 37 230 325 428 211 1219 353 389 sr 206 413 456 490 2^5 Prigg, Doe dem. Long v. Prince, Turner v. Protheroe, Williams v. Prodis V. Reed, Pulsford, Rex v. R. Radburn v. Morris, 98 Raggett V. Beaty, 434 Rainforth, Wildbor v. 144 Rawdcn, Inhabitants of, Rex v. 329 Reed, Pro vis v. 490 Reeves, Murray v. 254 Revett, Hudson v. 467 Revett v. Brown, 345 Rex V. Ashley Hay, Inhabitants of, 151 V. Barham, Inhabitants of, 157 V. Berwick-upon-Tweed, Jus- tices of, 230 ■ v. Birmingham, Inhabitants of, 151 v. Bromyard, Inhabitants of, 210 V. Brooks, 229 V. Buckingham, Justices of, 240 V. Christ Church, London, In- habitants of, 326 V. Commissioners of Sewers, 237 V. Combe, Inhabitants of, 155 V. Crowland, Inhabitants of, 330 V. Pvdwinston, Inhabitants of, 327 V. Ely, Bishop of, 158 V. Everett, 158 V. Ciilkes, 261 V. Great Bolton, Inhabitants of, 154 V. Great Driffield, Inhabitentsof, 328 V. Great Shcepy, Inhabitants of, 154 V. (ireet, * 240 V. Hipswell, Inhabitants of, 267 V. Kent, Justices of, 324 V. Lancashire, Justices of, 309 V. Lawford, Inhabitants of, 216 V. London Gas Light and Coke Company, 153 V. Low, Inhabitants of, 316 V. Louth, Inhabitants of, 210 V. Mattishall, Inhabitants of, 334 TABLE OF CASES. Rex V. Mauldeii, Inhabitants of, V. Monmouthshire, Justices of, V. Pulsford, V. Kawden, Inliabitants of, V. Richards, • V. Rosliston, Inhabitants of, V. Saint Andrews, Cambridge, V. Pcrshore, V. Martin, Leicester, V. Shipton, Inhabitants of, V. Shipton, Robert, r. Smith, V. Stourbridge, Inhabitants of, V. Sutton, V. Wainfleet, All Saints, Inhabi- tants of, V. WiUiams, V. Wilts, Justices of, V. Winter, V. Worcestershire, Justices of, Riddcll V. Sutton, Richards, Rex v. Richardson, Moses v. Richmond v. Smith, Riley v. Home, Robertson, M'Dougal v. 31 Robinson, Doc dem. Jeff v. V. Ilofman, 155 167 235 329 253 326 326 327 327 155 337 232 155 252 206 327 242 338 210 416 253 254 144 422 , 106 222 73 350 412 447 326 335 69 28 160 68 453 99 Robeson, Archbishop of Tuam v. Rooke V. Wasp, Rose, Symcs v. Rosliston, Inhabitants of, Rex v. Rowc V. Hrenton, V. Howden, Rowles V. Lusty, Royal Exchange Assurance Company, Samuel v. Riindcl V. Heaumont, Itussell, Davis v. " Rutlcdgc V. Grant, S. ^aint Andrew, Cambridge, Rex v. 326 I'( rshore. Rex v. 327 Martin, Leicester, Rex v. 327 Salt, Lcdbettcr v. 91 Salter, Hawks v. 125 Samuel v. Royal Kxcliange Assvirancc Company, 160 Saimdcrson, Carter v. 371 Scales V. dickering, 37 Schma-ck, Ellis v. 526 Srott, Doc deni. Steven* v. 59 Scago V. Dcane, 39 Scartll, Cornish v. 267 Seaton v. Benedict, 354 Secley v. Maylicw, 72 Stlby, vouchee; Dawling, dciii. 27 Sharkels, Ilolderncss v. 315 >liarpc V. Al)b(y, 413 Sjiclby, (iarnrr v. 510 Shfi-ifir of London, THp King \ 29 Shipton, Inhabitants of, Ucx v. 155 , Wobcrt, Hex V. 337 Sidford, Wiltshire V. 212 Sigmnnry \. I,lo\H, 31^' , Lloyd V. 527 Sikes, Belcher v. Siordet v. Hall, Smith V. Backwell, , Rex V. , Richmond v. Smyth, Bridges t. Soper, Henley v. South Carolina Bank v. Case, Sparkes v. Bell, Stead, Gibbs v. Stephenson, Hovill v. Steward v. Williamson, Still, dem. ; Raymond, ten. Stott, Burleigh v. Stoakley, Crofts v. Stocks, Aked v. Stourbridge, Inhabitants of, Rex v. Stratton, Doe dem. Tilt v. Street, Hills v. Strother v. Barr, Studd, Jones v. Sugrue, Allen v, Sutton, Rex v. , Riddellv. Swaine, Pratt v. Swann v. Earl of Falmouth, Symes v. Rose, T. Taylor v. Lyon, Tappcn, Archbishop of Canterbury t. Tcague v. Hubbard, Tenon v. Mars, Terrington v. Hargreavcs, Thomas, Furnell v. , V. Cook, Thorpe v. Cooper, Thrush, Firth v. Tonilin, Calvert v. Tucker v. Humphrey, Turner v. Prince, ^ ale and Others, vouchees, Verc V. ('ardcn, Vickcrs v. (ialliniorc, W. W.adsworlii v. Gibson, Wainfleet, All Saints, Rex v. Wales, Wright v. Walton, rothergill v. Warren, Doe (Icni. v. Bray, , Cullifonl V. , Mackie v. M'ashi)urn, in re. Wasp, Rook V. Watt, Doi^ drill. Hcnniker v. Watson, Hcywood v. Watcrhonsf, Macklin v. Wct)l), dcni.; Lane, ten. \\ f lis V. Gnrncy, Wclloslry, De (Jpcspigny v. Whal'- V. I.fnny, Whieldou KeaU v. 186 87 62 232 144 481 147 256 143 288 515 484 27 151 356 60 155 36 358 391 103 297 252 416 219 264 447 461 174 234 324 515 411 333 387 242 343 63 413 408 483 415 76 206 462 123 339 203 408 261 412 225 55 421 449 336 474. .^47 Ui 8 TABLE OF CASES. Mliisllcr, Bryan v. AVhitcoinb, Lees v. While, Majjravc v. Whittukcr v. Wliittakcr, Whitnash v. George, MMiyle, Evans v. Wilcoxon V. Nijifhtingale, AVilles V. Elliott, AViklbor v. Kaiiiforth, Wilkinson v. Hubbard, , Uavies v. Williams v. Protheroe, , Rex V. Millianison, Steward v. 319 357 252 336 295 514 57 13 144 276 77 456 327 484 Willis, Doe dem. Diion y. Wilson, Collins v. Wilts, Justices of, Rex t. Wiltshire v. Sidford, Winter, Hex v. Withington v. Herring, WoUey, Doe dem. Oldham v. Wood V. Nunn, Worcestershire, Justices of, Rex v. Wright, Haywood v. , V. Wales, Yarborough (Lord), Gifford v. 492 70 242 212 318 492 150 346 210 242 462 403 REPORTS OF CASES ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS AND OTHER COURTS. Br PEREGRINE BINGHAM, OF THE MIDDLE TEMPLE, ESQ., UAUlllSTEK AT LAW. VOL. IV.— Parts III. & IV. VOL. XV CASES ARGUED AND DETERMINED IN THK COURT OF COMMON PLEAS, AND OTHER COURTS, IN MICHAELMAS TERM, In the Eighth Year of the Reign of George IV.— 1S27. MOUNT V. HARRISON.— p. 388. Abandonment is not necessary upon a loss in an insurance on freight. Assumpsit on a policy of insurance on freight, per the ship Olive Branch. At the trial before Park L, London sittings after Trinity term, it appeared that the Olive Branch was driven on shore in Table Bay, Cape of Good Hope, by a tremendous storm, on the 2l5t of July 1822, and imbedded eight feet in the sand above high-water mark, very much strained and damaged ; that the cargo, one third of which was on board and the rest engaged, was sent to England by another vessel ; that surveys were made, and experienced persons being of opinion that the ship could not be got off except at a ruinous expencc, she wa.s sold by the captain a week or ten days after the stranding; that the purchasers got her off in about three months, after several unsuccessful attempts; and that being then repaired, she afterwards performed many voyages. The captain effected the sale bo7ia Jide, as the best course at the time, for the interest of all parties. On the part of the defendant it was ol)|er.(ctl, first, that there ought to have been an aljandonment of the freight ; »m\, secondly, that as ti>o vessel was repaired by the purchasers, and despatched on new voyages, there could not have been an extreme necessity for the sale effected by the cnptnin, in which case only would it have Ixnu jnslifialjlc. The le.'irncd Judge on the .'uithority of /(//r v. Unyal ll.rchange.JJa- surnnce Cnmpuvy^ S Taunt. 75.'», and (irmn v. lun/nl l-'.rr/iangc Jli- 1^ HuuBARD r. Jackson. M. T. 1827. surafice Company, G Taunt. 6S., directed the jury, tj^at,. under the cir- cumstances of this case, an abandonment of freight \yas not necessary, and left it for them to determine whetiier th'e captain "was justified in sell- ing the ship. A verdict having been found for the plaintiff", Taddy Serjt. moved for a new trial, on the objections above stated. There ought to have been an abandonment of the freight. A contract of insurance is only a contract for an indemnity; but the insured re- ceives more than an indemnity if he obtains the amount of tlie freight, without the expence of conveying the cargo, and his policy is, in effect, a wagering polic^^ Therefore in Parmeter y. Todhunter, \ C^m^ib. 541., Lord Ellenhorough held, that in the case of an insurance on Ireight, the insured could not recover as for a total loss without an abandonment, if the goods were in existence, although both sliip and cargo were sold. In Idla v. Royal Exchange Assurance Company, and Green v. Royal Exchange Assurance Company, it was only determined that an abandonment was not necessary and that a sale of the i^ip was justifiable, under the peculiar circumstances of those cases respectively. Park J. I think there ought not to be any new trial. As to the abandonment, confining my opinion to the circumstances of this case, I think it was not necessary, and I fully concur in the decision of Idle v. Royal Exchange Jlssurance Company. That decision is only met by the nisi prius case of Parmeter v. Todhunier. And Gibbs C. J., when that case was cited in Green v. Royal Exchange Assur- ance Company, said, he could not understand what was to be aban- doned. If, as has been insinuated, the not requiring an abandonment should lead to fraud, that may be enquired of in the particular case. As to the propriety of the sale, I thought it so clear that I did not press It on the jury, and they without hesitation found for the plaintiff. BuRROUGH J. The necessity of the sale was altogether a question for the jury. As to the abandonment, I thought in the case of IdlcY. Royal Exchange Assurance Company, that there was nothing to abandon in an insurance on freight, and I am of the same opinion still. Gaselee J. I am of the same opinion on both points. With res- pect to the freight there was nothing to abandon, for the goods were immediately put on board another ship, and the underwriters could have gained nothing had an abardonment been made. Rule refused. HUBBARD V. JACKSON.— p. 390. A bill payable to the order of the drawer having been dishonoured by the ac- ceptor and paid by tlie dravver when clue, Held, that the drawer might indorse it over a year and a half afterwards, and that his mdorsee might recover against the acceptor. Assumpsit on a bill of excliango, drawn December 25, 1S20, by IVIclville upon and accepted by the defendant for 30/.. three months after date, payable to the order of Melville. 4 Bingham, 390. 13 This bill, before; it was due, Melville indorsed to Wallace, and the defendant having dishonoured it, Wallace, in 1821, recovered the amount of Melviile^r with costs. About a year and a half afterwards, Melville indorsed it to the plaintiff, who now sued the defendant. A verdict having been found for the plaintiff at the Guildhall sittings after last term. Storks Serjt. moved to set aside the verdict, and enter a nonsuit, or to have a new trial, on the ground that JNIelville had no right to nego- tiate the bill again after it was overdue and paid, if such negotiation would make any of the parties liable who would otherwise have been discharged. Beck v. Robley, 1 H, Bl. S9, n. He admitted, however, that in that case the bill was drawn payable to the order of a third per- son, and that in Callow v. Lawrence, 3 M. & S. ^5, it was holden that an indorsee who pays a bill may indorse or negotiate it. The Court thought the co^scoi Callow v. Lawrence in point, and re- ferred to the language of Lord Ellenboroiigh, who said, *'A bill of exchange is negotiable ad infinitum until it has been paid by or dis- charged on behalf of the acceptor. If the drawer have paid the bill, it seems that he may sue the acceptor upon the bill ; and if, instead of su- ing the acceptor, he put it into circulation upon his own indorsement only, it does not prejudice any of the other parties who have indorsed the bill, that the holder should be at liberty to sue the acceptor. The case would be different if the circulation of the bill would have the effect of prejudicing any of the indorsers. " Rule refused. WILLES and Another, Assignees of ELLIOTT, v. ELLIOTT.— ^p. 392. Where an insolvent dies after petition and assignment to his provisional assignee^ but before examination and assignment to his assignees in chief, Meld, that the assignees in chief take, nevertheless, all the property assigned by the provi- sional assignee. HOWARD V. BROWN.— p. 393. An affidavit of debt sworn Ijefore a commissioner in the country is insufficient, if it do not state the party before whom it is sworn to be a commissioner. Russell Serjt. moved to cancel a bail-bond in this cause on the ground tliat the jurat of the affidavit to lioM to bail (which had been sworn in the country) did not state the person before whom it was sworn to be a commissionrr, as it ought to Iiavc dono. Jicx v. IFarc, 13 East, ISO. Jl'ildc Scrjt. ThcoHidavit is cnlillcd in tlii.s Court, signed with tiio commissioner's name, and the Court has the means of knowing whoan^ its own commissioners. ItC.r v. Hare was a niniinal j)rocee(ling, and the afli'lavit was not enlillcd of any courl. Al all rvcnts, the Court will allow a snjiplomcnlal aflidavlt. Hut 14 Blackburn v. Blackburn. M. T. 1827. The Court refused a supplemental afl'ulavit, and, on the authority of /iV.r V. Hare, niatlc the rule Absolute. LIMERICK and W/^TERFORD Railway Company v. FRASER.— p. 391. Plaint'rfFs, an Irish company, whose concerns were all carried on in Ireland, were compelled to give security for costs, notwithstanding an affidavit that they had money in a banker's hands in London, and that many of the members resided in England. INIerewether Serjt. showed cause against a rule calling on the plain- tiffs to give security for costs, upon an affidavit that the company had 3000/. in a bank in London, and that nearly all the members of the company resided in England. IVildc Serjt., who had obtained the rule upon an affidavit that all the concerns of the company were carried on in Ireland, and that it had no tangible property in England, insisted that the money alleged to be in the London banker's hands was not a sufficient answer to the applica- tion; and The Court being of this opinion, the rule was made Absolute. SAMUEL BLACKBURN v. JOHN BLACKBURN.— p. 395. A jury, directed to find whether a libel submitted to their consideration were a privileged communication, and if so, whether it were attended with express malice, found for the plaintiff 50/. damages, and that the defendant was not actuated by express malice : Held, that the plaintiff was entitled to retain his damages. AcTiox on the case for a libel, charging the plaintiff with having com- mitted a forgery, to which the defendant pleaded, as a justification, that the plaintiff had committed a forgery in the manner charged. The de- claration contained no allegation of special damage. At the trial before Gaselee J., London sittings after Trinity term last, it appeared that, in the beginning of 1S27, the plaintiff, a dissenting minister and candidate for the charge of a congregation, finding that ru- mours had been circulated to his prejudice, instituted an enquiry, which terminated in his friends printing and circulating among the congrega- tion the following circular, the statements in which, touching the alleged forgery, and the conduct of the defendant, were fully substantiated by the evidence adduced at the trial. Bcthnal Green, 15th February IS27. " Dear Sir, •'The ol>ject for which the following statement i? transmitted to you is oI)viou3, and therefore requires no comment : it is sent in the hope 4 BlKGHAM, 395. 15 that if the unfouiuled calumnies it refutes should have reached you, the minister they were designed to injure may be restored to the possession of the unimpeachable reputation both in the church and in the world we are persuaded he deserves. <rU \. Jones, ;\X\(\ by Lord Ellcnhnrotigh in Un-clork y. Gcddrs. ]() JOast, !'iG\.: and 1 quoted what fell from Lc 24 EiAiN r. Uhummond. M. 'J\ 1827. Blanc J. in Glazebrook v. Woodroiv, *' the substantial part of tho agreement being the conveyance of the property in respect of which the annuity was to be paid; the Court held it to be no answer to an action for the annuity, to say that the plaintiff had not a good title in some of the negroes which were upon the plantation, because all the material part of the covenant had been performed ; and the plaintiff had a remedy upon the covenant for any special damage sustained for the non-performance of the rest." The substantial part of the agreement, in the present instance, is the assignment of the fishery in Scotland; I am, therefore, of opinion, that, according to all the cases, our judgment must be for the plaintiff. BuRROUGii J. Upon examining the deed set out on oyer, I think it evident that the parties intended the covenant for payment of the annui- ty to be an independent covenant. The case of Campbell v. Jones is a most important authority, and expressly in point ; lor there the plain- tiff having covenanted to teach the defendant to bleach, and to permit him to bleach during a certain time, in consideration of a certain sum, it was holden, that as the defendant, at all events, enjoyed the permission to bleach, the teaching to bleach was not a condition precedent to the payment of the money. In that case all the previous authorities were referred to, and among them Kingston v. Preston, Doug. 690., where the distinction between dependent and independent covenants was so satisfactorily laid down by Lord Mansfield. I am, therefore, clearly of opinion, that T. Cressvvell's covenant not to interfere in the business is an independent covenant. Gaselee J. I am of the same opinion : the annuity to be paid by the defendant was in consideration of two things ; one, the assignment of the fishery in Scotland; the other, Thomas Cresswell's giving up that branch of the business. Upon the authority of all the cases, therefore, the relinquishment of the business not forming the whole of the consider- ation for the payment of the annuity, the covenant not to interfere must be esteemed an independent covenant. The Duke of St. Albans v. Shore is distinguishable from the present case, and from the others which have been cited; because the vendor of an estate having cut down the timber after he had agreed to sell it with the timber standing, the state of the premises was so entirely changed, that the vendee could never have that which he had contracted to buy. Judgment for the plaintiff. GAINS v. BILSON.— p. 114. Wlverc a cause is mnde a rernanct at the assizes, a new notice of trial is necessan'. p:lvix v. drumisiond.— p. 415. Plaintiff having succeeded in setting aside a nonsuit, defendant gave a cognovit for 1«. damages, and such costs as the prothonotary shoiild think fit. Protho- iiotary having refused to allow plaintiff the costs of the trial, tlie Court de- clined interfering. 4 BiNGiiAM, 415, 25 The plaintiff in this case had been nonsuited (see 4 Bingham, p. 278.), and on a rule for setting aside the nonsuit, the defendant gave a cognovit for 1^. damages, and such costs as the prothonotary should think fit. The prothonotary having disallowed the plaintiff the costs of the trial. Cross Serjt. moved for a rule nisi to review the taxation, and cited Booth V. JJtherton, 6 T. R. 144, and Jackson v. Halhtm, 2 B. & A. .S17, to show that the plaintiff was entitled to the costs of the trial, con- tending that *'such costs as the prothonotary should think fit" meant such costs as the rules of law allowed on taxation. But The Court thought that the parties had made the prothonotary an arbitrator, and refused to interfere. Rule refused. FREEMAN v. BURGESS.— p. 416. The Court refused to liberate, on motion, a discharged insolvent, who had been arrested by his surety for the arrears of an annuity accruing subsequently to the insolvent's discharge, and paid by the surety. In March 1S25, plaintiff became surety for defendant in an annuity bond for the payment to Robert Stewart of an annuity of 65/. a year for the life of defendant, secured by the covenants of plaintiff and defen- dant, and by a judgment entered up against them. On the 4th May 182G, the defendant was discharged from prison un- der the insolvent debtor's act 1 G. 4. c 119, and inserted in his schedule the consideration for the annuity, 500/., as a debt due from him to Stewart, and also to the plaintiff. He likewise specified a debt of 22/. as due from him to plaintiff. Stewart, upon application to the commissioners, was allowed to prove for 407/. The plaintiff claimed a dividend from the defendant's assig- nee, as well upon the 500/. as the 32/., but received a dividend only on the 22/. In this term tlic plaintiff arrested the defendant for SO/, in respect of payments of the annuity made subsequently to the defendant's discharge under the insolvent debtor's act. Whereupon Cross Serjt. ohtiiincd a rule nisi to discharge the defendant out of the custody of the sheriff upon entering a common appearance. Wilde Serjt., who showed cause, cited PasiC v. Bussell, 2 M. & S. 551, Welsh y. Welsh, 4 M. & S. 333., and Flanagan v. JVatldns, 3 B. & A. 1S6. 1 Bing. 413., to show that the surety was liable for ar- rears accruing after the insolvent's dischaige ; and if so, urged that tlic Court would not interfere on motion in favour of the insolvent. If iiis discharge could avail him against the surety it might be pleaded. Cross contra. Park J. It has been admitted on the part of the defendant that he is liable to be sued in respect of the payments made by his surety since his discharge, but ii is contended that there is a hardship \\\ keeping him in custody, and the Court is asked to do tliat oii niotinn which, if it be right, tlie defendant niiglit obtain by pleading. J'mt the Court thinks tlie defendant i.s not entitled to his dis'-hargc ; al all events, not vol.. XV. 4 2tV Fhkeman v. Bukgkss. M. T. 1827. upon motion ; and there is no greater hardship in putting him to plead the proceedings under liis insolvency than in requiring from a feme co- vert a pica of coverture. In all the cases from Page v. Bussell down- wards, it has heen holdcn that a person discharged under an insolvent act, or a bankrupt who has obtained his certificate, is liable to his surety for arrears paid subsequently to the discharge or certificate. In Flana- gan v. JValkins, where the Judges were unanimous, it was holden that the surety under an annuity deed, who had redeemed the annuity subsequently to the bankruptcy, might sue the bankrupt for the amount, although he had obtained his certificate, and although the grantee had ])roved under the commission ; and that decision was afterwards affirm- ed upon argument in the Court of Exchequer Chamber. It is true that these were not cases of arrest ; but in Welsh v. Welsh, where the surety under an annuity-deed was compelled to pay the grantee arrears accruing alter the bankruptcy of the grantor, it was holden that he jnight sue the grantor for the sums so paid, and hold him to bail; and Lord Ellenborough said, *'If the legislature intended such a case as this they have not so said, nor have they used language sufliciently clear to enable us so to say." Indeed it seems clear that the 49 G. 3. c. 121. had made no provision on the subject, from the circumstance that the recent bankrupt act 6 G. 4. c. IG. contains an entirely new clause, by which it is provided, (s. 55,) that no person entitled to an annuity gran- ted by a bankrupt shall sue any collateral surety for payment of the an- nuity until such annuitant shall have proved under the commission for the value of such annuity; and if the surety after such proof pay the amount, he shall be discharged from all claims in respect of the annuity; if he do not pay, he may be sued for the accruing payment of the an- nuity, and after payment may stand in the place of the annuitant in re- spect of such proof as aforesaid. I am, therefore, of opinion that there is no ground for this applica- tion, and that the rule must be discharged. BuRROUGH, J. If there be any doubt on the point, it is sufficient to justify us in not acceding to the present application, for the defendant has his remedy by pleading to the action. Gaselee, J. It has been taken for granted, on the part of the de- fendant, that if the surety were to stand in the place of the grantee he would be reimbursed; but if the surety, after redeeming the annuity, should cause execution against newly acquired effects to be issued on the judgment confessed by the insolvent, the sum raised by such execution must be distributed rateably among all the creditors. There is no ground, therefore, for relieving the defendant on motion, and the rule must be Discharged. LOUKES V. IIOLBEACH.— p. 419. A party outlawed in K. B. in an action to recover the arrears of an arinuity can- not be heard in C. P. on a motion to set aside the annuity. 4 Bingham, 423. 27 BOURNE V. BENETT and Others.— p. 423. A judgment debt due from B. and others, in action of trespass, in which B. was chiefly concerned, and bound to indemnify his co-defendants, was set off against a judgment debt due to B. from plaintiff. The plaintiff, who owed the defendant Benett £700 upon a cognovit, obtained a judgment against him and others, with £300 damages, in an action of trespass in which Benett was the substantial defendant, and bound to indemnify the others to the extent of £500. Whereupon, Bosunquet Serjt. obtained a rule nisi on the part of Benett, to set off the 700/. and costs due on the judgment confessed by the plaintiff against the 300/. and costs recovered by him in the action of trespass, which, as he urged, each of the defendants was liable to pay separately. JVilde Serjt., who shewed cause, objected to the want of reciprocality in the opposite claims, and contended that the Court would not allow one of many defendants to set off a judgment debt due to one of them, against a judgment debt which was due from all of them; at all events, not without securing the payment of the attorney, as was the practice ia the Court of King's Bench, while the contrary practice of this Court had long ago been denounced by Lord Eldon, as standing in direct con- tradiction to the practice of every other court, as well as to the princi- . pies of justice. Hall v. Ody, 2 B. & P. 2S. Sed per Curiatn. The rule must be made absolute. It is to be wished that some regulation existed for the indemnity of the attorney; but that is not the case at present, and the Court must abide by its own established practice. As to the alleged absence of reciprocality between the two claims, the practice as between A. and B. applies equally as between A. and B. and C; and it appears by the affidavits that Benett was the person substantially responsible in the action of trespass. Rule absolute. STILL, l).-niandaiit; RAYMOND, Tenant; V. LAW, first Vouchee; J. LAW, second. — p. 125. Recovery amended by abridging the returns. DAWLLNG, Demandant; SELBV, Vouchee.— p. 426. The Court refused to amend a recovery by altering Berks into Bucks. The KLN'G v. Sheriff of LONDON, in WILSON v. (iOLDSTElN and Another. — p. 127. An application to set aside an attachment for not bringing in Uu- body, ^hould be ground* d f>n an aflidavil that it is mad( at tlic expense of tjic bail. 28 li<)\\i,i:s I'. I.i'STY. i\l. T. 18;^7. ROWLES V. LUSTY.— p. 128. \\'rit of entry sur abatement of six messuages, six mills, &c. Plea, that K. S. devised the i^iid messuages, mills, Jkc. and parcel of the land, to T., who devised tliem to S., wife of K. D. C, who levied a fine to the tenant. The plea concluded with a verification, and a prayer of the messuages, 6cc., and land, in the count. The fine set out in the plea described the premises as four messuages, one cloth mill, fee, and the statement of the fine ended with a./irout patet /ler recordum. Held, that the plea was not double : That the prayer for judgment of the messuages and land in the count did not vi- tiate the pica, notwithstanding the commencement of the plea applied only to the messuages and parcel of the land : That it was not necessary for the plea to conclude with a prout patet, that alle- gation being introduced before the conclusion : and That the premises in the fine were sufficiently identified with those in the intro- ductory part of the plea. Writ of entry sur abatement in the cut and per of six messuages, six mills, six outhouses, six yards, two barns, two stables, two gardens, two orchards, one hundred acres of arable land, one hundred of pasture, one hundred of meadow, one hundred of wood, one hundred of underwood, one hundred covered with water, and one hundred other acres in the parish of Stonehouse in Gloucestershire. Demandant staled his title as cousin and heir to Robert Sandford, upon whose death Robert Timbrell had demised to Richard Denison Cumberland and Susannah his wife, by whom the tenant had entry. Pleas : First, that demandant was not heir to R. Sandford; and issue thereon. Secondly, that Timbrell did not abate; and issue ♦hereon. Thirdly, as to the said messuages, mills, barns, stables, outhouses, gardens, orchards, and thirty acres, parcel of the said land, that demand- ant ought not to have seisin of the messuages or tenements with the land and appurtenances in the count mentioned, or any part thereof, because Robert Sandford devised the e?late to Timbrell, who devised it to Su- sannah, wife of R. D. Cumberland; and that they, in right of the said Susannah, became thereby seised in fee, and afterwards levied a fine with proclamations to the tenant Samuel Lusty. The plea concluded with a common verification and a prayer of judgment, if the demandant ought to have his seisin of the messuages or tenements, with the land and ap- purtenances in tl.e count mentioned. The premises described in the fine set out, were, four messuages, /bwr barns, four stables, four curti- lages, four gardens, four orchards, one cloth mill, thirty acres of land, thirty of meadow, thirty of pasture, with the appurtenances, in the pa- rish of Stonehouse in Gloucestershire. Demurrer and joinder. Russell Serjt. in support of the demurrer, cited Vin. Abr. Double Plea, A. 23, 21. 26 ; Stephen, 274; Rastol, 277; Vin. Abr. Double Pleas, A. G7; Com. Dig. Pleader, E. 2; Thomas \. IIeathor7i, 2 B. & C. 477; Com. Dig. Pleader, E. 29. Peake Serjt., contra, referred to Com. Dig., Pleader, E. 2; Plowd. MO; Calfe v.' Nevil, Poph. 185; Plowd. 06; Brett v. Fapillon, 4 East, .502; Iicx V. Shaksjmar, 10 Ea.^t, S3; At wood v. Davis j 1 13. & Cur. adv. vult. 4 Bingham, 428. 29 Park J. This case comes before the.Court upon a demurrer to a plea to a writ of entry. The plea on which this question arises is this: (here the learned Judge read the 3d plea as above.) This, it is said, is duplicity in pleading, for that either of the matters mentioned, viz. the devise by Timbrell, or the fine levied, furnishes a complete defence, and ought not to have been included in the same plea. But we are of opinion that there is no ground for this objection. First of all, no matter will operate to make a pleading double, that is only pleaded as a necessary inducement to another allegation. I admit the rule laid down by Lord C. B. Cumyns, that if a plea contains du- plicity, and alleges several distinct matters (which require several and distinct answers) to the same thing, that would be bad. Com. tit. Pleader, E. 2. But no matters, however multifarious, will operate to make a plead- ing double, provided that all taken together constitute but one connect- ed proposition or entire point. Try the present case by this rule, and it will be found that though there be a devise stated by Timbrell to Cumberland, and a fine levied by him and his wife, they constitute but one entire proposition; one en- tire point of defence. Thus (Vin. Abr., Double Pleading, pi. 7.) to an action of assault and false imprisonment, defendant pleaded that he arrested the plaintiff on a suspicion of felony. He may set forth any circumstances of suspicion, though each circumstance may be alone sufficient to justify the arrest, for all of them taken together do but amount to one connected cause of suspicion. The true rule in pleading, I take to be this, that duplicity is, where two distinct matters, not being part of one entire defence, are attempted to be put in issue. But this can never apply to, nor does it ever pre- clude a party from introducing several matters into a plea, if they are constituent parts of the same defence. For though it be true that issue must be taken on a single point, yet it is not necessary, nor ever can be, that such single point must consist only of one single fact. This is well illustrated by the case of Robin- son v. Ralcy, 1 liurr. 316. To an action of trespass defendant had pleaded amongst other things a right of common. Plaintiff in his replication traversed, that the cat- tle were the defendant's own cattle, that they were levant and couchant, and that they were commonable cattle. To this there was a special de- murrer, "that the replication is multifarious, and that several matters (specifying them j are put in issue, whereas only one single matter ought to be so." Lord il/rtn.v/Zf W,9 judgment upon this point is: — '< The substantial rules of pleading are founded in strong sense, and in the soundest and closest logic ; and so appear when well understood and explained ; though by being n)i3un(l;;rstood and misapplied they arc so often made use of as instruments of chicane. *' As to the present case, it is true you must take issue upon a single point, but it is not necessary that this single point should consist only ■ of a single fact. Here the point is the cattle being entitled to common; ihis is the single point of the defence. But in fact, they must be both M HowLES V. Lusty. M. T. 1827. his own caltlc, ami also levant and couchant, which are two diirerent essential lircunistanccs ol" their being entitled to common, and both oi" them absolutely rccjuisite." We are, therelore, of opinion, that there is no duplicity in this case; the defendant has chosen to set out his whole title, which, though it may consist of several matters, conduces to one common end, viz. a complete bar, if true, to the claim of the plaintiff. The second objection in this case is, that the introduction to the plea selects a part, and yet concludes" as to the whole. To which the Court answers that tliis prayer to a plea in bar may be set right. In Brett v. FapiUon, 1 East, 509, Lord Ellenhorough said, "In many cases judg- ment has been entered up according to the right appearing in favour of the plaintiff on the whole record, notwithstanding an issue on a bad plea in bar found against him. The Court in 2 Stra. 1055, and Rep. temp. Hardw. 3-45, held expressly that they were not bound by the prayer of an improper judgment, and, therefore, pronounced the rule, that the plamtiff in error should be barred, contrary to the terms of defendant's prayer, that the judgment might be affirmed." The same doctrine was established in the King v. Shakspeare, 10 East, 83. In Attwood v. Davis, 1 B. & A. 172, Bailey J. said, *' there is a distinction between a plea in bar and a plea in abatement; in the former the party may have a right judgment on a wrong prayer, but not in the latter." Another objection is, that the fine as pleaded does not cover all the premises alluded to in the declaration or plea mentioned, for that the plea in its introductory part speaks of six messuages, whereas the fine speaks only of four. But the plea states that the fine Was levied of all the messuages in the introductory part of the said plea mentioned and the land whereon the said buildings now stand, by the description of four messuages, &c. Therefore we say that will be a matter of fact to be proved by the evi- dence, whether this allegation be true. The fourth objection is, that this fine is not verified by the record. This argument is not true in fact, for after setting out the fine the plea says, "as by the said fine and proclamations made thereon now remain- ing in the said Court of the Bench more fully appears." But it is said this averment ought to have formed the conclusion of the whole plea. It seems to me, however, this would have been absurd, for the fine does not constitute the whole of the defendant's title. It is made up of several distinct matters, though conducing to one point, viz. the defen- dant's title. Therefore the conclusion to the Court must be on the whole matter; and though one of the matters be upon the fine, which is verified by the record i"n its proper place, yet it would not have been true that the whole matter of the plea was verified by the record, when a part of that plea was the devise to Mrs. Cumberland, which does not appear by any matter of record. For these reasons we arc all of opinion that judgment must be for the Defendant. 4 Bingham, 435. 31 (IN THE EXCHEqUER CHAMBER.) M'DOUGAL V. ROBERTSON and Another.— p. 435. , (In Error.) A submission to arbitration contained astipulation that it should not be vacated by the death of either of the parties, but that, notwithstanding such an event, matters should be proceeded in. The final award having been made after the death of one of the parties: Held, that a surety for the fulfilment of it was liable. This was an action brought by the defendants in error, against M'Dougal, the plaintiflf in error, on a bond. The declaration stated the single bond. By the condition which was afterwards set out on oyer, it appeared that a deed of submission or reference in the Scotch form had been made at Glasgow, between one iEneas Morrison and the defendants in error, the plaintiffs in the action, referring all matters in difference be- tween them to the award of two persons named, and in case they differ- ed, to an umpire; and as the condition stated, they bound themselves, their heirs, executors, and administrators, to fulfil the award under a penalty of 500/. The condition of the bond did not recite all the provisions containecJ in the submission, but referred to other provisions, declarations, and agreements therein particularly specified and set forth. Then it went on to provide that if Morrison, his heirs, executors, administrators, and successors, should truly fulfil all Morrison's cove- nants and agreements in the submission in part recited, particularly if he or they should pay all sums directed to be paid either by any interim decree, or by any final decree, then it was to be void, otherwise to re- main in force. M'Dougal pleaded first, non est factum. The second plea stated the deed of submission at largo, and particu- larly a clause which raised the argument. " Declaring always, as it was thereby expressly provided and declared, that the said submission should not vacate or expire through the decease or insolvency of either of the parlies, but should notwithstanding such an event be proceeded in, and the matters at issue determined in the same manner as if such an event had not occurred." It then proceeded to state as to all except the final award, that Morrison, his heirs, executors, administrators, and successors, did every thing which by tlie said deed of submission they were bound to do, and as to the residue not excepted, that no linal de- cree was made. The third plea, as to all except what regarded the money directed to bo paid, or penally directed to be paid, alleged performance by Morri- son in his lifetime, and his heirs, executors, and successors, after his death, and as to the part excepted, that no sum and no penalty was di- rected to be paid. The fourth plea began by rxcopting what was e\re]ttcd in the intro- duction to the second pica, which related to a (iiial award, and tiu-u pleaded that Morrison, his heirs, &c. did perform every covenant in tUft 32 M'DouiiAi, L\ R()»i:uTsoN. M. T. 1827. said deed or instrument of submission as to all interim orders ; and then as to wiiat was excepted, namely, as to a final decree ; that after the making the said deed, or instrument of submission, and before the arbitrators gave forth, pronounced, or made any final award, order, ar- bitrament, sentence, decree arbitral, final end and determination, and before the umpire or oversman gave forth, pronounced, or made any umpirage under or by virtue of the said deed or instrument of submis- sion, to wit, on the 7th October, in the year 1823, the said iEneas Mor- rison died. The fifth plea alleged that TEneas Morrison died before any decree arbitral either interim or final. The course which the argument took makes it immaterial to pursue the other pleas. To the second and third pleas, the plaintiffs below in their replication stated all the proceedings under the submission down to a final award, by which Morrison's executors were directed to pay a sum of 1500/,, and to deliver up a certain letter of credit, or pay 500/., averring that all these proceedings were valid according to the law of Scotland. And then alleged the breaches in not paying the 1500/., and in neither de- livering up the letter of credit, nor paying the 500/., which was the al- ternative. The defendant rejoined, protesting that the submission was revoked by the death of Morrison; and averred as to the non -performance of the final award, that Morrison died insolvent. The plaintiffs thereon demurred. The material ground of the demur- rer was that clause in the deed called the submission, by which it was expressly provided that the submission should not vacate or expire by the insolvency of either of the parties. The defendant joined in demurrer. To the fourth plea, the plaintiffs in the action demurred, and for cause of demurrer showed that by the submission in the fourth plea mentioned, it was expressly provided that the submission should not expire by death of either of the parties. The defendant joined in this demurrer. To the fifth plea, which in substance relied upon the death of Morri- son before any award interim or final, the plaintiffs demurred, and showed for cause, the express provision in the submission that it should not va- cate or expire through the decease of either of the parties; but should, notwithstanding such an event, be proceeded in. The defendant joined in this demurrer. This was the substance (so far as it is material to state them) of the pleadings. Brodrick, for the plaintiff in error, referred to ^^nior's case, 8 Rep. 82 a.; Potts v. IVard, 1 Marsh, 3G6; Toussaint v. Hartop, 7 Taunt. 571; Cooper v. Johnson, 2 Ji. & A. 394; Charnley v. TVinstanley, 5 P^ast, 2C6; Jirlington v. Merrick, 2 Wms. Saund. 414, n. 4; Weston v. Barton, 4 Taunt. 673; Litt. s. 66; Co. LItt. 52 b.; Roll. Abr. Feoff- ment, 1; Bac. Abr. Authority (E); Wallace v. Coo/c, 5 Esp. 117; lio- by V. Twelves, Styles, 423; Tyler v. Jones, 3 B. & C. 144; Clarke v. Crofts, 4 BIngh. 143; Douyse v. Coxc, 3 BIngh. 20, 6 B. & C. 255. Campbell, contra, relied on Tyler v. Jones and Clarke v. Crofts. Cur. adv. vull. Alexander C. B., after slating the pleadings as above, proceeded to deliver the judgment of the Court. 4 Bingham, 435. 33 Two questions have been principally argued, one of which is a ques- tion on the merits; the other appears to be of form only, but upon which it depends whether the Court can get at the merits. The question upon the merits is, Whether the award is invalid, be- cause some of the proceedings were had, and the award itself was made after the death of Morrison, one of the submitting parties ? What I consider as a question of form is, Whether the pleadings have been so managed on the part of the defendants in error, that the Court can take notice of that clause in the submission, which it is contended preserves the validity of the award, notwithstanding the death of Morri- son before it was made ? The argument has mainly arisen on the second and third pleas, and on the fourth and fifth pleas, together with the subsequent parts of the record applicable to those pleas. The fourth and fifth pleas, and the subsequent pleading applicable to them, is what first calls for our at- tention. The fourth and fifth both say the award is invalid, because Morrison died before it was made. Tlie defendants in error say by their demurrers that fact is indifferent, because there is an express provision in the submission, that the authori- ty should not expire by death. In order to shut out this clause by the form of the pleadings, it is said that those pleas and the demurrers to them, must be treated and consi- dered as if no other pleas had appeared on the record, and that no facts can be transferred from any other part of the record, in order to enlarge the statement or supply the deficiencies of these particular pleas ; and that, therefore, inasmuch as no part of the instrument of submission is stated either in the fourth or fifth pleas, it follows of course that it does not appear upon these pleas or that part of the record connected with them, that the deed of submission contains any agreement or clause like that relied upon, namely, that it should not be vacated by the death of either of the parties before the award. The consequence of which would necessarily be, that the award would be void by the general law, as being made after the death of one of the parlies. If these premises were true, the conclusion would seem to follow. But are they true ? We think not. Admitting, that in ordinary cases you rannot transfer to one part of the record what is stated in anothci-, yet if that plea or part of the record which a|)pcars deficient liocs itself refer to another which supplies that deficiency, then we may avail our- selves of such reference. Now here there is such a reference. The second pica sets out the deed of submission at large, with the clause in question in it. The fourth and fifth pleas now under discussion, do refer to the second plea and the deed of suljmission. The fourtli plea begins l)y excepting whnt is excepted in the introdiiclion to the second plea, (by mistake it is called the first, where there is nothing excepted,) then it proceeds lo say, that Morrison in his lifetime, and his heirs, &c. did perform every covenant, clause, and agreement S|)ecificd in the said deed or instrument of submission, wliigh lie, his heirs, &c. ought fo have perforuied as lo any interim decree, and as to the residiie which is befijre excepted, he says, that after making of the said deed, or instrument of submission, vol.. XV. 5 'S4 M*1)ou(;al i\ Houehtson. M. T. 1827. ami belore any final avvard, Morrison died. Now here is an express reference to the introduction to the second plea, in which the submis- sion is found, and an express reference to the deed or instrument of sub- mission, wliich is to be found no where else except in the second plea. All these constitute a clear reference to the submission, as stated in the second plea; and the Court thinks such reference warrants the defend- ants in error in their demurrer to such plea, to refer to the provision in the submission, as stated in the second plea, which provides that it shall not expire by tlic death of citiicr of tiic parties. In this way we think, that we are, upon the particular circumstances of this case, relieved from those difficulties which it has been contended the rules of pleading oppose to our getting at the real merits of the cause. This brings me to that question. It is, Whether the clause inserted in the submission is vain and nugatory; whether, if parties so stipulate, an award is not good though made after the death of one of them? It appears to the Court that many cases have decided it. We do not doubt, that where there is no express stipulation upon the subject, the act or deatli of a party will revoke the authority given to an arbitrator, and render an award made after, null and void. But the question here is, whether the parties cannot validly and ef- fectively stipulate that death shall not revoke it. This point seems perfectly established. It is somewhat curious to trace the history of the practice upon this subject. In 1817, the cause of Toussnint v. Hariop came before Lord Chief Justice Gibbs and the Court of Common Pleas, In that case there was no provision of this sort. The Court set the award aside. But the Loril Chief Justice said, "This will be no gene- ral inconvenience, because in future rules a provision will be made for the case." In CoopRr V. JoJnismi, in 1S19, which was a case of the same dcscrip- tioni the Court of King's Bench did the same thing. J^ut Lord Chief Justice Mbolt said, "It may be proper in orders in Nisi Prius in fu- ture, to insert a clause to obviate the inconvenience arising from the death of either party before making tiie award." In Blwidcll \. Brettfirgh, 17 Ves, 232, in 1810, Lord ElJon says, •*lf the means of settling terms of a purcliasc arc an award and umpir- "fige, the terms, unless otherwise contracted, must be settled while the parties arc living." It is clear that all the three courts prospectively considered this pro- vision as the means of preventing this inconvenience. Accordingly, when these means are resorted to, they act upon it. Tyler v. Jones (1S24) is exactly in point; Clarke v; Crofts (1S27) is also exactly in point. The case of Doivse v. Cox (1825), in the Common Pleas, is every way an authority upon this point. It was reversed, but it is said, in Clarke v. Crnfls, upon oilier grounds. Every view of justice and convenience is in favour of these authori- ties. This is the answer to the argument on the fourth and fifth, and also on the second and third pleas. But; independently of this, there is anotlicr answer to the second and 4 Bingham^ 435. 35 third pleas. In the replication to these pleas, after detailing with great minuteness all the proceedings, it avers that these proceedings are valid and effectual according to the law of Scotland, That fact is not traversed as it might have been, therefore it is admitted. It stands admitted upon those pleas, and the replication to them, and the subsequent pleading upon that part of the case, that by the law of Scotland ail these proceedings under the submission are valid by the law of Scotland. We all agree in thinking that the judgment must be affirmed. Judgment affirmed. EN13 OF MICHAELMAS TERM. CASES ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS, AND OTHER COURTS, IN HILARY TERM, In the Eighth and Ninth Years of the Reign of George IV. — 1828. DOE dem. TILT v. STRATTON.— p. 446. Where a tenant entered under an agreement for a lease for seven years, which was never executed : Held, that he was not entitled to notice to quit at the end of the seven years. The lessor of the plaintiff had entered into an agreement to grant to the defeiKlant a lease of the premises described in the declaration, for seven years, to commence on the 29th of September 1820. The lease was never executed, but the defendant occupied the premises, and paid the rent which was to have been reserved by the lease. On the 29th September 1S27, the defendant having received no notice to quit, refused to deliver up the premises to the lessor of the plaintiff, whereupon the present action was commenced. At the trial before BestCi., Middlesex sittings after Michaelmas term last, a verdict was taken for the lessor of the plaintiff, with liberty for the defendant to move to enter a nonsuit, if the Coitrt should be of opinion that he was entitled to notice to quit. Jones Serjt. accordingly now moved to enter a nonsuit, on the ground that the defendant held as a mere tenant from year to year, and as such, was entitled to notice to quit. He cited Ilamerton v. Stead, 3 B. & C. 47S, and Mann v. Lovejoy, 1 Ryan & Moody, 356. Best C. J. We should multiply notices to quit unnecessarily, if we held that this action did not lie. Within tlie seven years the defendant • could not have been turned out witiiout notice; but at the end of the se- ven years the contract itself gives him sufficient notice. The point is, in effect, decided in Doe dem. Bhomficld v. Smith, G East, 520, and Doe dem. OldenJiaw v. Breach, 6 Esp. N. P. C. 1 06. Park J. concurred. BuRRGUGH J. During the seven years notice would have been ne- cessary, but not at the end of that pcrfod. 4 Bingham, 454. 37 Gaselee J. Notice was not necessary in this case, nor does the agree- ment give one party any advantage over the other. Rule refused. SCALES V. PICKERING.— p. 448. Hy s. 32. of a private act of parliament, a water company was empowered to " break up the soil and pavement of roads, highways, footways, commons, streets, lanes, alleys, passages, and public places," provided (s. 34) that they should not enter any private lands without the consent of the owner : Held, that the company had no authority, without the consent of the plaintiff, to en- ter a field of his, over which there was a public footpath. BURDEN V. IIALTON.— p. 454. The defendant had given the plaintiff bills for goods, which bills had been trans- ferred to a third person; but at the time of the trial of an action for the value of the goods, though not at the commencement of the action, they were again in the plaintiff's hands overdue and unpaid by the defendant: Held, he was liable, notwithstanding he had given the bills. This was an action brought to recover 237/., alleged to be due from the defendant for embroidery. At the trial of the cause before Bur- rough J., Middlesex sittings after Trinity term, it appeared in evidence, that the defendant had accepted two bills drawn upon him by the plain- tiff in respect of the account between them, one for 100/., and another for 146/.; that these bills had been transferred by the plaintiff to mer- chants in the city; but that after the commencement of the action, though before trial, they were again, without any money having passed, placed in the plaintiff's hands, where they remained at the time of the trial, overdue and unpaid by the defendant. It was objected by the defendant's counsel, that on this proof the plaintiff should be nonsuited, inasmuch as it did not appear that the bills had been paid by the plaintiff, and the de- fendant might still be liable on them. The learned Judge overruled this objection, and directed the jury, that as the defendant had not paid the bills, and they were again in the plaintiff's hands, the circumstance of their having been in the hands of a third person amounted to nothing, and could not affect the plaintiff's rigiit to recover. Jones Serjt. now moved for a rule nisi to enter a nonsuit or have a new trial on the above objection. lie cited Kearslake v. Morgan, 5 T. R, 51. 'J, and Dangerficld v. Wilhy, 4 Esp. 159. Hkst C. J. There is no evidence of these bills having been transferred to the indorsees for consideration, and they were sent back to the plain- tiff witliout any money passing. The authorities shew, that if the bills had remained in the hands of third persons, that would have been a de- fence to the action, because the del^endant niiglit have been called on to p.iy them: but as they were in the hands of the plaintiff, and overdue at the time of the trial, that could never happen. Rule refused. 38 Benson v. Hiri'ius. H. T. 1828. BENSON V. HIPPIUS.— p. 455. Tlic chai tcrcr of a ship liaving; consigned his cargo to P., who placed it in defend- ant's hands to sell it, the defendant, by an agreement wliich stated those facts, undertook to pay pluintifT, the owner of the ship, freight and demurrage, if any were due, and in every resjject to ])ut himself in place of the cliarterer. Fifty ruiniing days were allowed by tlie charter-party for loading and un- loading, and ten for demurrage, at 10/. a day. The ship having occupied nine- ty-five days in loading and unloading, several of which elapsed after the date of the defendant's agreement: Held, that he was liable in damages in respect of demurrage for tlie whole, and tliat a sufficient consideration appeared on the face of the agreement. Bv charter-party of jMarch 1825, between the plaintiff, owner of the ship Trusty, and B. T. Gillam, the ship was to proceed to Quebec to load a cargo of timber, &c. and proceed therewith to London. *' Fifty running days were to be allowed for loading the ship at Quebec, and un- loading m London, and ten days on demurrage, over and above the said laj'ing days, at 10/. per day. Penalty for non-performance of the agree- ment, 2000/." The ship having taken in her cargo at Quebec, returned to London, Gillam having consigned the cargo to Pirie and Co. on payment of freight as per charter-party; and on her arrival, the defendant addressed the following letter to the plaintiff, who refused to deliver the cargo without the undertaking contained in the letter. London, Sept. 21. 1S25. Mr. Thomas Benson, Sir, — Messrs. John Pirie and Co., the consignees of your ship Trus- ty's cargo, having placed it in my hands for sale, I hereby engage to pay you the freight, primage, and demurrage, if any be due, and in every respect to put myself in the place of Mr. Gillam, the charterer, so far as respects tlie agreement made with you for the Quebec voyage. C. J. Hippius. Ninety-five days having been occupied in loading and unloading in- stead of fifty, the plaintiff sued the defendant on this undertaking for .damages in respect of forty-five days' demurrage, several of which days had elapsed subsequently to the date of the above letter. The declaration, after setting out the charter-party, stated the voyage out and return of the ship to London, that she was ready to discharge her cargo in the docks, and that Pirie and Co., to whom the cargo was consigned, had requested the defendant to sell it for them; that the defend- ant thereupon, in consideration that the plaintiff, at defendant's special instance and request, would deliver to him the cargo according to the terms of the charter-party, undertook and promised the plaintiff to pay him the freight, primage, and demurrage for the same, if any should be or become due, and in every respect to put himself in the place of the charterer of the ship, so far as respected the agreement made with the plaintiff for the said A'oyage; that the ship was detained in loading and unloading fifty days above the fifty running days in the charter-party mentioned; that 100/. thereupon became due for ten of the fifty super- numerary days for demurrage, according to the terms of the charter- party; and that the plaintiff for the detention of the ship forty days, resi- 4 Bingham, 455. 39 due of last mentioned fifty days, deserved to have of the defendant ac- cording to his undertaking 400/. more. Breach, non-payment. The defendant pleaded the general issue, and paid 100/. into Court. At the trial before Gaselee J., London sittings after Michaelmas term, the jury found a verdict for the plaintiflf 300/. damages beyond the 100/. paid into court, the defendant having leave to move to enter a nonsuit upon certain objections to the declaration. Taddy Serjt. now moved accordingly, upon the ground, First, that this was an undertaking by the defendant for the debt or default of another, and that no sufficient consideration moving from the plaintiflf to the defendant appeared on the face of the agreement, — Wain V. JVarlters, 5 East, 10; :Saunders v. Wakefield, 4 B. & A. 595, — in- asmuch as the plaintiff was not the person who placed the cargo in the defendant's hands, nor had he any lien on it, if, as according to the lan- guage of the agreement, it was already in the hands of the defendant. Secondly, that the consideration, if any existed, was not correctly stated as being that plaintiflf would deliver, when the writing purported that he had delivered. Thirdly, that the defendant was only liable for demurrage under his agreement, and not for tortious detention by the captain or others, more particularly subsequent to the date of the defendant's letter. The ten days during which the ship had been occupied beyond the fifty running- days gave rise to a claim for demurrage to which the charterer might have been liable under the charter-party, and the defendant, perhaps, under his agreement; the remaining thirty-five days were taken up by a deten- tion for which, upon this declaration, the defendant was not answerable, either according to the terms of the charter-party or of his agreement. Best C. J. It has been objected to the plaintiff's recovering in this case, that in the agreement which is the ground of the action there is no consideration moving from the plaintiflf to the defendant, and that, there- fore, the action does not lie. But from, the defendant's letter of the 21st of September, which constitutes the agreement, it appears, that the plain- tiff was owner of a ship, the cargo of which had been consigned to Pirie and Co., and that they had authorized the defendant to sell it; the de- fendant, who could not sell it without the consent of the plaintifl', in or- der to obtain that consent undertakes to pay demurrage on tiie ship, if any be due. Thcuc is a suftlcient consideration moving from the plain- lifll'. It has been argued, indeed, that demurrage only ccndd be recov- ered under the charter-party, and that the defendant cannot be sued for the detainer of the ship, especially for that which occurred suljscqucnlly to the date of tin; defendant's letter. But the defendant imderlakcs not only to pay the freight and demurrage chie from Pirio anil Co., but in all respocls to put him.self in the place of Gillam, tlie charterer, so far as res|)ect3 the Qnebec voyage. Now there can be no (loiii)l that Gil- Inm was bound for all detention beyond tlie fifty running days allowiMl l)v the rlinrlrr-pnrlv. Detention and tle;iinrrage mean the same thing. Rule rcfuscil. SEACO V. UEANE,— p. 15f». DfTcudant aKiecd to p:iy iilaiiuifT, in < onsulorntioii ol' licr hiHdiiuiijT Uis Iciiaut. 20/. to repair Ww house, aiul also to malvc certain alterations. 40 Seago v. Deane. H. T. 1828. Plaintiff became tenant under a lease, in whicli this agreement was not stated, and did the repairs; wlicn defendant promised to pay for them; Held, that he was liable, at all events, on the account stated, although the agreement had not been introduced into the lease. The plaintifl' declared, that in consideration she, at the request of the defendant, would become tenant to the defendant of a house and premises in Surrey, at a yearly rent of 39/., under a lease thereof, to be granted to her by the defendant, the defendant undertook and promised to pay her the sum of 20/. to repair the house; and also that he would make an opening from the cellar of the house into Wandsworth Lane, and put three stone steps from the cellar, and make a door in the house to open into Wandsworth Lane, to enable plaintiff to take out coals from the cellar: That plaintiff became tenant of the house, &c. to the defendant, at the rent aforesaid, under a lease granted to her by the defendant; but that though a reasonable time had elapsed and a request had been made to the defendant to perform his agreement, he had never given the plaintiff the 20/. to repair the house, nor had he made the opening from the cellar, nor put steps, nor made a door. There were counts for work and labour and materials, for money paid, and for money due upon an account stated. At the trial before Gaselee J., Middlesex sittings after Michaelmas term, it appeared that the defendant had, by parol, given a promise to the effect stated in the declaration; that in consideration of such promise the plaintiff had become tenant of the defendant's house under a lease, which did not contain any covenant from the defendant to the effect of the above promise; that the plaintiff had done the repairs, and that the defendant, upon being applied to before the action was brought, said, "I cannot pay you now, but will out of the next rent." A verdict having been given for the plaintiff for 20/,, Wilde Serjt. now moved to enter a nonsuit instead, or to arrest judg- ment, on the ground, that this being an agreement concerning an inter- est in land, could only be evidenced by writing; and secondly, that the oral contract having been executed by the granting of a lease in writing, nothing could be claimed that was not stipulated for in that lease; Kain v. Old,2 B. &C. 627, Pickering v. Doivson, 4 Taunt. 779; nor could any consideration be shewn for the plaintiff's becoming tenant that was not there specified. As to the count upon the account stated, the plain- tiff must first shew the contract and then the adn^ission applicable to it: but if the contract on which the admission was made, were void, so was the admission. 13est C. J. This is one of the most iniquitous objections ever made. The contract has been clearly proved, and the objection is purely techni- cal. It must however avail, if it be well founded. If tliis agreement were pnrt of the consideration for the plaintiff's engagement under a lease, and it did not appear as part of the terms of the lease, the omission could not be supplied by parol evidence. The agreement, too, as concerning an interest in land, ought to have been in writing. Had the plaintiff, therefore, been compelled to rely on the .'jjecial count, siic could not have recovered. 15ut the plaintiff did the thing in question, and after she had done it, the defendant, on being applied to, said, "I cannot pay you now, but 4 Bingham, 459. 41 will out of the next rent." That declaration was admissible in evidence upon the account stated, and was not aflected by the provisions of the statute of frauds. There was a moral obligation to pay and a distinct promise; and there are many cases which shew that a moral obligation, accompanied with a distinct promise, is binding in law. Park J. This defence is so wicked and so manifestly unjust, that even if the law were with the defendant the Court would not interpose, unless the point were reserved. But on the account stated the plaintiff is clearly entitled to recover. BuRROUGH J. It appears to me that this was a bargain altogether in- dependent of the lease, and the conduct of the parties shews it to h,ve been so, Gaselee J. If this had been an action against the landlord for not granting a lease, or against the tenant for not taking it, the objection on the statute of frauds must have prevailed; but here the bargain was exe- cuted, and the plaintift' was entitled to recover upon the account stated. This, however, was a contract independent of the lease; and it is clear, that though a party be not bound by a contract, yet if he makes a pro- mise after it has been performed, he is liable upon an account stated. Rule refused. EARLE V. HOLDERNESS.— p. 462. In troverfor a packet of letters, the defendant was allowed to stay proceedings as to one of them, upon delivering it up and paying costs. Trover for certain letters or packets. Upon the death of Nanny Hewlings, the defendant received a notice from her brother, on behalf of himself and her next of kin, not to part with any letters or packets addressed to her, or to any person connected with her affairs; and a simi- lar notice from one Owen Kernan, who claimed to be her executor. The defendant being in possession of some letters or packets of Nanny Hewlings, — which he had received from Demerara, among which was one addressed to «' Mr. Earle, Clapham, Surrey," and all of which he believed to relate to the affairs of the deceased,— under the advice of counsel, refused to deliver them to the plaintiff, but offered to open in his presence, and in the presence of the brother of the deceased, and of Owen Kernan, the letter addressed to the plaintiff, tlie defendant having no interest in any of the documents, and wishing only to secure himself. This was not agreed to, and the plaintiff commenced the present ac- tion; whereupon, The defendant, upon affidavit of the above facts, obtained a rule, call- ing on the ploiritid to shew cnuse whv, u|)on delivering up to the plain- tiff the letter addressed to Mr. Earle, Clapham, Surrey, and upon pay- ment of the costs of the action up to that time, all further proceedings in the cause should not be stayed. Pickering v. Trustc, 7 T. 11. 53, and Brnnsdcyi v. ,/jlu.s/in, Tidd's Pr. 57 1, were referred to. Tad(/>/ Serjl. who shewed cause, contended, that the defendant, not being executor of Mrs. Hewlings, nor .setting up any right to the letter, had no claim to the indulgence of the Court; lliai he ought to ofler all the letters or none; and that he could not be permitted to stay the plain- VOL. XV. 6 42 Aurnt:u r. Hale. H. T. 1828. tiff's proceedings upon giving up only a portion of what the plaintifi sought to rccov<'r. It was impossible to say what damages the plaintiff might sustain by the detention of any of the papers. In PickcritiE; v. Tniste the value of the goods was admitted, and in Brunsden v. Muslin there was no dispute on that point. Wilde Scrjt. was heard in support of the rule. Best C. J. Brunsden v. »/^?/5/^n is expressly in point. There, a defen- dant in trover was, upon terms, permitted to surrender a part of a steam- engine, which he admitted the plaintifll' to be entitled to. Here the action is brought for a bundle of letters, and the defendant says << I will defend for all but one," On that authority, therefore, we should be disposed to grant the rule. But the moment the Court went the length of saying, that if a party brought into court the goods in dispute, proceedings should be stayed, they decided, in principle, the present question also, because, if they could do it as to the whole, they could do it upon terms as to part. The defendant must pay the costs, because he has asked to stay the proceedings generally, which is too much; but on handing over to the plaintiff the letter in question, with the costs of the motion, and under- taking to pay the costs of the action, if the plaintiff recovers on the other letters, or more than nominal damages on this, the defendant is entitled to have his rule made absolute. The rest of the Court concurred, and the rule was made absolute upon the following terms : — The defendant to deliver the letter in question to the plaintiff upon payment of the costs of the application; and if the plaintiff would accept that letter with the costs of the action in discharge of the action, pro- ceedings to be stayed: if not, the plaintiff to proceed; and in case he should not recover damages for the other letters, or nominal damages only for the letter in question, to pay the costs of the action. ARCHER V. HALE.— p. 464. The plaintifF and defendant in a replevin suit referred the cause to an arbitrator, and agreed, without the privity of the sureties, that the replevin bond should stand as a security for the performance of the award : held, that the sureties were discharged. Park J. This was an action of replevin, and the case came before the Court last term upon a rule to shew cause why the verdict obtained by the plaintiff at the preceding Spring assizes for the county of Herts should not be set aside; and why the defendant should not be at liberty to enter a verdict for 556/. found to be due to him for rent, by the award of James Bowling, Esq. the arbitrator in t!ic said rule named. This rule was drawn up upon reading the record of nisi prius, and a rule made in this cause on the Wednesday preceding, and the affidavit of the attorney for the defendant, the avowant. In order to understand the case it must be observed, that an application had been made to this Court to set aside a verdict which the plaintiff in replevin had obtained, upon payment of costs by the defendant, both of the trial and of the then applicationj and that the defendant should be at liberty to add other 4 Bingham, 464. 43 avowries; but if llie plaintifl" would consent to refer to any arbitrator to say what was clue for rent, then the rule was to be discharged upon pay- ment of the costs of the action by the defendant to the plaintifT; the costs of the reference to be in the discretion of the arbitrator: and it was further stated, that tlie replevin bond should stand as a security for such sum as should by him be found to be due. These last words will be found to be most material, as upon them much of this decision will depend. After the above rule was made the parties did agree, and an order was accordingly made by such agreement, by my learned Brother GaseleCf to refer the matter to James Dowling, Esquire, barrister at law. Upon this reference it appears ihe learned gentleman mentioned in the order of Mr. Justice Gusdee proceeded, and found the sum of 556/, sterling to be due from tlie tenant, the plaintiff, which plaintifT is now insolvent, as it is sworn, and as is probably the case; and the defendant has paid to the plaintifl the costs taxed by the prothonotary, as one of the above-mentioned rules requires. It is positively sworn, not only by tlie attorney for the plaintiff, but by both the sureties in the replevin bond, that they never were parties to these proceedings; that they were taken and entered into without their j)rivity or concurrence; that if the sureties had been applied to, they would not have consented thereto, and that by such proceedings having been taken without their consent, they considered themselves discharg- ed from all future liability. The question is, whether under the circumstances they are discharged? for there seems no reason to say, if they should be so considered by the Court, the principal may not remain liable upon this award. Let us first see what the condition of a replevin bond is. It is that the plaintifl', the tenant, shall appear at the next county court and prose- cute his suit with cflect and without delay against the avowant, for ta- king &c. his cattle, goods, and chattels, and make return of the said cattle, goods, and chattels, if a I'eturn thereof shall be adjudged. This is all the surety undertakes to do or to see done. This is the otdy security which by virtue of the statute 11 G. 2. c. 19. s. 23., the person granting replevins is authorized to demand, and the oidy security into whicli these sureties have entered. Hut here the replevin btjud, it is said, is to stand as a security; and that the sureties, the principal being insolvent, are bound to pay the whole of this rent, viz. 5jG/. • 'i'hc surefv says, nnn hrrc in fcrdcra vcni; tiiis is by no nienns the pngagfMncnt I entered into; 1 only undertook that the tenant should prosecute his suit with cflect and without delay; and that return should be made of the goods seized, if that return should be adjudged. Upon this motion it was urged, thatthe conlaintiff, in his trade and business, the following libel: — "Society of Guardians for the Protection of Trade against Swindlers and Sharpers. I, E. F,, am directed to inform you, that the persons using the fii'ni . of Goldstein (meaning the plaintiff) are reported to the society as improper to be proposed to be balloted for as members thereof;" thereby meaning that the plaintiff was a swindler and a shaqjer, and an improper person to be a member of the said society: Held, that the innuendo could not be supported witho-it a previous averment, that it was the custom of the society to designate swindlers and sharpers by the terms, imfiroper pemons to be mnnbers of that society, and that it did not appear tliat the society described in the libel was the society described in the introductory part of the declaration. Error. The plahitiflf declared, that whereas he was a merchant of good character, and whereas, before the committing of the grievances complained of, divers persons had been associated together, under the name and description of "The Society of Guardians for the protection of Trade against Swindlers and Sharpers;" and the defendant Foss, un- der colour and pretence of being the secretary of the said society, had from time to time published, and was accustomed to pul)lish, certain printed reports, for the purpose of announcing and signifying to the members of the said society the names of such persons as were deem- ed swindlers and sharpers, and improper persons to be proposed to be balloted fur as members of the said society, Yet the defendants, knowing the premises, but greatly envying the happy state of the plaintiff, falsely and maliciously did compose, print, and publish the following false, scandalous, malicious, and defamatory libel of and concerning the plaintilV in the way of his trade and business. — "Society of Guar^lians for the protection of Trade against Swindlers and Sharpers. — I, Edward Foss, am directed to inform you, that the persons undernamed, or using the firm of Goldstein," (meaning the plain- lid) "Castle, and Co. 51. ftlark ]^ane, and IJetijamin Porter, baker, Hackney Road, are reported to the society as improjicr to be proposed to be balloted for as members thereof;" thereby then and there meaning that the said plaintiff was a swindler and a sharper, and an improper per- son to be a membr;r of said society. There were other counts, varying the innuendos, hut without the in- troductory matter as to the Guardian society. Plea, not guilty. At the INIiddlesex sittings after Hilary term 182G, a verdict was found for the plaintiff, damages 150/.; hut judgment having been arrested in the Court of King's Iknch, on the ground that the innuendo was not war- ranted by the libel, and that the society mentioned in the libel was not 54 Goldstein v. Foss. H. T. 1828. averred to be the same society as that mentioned in the introductory matter, G B. & C. 151, the present writ of error was brouglit. F. Pollock, for the plaiiitill', contended, that the name of the society, mentioned in llic introductory part of the declaration, being the same as that mentioned in the libel, and it no where appearing that there were two societies of that name, the society mentioned in the libel was sulh- cicntly connected with that mentioned in the introductory part of the declaration; if so, the innuendo attached to the libel was sufliciently war- ranted by the preliminary allegation, that it was the practice of the de- fendant, as secretary of the society, to publish reports, specifying the names of persons who were swindlers, and improper persons to become membersof the society. IJut, inasmuch as a libel might be conveyed in any terms, however innocent in themselves, provided the parties employ- ing them were agreed to take them in the libellous sense, if a jury found that thesense intended were correctly conveyed by the innuendo, any de- fect of introductory allegation would be cured by verdictj Coles v. Havcland, Cro. Eliz. 250. 1 Wms. Saund. 227. n. 1. Campbell, contra, cited 1 Wms. Saund. 243. n. 4. Holt v. Schole- field, 6 T. K. 691, per Lawrence J. in Hawkes v. Hawkey, 8 East, 427. Barhuni's case, 4 Rep. 20 a. Best C. J. The Court does not entertain the smallest doubt, "and the judgment below must be affirmed. It has been urged, that if that judg- ment be supported there will be no means of obtaining justice against the society. It would not be difficult, however, so to put a case on the record against the secretary, if he makes a false report, as to try the merits of the proceeding; but on the present record there are not facts enough to shew, that the construction put upon the libellous words by the innuendo is the sense in which they were employed by the defendant. The words do not naturally import that the plaintiff is a swindler; and we want an allegation of fact to prove that they were used in that sense. A man might be improper to be a member of that society if he were old or infirm, or had not a sufficient knowledge of the resorts of swindlers. If the declaration had gone on to aver that it was the custom of the society to designate swindlers by the term improper persons ih^'innuQudo might have been sufficient. But an innuendo cannot add a fact or enlarge the natural meaning of words. And looking at these words, without the allegation of that fact, no one would know that the plaintiff was a swindler, because he was not a pioper person for the Guardian Society. The plain ground of our judgment is, that we cannot see, on this record, that the plaintiff was charged with having been a sharper or swindler; and this is a defect which the verdict does not cure, the question turning on the construction of words which are not adequately shewn to bear an v other than their natural meaning. If a verdict wore to cure defects of this nature, it would deprive parties of the valuable privilege of an ap- peal to a court of error, though Mr. Fox's bill expressly reserves the li- berty of moving in arrest of judgment. Judgment affirmed. HANSON V. ROBERT and SAMUEL BLAKEY.— p. 493. A bankrupt obtained his certificate on the loth of November; the same day a Jieri facias was executed on his goods ; tlie Court refused relief on motion. 4 BrxGHAM; 496. 55 HEYVVOOD and Others v. T. W. WATSON.— p. 496. Defendant and M., partners, having obtained leave to overdraw their bankers, the plaintiffs, M. gave them a promissory note for 2C00/., as a security for ad- vances, and defendant thereupon gave M. a note for 1000/., payable to order. Plaintiffs advanced 1300/. to M. and defendant, and two years after, being in pos- session of defendant's note for 1000/. by transfer from M., sued defendant. It did not appear that they had given M. any consideration for it, or that they had notice of the circumstances under which defendant gave it to M. : Held, they were entitled to recover. Assumpsit. The declaration contained counts on the promissory note for 1000/., set out below, together with the usual money counts. At the trial at the Lent assizes 1S27, for the county of Lancaster, before Hullock B., a verdict was found for the plaintiffs for the sum of 1000/. on the counts upon the note, subject to the opinion of the Court upon the following case:— The plaintiffs were bankers at Liverpool, the defendant was a mer- chant there. In the year 1815 the defendant entered into partnership with Cyrus Morrall, the payee of the promissory note, on which this action was brought, under the firm of Morrall and Watson. On the 9th of February 1S24, the said partnership obtained from the plaintiffs, who were their bankers, permission to overdraw their banking account with the plaintiffs, and Morrall gave to the plaintiffs as collateral security for the said advances, his separate promissory note for 2000/., which was as follows: <' Liverpool, 9th February 1824. On demand I promise to pay to Arthur Hey wood, Esq., Sons, and Co. (the plaintifls), or order, 2000/., value received. Cyrus Morrall." On the 10th February 1824 the de- fendant, for the purpose hereinafter mentioned, drew the promissory note on which this action was brought, which is as follows: "On demand I promise to pay Cyrus JNIorrall, or order, 1000/., value received. Tliomas Wright Watson." Endorsed, Cyrus Morrall. No evidence was given of express notice to, or express knowledge by, the plaintiffs of the pur- pose for which this note was drawn, or of the letter dated lOtli day of February hereinafter mentioned. On the said lOtli February 182 1, the defendant sent the last mentioned promissory note to Morrall, enclosed in a letter addressed to Morrall, in which the defendant stated that he de- posited with him, Morrall, the note in (|ucsti()n to meet his, Morrall's, collateral security given in the said note for 2000/. to ihe jilaiiitiil's for the said advances, and to secure to Morrall repayment of his, thedefendant's moiety of that sum or of such sum as Morrall individually should have to pay the plaintiffs on the joint account of liiinsclf (Morrall) and the dc- fend;int. The partnership of Morrall and Watson terminated on the 2Sth February 1825. The plaintiffs proved that they were possessed before June 1820 of the defendant's note indorsed by Morrall to them, but it did not appear how much sooner they were so possessed, or when it was so intlorsed by Mor- rall. No consideration for such indorsement was proved, nor any applica- tion to Morrall previous to such indorsement for payment of his said note for 2000/. nor for the payment of the said advances. Neither the said last mentioned note, nor the said advances, nor any part thereof, have been paid by Morrall, but the same note remains unsatisfied in the plaintiffs' 56 lliiYWooi) V. Watson. IJ. T. 1828. Iinmls, The j)I;iinlin's havo not miule any advances on account of the parttiershij) of JNlonall and Watson since the termination of the partner- .sliip, and ntnlhLM- Morrall nor the (U^fendant was, at the time when tlie note came into tlicplaintills' possession, indebted to the plaintiffs, nor has either of them since become indebted to tlic plaintitl's on his separate ac- count, uidess the court should be of opinion that the defendant, as maker of the said note, was, under the circumstances of this case, indebted to tlie plaintills as payees tiiereof. The plaintill's were Morrall's bankers. The said advances amounted to 1300/., which was still unpaid. They were made to the partnership of Morrall and Watson, or on their account jointly, and not to ^lorrall, or on his account separately, and were so debited in the plaintiU's' books. The question for the opinion of the Court was, whether the plaintiffs were entitled to recover the said sum of 1000/., or any part thereof, on the said counts on tlie note, or not. If the Court should be of opinion tliat they were so entitled, the verdict was to stand; but if the Court were of opinion that they were not so entitled, a nonsuit was to be entered. Russell Serjt. was to have argued the case for the plaintiffs, but the Court called on Wilde Serjt. for the defendant. Best C. J. I think there was abundant consideration for the present action. The plaintiffs are bankers, whose consent the defendant and Morrall had obtained to overdraw their accounts, which they did, to the extent of 1300/.; but the plaintiffs required from Morrall his note for 2000/. as a security; he gave it them, and the defendant thereupon gave to Morrall his note for 1000/., being half of the liability incurred, and this note Morrall pays in to his bankers, the plaintiffs. It has been urged that he only deposited, and did not pay it. If that had been so, the effect might have been different; but no such fact appears, and it is immaterial whether Morrall could have sued the defendant or not. If there was a good consideration as between Morrall and the plaintiffs, and the plaintiffs, as it is alleged, were ignorant of the circumstances under which Morrall took the note, they are entitled to recover. If the plaintiffs knew those circumstances, the defendant should have shewn that; but in the absence of any such proof, it must be taken that the plaintiffs received the note in ignorance of those circumstances. Even if they had known them, I am of opinion they might have sued. Mor- rall says to them, "I have received this note as a security for myself, and I transfer it as an additional security to you." As they had aright to sue Morrall on the 2000/. note, they had equally a right to sue the defendant for the 1000/.; Morrall thus giving them the opportunity. The effect no doubt is, that the defendant is at first called on to pay more than half of the 1300/. advanced to him and Morrall; but he may call on Morrall to i)ay back his proportion. Park J. On the face of these prdceedings I see no difficulty. The action is brought on a note payable to order, and indorsed to the plaintiffs, who have a clear right to sue. It has been urged, that they should have enquired into the circumstances attending the making of the note: but they had no notice of those circumstances, nor any ground of sus| i ;ion to put them on enquiry ; for though the note was made in 1824, it wrs payable on demanti, and therefore could not be esteemed overdue till de- mand had been made. And even if the circumstances had been known, 4 Bingham, 496. 57 it is by no means clear that they would have furnished a defence to the action. BuRROUGH J. I see no ground for saying that the plaintiffs, as legal holders, had not aright to sue on this note. Gaselee J. It is not necessary to enquire what would have been the result if the plaintiffs had had notice of all the circumstances, for upon this case they are fully entitled to recover. There is strong reason to believe that the note was given by the defendant expressly to cover the plaintiffs' advances, for it is made not to Morrall alone, but to order. The plaintiffs, therefore, might well deem it a note which they were en- titled to apply to their advances. Judgment for the plaintiffs. WILCOXON V. NIGHTINGALE.— p. 501. In an action against the sheriff for an escape, it is sufficient to allege, that the writ for the caption of the escaper was duly indorsed for bail for /., without ad- ding, " by virtue of an affidavit made and filed of record." This was an action against the sheriff of Cambridgeshire. The first count of the declaration was for voluntarily permitting the escape of one John Ward Kirke on mesne process issued by the plaintiff. There was a second count for not arresting Kirke, and a third for not assigning the bail-bond. The declaration alleged that the writ of capias for arresting Kirke was "duly marked or indorsed for bail for 25/. and upwards;" and, being so indorsed, afterwards, and before the return thereof, was deliver- ed to the defendant, who then was sheriffof Cambridgeshire, to be exe- cuted. But in none of the counts was it averred that the writ was in- dorsed for bail, by virtue of an affidavit of the cause of action for the sum specified before them made and filed of record. Demurrer, assigning for cause the omission of such averment, and joinder. Storks Serjt. in supj)ort of the demurrer. By 12 G. 1. c. 29., 5 G. 2. c. 27., and 21 G. 2. c. 3. it is cnncfed, that in all cases whore the plaintiff's cause of action shall amount to the sum of 10/. and upwards, an affidavit shall be made and filed of record of such cause of action, and for the sum or sums specified in the said affidavit, and no more, the sheriff or other officer to whom writ or process sli.dl be directed shall take bail; and if no such affithivit sludl be made as aforesaid, the plaintiff or plaintiffs shall not proceed to arrest the body of the defendant. In all actions against sheriffs for a bre.ich of duty, it is necessary to shew the obligation of the defendant strictly. The omission of an aver- ment, (after stating a comniitniiMit to prison) that the commiLlal was ot record, was held fatal on special demurrer. Barns v. Ei/les, 8 Taunt. 512; Bollnn v. Ki/les, 4 H. Moore, 425. So the trifling omission of the words *' of tiio Bench," in the averment that the slicriff had not the body " before our said lord thr- king" on the rntinii day, wns also held bad on special demurrer*. Slovhi v. f'rrn'n0 Aki:i) v. Stocks. H. T. 1828. Jones V. J^ord Suij ami Scle, the devise was to trustees and their heirs, in trust to pay several legacies and annuities, and to pay the surplus to a feme covert for life to her separate use, or as she siiould direct; and after her death, the trustees to stand seised to the use of her body, with remainders over. And it was holden, that the use was executed in the truPtees and their heirs during the life of the feme covert, and after her death, in the persons entitled to take. Here, in the same vvay, Sarah Scott had a trustee for her life; and even if she had survived her husband, it may be thought the trustee ought to have held, to secure her against a future husband, though after her death he might be bound to convey to her iicir. At all events,. it is clear that Sarah Scott had no power to devise. BuRRouGH J. The words of the will clearly give the legal estate to the trustees, and there is no possible ground for presuming that Sarah Scott had a power to devise. Gaselee J. I never entertained any doubt on the subject, and only reserved the point to save the expense of a second trial. The legal estate is in the trustees, and on the death of Sarah Scott, they are trustees for her heir at law. The rule must be Discharged. AKED v. STOCKS, BARSTOW, and Others.— p. 509. The plaintiff having sued a magistrate, gave notice of his cause of action; that the magistrate had unlawfully convicted him of not paying wages, and had issued a warrant for seizing his goods directed to J. Bark, under which they were seized accordingly. The warrant having been directed to the constable of Halifax, and not to J. Bark: Held, that the notice was insufficient. This was an action of trespass against two magistrates of the West Riding of Yorkshire, and four other persons, who sufi'ered judgment to go by default. The magistrates pleaded the general issue. The notice of action served on the magistrates pursuant to the statute 24 G. 2. c. 44, was for having caused the plaintiff "to be unlawfully convicted for not paying to Thomas Wood, of Halifax, card-maker, the sum of 10/. for wages supposed to be due to the said Thomas Wood, and the further sum of 155. (Sd. for costs alleged to have been incurred by Thomas Wood in recovering the said wages, and for having issued a warrant in writing under their hands and seals, bearing date on or about the third of March, 1S27, directed to Joseph Bark, thereby com- manding him to distrain the goods and chattels of the plaintifl'for satis- fying the said sum of 10/. 155. dd., under which warrant, the premises of the plaintiff, situate at Halifax, were unlawfully entered, and his goods and chattels theiein forcibly taken and distrained, and sold and disposed of, to his loss. " At the trial before Ijcnjlcy, J , last York Summer Assizes, the war- rant produced under a notice to the defendants to produce it, appeared to be addressed not to Joseph Bark, but to " the constable of the town- ship of Halifax." It further appeared, that one Brearly, and not Bark, was the constable of that township; that Bark was not a constable; and it did not appear that the mag;>trates had employed Bark to levy the distress. 4 Bingham, 509. 61 Upon this variance a verdict was found for the magistrates, willi leave for the plaintitf to move to set it aside, and enter a verdict for the plaintiff, if the Court should he of opinion that the notice was not in- correct. Cross Serjt. accordingly obtained a rule nisi io that effect, which the Court, stopping fVilde Serjt., who was to have shewn cause, called upon him to support. Park J. I am sorry when any man is tripped up by a formal ob- jection, and the Court would go great lengths to sustain the argument in favour of the plaintiff; but we are bound to the strict constiuction of an act of parliament passed expressly for the protection of justices of peace in the execution of their office. Country magistrates, acting with the most honourable intentions, may occasionally be entrapped into error by want of knowledge of the law, and this statute enables theni to get out of the difficulty by tendering amends. The question therefore is, Whether this notice sufficiently discloses the plaintiff's cause of action within the meaning of the statute. In StrickliDid v. JVard, 7 T. R. n. G31. 633, it was holden, that a mis- take in the description of the form of action was fatal to the validity of the notice. It has since been determined, that it is not necessary to state in the notice the precise form of action; but the notice in the pre- sent case describes the cause of action to be a warrant directed to J. Bark, and the warrant signed by the defendant, when produced, appears to be directed to the constable of Halifax. No doubt it appears hard upon the plaintiff that this should vitiate his notice; but the act prescribes that no evidence shall be received of matters not specified in the notice, and when I find that the cause of action was a warrant directed to the con- stable of Halifax, I cannot think that evidence ought to have been re- ceived of a warrant directed to J. Bark, who was not a constable at all. The statute too empowers the plaintiff to demand a copy of the war- rant, and if he falls into error by undertaking to set it out without de- manding a copy, he cannot complain of the consequence. Caselee J. («) I should be glad, if, consistently with the deci- ded cases, we could comply with the plaintiff's application: but looking at the long string of decisions which have put a strict construc- tion on the act, I foci that we are not at liberty to do so. The act re- quires that tiic plaintifl shall give the magistrate notice of tlic cause of action, and it has been held that the cause must be particularly stated. In H'^urd v. Strickland, the Court held the notice bad, because there was a mis-statement of the cause of action; and though it w;is afterwards determined that the cause of action need not be specified, ^et if the plaintiff undertakes to specify it, he must- do so correctly. In the pre- sent case, the substantial cause of action is the conviction of the plaintiff, and the unlawful issuing of a warnmt to Bark. l*crli;ips it might not have been ncccssnry for the jjlaintiff to have named the j)erson to whom the warrant was directed; but having undertaken to do so, his notice is not sufficient to support an action for the seizure of his goods under a war- rant directed to the ronstaljle of Halifax. The rnsc is not in substance distinguishable from fl'urd v. Strickland, and, therefore, the rule must be Discharged, (a) Durrough J. was absent at cliambers. 6)i Smith v. Backwkll. H. T. 1828. SMITH ami Others v. BACKWELL.— p. 512. Where dcfcmlant pleaded delivery of a pipe of wine in satisfaction of the plaiit- tiif 's demand, the Conrt refused to permit plaintiff to sign judgment as lor want of a plea, upon afhdavit that the plea was false. To the plaintiffs' demand in this action the defendant pleaded the de- livery by him and acceplance by the plaintiffs of twenty pipes of port wine, in satisfaction. StephenSerjt., upon affidavit by one of the plaintiffs, that the plea was wholly false, — that the defendant never delivered, and plaintiff never accepted, twenty pipes of port, or any other wine, or any other thing, in discharge of the defendant's undertakings,— moved for a rule 7iisi to sign judgment as for want of a plea. After referring to Bleivett v. Narsdcn, 10 East, 237; Thomas v. Vandermoohn, 3 B. & A. 197; Barlley v. Godslake, 2 B. & A. 199; and Shadwell v. Berthoud,5 B. &. A. 750, in which the Court of King's Bench had set aside sham pleas of judgment recovered, and the like, on affidavits of their falsehood, he refied on lUchley v. Proone, 1 B. & C. 2S6, where the plea resembled the present, being an allegation of a ton of hemp delivered, in satisfaction of theplaintiff'sdemand; and though that casehad subsequently been over- ruled by the case of Merington v. Beckett, 2 B. & C. 81, yet as this Court was not bound by the practice of the Court of King's Bench, he urged them to adopt that which was the more wholesome rule, and sup- ported by no less than five decisions: at least, the defendant ought to be compelled to verify his plea by affidavit. Nothing could be more dis- graceful to the law, or prejudicial to the interests of justice, than allow- ing defendants to delay a creditor, by putting falsehoods on record. In Young V. Gadderer, 1 Bingh. 3S0, the only case in this court, the ap- plication failed, because it was not accompanied with an affidavit that the plea was false. A rule nisi having been granted, .9/;an^/e Scrjt., contra, relied on Merington v. Beckett, in which nil the preceding cases had been considered, and the Court of King's Bench, thinking they had gone too far, over-ruled Richley v. Proone. If the present application were acceded to, there would be an end of the system of special pleading, and the merits of all causes must be tried on affidavit. But the Court had no authority to call on parties to substan- tiate by affidavit the truth of matters they might advance in resisting a claim made against them. It was true, that when a party applied for leave to plead several matters, the Court were empowered to exercise a discretion as to what should be put on the record; but here there was no general issue; the defendant hail pleaded but a single plea, and the Court had no power to interfere. There was no affidavit that the plea had oc- casioned any delay, and the cause could not have been brought to trial sooner if the general issue had been pleaded, to which no objection could have been raised. The present application, therefore, went further than any that had preceded it. Stephen. In Thomas v. Vandermoolen and Bartley v. Godslake there was no application for leave to plead several matters, and yet the plea was set aside. Park J. I am of opinion that the Court cannot do what has been re- 4 BiXGHAM, 512. 63 quired. I lament these things, because from the affidavit which has been filed, and from the circumstance that it has met with no answer, I have little doubt that this is a sham plea. But we are asked to require that, which, except in one instance, has never been required, namely, that the defendant should verify his plea by affidavit. There is nothing on the face of it absurd or inconsistent in the allegation, that wine has been given in satisfaction of a demand. But in Bieivett v. Ma7\sdeii a plea of satisfaction by judgment recovered in the Court of Piepoudre, was just- ly deemed a mockery too glaring to remain on the records of the Court of King's Bench. Richley v. Proone was decided in one of those bye- sittings after the term had concluded, and was fully considered in Me- rington v. Beckett; and I entirely coincide with what fell from the Chief Justice in that case. In Young v. Gaclderer, though there had been re- peated promises to pay, the Court refused to set aside a plea of judgment recovered. There is great weight in the observation made on the part of the defendant, that here has been no application for leave to plead double; because upon such applications the Court is entitled to exercise a discretion, and that distinction was made in Bones v. Punter, 2 B. & A. 777. Here there is only a single plea; the defendant is under no rule to plead issuably, and we should exceed our jurisdiction if we acceded to the application. BtrRRouGH J. I object to this application in toto. By and by, it will be said that a defendant must not plead the general issue without an affidavit of its truth; that is often as false a plea as the present; but the principle of our law is, that the plaintiff must make out his case. With respect to pleas in abatement, the statute of Anne has required an affidavit of their truth; and if it had been thought fit to require an affidavit iu other cases, it would have been easy to have so enacted it; but the ab- sence of any such enactment, when the attention of the legislature had manifestly been called to the subject, shows that it was not deemed pro- per to extend the practice further. Gaselee J. Perhaps it is necessary that something should be done to abolish sham pleading; but the Court cannot interfere upon the pre- sent occasion. Where the plea has raised didcrent issues, lias been ex- ceedingly intricate, or has been a mockery of the proceedings of the Court, a discretionary power has sometimes been exercised by the Judges; but that cannot be done with respect to a single plea, which has nothing improper on the face of it. Rule discharged. The Court intimated, that in future similar applications should be dis- charged with costs. TUCKER and Othrrs, Assignees of JOHN ANTHONY CHLBERT, a B;uikrupt, V. JOHN HUMPHREY.— p. 5 Hi. The shippers, actinp for G., pnrrhascd, and paid for with their own money, flour at Stockton, which was sent l)y a vessel to I>ondon, and the invoice for- warded to (i. A manifest of the flfMir was also forwarded i)y tlie sluppcrs to a wharfinger in I^oiulnM, whose |)ractice it was tn (|(li\cr i:;(iO(ls tf) ilie consiK'ice named in the manifest upon ajudication, and till application to kee]) it on hoard G4 TucKEU V. IIuMPimEY. H. T. 1828. the vessel; if not applied for before the vessel returned, he landed it, and kept it in his \varil\ousf, to the order of the shipper; if the goods were to be deli- vered to order, he delivered them to persons producing either bills of lading or the shipper's invoices. G. was in the habit of having flour consigned to him at the wliarf, and sometimes sold it on board, sometimes when it was landed, and kej)! for liim in tlic wharfinger's warehotiscs. The flour in question arrived at the wharf on the 12th of April, but was not land- ed till the 22d; on the 17th, Infore any application by G., who had l)ccome bankrupt, the flour was claimed under an order from the shippers: Held, that the flour not luiving been landed, nor any application having been made by G., the shippers might stop in transitu. Park J. This case came before the Court upon a motion to set aside an award, in part, of a learned barrister, and wliich the Court, for the importance of it, desired might be argued as a special case. The action was an action of trover, and it had been referred by an order of tlie Chief Justice, since made a rule of Court, to the award of Mr. Archbold. The claim was for three several parcels of flour; one for the value of 260/. 10^. for which the arbitrator decides that the plaintiffs are to recover: one for fifty sacks; and he decides that for those the plaintiflTs are not to recover: and upon these two points no question now arises. The third parcel consisted of twenty-five sacks of flour, amounting to 52/. 10*.; and as to these, the arbitrator states a variety of facts, upon which he wishes to take the opinion of the Court, and which is the point upon which the ar- gument has been had. The question is, whether Messrs. Wilkinson, the shippers of the flour, had a right to stop it in transitu, under the cir- cumstances of the case. The facts found by the arbitrator are these: — *' The twenty-five sacks in question were purchased by Messrs. Wil- kinson and Company of Stockton, for the said John Anthony Gilbert, with their own money: they charged no profit upon them, but merely a commission of Is. per sack for purchasing them; and they shipped them, together with the remainder of a cargo of other goods, by a vessel named the Cumberland, bound for London. This vessel was consigned by IVIessrs. Wilkinson and Company to the defendant's wharf, and they sent to the defendant by post a manifest of the cargo; they sent also to Gilbert an invoice of these Iwenty-five sacks of flour, slating them to he bought and shipped for him on his account and risk. When a ship was thus consigneJ by Messrs. Wilkinson and Company to the defendant's wharf, they always sent a manifest of the cargo to the defendant by post, and in this manifest the difTerent items of the cargo, and their marks, &c. were inserted, and opposite to each item either the name of the con- signee or the words lo order were written. When such vessel arrived at the wharf, those goods to which the consignee's name was annexed in the manifest, were delivered to such consignee or his order, upon appli- cation; and those to which the words or order were opposite in the mani- fest, were delivered to the order of Wilkinson and Company, that is to say, to persons producing either bills of lading for the goods, or Wilkin- son and Company's invoices of them respectively. Flour thus appearing to bo shipped to order by the manifest, was always left on board the vessel, and not landed until such bill of lading or invoice was produced; but if no such bill of lading or invoice was produced by the time the vessel began to take in her return cargo, then the flour was landed and placed in the defendant's warehouses, and there kept to the order of the shippers. Gilbert, the bankrupt, was in the habit of having flour ship- 4 Bingham, 516. 65 ped for him from Stockton, and which came to the defendant's wharf; and Gilbert always in such cases cither sold it on board before itwaslanded, or it was landed and kept for him in the defendant's warehouses until he sold it, so that the defendant's wharf was always deemed the place of its destination. The twenty-five sacks of flour in question were shipped on board the Cumberland, on the 5th day of April 1824, and arrived at the wharf on the 12th, but were not landed until between the 22d and 26th of the same month. On the 17th day of the same month an order froni Wilkinson and Company, directed to the defendant, requiring him to deliver their twenty-five sacks of flour to Messrs. Atkinson and Cramp, was produced to the defendant by Cramp, and the flour was then claim- ed by Cramp on the part of Wilkinson and Company. Gilbert, at that time, was a bankrupt. He had committed an act of bankruptcy on the lOthday of April 1S24: on the 14lh a commission of bankrupt was there- upon issued against him, and on the 19th of the same month the messen- ger under that commission produced to the defendant the invoice of the twenty-five sacks of flour in question, which had been sent by Wilkinson and Company to Gilbert, as before m.entioned, and demanded the flour, which was refused to him. Messrs. Atkinson and Cramp afterwards landed the flour, and sold it for the account of Wilkinson and Company. The parties to this action have consented, that in case his Majesty's Court of Common Pleas shall be of opinion, that, under the circum- stances hereinbefore stated, the plaintiflsare not entitled to recover for the value of the said last mentioned parcel of flour, consisting of twenty-five sacks as aforesaid, then and in such case my award in favour of the plain- tifls, for the value of the said first and last parcels of flour above mentioned, amounting to the sum of 315/., shall be reduced by the amount of the value of the said last-mentioned parcel, that is to say, the sum of 52/. lO.y. aforesaid." Upon these facts it was contended by Mr. Serjt. Edward Laivcs, on behalf of the assignees, that by the arrival of the ship at the wharf the transit was over; that the wharf, though the goods were not delivered out of the hold of the ship, was to be considered as the warehouse of Gilbert, tlic bankrupt, just as much as if the cargo had been removed into one of the warehouses of the wharf, and had been marked by the bankrupt, warehoused in his name, or put under his lock and key. This has been well argued on both sides, and nobody can doubt tliat if such a state of things as is above supposcil had existed, such as the goods being put into a warehouse on the wharf, which the bankrupt, having no warehouse of his own, had been in the habit of using as his own, and marking or doing some act upon them, tlie transit would have been over. But the question is, whether tliat be the slate of things. The general nature of the right to stop in transitu has very properly not been argued: for although, comparatively speaking, such right has not been long known to the coinmon law, perhnps not above seventy yoars, having been at that time transplanted from the courts of equity; yet it has sinccbeencstablishedbysucha variety of decisions, that it is now regarded with favour by the former as a right which they arc always • disposed to assist, not |)roccc(ling at all on the ground of the contract being rescinded by tlic insolvency or bankruptcy of the consignee of the goods, but as an equitable right adopted for the purposes of substan- tial justice. IJut this case has been correctly argued iq)on the ground vol,. \\ . 9 <'>0 TuCKKU r. lluMi'iiia:v. H. T. 1828. whether the tiansitus was ooiitinuiii(!;, or whulhcr it was at an end and iletermincd. lOvcry case of lliis sort must dcj)CiKl on its own special circumstances. In some of tlie earlier cases, particularly in that of Hunter v. Beale, l^ord Mansfield^ who carried the doctrine of stoppage in transitu a great way, seemed to expect that the goods must come to the actual corporal touch of the vendee; but, in the subsequent case of JDU'on V. Baldwin, 5 East, 184, Lord Elknborough repudiates that extent of the doctrine, and puts it upon a better footing, and says, " the question is, whether the party, to whose touch ii actually comes, be an agent so far rejn'esenting the principal as to make the delivery to him a full, efl'ectual, and final delivery to the principal, as contra-distinguished from a delivery merely to a person acting as a carrier or mean of con- veyance to or on account of the principal in a mere course of transit towards- him. 1 cannot but consider the transit completely at an end in the direct course of the goods lo tiie innkeeper, and that they were afterwards under the immediate orders of the vendee." Apjdy that latter jirinciple to this case, and supposing merely for argu- ment that these goods had actually arrived on the wharf, yet were they ever under the immediate orders of the vendee ? On the contrary, the flour in question had arrived at the wharf on the 12th, but was not landed till the 22d ot the month of April: no act of ownership exercised overit by Gilbert; no invoice, no bill of lading ever produced by him, or any agent employed on his behalf, till the messen- ger under the commission claimed it on the 19th of the same month, the shipper having actually stopped it two days before; so that the very first act done upon this flour after the ship's arrival at the wharf, was done by the shipper before the transit to the hand or possession of the vendee was complete. Nothing, however, that I liave hitherto said, means to impeach the doctrine, first broached by the late Mr. Justice Chambrc in Richard- son V. Goss, 3 Bosv & Pull. 127; adopted and approved by Lord Jilvanle.}), when Chief Justice of this Court, in Scot I v. Fettit, Ibid. 469; and lately by my brother Bayley in the case of Foster v. Frampton, G 15. & C. 109. The doctrine was this, to which I, speaking only for myself on this point, fully accede, — that if a man be in the habit of using the warehouse of a wharfinger as his own, and make that the repository of his goods, and disposes of them there, the transilus will be at an end when the goods arrive at such warehouse. In the first of those cases the trader had no warehouse of his own, but used that of his packer for receiving goods consigned to iiim, and it was held that the transitus of such goods was at an end upon delivery of them to the packer. In Foster v. Framptou the vendee of several hogsheads of sugar, upon receivingnoticeof their arrival, took samples from them, and for his own convenience desired the carrier to let tliem remain in his warehouse till he should receive further direction: it was held upon the bankruptcy of the vendee, that the transitus was at an end, and the vendor could not stop them; so here, if Gilbert liad taken samples of the flour, or done any other act exerting his authority over them, that would have varied the case; but no such facts, nor any facts tantamount to these, are found upon this award. I forbear to go through all the mass of cases which have been decided 4 Bingham, ol6. ('^7 on tliis subject, LccaLise Uie\' would only fatigue the Court, aiul uelay the other important busings ot^ the term. I believe all of them wcr- quoted on one side or the other by the learned counsel, (a) I have look- ed at all of them, and the doctrine now stated by me is not impugne^l by any of them. One point only remains to be considered. It is supposed that the fact found by the arbitrator, viz. that Messrs. Wilkinson, when they shipped the flour, sent an invoice thereof to Gilbert, made an essential difference, and gave him, by virtue of the invoice, a perfect control over them. But this surely cannot be meant as a serious argument; even a bill of lading, while in the hands of the original consignee, unindorsed, cannot interfere with the vendor's right to stop the goods before they arrive into the possession or under the control of the consignee, if he become bankrupt or insolvent. If, indeed, the consignee assign the bill of lading to a third person for a valuable consideration bona fide, without notice of such circumstances as render the bill of lading not fairly and honestly assignable, the right of the consignor as against such assignee^is divested; for a bill of lading, so as above indorsed, transfers the property. But I have never before now heard it contended, except once, that the mere possession of an invoice, which is only a mercantile name for a bill of parcels or a shop bill, could bar the vendor's right. The very contrary to this has been decided in a case o{ Jlkcrman v. Ilumphrei/, tried before my Brother Burrough in December 1S23, 1 Carr. & P. 53; where my learned Brother decided that the delivery of a shipping note by the consignee of goods to a third person, with an order to the wharfinger to deliver the goods to such third person, did not pass the property in them so as to prevent a stoppage in transitu, by the consignor. ■ A verdict, thereforc,'upon the opinion of my Brother Burrough, pass- ed for defendant, with libcity for plaintifl'to move to enter a verdict for him. IVIr. Serjl. 7'erson who shall be proved to be either heir at law or otherwise entitled to receive it; and without wishing to dispute the connection of blood of Mr. John Calvert to Mrs. Mary Whitall, deceased, I must decline taking upon myself to decide upon that claim without more satisfactory proof in a legal manner. I am, &c. 4 th Nov. 1S2G. Edw. Frowd. On this evidence the jury, under tlie direction of the Lord Chief Jus- tice, who tliought the defendant's letter amounted to a disclaimer, found a verdict for the plaintilf. A rule ?iisl for a nonsuit was olitained on the ground, that the lessor of the plaintiff had treated the dcruiulant as his tenant, and tliat, there- fore, he ouglit to have had notice to (piit. liosanf/nel and Storks Serjts. shewed cause. The defendant's letter amounts to an express disclaimer of the title of the lessor of thi; plaintill", and if it be hucb, it is clear that notice to ([tiit is not necessary. JVildc Scrjt. contra. The letter contains no disclaimer, but merely cautious apprehension, and a request for further information U])on a mat- ter at that time < j i^ ' Cur. adv. vult. Best C. J. In the argument of plaintiff's counsel it has been assum- ed that the sole object of the 19 O. 2. was to prevent gaming under the pretence of insuring against the perils incident to navigation. On this assumption he has insisted that if it appears that a policy is not a gaming policy, and the precise words specified in the act are not used, the case IS not within the statute. The preamble of the act shews tliat gaming was the least of the evils that the legislature proposed to remedy. Ad- ventures on which gambling policies might be made, but which were not likely to be undertaken for the other purposes which it was the ob- ject of the statute to prevent, are exempted from its operation. The pre- amble states that policies of insurance with clauses of interest or no in- terest, or such as in case of loss made the policies sufficient proof of interest, were used to protect persons who were carrying on illegal traffic, and were made the means of profiting by the wilful destruction and capture of ships. Privateers, which carried no cargoes, and the crews of which were composed of more persons than it was safe to trust with the secret that the ships were to be wilfully destroyed or purposely exposed to capture; ships going to the territories of Sj)ain or Portugal, which were not likely to export wool (the exportation of which was in George the Second's reign the thing most dreaded by politicians,) or any other raw materials; or to import any articles that could interfere with the monopoly of Mritisb manufacturers; are exempted from the operation of the act. iMiis shews that gambling was not llie only thing guarded against. If a policy contains words to the same effect as those enumerated in the act, the case is within it, altlioiigli it nmy be manifest tliat it is not a gaming insurance. The temjjtatiun to frimdulcnt insurances is very great; the object to be attained by them is often easily accomplished; and the conscf|uences to that most valuable class of men, underwriters, and seamen, whose lives are often put in hazard owing to su'-h insur- ances, are dreadful. The case of the Kim^ v. Cndlinir and Easterbi/ and M^ Fiirhinc, 2 Russell on Crimes, 173S, in which I was counsel for two of the prisoners, and others that liave been brought before tbo courts of justice, prove that such frauds are committed. We cannot too strongly inforce all the provisions of this statute. If we held that un- less the words recited in the statute are introduced into policies, and they are not naming policies, tluy are valid, we shall render inopera- tive its provisions against liaudulcnt insurances and such as encourage rlnndestinc trade. The act does not say that policies conlaining certain specified words shall be voivl, but that " no insurance shall be made, in- 76 MuRPiiv V. Bell. E. T. 1828. tercst or no interest, or without further proof of interest than the poli- cy." The meaning of this clause is, that no insurance shall be eflected by a policy so worded as to entitle the assured to recover against the underwriters a certain stipulated sum of money, whether he had any interest in tiie ship or cargo or not, or that binds the underwriter not to require any other proof of the assured's interest but the admission of such interest in the policy. Whatever words may be used, if that be the efi'ect of the policy no action can be maintained on it. This is the only construction that will restrain the practices intended by this act to be prevented, and which is according to the import of the words used by the legislature. It was thought at one time that all valued policies were within the act, and when one considers that frauds by the loss of ships, may bo ac- complished by means of policies in which a higher value is put on arti- cles insured than they are worth, there was reason for thinking so. But the case of Lewis v. RuckeVy 2 Burr. 1167, has determined that policies only covering the prime cost of the goods are valid. In the case of Grant v. Parkinso?i, the policy declared, " that in case of loss the profits should be valued at 1000/. without any other valuation than the policy." Lord Mansfield at first thought that policy was void. On further consideration his Lordship said, " it is incumbent on the plaintiff to prove some interest : the meaning of the policy is not to evade the act of parliament, but to avoid the difficulty of going into an exact account of the quantum. I cannot distinguish it from a valued policy." If a policy then dispenses with all proof of interest, it is within the act, and void. If the plaintiff must prove his interest, and the policy only saves him the trouble of shewing its amount, it is a valued policy and good. Let us try the validity of the policy on which this action is brought by this test: " goods and merchandizes for so much as concerned the assured and assurers were and should be valued at 5 tierces coffee, valued at 27/. per tierce, say 135/. That policy to be deemed sufficient proof of interest." This is a full admission of all the assured would be required to prove, as well, as to his having goods on board, as to the value of those goods. The words, "should be valued at five tierces of coffee," admit that five tierces of coffee belonging to the plaintiff were on board. That would dispense with the necessity of proving that any coffee belonging to the plaintiff was on board. The words, " that policy to be deemed sufficient proof of interest," are of precisely the same im- port as the words, '* without further proof of interest than the policy." As no inquiry is to be made whether the assurtid had any property in the ship insured or not, it is, in effect, an insurance interest or no inte- rest. We are of opinion that the judgment must be arrested. Ju Igment arrested accordingly. WADS WORTH V. GIBSON.— p. 572. Bail in en'or not dispensed with where the error, though real, is only of form. 4 Bingham, 573. 77 DAVIES and Another, Assignees of HOW, a Bankrupt, v. WIL- KINSON.— p. 573. Defendant, an insurance broker, being sued for premiums received by him on policies subscribed by the plaintiff, was allowed to set off a loss on one of those policies effected in the name of the defendant at the request of T., on goods in which T. was interested, but on which the defendant had a lien to a greater amount than the set-off claimed. Action to recover the amount of premiums received by the defen- dant as broker, in respect of certain policies of insurance subscribed by the bankrupt. At the trial before Best C. J., London sittings after Trinity term last, the defendant claimed a set-off to a greater amount in respect of a loss due from the bankrupt on his subscription to a policy effected by and in the name of the defendant, at the request of Thompson and Co. of Leeds, on goods in which Tiiompson and Co. were interested, but on which the defendant had a lien in respect of a debt due to him from Thompson and Co. for premiums to a greater amount than the set-off claimed. A verdict was found for the plaintiff subject to the opinion of the Court, whether the defendant could insist on this set-off, Thompson and Co. being interested in the goods insured, and having ordered the insurance to be effected. Wilde Serjt. having accordingly obtained a rule nisi to set aside this verdict, on the ground that the defendant might have sued the bankrupt in respect of the loss, the policy on vvhich it arose having been effected in the defendant's name; and that he was therefore entitled to set off a debt he might have recovered against the bankrupt by action, Taddy and E. Lawes Serjts. shewed cause, and referred to Rosier V. Euson, 2 M. & S. 112; Parker v. Beasky, 2 M. & S. 423; Gold- smilh V. Lyon, 4 Taunt. 534; Minett v. Furesler, 4 Taunt. 541. H'ilde, contra, was stopped by the Court. Best C. J. I think this case falls within the principle laid down in Parker V. Bcaslcy. Tlic facts areas follows: — Tiie bankrupt subscribes a policy to the defendant, upon which a loss has been incurred. The defendant is indebted to the bankrupt for prcnruinis. But liiougli (he defendant's name was on the policy subscribed by the bankrupt, the goods insured belonged to Thompson and Co.; and it has been con- tended that the defendant cannot set off the amount of the loss, because he is not interested in the goods. ]}ut he might have sued the bank- rupt on the policy, and though the goods were not his, he had a lien on them, for Thompson and Co. were indebted to him for premiums be- yond the value of the goods. In Parker v. Bcaslry, there was no del credere commission, but tlic broker had a lien on the goods insured, and the principle on which the decision turned, was, that the broker's name being on the policy, he had a right to sue the underwriter; and that where a party has a right to sue on the policy, and has a lien on the goods insured, he may set of! in an action for premiums, the sum to be recovered for the loss. The present defendant stands in the same situation; hv had a right to sue on the policy subscribed by the bank- rupt, and a lien on the goods insured; and it wouki be strange to say 78 Davies v. Wilkinson. E. T. 1828, that he niiajlit sue the bankrupt, and yet not set off the debt to be reco- vered in sucli suit. Thompson can never claim on the policy, because he must first ilischargc his debt to the defendant, and he cannot do that williout giving credit for the sum charged by the defendant in respect of this loss. Lord Mansfield says, that the doctrine of set-off, as con- sisting with equity, ought to be carried as far as it can. Minett v. Fo- rester does not touch the present case, because the material fact on which our decision rests, is not to be found tliere; it no where appear- ing that the policy, the loss on which it was proposed to set off, was effected in the name of the party who claimed the set-off. But inde- pendently of the decisions, looking at the statute of Geo. 2., — the right of the broker to sue on the policy subscribed by the bankrupt, — and his lien on the goods insured, — we think him clearly entitled to the set-off he claims. Park J. Whether on the justice of the case or on principle, this rule ought clearly to be made absolute. The cases have proceeded by de- grees, and Koster v. Eason, and Parker v. Beasley, warrant the Court in the decision they now pronounce. In Rosier v. Easoti the broker had a del credere commission, and the Court thought he was entitled to set off a loss on a policy effected in his own name. In Parker v. Beasley I took unsuccessfully the dis- tinction which my brother Taddy has taken to-day, but the Court lliought the principle the same whether the broker acted under a del credere commission or not. In the present case there was no del credere commission, but the policy was efl'ected in the name of the broker, who might have sued the underwriter upon it; he had a lien upon the goods insured, and the owner of them could not recover without allowing the broker credit for the amount. The same argument was raised in Koster v. Eason, but Lord Ellenboroits^h said, '-'another answer to the claim as to the ten policies is this, that it does not appear that the house of Eason and Co. have paid their principals, though they have given them credit for these losses and returns; and if they have not paid them, the allowance of this claim may either interfere with the rights of such principals, or may leave Swan's estate exposed to a further claim from those principals. Suppose the house of Eason and Co. to become insolvent and unable to satisfy their guarantees, if the allowance of this set-off were to take away from the principals the right of claiming upon Swan's estate, it would be tloing clear injustice to the principals, who ought to have the power of look- ing to Swan as their principal debtor, as well as to Eason and Co., the guarantees for his solvency; and if the allowance of this set-off were not to take away from the principals the right of claiming upon Swan's estate, it would be great injustice to Swan's estate, because in that case it would be liable to pay the principals a dividend, after having made Eason and Co. a payment to the extent of the whole demand." The case of Parker v. Beasley was that of brokers who had effected policies on goods in their own names, on account of their principal, and had accepted bills on account of tlie goods, so that they had only a lien to that extent, and yet tlie Court held it sufficient, and decided on the distinction which sup- l)orts the principle on which wc now determine. Le IJlanc J. said, "the case of Koster v. Eason established this, that where' the broker himself is a party to the contract, so as to enable him to maintain an ac- 4 BiXGiiAM, 573. 79 tion in his own name, if he has acquired an interest by a del credere commission, he is entitled to a set-olV. It is the same thing if he ac- quires an interest by advancing on the credit of the consignment.'' The defendant here has an interest by lien, and a right to sue on the policy. BuRRouGH and Gazelee Js. concurring, the rule was made Absolute. MACBEATH v. ELLIS and Two Others.— p. 57S. Where a party is detained in custody for a judgment-debt, the attorney who was concerned in the cause for one of the detaining creditors, cannot, without a power for the purpose, sign for hin\ the note for six-pences. BARTRAM v. FAREBROTHER.— p. 579. P., to whom goods were consigned, said, on their arrival at a wharfinger's, that he would not have them, and directed an attorney to do what was necessary to stop them. The attorney, on the 3d of November, gave the wharfinger an or- der not to deliver them to the consignee, which order the consignor wrote to confirm on the 6th; on the Tth the goods were claimed under an execution at the suit of A.: Held, that the contract between P. and the consignor was rescinded; that the tranaitua was not ended by the arrival of the goods at the wharf and the order given by P.; and that the consignor had a right to stop in transitu. Trover for thirty-eight hogsheads of ale. At the trial of the cause before Best C. J., London sittings after Trinity term last, the facts ap- peared to be as follows: — Mungo Park had ordered ale of the plaintiffat Edinburgh, the invoice of which reached Park on the 29tli October 1S2G, when, being in insol- vent circumstances, he signified to his clerk that he would rot iiave the ale, and desired him to direct Vincent, an attorney, to do what was ne- ces.sary to stop the goods. November 2d, twenty-five hogsheads arrived, and on the 3(1, Vincent wrote a notice to the wharfinger, at whose wharf they were to be landed, not to deliver the ales to the consignee. On the 4th, thirteen more hogsheads arrived; and on the Hlh the whole were landed on the wharf. On the same day the plaintiff's agent wrote from Edinburgh 1o the wharfinger, confirming the order not to deliver the ales to the consignee. On the 7th, Vincent sent the wharfinger another notice not to deliver any of the consignment. On the same day, the defendant, sheriff of London, claimed the goods under an execution issucfl against Mungo Park, by Adam Park, his uncle, and left the warrant for seizure. On the 11th, another agent of the plaintiff demanded the whole, and On the 1.3lh, the defendant, the shcrilT, removed the ales under tlir execution. A verdict having been given for the pbiintifT, fVi/de Serjt. moved to set it aside, and enter a nonsuit instead, on 80 IVvuTRAM V. Fahehrother. E. T. 1828. the ground that Miingo Park had never rescimlod his contract with the ])hiinlitV, but had merely endeavoured to stop the goods zn transitu^ wliic'h was not ciVoclually done; first, because the transit was at an end; and secondly, l)ecause Vincent was not the agent of the plaintifl', the consignor, who alone had the power to stop, but of Park, the consignee. A rule nisi was granted, and Cross Scrjt. shewed cause, contending tliat the contract was rescinded by Park's saying he would not have the goods, and the plaintiff's as- senting to the stoppngc ordered by Vincent; which assent, by ratifica- tion, made Vincent his agent for that purpose. He relied on Salle v. Fie/(/, 5 T. R. 211, and ,^lkin v. Barwick, 1 Str. 165. The Court here called on IVilde to support his rule, who cited Richardson v. Goss, 3 li. & P, 127; Nedte v. Ball, 2 East, 123; Smith v. Field, 5 T. R. 404; Barnes V. Frecland, 6 T. R. 81. Best C. J. This is an action against the sherilF, for taking in execu- tion certain goods as the goods of Mungo Park, at the suit of one of M. Park's fami!^^ Now, when can an execution creditor take goods which his debtor has purchased? When the contract between the vendor and vendee is complete. If the contract be only suspended, that is enough to prevent the execution creditor from taking. But the contract here was altogether put an end to. The goods had been sold by a person in Scotland. On the 3d of November the vendee says, " I decline having them;" he then proceeds to effect his repudiation of the contract in a clumsy way, by telling his clerk to order Vincent to stop the goods; but what he proposed and intendedwas,toget ridof the contract. This pro- posal, however, unless assented to by the vendor, would not have suf- ficed for the purpose ; but notice was given to the wharfinger on the 3d, and on the 6th, one day before the goods were claimed in execu- tion, the vendor agreed to the proposal. It has been asked, what would have been the consequence if the vendee had revoked his order to stop the goods? But it is sufficient for the present case to say that it was not revoked, and that on the 3d of November there was a clear intention to put an end to the contract. Now, without referring to cases, it is perfectly clear, that till the rights of third persons have in- tervened, contracting parties have a right to rescind a contract, and here, at the time the contract was rescinded, no such rights had inter- vened. But the point has been decided in Jltkin v. Barwick. I do not go the whole length of the positions laid down in that case ; it is sufficient, however, if we should have decided in the same way, though not entirely for the same reasons. That was a case of bankruptcy, and it should be said for Pratt C. J., that the doctrine touching matters done in contemplation of bankruptcy, was subsequently introduced into Westminster Hall. The case, however, was confirmed by Salte v. Field, where the property of goods bought by an agent for the vendee, and delivered by him to the vendee's packer, in whose hands they were attached by the vendee's creditors, was held to revest in the vendor, so as to avoid the attachment, by the vendee's having countermanded the purchase by letter to his agent, dated before such delivery, though not received till afterwards, the vendor assenting to take back the goods. That case was not decided on the ground that no contract had existed. Lord Kenyan says, <* It was in the power of the buyer and seller to put 4 Bingham., 579. 81 an end to the contract as if it liad never existed; and it is stated that Iho proposition made b\' the purchaser to rescind the contract was acceded t^ by the sellers.'' That shews that the principle was, not that no contract had existed, but that a contract had iDcen rescinded. Salle v. Field was recognised in Smith v. Field, where the decision was different, be- cause the rights of third parties had intervened; but Lord Kenyan toolc care not to impugn the principle cstalilished in Salle v. Field, s:\y\n:^ " ■ AxFouij V. Pekki'.tt, E. T. 1828. man v. Fiaher, Coup. I;i5; althougli some of the reasoning in tlie case was not agreed to. Suite V. Field came next, I argued the case, and did not succeed. It was determined tliat a contract had been entered into, and that it had been rescinded. In this all the Judges concurred. In Smith v. Field, which followed shortly afterwards, the Court recognized the decision in Salte V. Field, but distinguished Smith v. Field from it, because the rights of third parties had accrued before the contract was rescinded. And in Barnes v. Freeland where the preceding cases were all recog- nized, tlie Court said, " The contract here was not rescinded before the insolvency of the vendee. After the contract for the sale of the iron, it was actually delivered to the vendee, and put into his cellar, and he gave a bill of exchange for the payment of it; then the contract was com- plete, and could not he rescinded by any subsequent act of the parties, so as to affect the interests of tliird person." The question seems to me clear in point of law, and the rule must be discharged. BuRROUGH J. The question is clear in point of fact, and that is the chief thing in cases like the present. The goods were stopped before they were delivered to the vendee. Gaselee J. concurred, and the rule was Discharged. AXFORD V. PERRETT.— p. 586. AUowine; two years to elapse without proceedins^s. Held to be a breach of the condition in a replevin-bond to prosecute the replevin without delay, and that the obligee might recover on such breach, although judgment o^non-pros was never bigned in the county-court. Tins Vv'as an action on a rei)Ievin-bond, for not prosecuting with effect and without delay the suit in replevin, according to the condition of the bond. Pleas: 1st, iioii est faotmn; 2d, after setting out the condition on oyer, that defendant did prosecute with effect and without delay; and, od, that he did duly appear and prosecute according to the condition of the bond, and that the suit was still pending. Replication, that the de- Icjndantdid not prosecute his suit according to the form and effect of the condition in the bond. At the trial before Gas^he J., last Salisbury Spring assizes, it appear- ed that for more than two years previous to the commencement of this action, the defendant had taken no step in the replevin cause; that bhortly before the commencement of this action he applied to the county clerk to enter continuances and proceed with the cause, which was re- lased, the county clerk alleging then, and at the trial, that after three courts had elapsed wilhout any jjroceedings being had, the cause, by the practice of that county, was out of the court. For the defendant, the predecessor of the county clerk stated, that during all the time he held t!;e office, a cause was considered to be in existence till -a non-pros was entered; and that, unless that were done, continuances might be en- tered after any lapse of time. A verdict was taken for the plaintiff, the learned Judge being of opinion, that the defendant liad not prosecuted the replevin suit wilhout delay. 4 Bingham, 586. 83 Wilde Serjt. now moved to 8et aside tliis verdict, and, assuming that the testimony of tlie older clerk of the county was the more worthy of credit, contended, that, according to that testimony, the replevin suit was still existing; and tliat, wliile a cause existed, according to the practice of the court in wiiicli it was pending, it could not he said to he delayed: he referred to Brackcnbury v. Pell, 12 East, 5S5, where, to an action on a replevin-bond conditioned for the defendant to prosecute his suit with effect, it was held sufficient to plead that the defendant did appear at the next co«nty court, and prosecute his suit, which was still d^pendijig, and that it was not sufficient to reply that the defendant abandoned his suit, and that it was not still pending, without shewing also how it was determined; and to Ehvorlhy v. Bird, 2 IJingh. 258, to shew that a discontinuance could not take place except by act of the Court. But The Court, observing that the decision in Brackenhvry v. Pell was on special demurrer to the replication, and not after a verdict which found that the defendant had not prosecuted his suit according to the effect of the condition, held, that after the time which had elapsed without any proceedings, the replevin cause, by analogy to the practice of the higher tribunals, was out of court, and that, at all events, the defendant had not prosecuted his suit without delay. Rule refused. HUNTv. HLAQUIERE.— p. 5SS. Bail at, tlie request of the defeiuhuit's attorney, admisbiblc, if not indemnified by him. KNRlllT and Anotlier v. LEGII.— n. 5S9. n. v.. hfint^ indetiled to plaiiitiiTs, a?;recd to deposit with phnntifTs, as agent tn P., _ bill of exchanKC, as security for a suin advanced tiy 1'.; and having deposited tlie bill with plainiifTs, wituc to them as follows; — "The bill you will hold, sub- ject to 1*. 's advarxe; and also foi- any advances or c.Npcnscs you have against me." The bill having been, at the instance of the acceptor, surreptitiously taken by the defendant, Meld, that the plaintiffs might sue, and recover against him in trover, aUhoiigli 1*. had previously sued him, and had recovered by the award of an arbitrator the amount of his advance. Tuis was an action of trover, brought by the plaintiffs against defen- dant, to recover damages for the conversion of a 1/dl of exchange by the defendant to his own use. At tlie trial of the cause before Best C. J., at the sittings in London, after Michaelmas term 182fi, the jury found a verdict for the plaintiils, for the damages mcniionrd in the declaration, sul'ject to the opinion of the (^niirt on the following case: — 'J'he bill of exchange, for the conversion of which the action was brought, was drawn 3tb November li>21, by one Thomas Claughton upon the defendant, rcquesling him, ciiihlcrn months afterdate, to pay to the saifl Thomas Chnighton's orcU-r '3.300/., value received, which bill was afterward >, and brfoic il« urgoliation, arcfptrd by the defendant. 84 Knk.iii i\ LiK-.n. E. T. 1828. The bill lia\"^iiig I)ccn indorscil hy Claughtoii, he, on the 8th Decern* her 1S-*1, cU'livercd the same, with other bills of a like description, to one Thomas Faiiiiiarson, who, with his consent, delivered the bill to one John Everth, for the purpose of raising money thereon by discounting or procuring a ilcposit thereon, and such money, when raised, was to be employed, partly in making up the capital of Everth in a gun-manu- factory ill which he was interested, and for which Claughton engaged to advance funds to a larger amount than the bill in question, and partly for other purposes of Clauglilon, in which Everth had no concern. In the month of February lS2'-i Evertii applied to the banking-house of Sir Peter Pole and Co., who consented to advance to him the sum of 1000/, upon the security of the bill; and it was agreed between Everth and the bankers that, inasmuch as Everth had not at that time any ac- count at the said banking-house, the amount of the said advance should be debited in the account of plaintiiT, Kniglit, kept by him at the bankers, he being the solicitor, both of the said bankers and of Everth, and that the bill should be deposited with the plaintiff. Knight, as agent for the bankers, until the sum of 1000/. should be repaid by Everth. The bill was accordingly placed in the hands of plaintiff, Knight, for that purpose, and on the 29lh March the money was advanced. On the 2d April 1S22, Everth addressed a letter as follows to the plaintiff Knight: '< The bill of 3500/. drawn by Thomas Claughton upon Thomas Legh, of liyme Park, upon which you were kind enough to procure me the advance of 1000/. from Sir P. Pole, Bart., and Co., you will please to hold, subject, of course, to that 1000/, as, also, for any ad- vances or law expences you have against me, or that may be advanced or incurred on my account, or that of the patent gun-factory, for which purpose, more particulai-ly, the bill was handed to nic. "From the conversation which took place with Mr. Claughton, on Sunday last, I should not be surprised if proceedings should be institu- ted by that gentleman against my friend JMr. Farquarson, his former agent, against whom he appears to be much irritated, v/ithout, as far as 1 can see, any adequate cause: and in that event he necessarily must re- quire some professional assistance, and, as I know from experience, he cannot be in more able hands than yours, I shall feel 'obliged by your acting as his solicitors, and I will engage to pay all the expences you may incur on his account, arising out of such proceedings, for which, also, you will hold the bill as your security." Prior to, and at the date of this letter, Everth was under acceptances to a large amount, exceeding the amount of the bill in cjuestion, of which acceptances the plaintiffs were- aware, none of which were ever paid by him, but all afterwai'ds taken up by defendant Legh. At the time of the date of the letter, the plaintilTs were, and for many years previously had been, the solicitors for Everth, who was then in- debted to them in a consiilcrable sum for professional business transact- ed on his account, and became further indebted lo them, subsequently to the date of the letter, both on his own account, and, also, in respect of the gun factory. In the month of August 1^22 Everth applied to tlie plaintiff Knight, stating thatajjerson of the name of Thornhill could get the bill discount- cJj provided the parties were salis-Qed that the liand- writing ef the 4 Bingham, 589. 85 drawer and acceptor were genuine, and requested the plaintili" Knight to entrust the bill with Thornhill to get the same discounted, which the plaintiff Knight, with the approbation of Sir Peter Pole and Co., con- sented to do. The bill was afterwards taken by Thornhill's agent to the banking house of Coults and Co., the bankers of the defendant, and shewn to Sir Edmund Antrobus, one of the partners of that firm, to ascertain whether the acceptance of it was in the hand-writing of the defendant; whereupon one Sweetman, who was authorised by Claughton to seize and detain the bill, asked Sir E. Antrobus to let him look at the indorsement, took it out of the hands of Sir E. Antrobus, went away with it, and by the authority of the defendant detained it, and the jury found that defen- dant thereby converted the bill to his own use. The said sum of 1000/. so advanced by Sir P. Pole and Co. still remaining due and unpaid to them, they, in Easter term 1S24, brought an action of trover against the defendant and Claughton for the conversion of the bill as aforesaid, in the Court of King's Bench, which cause being by order of the Court referred to a barrister, (a nol. pros, being first entered as to Claughton,) the arbitrator in November 1825, found and awarded that the defendant was guilty of the premises laid to his charge in the declaration in the action of Sir P. Pole and Co., and that they had thereby sustained damages to the amount of 11S2/. 9.9. 4d. which he awarded in respect of the premises; and which sum of money and the costs were paid accord- ingly. The arbitrator in his award recited, that on the hearing of the arbitra- tion, the plaintiffs Sir P. Pole and Co. proposed to produce before him evidence to prove that certain persons, other than themselves, had claims upon and were interested in the said bill: and that if the same, when arriv- ed at maturity or afterwards, had been paid in full, part of the money so paid would have been paid to and for the use of such other persons; and the arbitrator further recited, that he refused to receive such evidence, and that he had not awarded any damages against the defendant in re- .•*pcct of the claims of any persons other than the plaintiffs Sir P. Pole and Co. The case was left by the Chief Justice to the jury with a direction, that if they thought the plaintiffs were ignorant of the limited authority of Everth, and had no reason to suspect it, they should find for the plain- tiffs; if otherwise, for the defendant; and the jury found for the plain- tiffs. The question for the opinion of the Court was, whether the plaintiffs were entitled to recover damages to the extent of their lien upon the bill, for the conversion thereof by the defendant as stated in the case. If the Court should be of opinion that tlie plaintiffs were entitled to recover, the verdict was to stand; if not, a nonsuit was to be entered. fVilcJe Serjt., for the plaintiffs, cited Morris v. liobinson, 3 B. & C. 19G. J^cakc Serjt. for tlie defendants. Best C. J. The plaintilfs in this case had a general property in the bill, for the detention of which they sought to recover damages, and a right to the possession of it. The bill was not in the hands of Knight merely as agent to Sir P. Pole and Co. ; he held it as his own security for a debt due to him from Everth, fur jirofessional services; and it must 86 Knight v. Legh. i^. '1'. 1828. be observed that the banking house on advancing tlie 1000/. did not debit Everth with that sum, but Knight; it was, lliereforc, agreed tliat he should hold it in liis own right as against Everth, but he had also a right to hold it as against the bankers, hs a security for the repayment of the 1000/, ailvanced to Hlverth, in case the bankers should have called on him(Knight) to pay that 1000/., he being the person debited by them. However, supposing Knight to have held the bill merely as agent of the bankers, still he was a lawful bailee, and had actual possession, which would have entitled him to support the action as against a wrong-doer. Even if the bill had been pledged to the bankers, the instant their debt was paid. Knight held it as a security for his own bill of costs, and that right had arisen previously to the commencement of this action. There is, therefore, no objection, in point of form, to his recovering in this action; nor is there any in substance, because the bill was the plaintilfs' secu- rity for the due remuneration of services performed. It is objected that they ought not to recover, because Sir P, Pole and Co. have recovered already in respect of the same bill. It may be esteemed doubtful, whe- ther Sir P. Pole and Co. had any right to sue; and whether the action, even as far as they were concerned, ought not to have been brought in the name of Knight ; the arbitrator, however, has in that ac- tion properly limited the damages to Sir P. Pole's interest in the bill. But supposing that they were entitled to sue, it does not follow that ano- ther person, who has a distinct claim in respect of the same bill, may not sue also. The case referred to shews that the same plaintiff may bring separate actions against several parties in respect of the same in- jury, where he does not obtain adequate redress in the action against the party first sued; and there seems to be no reason why different plain- tifl's who have different rights, should not sue the same defendant in re- spect of separate injuries, though arising out of one transaction. Park J. The whole case turns on four lines in Everth's letter of April 2d. << The bill of 3500/. on which you were kind enough to pro- cure me the advance of 1000/. from Sir P. Pole and Co. you will please to hold, subject of course to that 1000/.; as also for any advances or law expenses you have against me, or that may be advanced or incurred on my account, or that of the patent gun factory, for which purpose more particularly the bill was handed to me." Here was the lien created, and the plaintiffs were entitled to hold the bill till they had obtained full remuneration. BuRROUGH J. concurred. Gaselee J. No doubt Sir P. Pole and Co. were entitled to 1000/. on the security of this bill, and the plaintiffs were also entitled in respect of their advances and law expenses. Strictly speaking, perhaps, the two actions were proper, and it must have been immaterial to the defen- dant whether the first were brought in the name of Sir P. Pole or any other person; if he has to pay the costs of two actions it is his own fault. The general pioperty in the bill, however, was not in Sir P. Pole and Co. but in the plaintiffs; Sir P. Pole and Co. had only a spe- cial property in it. It has been objected that the plaintiffs only held the bill as agents; but even if that were so, they were agents only till Sir P. Pole and Co. were paid; when that was done, they held the bill for Everth, and Everth then says, "hold it for yourselves, to cover your advances and law cx])ensc.'<;'' that vested in the plaintiffs the gene- 4 BiNGMAM, 607. 87 ral property in the bill, and the judgment must consequently be for them. Judgment for the plaintifi's. PRICE and Another, Assignees of LATHAM, a Bankrupt, v. HEL- YAR.— 597. A sheriff, who takes in execution the goods of a bankrupt, is liable in trover to his assignees, although he has no notice of the bankruptcy, and a commission has not been sued out at the time of the execution. Ex parte Lady HUTCHINSON, Conusee.— p. 606. An affidavit of the caption of a fine taken before a consul abroad, is insufficient. SIORDET V. HALL and Others.— p. 607. Where damage was done to a cargo by water escaping through the pipe of a steam-boiler, in consequence of the pipe having been cracked by frost, — Held, that this was not an act of God, but negligence in the captain, in filling his boiler before the time for heating it, although it was the practice to fill over- night when the vessel started in the morning. Action against the defendants, as carriers by water, for not deliver- ing a cargo in proper condition. At the trial before Best C. J., London sittings after Trinity term last, the defence was, that the mischief was done by the act of God, which was one of the risks excepted in the bill of lading. It appeared that the cargo was shipped on the 10th February, and the vessel, a steam vessel, was then tight and staunch. The captain expecting to start tiic following morning, caused the wa- ter to be pumped into the boiler on the evening of the 10th, as that ope- ration required two hours, ?nd the heatmg about three more. For this reason, it was his practice, and the j)racticc of steam vessels generally, when they started in the morning, to till the boiler the preceding evening. Tlie next morning It was ascertained that the pipe which conducts the water into the boiler had cracked, that a considerable tjuantity of water had escaped by this means into the liold, and that much of the cargo was damaged. The pipe was a sound and good one, and its burst- ing was occasioned by the action of frost on the external |iortion of it. The Chief Justice told the jury, that if the water had been unnecessa- rily placed in the boiler, or considering the season of the year, impro- perly left there without heat to prevent the action of frost upon the pipe, the mischief was not occasioned bv tht; art of (Jod, but by gross negli- gence. The jury having found for the plainlifl". 88 Batthews v. Oalindo. E. T. 1828. Taddy Scrjt. obtained a rule Jiisi for a new trial, on the ground of an alleged misdirection by the learned Chief Justice. JVilde Serjt., who was to have shewn cause, was stopped by the Court, who called on Taddy to support his rule, who cited Sjnith v. Shepherd, Abbott on Shipping, pt. 3. c. 4., 4th edit. p. 263. 2G9. Best C. J. No one can doubt that this loss was occasioned by ne- gligence. It is well known that frost will rend iron; and if so, the mas- ter of a vessel cannot be justified in keeping water within his boiler in the middle of winter, when frost may be expected. The jury found tliat this was negligence, and I agree in their verdict. The rest of the Court {a) concurred, and the rule was Discharged. {a) Park J. was at chambers. BENNETT v. DAWSON.— p. 609. Affidavit, that defendant Avas indebted to plaintiff in 20/., for money lent on a bill of exchange, drawn by S., accepted by defendant, and overdue and unpaid: Held, sufficient, without saying "lent to defendant." The affidavit to hold to bail in this case was, that the defendant was indebted to the plaintiff in 20/. lent on a bill of exchange for 37/. bear- ing date February 6th 1628, drawn by Stracey, accepted by the defen- dant, and overdue and unpaid. Laives Serjt. obtained a rule nisi to cancel the bail-bond, on the ground that the affidavit was defective, in not stating that the money was lent to the defendant, or in what character the plaintiff claimed; he relied on Fenton v. Ellis, 6 Taunt. 192; Humphreys v. Winsloiv, 6 Taunt. 531, and Machu v. Fraser, 7 Taunt. 171, as authorities to shew that the character in which the plaintiff claims must appear on the affi- davit. Wilde 'iiCY]i. who shewed cause, relied on Bradshaw v. Saddington, 7 East, 94, where a similar affidavit was held sufficient. Best C. J. As the cases arc conflicting, we must follow common sense. Perjury might be assigned here, and that is the true principle to go on. We, theref^ore, think the affidavit sufficient, and the rule must be discharged. Rule discharged accordingly. BATTHEWS v. GALINDO— p. 610. A kept mistress is not incompetent to give evidence for her protector, although slie has passed by his name, and has appeared in the world as his wife. Action on a bill of exchange. The defence was usury; to prove which, at the trial before Best C. J. (London sittings after Trinity term last), the defendant called Ann Jakcrs; to the admission of whose 4 Bingham, 610. 89 tpslimony TVihh Serjt. ohjected, that she had always heen held out to llie world as the wife of the defendant: as to whicli the evidence was, that she had lived in the same house with him for some years, passing all the time by his name; that she had been seen with him in his bed- room, and also walking with him in public; that there were children in the house where they resided, one of whom the dcfer.dant frequently had with him, and admitted to be his. The witness stated that she was not the defendant's wife., and was permitted by the Court to decline an- swering the question, to whom the children in the house belonged. The Chief Justice, on the authority of a case on the Chester circuit(<'7) in 1782, before Lord Kenyan, rejected the testimony of the w'itness, thinking that a person in her class ought not to stand in a higher situa- tion than a married woman, and be invested with a degree of credit which the law refuses to a wife. A \erdict having been obtained for the plaintiff, E. Lawes Serjt. obtained a rule nisi for a new trial, on the ground that the testimony of this witness had been improperly rejected; the rule for excluding the wife of a party never having been extended to his mistress. Wilde Serjt. shewed cause, referring to a case cited by Richards C. B, in Campbell y. Twcvilow, 1 Price, SI. Park J. 1 am clearly of opinion that this rule must be made abso- lute. I agree in the case cited from Price's Rep., but I think it has no bearing on the present. Lord Kenyan was right, because the prisoner iiimself had called the female his wife through the whole trial, and Lord Kenyan said that, after that, he could not call on the Court to receive her as his mistress. ]3ut the mere circumstance of a woman's cohabit- ing with a man, though it goes to her credit, is no ground for rejecting her testimony. BuKRouGH J. It appears to have heen admitted throughout the trial, that this woman was not the wife of thodefendant. If he had been sued for a debt contracted l)y her, he might have shevvn that she was not his wife, and, as to reputation, it cannot be spoken of, inter vivas; it regards otdy the dead. 'I'hc case in Price lias no application; for the prisoner called the woman bis wife thiough the whole of the trial, and he could not, upon the same occasion, be permitted to turn round and say she was not his wife. I have known women in this situation examined ovrr and over again; in criminal cases as well as otlicrs. (iASKLKE J. ^Vithout laying it down as a principle that there are no rases in which a jjarty can put himself in a situation to preclude him from saying lliiit a woman, \\]\o lias jiassed as his wife, is not surh, I tliiiik the witness in tiiis case ought to have been received. In I\lace\. ('(idcll, ('owp. 'Z'.V.\, the plaintiff Mace kept a public house, had a licence, and said she was mari'ied to one Penrice. She went to the Ex- cise (Jjlicc, had bis inme entered in the books, with a note in the mar- gin "married." Penrice had the licence;, and eoiitinued in possession of the house and goods from that time till he absconded, committing thereby an act of bankruptcy. JMaccr, the plaintiff, first claimed the goods in queslifin, under a hill of srde from Penrice; but, afterwards, as her own original proiM-rty, and denied ihnt I'enrice and she were mar- in) Kcfcntdloby Hirliards C. B. in Cinii/ibeU v. Twenilov, 1 I'lice, «1. VOL. w. . 12 90 Bell v. Bilton. E. T. 1828. ried: The Court held, that, after a solemn declaration by the plaintifi' that she was married to Penrice, and that these were tlie goods of Pen- rice in her right, she should never be allowed to say, that she was not married to him, and that the goods were her sole property. That is sound law, upon which I have acted at Nisi Prius. The ground on which we grant a new trial here is, that the' evidence as to the situation of the female was not sufiicient to exclude proof that she was not the defendant's wife: throughout the whole of the trial it was taken she was his mistress, and she was protected from answering questions as to the parentage of her children. In Campbell v. Tivemloio the Court gave no opinion on the point, but the circumstances of the case were very different from the present, for the female had constantly been held out as the wife of the party: the decision, however, turned on the ground that the Court would not in- terfere w ith the award of a barrister. Best C. J. I am clearly of opinion that my decision at Nisi Prius was wrong; but I was led into error by the decision of Lord Kenyoiij which, I am satisfied, bears directly upon the point. It cannot be ma- terial when or where the declarations are made, as to the character in which the female stands; the principle of that case is, that if the female be held out as the wife of the party, she must, in a court of justice, be considered as such; nor can I accede to the position that a party would not be liable in an action for goods furnished to a female whom he had suffered to pass as his wife. But the ground on which I think my de- cision at Nisi Prius wrong, is this, that the principles on which the re- jection of testimony rests, have been greatly narrowed in late times, and directed rather to the credit than the competency of witnesses. It is now generally agreed that the principles of our law of evidence are too narrow, and that much inconvenience is produced by a too frequent exclusion of testimony. In Phillipps's treatise on evidence, which I. refer to, not as authority, hut as proof of the understanding of Westmin- ster Hall on the subject, the same conclusion is drawn from the decision of Lord Kenyan, as I drew from it at the trial; but the true principle to follow on such occasions is that which is stated in Starkie, that the wit- ness is not to be excluded, unless dejiire wife of the party. Where the situation of the female may be changed in a moment, and is so different from that of a wife, who cannot be separated, it is much better that the objection should go to the credit than to the competency of the witness. Rule absolute. BELL V. BILTON.— p. G15. Before suing the surety of the grantor of an annuity in respect of arrears of the annuity, where the grantor has become bankrupt, the value of tlie annuity must be ascertained by the commissioners, although the annuity was granted, and the grantor became bankrupt, previously to September 1825. ALLISON V. IIAYDON.— p.G19. A person having a certificate from the College of Surgeons cannot charge for at- tending a patient in a fever, unlei^s he have also a certificate from the Apothe- caries* Company. 4 Bingham, 628. 91 LEDBETTER, Assignee of HOLLIS, v. SALT— p. 623. Affidavit that a party is indebted to deponent in the sum of 100/. and upwards, nnd is become bankrupt, is, as against deponent, conclusive evidence of the bankruptcy. WILLIAM BIRD, an Infant, by J. BIRD, his next Friend, v. HOL- 13 ROOK.— p. 628. • The defendant, for the protection of his property, some of which had been stolen, set a spring gun, without notice, in a walled garden, at a distance from his house: the plaintiff, who climbed over the wall in pursuit of a stray fowl, having been shot, — Held, that the defendant was liable in damages. This was an action upon the case. The first count of the declaration alleged that the defendant liad placed in a certain garden of the defend- ant a ccn, tin instrument called a spring gun, loaded with gunpowder and shot, Willi certain wires communicating with the lock of the said gun, by the treading upon which the gun could and might be let off; by means whereof the person against whom the same should be discharged, might and could be much hurt, maimccf, and wounded; and thereuj)on it be- came the duty of the defendant, after he had so placed the said gun, not to have suffered it to remain so loaded without giving notice or warning, to prevent persons having occasion to enter into (he said garden, from treading upon the wire, in ignorance that the same was so set, and there- by letting off the gun antl being injured by the discharge thereof. Yet the defendant, not regarding his duty in that behalf, vvrongfull}'^, wilfully, and mgligentl}' suffered the gun to remain in his garden so loaded and set, Without giving any such notice or warning whatever; by means whereof the plaintiff, having occasion to enter into the garden, and not having any notice, warning, or knowledge, or any means of know- ledge that any spring gun was set in the garden, trod upon the wire at- tached to the lock of the gun, by means whereof it was let off and dis- charged, and the shot discharged therefrom were dri\en against the I)lainliir, and one of his legs was 'maimed, anil the plaintiff was other- wise injured, and became disordered, and so continued for a long lime, by means whereof he suflered grcjat j)ain, and exjiended a large sum of nionry in his cure. The second count alleged, it was a duty of the defendant not to allow the spring gim to remain loaded in the day-time without notice, to pre- vent persons from treading; upon the wire from ignorance that it was set. The third count described the spring gun as a certain dangerous en- gine, made for the purpose and with the intent to lacerate, maim, and wound persons, and alleged it was the duty of the defendant not to suffer thesprinj; gun to remain in the garden without using due and proper and icasonable means or care to prevent such persons as might enter into or be in the garden, from ignorantly and unwittingly treading upon the wire com- municating with the lock of the ^un;aiul that the defendant diil not take due and proper and reasonablt! rare to prevent persons who mii;ht enter into or be in the garden, Ironi ignmantly and unwittingly treading upon Die wire ofthc gun, and thereby causing il to be let off Thai defendant nr- 02 Bird v. Holuuook. E. T. 1828. glccteil and wholly refused so to do, and on thccontrary,contrivingand in- lendinp; to injure the plaintifV, wrontrfully and injuriously permitted ihc ^i\n to remain so loaded and set with a wire, by means of which it mi//on, 7 Taunt. 518; Iloli V. Jra/cs, 3 B. & A. 308. Alcreivelher Scrjt. for the defendant, cited Blilhc, v. To])ham, 1 Rol. Abr. 88, Cro. Jac. 158; Brock v. Copcland, 1 P^p. 203. IVildc in reply. Best C. .f. I am of opinion that this action is maintainable. If any thing which fell from mc in Holt v. If'ii/cs were at variance with the Di BiuD V. lloLuuooK. K. T. 1828, opinion I now express, I sliouKl not hesitate to refract it; but the p;rquntl vn which the jnd^niciit of the Couit turned in tliat case, is decisive of tlie present; and I should not have laboured the point that the action was not maintainable in that case on the ground that the plaintift'had re- ceived notice, unless I had deemed it maintainable if no notice had been given, ^^bbott C. J. says: '< Considering the present action merely on the ground of notice, and leaving untouched the general question as to the liability incurred by placing such engines as these, where no notice is brought home to the party injured, I am of opinion that this action cannot be maintained." liaylcy J. says: " This is a case in which the plaintiff had notice that there were spring guns in the wood." "The declaration assumes the law to be, not that the mere act of placing these guns in a man's own ground is illegal, and punishable by indictment, but that a party doing that act may be liable to an action, provided ho (Joes not take due and proper means, by giving notice, to prevent the injury which those engines are calculated to produce." Ilolroyd J. says: " I am of opinion that this action is not maintainable, on the ground that the plaintifl' had notice that the spring guns were placed in the wood in question." "So far as he was concerned, the cause of the mischief could not be considered as latent, and the act of letting off the gun, which was the consequence of his treading on the wire, must be considered wholly as his act, and not the act of the person who placed the gun there." And I am reported to have said, expressly, "Hu- manity requires that the fullest notice possible should be given, and the law of England will not sanction what is inconsistent with humanity." It has been argued that the law does not compel every line of conduct which humanity or religion may require; but there is no'^act which Christianity forbids, that the law will not reach: if it were otherwise, Christianity would not be, as it has always been held to be, part of the law of England. I am, therefore, clearly of opinion that he who sets spring guns, without giving notice, is guilty of an inhuman act, and that, if injurious consequences ensue, he is liable to yield redress to the suf- ferer. But this case stands on grounds distinct from any that have preceded it. In general, spring guns have been set for the purpose of deterring; the defendant placed his for the express purpose of doing in- jury; for, when called on to give notice, he said, "If I give notice, I shall not catch him." He intended, therefore, that the gun should be discharged, and that the contents should be lodged in the body of his victim, for he could not be caught in any other way. On these princi- j)les the action is clearly maintainable, and particularly on the latter ground. The only thing which raised any doubt in my mind was the recent act of parliament; and if that had been purely prohibitory, there would be great weiiflu in the aryrument which has been raised on it; be- cause in a new prohibitory law we have the testimony of the legislature that there was no previous law against the thing prohibited. But the act is declaratory as to part, and j)rohibitory as to part; declaratory as to the setting of spring guns witliout notice, and the word "declared" is expressly introduced; prohibitory as to setting spring guns, even with notice, except in dwelling-houses by night. As to the case of lirock v. Copeland, l^ord Kenyan proceeded on the ground that the defendant had a riglit to keep a dog for the preservation of his house, and the plaintiff, who was his foreman, knew where the dog was sta- 4 Bingham, 628. 95 tioned. The case of the furious bull is alt02;ether differenf : for if o mnn places such an animal where there is a public footpath, he interferes with the rights of the public. What would be the determination of the Court if the bull were placed in a field where there is no footpath, we need not now decide; but it may be observed, that he must be placed somewhere, and is kept, not for mischief, but to renew his species; while the gun in the present case was placed purely for mischief The case of the pit dug on a common has been distinguished, on the ground that the owner had a right to do what he pleased with his own land, and the plaintiff could shew no right for the horse to be there. Those cases, therefore, do not apply to one, where an instrument is placed solely for a bad purpose. In Deane \. Clayton, I incline to the opinion expressed by my brothers Park and Burroitgh. But in Deane v. Clayton, the plaintiff, the master of the dog, had a right to hunt in the wood adjoining that in which the dog was spiked; there was no visible boundary between tiie two woods; the manner in which the plaintiff and defendant occupied their respective properties was evidence of an understanding between them that the enjoyment should be mutual; and the dog was impelled onwards by his natural instinct in pursuit of the game. Looking at the authorities, therefore, Deane v. Clayton is out of the question; and Ilott v. Wilks is an authority in point. But we want no authority in a case like the present; we put it on the prin- ciple that it is inhuman to catch a man by means which may maim him or endanger his life, and, as far as human means can go, it is the object of English law to uphold humanity, and the sanctions of religion. It would be, indeed, a subject of regret, if a party were not liable in da- mages, who, instead of giving notice of the employment of a destructive engine, or removing it, at least, during the day, expressed a resolution to withhold notice, lest, by affording it, he should fail to entrap his victim. Pahk J. I adhere to the judgment I gave in Deane v. Clayton, but shall confine myself at present to the facts before the Court. Whetlicr the recent act of parliament be altogether a new law, or only declaratory of the old, I abstain from deciding; certainly, as far as it makes tho setting spring guns without notice an offence, it seems to be a new law, but, in the present case, I found my decision on the circumstance of the defendant having omitted to give notice of what he had done, and his even expressing a desire to conceal it. In Ilott v. JJ'il/t-s, the whole Court proceeded on the ground that the plaintill had had notice: and in Deane v. Clayton there was notice, but under the circumstances it could not be said to have been brought home to llie trespasser. It has been contended, that though notice may deprive a party who has received it of any right to recover, yet that it has nowhere been derided that it is imperative on the party using the engine to give notice. But in Ilott v. fnilcs; the Court, one and all, decide on the ground of notice, and jlb- bntt C. .[. closes his judgment thus: ** (considering the present action merely on the ground of notice, and leaving untouched the general question as to the liability incurred by placing such engines as these, where no notice is brought home to the party injured, I am of opinion that this action cannot be maintained." It has been asked, where has it been laid down that notice must be given? I answer, by x'lhhott C..T. in the passage I have just read; and by Bnylry J, in the same case; 96 Hakkis v. Bf.avan. E. T. 1828. '' Allhoii{r. 1012. fnidr, contra, cited 1 Wms. Saund. 23-la. note 3; Com. Dig. Pleader, C. 3f); flarth. '.); Vin. Abr. Title, 1). \G. F. 1; Ctirmck v. B/rf^rave, I !?. .V !'.. 530; Bro. Abr. Pleadings, 33; Year-Book, 24 Ed. 3. 75. Bkst C. J. The jjlainlill's title is very im|)orf(;ctly staleil, but it is sullicient after verdict. No dnid)t, when assignees of a rever.sion sue, they must deduce title from the original lessor. The pliiinliOs have done so: they allege that the original lessor was S(;ised, and though there is ambiguity in the expression, it is cured by pleading over, ami the fmding ol the jury. (iASEf.KK J. In the case from 11 Modern Ueports, referred to in Vin. Abr. 'I'ille, I)., (fi/Irl v. /{usrornh, (I I Mod. I7<»,) covcwiant was brought by an heir, for rent, ag.iinst the assign(!e; but il. was not set f(Mih in the declaration that the ancestor was seised of any estate when In; mad(; the demise: the C'oiirl hrdd that bad, because it diil not appe.ir that the ancestor had any estalft; and S'cf/voi^e v. Ifdiv/t'inSy Cro. ('ar. 571, being referred tO; flo// ('. J. said, '< The case of .S'tv/iv/i^r v. /ft/i/- hin.s is well on issue jr)ined, because it shews the father was s(;isf;d. The case F. I. does not appear to have been after veidift. The rule therefore must be Discharged. VOL. XV. 13 98 liAunuuN r. MouRis. E. T. 1828. RADBURN V. MORRIS and BOTTOMLEY.— p. 619. B., called as a witness for the tlefenclaiit in an action hroiu^ht I)y the i)laintifr for a barge wliich \V. hail ])lacc(l in the hands of defeiulant, and which, it was al- leged, B. had sold to the plaintiff first, and then to W., was holden a compe- tent witness for the defendant, liaving been released by W. Trover for a barge. The plaintifl' claimed the barge under a piircbase from Buckman. The defendants, who were partners, claimed it under Wilson, who, it was alleged, had also purchased it of Buckman. At the trial before Burroitgh J., London sittings after Michaelmas term, Buckman was called as a witness to prove the defendant's right to the barge, but was rejected, as having an interest in the cause, lie was then released by Wilson, Morris, and his partner, jointly, by a re- lease having only one stamp; by Morris and his partner, by a release signed by Bottomley only; and by Wilson severally; but it was held the releases did not restore his competency; and a verdict having been given for the plaintiff, Bompas Serjt. obtained a rule nisi for a new trial, on the ground that the witness had been improperly rejected. IVilde Serjt. shewed cause, and cited ,d(/amson v. Jarvis, 4 H'lngh. 66 ; Piesley v. Von Esch, 2 Esp. N. P. C. 606; James v. Hat- field, 1 Str. 548. Bompas contra, referred to Carter v. Pearce, 1 T. R. 164; Mra- hams V. Bunn, 4 Burr. 2254. Best C. J. I am clearly of opinion that the defendants could not sue Buckman: any action they could have maintained in case the plaintiff liad recovered, must have been brought against Wilson, under whom they claimed; if so, no release was necessary from them to Buckman. I doubt whether a release were necessary even from Wilson; because, if so, it would be necessary in many cases for a hundred persons to release in succession; and it is better that objections to the competency of a witness on the score of interest should be conhned to his interest in the immedi- ate cause. But if it were necessary for Wilson to release, I am of opinion that he has sufficiently done so. W^here at the time the instrument is executed the transaction has occurred out of which the future action, if any, is to arise against llie witness, there is no reason why a party should not bar himself with respect to that transaction, though it might be other-* wise with respect to causes of action which had not arisen at the time the release was executed. Park J. I conhnc my opinion to the last point: the witness was, at all events, rendered competent by the release from Wilson. Morris and his partner could never liave sued the witness, and Wilson, who might perhaps have been placed in a situation to sue him, has effectually releas- ed every claim to arise out of the transaction in dispute. Burrough J. declined to deliver any opinion. Gaselee J. The defendants could not sue Buckman, and therefore it is unnecessary to s.'\v whellicr the first release were valid or not, though I am inclined to think it was, because it related to a transaction in which ihe three relessors were all concerned. But as an action could only have been maintained ugainst Buckman by Wilson, his release is suffcient. Rule absolute. 4 Bingham, 653. 99 ROUTLEDGE v. GRANT.— p. G53. 1. Defendant having offered to purchase a house, and to give plaintiff six weeks for a definitive answer, Held, that before the offer was accepted, the defendant might retract it at any time during the six weeks. 2. Averment, that jilaintiff was entitled to a term of thirty-two years in the pre- mises, under a contract with A., and that plaintiff having agreed to take the ])rcmises, defendant was ready to grant him a lease of thirty-one years: Plaintiff having only a twelve years' term in the premises.and shewing no written contract with H. for a term of thirty-two years. Held, a material variance. 3. Defendant offered to purchase a house upon certain terms, "possession to be given on or before 25 th July;" plaintiff agreed to the tei'ms, and said he would give possession on the first of August, Held, no acceptance of defendant's offer. Assumpsit. The declaration stated (first count) that the plaintiff was possessed of a term in a dwelling-house, to expire 25th Ueceml)er lS5b'; and that defendant agreed on tlie 2yth April 1S25, upon receiving a lease for twenty-one years, at 250/. a year rent, with the option of having tlie time extended to thirty-one years, on giving six months' notice, and, upon having possession on the 25tli July then next, to pay plaintiff 2750/., and take the fixtures at a valuation. Averment of plaintiff's readiness to grant the lease. Breach; refusal to accept it, and to take the fixtures at a valuation; and non-payment of the 2750/. The second count alleged the plaintilTto he entitled to a certain term, to wit, a term of thirty-two years, in the dwelling-house, under a certain contract hetween the plaintiffand Anthony llermon, who was authoriz- ed in that behalf; and then stated the agreement with the defendant, and the breach, as before. The third count alleged plaintiff to be possessed for the residue of a certain term, to expire 25th December 1S56; and the agreement, tender of lease to defendant, and breach, as before. At the trial before Ih-sl C. J., London sittings after Michaelmas term, it ajjpoarcd, that on the ISth March 1825, the plaintiff received a note from the defendant touching the j)remises, in these terms: — '*Mr. Grant's proposal. "To j)3y a premium of 2750/., upon receiving a lease for twenty-one years, with the option (u|)on giving six months' previous notice to the landlord or his agent) of having the lime extended to thirty-one years, paying the same yearly rent as before, for sucii extended term of ten years beyond twenty-one years. ''Rent, 250/. *^ uiulertakini:; to try after term, Stni/h v. 7>c Outer House in conunou loi in, and in respect of the absence of the defender was appointed to the roll, anil being; accordingly enrolled in the regulation roll for tlie Outer House, by course whereof the same came in and was called on the 25lli day of February KSO^J, the day and date hereof, in presence of Lord Arn)adale, Ordinary in the Outer House for the time, when the said ^Ir. Henry David Inglis, for the pursuers, resumed the lybel, and craved ilecrect in terms thereof: and the defender having not only been lawfully summoned to the action as aforesaid, but also oil and divers times this day publicly called by a macer from the bar, as use is, yet he failed to ajipoar, as was clearly understood by the Lord Ordinary. In respect of all which his Lordship held the defender as confcst on the verity of the lybel, and account lybelled on and produced and decerned in ab- sence, in terms of the lybel. And so the said Lords gave and pronoun- ced their decreet and sentence in the said matter in manner aforesaid, and ordain letters of horning on fifteen days charge, and all other exeolls needful to ))ass hereon in form as cHeirs. Extracted upon this and the three preceding pages by "Alexander Menzies." By a decree of the same couit of July 1801, that court adjudged that certain heritable property to which Hunter was entitled in Scotland, should belong to Smith, Stein, and Co., in payment and satisfaction of the sum of 417/. 6^. 3d. with interest from the 11th of June 1799: and by another decree of the same date, the court adjudged that certain other heritable property of Hunter's should belong to Smith, in payment and satisfaction of the sum of 75/., with interest from the 11th of June 1799. Hunter haj no notice of any of these decrees; but a Scotch advocate proved that by the law of Scotland the Court of Session might, after such proclamations as were mentioned in these decrees had been made, pro- nounce judgment against a native Scotchman, who had heritable property in that country, for a debt contracted in Scotland, although the debtor had no notice of any of the j)roceedings, and was out of Scotland at the time; that a person against whom such a ilecrec was pronounced might at any time within forty years, but not after, dispute the merits of such decree; and that the decrees adjudging the heritable property to the creditor would not operate as a satisfaction of his debt during the period in which the debtor had a right to dispute the validity of the first judg- ment. He also proved that when decrees adjudged interest, but did not specify llic time from which it was to run, the interest was payable from the time of the citation. In July 1819, the East India Company received in London, from the registrar of the Supreme Court of Judicature at Port William, in Bengal, a certificated copy of Hunter's will; but as late as July 1822, the defen- dant, in answer to an a])plication for payment, wrote to the plaintiffs as follows: — "Captain Forrest is informed that Hunter is dead, and that he, Cap- tain F., is the executor; but it would not be proper for him to act until he receives an authenticated will to that cffecU, to be proved here. Cap- tain F. will write out to India without delay." 4 Bingham, 686. 117 He dill not take out probate till March 1824. There was no other executor in Great Britain. At the trial it was objected that an action did not lie in our courts on this Scotch decreet, it having been obtained in Hunter's absence, and witliout notice to him; that the plaintiflTs were barred by the statute of limitations; and that interest could not be recovered, the original de- creets having specified no day from which it should run. Buchanan x.Rucker, iCampb. 63, 9 East, 192; WilliamsY. Lord Bagof,3B.8i.C. 772, and Cavan v. Stewart, 1 Stark. 525, were cited on the first point, and Murray v. East India Company, 5 B. & A. 204, on the second; but a verdict was taken for the plaintiifs, subject to the consideration of these points. IVilde Serjt. moved for a new trial and in arrest of judgment on these grounds, and a vn\cnisi having been granted, Bosanquet and Taddy Serjts. shewed cause. First, this action lies on the Scotch judgment. They cited the statute 54 G. 3. c. 137; Fisher V. Lane, 3 Wils. 302, 2 Bl. Rep. S34; Buchanan v. liucker, 9 East, 192. Secondly, the operation of the statute of limitations did not commence till there was some person in Great Britain, against whom the plaintiffs could proceed, and as late as July 182:2, the defendant had not only not taken out probate, but proposed to write to India to ascertain whether or not there was any valid will. Murray \. E. I. Company; Raiolinson V. Shaxu, 3 T. R. 559; Wentworth's Office of Executor, 41; Toller 471; Wentvvorth, p. 36. Thirdly, tlie testimony of the Scotch advocate disposes of the objec- tion touching the time for which interest is to be paid; at all events the omission, if material, is cured by the decrees of 1804, fVilde, contra, referred to Fisher v. Lane; Buchanan v. liucker, 1 Campb. 66; Plowdcn, 2S0 b. ; Com. Dig. Administration, B. 9; Cro. Eliz. 92; Wentw. Ofl". Exor. 38. Cur. adv. vult. Bf.st C. J. This was an action brouglit by tlic assignees of Stein and Co. bankrupts, against the executor of the will of James Hunter. On the 3Ist May 1799 the testator acknowledged himself to be in- debted to Stein and Co. in the sum of 447/. 6.y. 3() Dortii.As V. KoijRKST. E. T. 1S28. A mtuiMl-lv.)rii sii!))iM>t ol' .iny country, quitting that country, I)ut leavini^propcrty iiml^T ihc protection of its law, even during his absence, owes obedience to tliosc laws, particularly when those laws enforce a morid oldinjalion. The deceased, before he left his native country, acknowledged, under his hand, that he owed t!ie debts ; he was under a moral obligation to discharge those debts as soon as he could. It must be taken for granted, from there being no p!ea o^ plene adminisiravit, that the deceased had the means of p-iying what was due to the bankrupts. The law of Scot- land has only enforced the pei-formance of a moral obligation, by making his executor pay \^ hat he admitted was due, with interest during the time that he deprived his creditors of their just debts. The reasoning of Lord Ellenboroufi^h, in the case of Buchanan v. Eucker^ 1 Campb. 63, and 9 East, 192, is in favour of these decrees. Speaking of a case decided by Lord Kenyan, his Lordship says, in that case the defendant had property in the island, and might be considered as virtually present. The Court decided against the validity of the at- tachment, because it did not appear that the party attached ever was in the island, or had any property in it. In both these respects that case is unlike the present. In the case of Cavan v. Steivart, Lord Ellen- borough says. You must prove him summoned, or, at least, that he was once in the island of Jamaica, when the attachment issued. To be sure if attachments issued against persons who never were with- in the jurisdiction of the Court issuing them, could be supported and enforced in the country in which the person attached resided, the legis- lature of any country might authorize their courts to decide on the rights of parties who owed no allegiance to the government of such country, and were under no obligation to attend its courts, or obey its laws. We confine our judgment lo a case where the party owed allegiance to the country in which the judgment was so given against him, from being born in it, and by the laws of which country his property was, at the lime those judgments were given, protected. The debts were contract- ed in the country in which the judgments were given, whilst the debtor resided in it. The only other case that has been mentioned is that of Williams v. Lord Bugol ; in that case a summons to appear, and an attachment to compel appearance issued at tlie same time, and were returnable at tlie same time. These proceedings were not only contrary to justice, but contrary to our law, and the court from which these proceedings issued was governed by English law. Upon the second question we are of opinion that the replication is an answer to the pleas of the statute of limitations. The words of the 21 Ja. 1. c. 16. s. 3. are, that the action shall be brought "within six years next after the cause of such actions or suits, and not after." Although the injury of which the plaintiffs complain has existed more than six years, yet they had no cause of action until there was some person wilii- in the realm against whom the action could be brought. Cause of action is the right to jirosecute an action with effect ; no one has a complete cause of action until there is somebody that he can sue. The deceased was never in England after the cause of action accrued against him; after his death there was no person in England against whom the plaintiffs coidd proceed, until tlie defendant took upon himself the execution of his 4 Bingham, 686. 121 will. The delendant tlid not act as executor, or prove the will of the deceased, until 1S24. An executor may do many acts before he has" proved the will, and when he has proved the will, his ria^ht to the tes- tator's property has relation to the time of the testator's death, but we do not think that any action can be maintained against him as executor, until he has taken upon himself to act as such, or has proved the will. One who is appointed an executor may renounce. It would be injustice to allow actions to be brought against one appointed executor, who never meant to act as such, before he had an opportunity of renouncing. If he be liable to actions before he has acted as executor, or proved the will, his liability must arise on the instant of the death of the testator, and many actions might be brought against him before he could renounce, and from these actions he could not be relieved without expense and trouble. All that the passages in Plowden, 2S0 b., and Com. Dig. (B 9.) tit. Administration, to which we were referred, prove, is, that an executor may be sued before he has proved the will. If he has acted as executor he may be sued as executor, whether he has proved the will or not. In the present case the defendant had not acted before 1824, when he obtained probate. In liatvlinsoii v. Shaw it was determined that if a debtor makes his creditor one of his executors, the creditor, not having proved the will, or acted in its execution, may sue the other ex- ecutor for his debt. A man cannot sue as plaintiff who might be sued as defendant. In Jol/'Jfe v. Pitt, 2 Vern. G94, it is stated by the report- er to have been agreed, that no laches can be attributed to a man for not suing whilst there was no executor against whom he could bring his action. I presume that this point was agreed to by the counsel for all the parties. The report then states, that '< the Chancellor inclined to be of opinion that the statute of limitations was not to take place." This point, however, was not decided by the Court. In JVebster v. fVebster, 10 Ves. !J3, it appeared that the testator died in 17S6 ; the will was proved in 1802. The Lord Chancellor said, that as there was no repre- sentative until 1802, there was no person who could be sued, and there- fore the statute of limitations could not be pleaded. His Lordship's at- tention was afterwards called to an allegation on the bill, that shewed that the executor had taken possession of the testator's property pre- viously to 1792, upon which he allowed the plea of the statute of limi- tations, and said there w;is not otdy a cause of action, but an opportuni- ty of suing in 1792. This decision is an authority in point, to shew that the .statute only runs from the time that an executor has either acted or proved the will. 'J'hc replication in this case is a good answer to thu plea. The postea must l)r> (l<:li\ frrd to the plaintilfs, and the verdict en- tered for them, fur 8G2/. Judgment for the plaintill's. DITCIIA.M v. ClIIVIS— p. TOG. PlaintirTallcj^od that dofcndnnt, havinp agreed to convey her safely by his coach from London to Hlackliciitli, nci;lrctcd his duty, by ihrowiiiK her df)\vn, &r Defendant's roacti ran from Cliarini; Cross to Ularklieatli, and plainlitTgot up at The Klcpiiant an(t Castle ; l)iit defendant had inscribed on liis coacli " Lon- don to Blarkhcath:" Held, no variance. VOL. XV. 1*> 122 DiTciiAM V. Cmvis. E. T. 1828. Case against the defendant, a coach proprietor, for not safely carry- ing the plaintiff from London to Blackhcath. The declaration stated, that the defendant was owner of a stage-coach running from London to Blackheath, and that the plaintifl, at his request, agreed to become an outside passenger, to be safely carried from London to Blackheath, whereupon it became the defendant's duty to use proper care in carrying lier: that defendant, not regarding his duty, did not take proper care, but permitted the horses to move on while the plaintiff ■was getting up, whereby she was thrown down with great violence, and was much bruised and wounded. At the trial before Park J., London sittings after Michaelmas term, it appeared, that the defendant's coach was licensed to run from Charing Cross to Blackheath ; but that the defendant would not evade the stamp duty by going through the city of London ; and that the words London to Blackheath were painted on his coach ; that the plaintiff, a female of sixty, was (at the Elephant and Castle, St. George's Fields,) in the act of gettingup into the dickey (the hinder part) of the coach, assisted by the cad, when the coachman, whose face was turned towards Greenwich, drove swiftly off ; in consequence of which the plaintiff fell, and was se- riously injured in the knee. It was objected, that as the plaintiff got up at the Elephant and Castle, there was no proof of the allegation in the declaration, that she had agreed to go from London to Blackheath, nor that the defendant's coach ran from London to Blackheath, the variance was fatal. The learned Judge reserved the point, but a verdict was found for the plaintiff. Taddij Serjt. having on these grounds obtained arule?i2« to set aside the verdict and enter a nonsuit instead, IVilde Serjt. now shewed cause, and referred to Biirbia;e v. Jakes, 1 B. &P. 225; Frith w. Gray,4>T. R. 561,n.j Drewryv. Twiss,4:T. R. 558. Taddy and Jlndrews Serjts. supported the rule. Best C. J. I have no objection that it should be said of me that I al- ways entertained a strong impression against deciding on the groundof va- riance. That impression will never induce me to overturn the law; but I see enough here to relieve the ])laintiff from tiiis objection. The agree- ment here must be taken according to the intention of the parties, and by London, they meant, not the city, strictly speaking, but what is usually called London: and if we wanted assistance to find such a construction of the word, the defendant has furnished it to us, for if London means the city only, he never performs his contract, for he never starts from or passes through tiie city. It must, therefore, mean some place which in common parlance is styled London; and if Westminster be included, even with its separate jurisdiction, a fortiori, may the Elephant and Castle be included, which is nearer to the city than Westminster. The contract here, is a contract to cany from that place which the parties understood to be London, and the defendant has shewn what his under- standing of the word is, from the inscription on his coach, and the place from which he starts. That this is the proper construction of the contract, may be collected from the case of Burbigew. Jakes, in which the de- claration states, that the plaintiff was possessed of a messuage atSheerness. At the trial it was proved that the house stood in the parish of Minster, which is contiguous to Sheerncss, and usually goes under that name: the 4 Bingham, 706. 123 variance was held to be immaterial. That case bears us out in saying that the plaintifl' has correctly described this contract as being a contract to carry her from anyplace within the ambit of that which is usually called London. Park J. concurred. Gaselee J. 1 cannot deem this allegation immaterial, but I think the verdict may be supported on the grounds stated by the Lord Chief Justice; and I rely on the conduct of the defendant for the construction to be put on his contract to convey from and to London. What would he say, if a passenger arriving at Charing Cross, were to refuse to pay on the ground that the engagement was to convey him to London? The case oi Burbige v. Jakes is in point; the house described to be in Sheer- ness, was not in Sheerness, but in Minster, which is in the same district, and tiie Court held that in substance that supported the allegation. The rule, therefore, must be Discharged. FOTHERGILL v. WALTON and RONDEAU.— p. 711. Where administration had been taken out, the Court refused, without tlie au- thority of the administratrix, to discharge defendant out of execution after the death' of the plaintiff", although his administratrix and his assignees (he having been a bankrupt), disclaimed all interest in the action. Lawes Serjt. obtained a rule, calling on the administratrix and assignees of the plaintiflr(he having been a bankrupt), to shew cause why tlie defendant, Rondeau, should not be discharged out of custody as to the execution in this action, on the ground that the plaintiff had sued as a trustee only, and that his administratrix and assignees disclaimed all right, title, claim, or interest in or to the damages recovered. Rondeau's affidavit slated, that under a charter-party entered into by the defendants, the ship Ehzabeth, then lying at Havre de Grace, was to proceed to Terceira, and plaintiff engaged to ship and take on board at Havre six pipes of brandy, the freight and amount of wliich was to be taken out in fruit at a certain price; in consideration of which, the defendants agreed to pay freiglit, and guarantee a full cargo home: That the defendant, Walton, went to Terceira, and contracted for fruit in barter for brandy; lliat the ship arrived in ballast, without the brandy; that the master wrote for the cargo to be delivered; that the defendant answered, he was ready with a cargo, on delivery of the brandy; but, that without the brandy, the merchant who had contracted to furnish the fruit, refused to deliver it; that the ship returned to l-^ng- land; that an action was commenced against the plainliir by defendants for not shipping the brandy; that the proceedings in such action were delayed by reason of the necessity of sending out a commission lo Ter- ceira, and the action was not fitially settled at the death of the plaintiff, whicli happened in 1827; that sliortly after defendants had sued plain- tiff for damages, plaintiff commenced an action against defendants for freight, and recovered ajudgment for damages and costs, 4IS/. lSj,(a); (fl)Sec FolhcrgUl v. Il'ullon, H Taunt. .^76, in wliicli it was hnldcn,ti\at the de- livery of the brandy •)y I'othcrijill was not a condition precedent. 124 FoTiiKR<;iM. V. W ALTON. E. T. 1828. that UDilcr tliis jiidgnicnt Koiulcau was taken in execution, in INIay 1820, bv the shcrilVof Surrey, anci still remained in execution; that the plain- tiff had no inlcrest in the charter or damages, hut that IMessrs. Attwood and others were tlie owners and interested, and that plaintifl acted under their orders; that defendants relied on the delivery of the brandy, in faith of which defendant, Walton, went abroad and contracted for fruit and cargo, whicli contract he being unable to execute for want of the brandy, a loss was incurred of 2000/.: that defendants ollered to plain- tiff, to allow a set-off of 418/. 18.s. recovered against them out of defen- dants' damages of 2000/.; that plaintiff refused this, and required de- fendants to release their whole claim; that plaintiff became bankrupt in 1822, and on his examination disclaimed all interest in this action; that he was indemnified by Attwood and others, the owners of the ship; that his name was used for form; and that he would have liberated de- fendant, but could not; that plaintiff died intestate, and that letters of administration were granted to his widow, who disclaimed all interest in this action; that the assignees also disclaimed damages; that the de- fendants were ready to allow the owners credit in account for damages; that the defendant. Rondeau, was seventy-six years old, and had been confined in prison nearly eight years in this action. Lawes cited Pai'Jcinson v. Horlock, 2 N. R. 240, where, after the plaintiff's death, the Court in 1806 discharged from execution a defen- dant who had been in custody ever since the year 1792; and Brotigh- ion V. Martin, 1 B. & P. 17G, where the same course was pursued un- der similar circumstances; no administration in those cases having been taken out to the respective plaintiffs, which amounted to the same thing as the administratrix disclaiming an interest in the cause. Wilde Serjt., who shewed cause, distinguished those cases from the present, on the ground that there was no personal representative of the plaintiff who could discharge the defendants; whereas, here, the admi- nistratrix might immefliately discharge the defendant if she chose to take on herself the responsihility of doing so; and if she declined incur-' ring that responsibility, the Court could not impose it on her. Lawes {E. La ives S>erjt was with him), referred to Baiicrman-y. Ttadcniiis, 7 T. R. CCS, as establishing the principle, that a court of law will not look to the rights of parties only equitably interested, the declarations of a trustee plaintiff having been admitted in that case to de- feat the action. In like manner, he urged, t'le disclaimer of the admi- nistratrix in the present instance ought to operate as a release to the de- fendant. At all events, if the Court would on one side look to the rights of those who were equitably interested, thoy would consider also what was equitable for the other side; and the aflldavit on which he moved pufficiently established the defendants' claim to be discharged ongood conscience, independently of his years and long imprisonment. Best C. J. Appeals have heen made to compassion in which the Court is not at liberty to indulge. Here is a legal judgment against the defendant, and if there were no person who could discharge him from it, the Court might perhaps interfere, having gone that "length upon former occasions. But tiie plaintiff's legal representative has full power, if she pleases, to discharge the defendant out of custody. Ought we, then, to interfere and relieve her from the responsibility on which she detains him.'' We could not do so without great injustice. Since 4 Bingham, 711. 125 the court for tiie relief of insolvent debtors has been established, every honest debtor may be discharged out of custody if he will surrender his property to his creditors, and if he will not, he ought to remain. We have no discretion in the present case, and if we had, we ought not to exercise it in favour of the defendant. Park J. The cases which have been cited do not apply, for in those cases the Court interfered, because there was no legal representative who could discharge the defendant; here there is an administratrix, who has a valid judgment and power to discharge the defendant. In Dunsford V. Goiildsmilh, S B. Moore, 145, the Court refused to discharge a de- fendant after the death of the plaintiff, because there was an executor who had taken out probate, and had the power of discharging the de- fendant. And in that respect there is no difference between an execu- tor and an administrator. Baucrman v. Radenius has nothing to do with the present question. The rest of the Court concurring, the rule was Discharged. HAWKES and Others, Assignees of DAY and Others, Bankrupts, v. SALTER.— p. 715. A bill was dishonoured on Saturday in a place where the post went out at half after nine in the morning: Held, that it was sufficient notice of dishonour to send a letter by the following Tuesday morning's post. The holder's clerk, who copied the letter containing the notice, said, that the let- ter was put into the post on the Tuesday morning, but he liad no recollection whetiier it was done by himself or another clerk : Held, not sufficient evidence of putting into the post. Action against the defendant as drawer of a bill of exchange for 125/., accepted by one Calver, payable at JNIessrs. Da3-s, Norwich. At the tjial of the cause before the Lord Chief Baron, Norfolk Sum- mer assizes 1827, it appeared that the bill became due on Saturday, the 7th of Jnnuary 1827 ; that it was on tliat day presented at Messrs. Days, Norwich, for payment, and dishonoured; that Culver, the ac- ceptor, lived within a mile of Norwich; that the defendant, the drawer, lived at Swaflicld, near North Walsham, about fourteen miles from Nor- wich; and that the post from Norwich to North Walsham leaves Nor- wich at half after nine in the morning. One of the plaintiffs' clerks stated, that a letter from the plaintiffs, which the witness had copied, giving the defendant notice of the dishonour of tlie bill, was sent by the post from Norwich on Tuesday morning, the 10th of January, but he had no rocollectiou whether it was put in by himself or by another clerk. It was objected, that the bill ought to have been presented to Calver himself; lliat notice of well as at the end of the hought note. They were never delivered to either of the defendants. Ebsworth, however, made out a memorandum of the contract in his broker's book, called a contract-book, which was not signed by him, and shewed this memorandum to Watkins, on the day it was entered, March 2S, 1825. "Watkins assented to the contract, provided Dunn's consent could be obtained. Ebsworth had had no previous communication with Dunn, but saw him about the beginning of the next month, when, as Ebsworth swore at the trial, Dunn assented to the bargain, and said he was perfectly satisfied with what was done. On the 19th of that month Dunn told Ebsworth he would have nothing to do with the contract, which Ebsworth communicated to the plaintiff. Plaintiff, nevertheless, in May addressed the defendants collectively on the subject of the delivery of the wool, when Watkins wrote and referred him to Ebsworth, who afterwards, with the assent of Watkins, and in the name of the defendants collectively, sold and delivered sixty- eight bags of the German wool to Williamson and Jones. In July the plaintiff transmitted the invoice of the 165 bags of wool to Manchester, addressed to the defendants, and requested payment of what was due to him. In September he requested them to receive and pay for the remainder of the wools undelivered, and gave notice, that unless the account be- tween him and the defendants were liquidated by the 1st of November, the wool remaining undelivered would be put up to public sale on that day, and the defendants held responsible for any loss. The defendants having declined to receive them, they were sold at a loss; whereupon the present action was commenced. It was objected at the trial, on behalf of the defendants, that there was no valid contract between the parties, the broker's book not having been signed, and the bought and sold notes not having been delivered to each party; that Ebsworth having no authority from Dunn at the time of the bargain, was not an agent authorized within the meaning of the statute of frauds; that the bought and sold note given to the plaintiff varied from that made out for the defendants, the latter specifying the 1st of July as the day for cash with discount, at the end of the sold as well as of the bought note; the former specifying that day only at the end of the bought note; and that the plaintiff had rescinded the contract, by the delivery of part of the wool to Ebsworth, and the sale of the remainder. A verdict was taken for the plaintiff, with leave for the defendants to move the Court upon these points. Taddy Serjt. accordingly obtained a rule niai to enter a nonsuit or have a new trial, on these and sundry other questions of law and fact. With respect to the alleged variance, the Court held, that as the plain- tiff's bought and sold note was all written on the same sheet of paper, the 1st of July, specified at the end of the bought note, must be taken to apply equally to the contract in the sold note, and that therefore the in- strument corresponded sufficiently with the bought and sold note made out for the defendants. If the subsequent ratification by Dunn constituted Ebsworth, by rela- tion, an agent duly authorized within the meaning of the statute of frauds, at the time of the contract, a bought and sold note having been made out and signed by him on the part of the defendants, his delivering it to them 4 Bingham, 722. 131 and his signing the contract-book would not be essential to the validity of the contract: It' is only necessary, therefore, to report what was said on the points, Whether a person who makes a contract for another, without due authori- ty, becomes, on the ratification of the contract by the party to be charged, a sufficient agent to bind him, within the meaning of the statute of frauds, and. Whether the disposal by the vendor, of goods sold, with a view to prevent further loss upon the vendee's refusing to receive them, be a rescinding of the contract. Wilde and Russell Serjts. for the plaintiff, referred to Chaplin v. Eogers, 1 East, 192; Hinde v. Whilehouse, 7 East, 558; Ward v. Evans, Salk. 442; Kinnitz v. /S'z/rry, Paley, Pr. & Ag. 143, note, 2d edit.; Hagedorn v. Levy, 6 Taunt. 162; Greaves v. wishlin, 3 Campb. 425. Taddxj and Spanhie Serjts. conti-a. Best C. J. It has been argued, that the subsequent adoption of the contract by Dunn will not take this case out of the operation of the statute of frauds; and it has been insisted, that the agent should have his authority at the time the contract is entered into. If such had been the intention of the legislature, it would have been expressed more clearly ; but the statute only requires some note or memorandum in writing, to be signed by the party to be charged, or his agent thereunto lawfully authorized; leaving us to the rules of common law, as to the mode in which the agent is to receive his authority. Now, in all other cases, a subsequent sanction is consid- ered the same thing in effect as assent at the time. Omnis ratihahitio retrotrahilur et mandato cequiparatiir: and in my opinion, the subse- quent sanction of a contract signed by an agent, tflkes it out of the operation of the statute more satisfactorily than an authority given beforehand. Where the authority is given beforehand, the party must trust to his agent; if it be given subsequently to the contract, the party knows that all has been done according to his wishes. But in Kinnitz v. Sur7'y, where the broker, who signed the broker's note upon a sale of corn, was the seller's agent. Lord Ellenhorongh held, that if the buyer acted upon the note, that was such an adoption of his agency as made his note sufficient within the statute of frauds: and in Soam.es v. Spencer, 1 Dow. & Ry. 32, where A. and B. beinj; jointly interested in a quantity of oil, A. enter- ed into a contract for the sale of it, without the authority or knowledge of B., who, upon receiving information of the circumstance, refused to be bound, but afterwards assented by parol, and samples wei'c delivered to the vendees; it was held, in an action against the vendees, that B.'s subsequent ratification of the contract rendered it binding, and that it was to be considered as a contract in writing within the statute of frauds. That is an express decision on the point, that under the statute of frauds the ratification of tiie principal relates back to the time when the agent made the contract. Then, with regard to the resale, it seems clear to me, that it did not rescind the contract. It is adniittod that porishablo articles may be re- sold. It is difficult to say what may bo esteemed perishable articles, and what not: but if articles are not perishable, price is, and may alter in a few days, or a few hours. In that respect there is no difference between one commodity and another. It is a practice, therefore, founded on good sense, to make a resale of a dispiited article, and to hold the original rontractor responsible for the difference. The practice itself affords soinc evidence of the law, and we ought not to oppose it, except on the au- 132 Li'CAS r. NocKKLLS. E.T. 1828. Ihority of ilcciilcd cases. Those which have been cited do not apply. Where a man, in an action for «^ooils sold and delivered, insists on hitving from the vendee tiie jjriceat wliich he contracted to dispose of his goods, he cannot, perhaps, consistently with such a demand, dispose of them to another; hut if he sues for damages in consequence of the vendee's refusing to complete his contract, it is not necessary that he should re- tain dominion over the goods: lie merely alleges that a contract was entered into for the purchase of certain articles, that it has not been ful- filled, and that he has sustained damages in consequence. There is no- thing in this which requires that the property should be in his hands when he commences the suit; and it is recjuircd neither by justice, nor by the practice of the mercantile world. In actions on the warranty of a horse, it is the constant practice to sell the horse, and to sue to recover the difference. The usage in everv branch of trade is equally against the objection which has been raised on the part of the defendants. It is urged, indeed, that in contracts enter- ed into by the East India Company, the power of resale is expressly provided for, in case the vendee should refuse to perform his contract. That is only ex abundanti cauieluy and it has never been decided that a resale of the goods is a bar to an action- for damages for non-perform- ance of a contract to purchase them: the contrary has been held at Nisi Prius. But, without referring to a Nisi Prius case as authority, we are anxious to confirm a rule consistent with convenience and law. It is most convenient that when a party refuses to take goods he has purchas- ed, they should be resold, and that he should be liable to the loss, if any, upon the resale. The goods may become worse the longer they are kept; and, at all events, there is the risk of the price becoming lower. Rule discharged. («) (a) Park J. took no part in the hearing or decision of the case. (IN THE EXCHEQUER CHAMBER.) LUCAS, THOMPSON, DAVIS, BULL, T. LINGHAMand EICKE, V. NOCKELLS.— p. 729. Plnintiff, a ship-owner, agreed by charter-party with T. to take any goods on board whicli T. sliould ship, and convey them from Van Diemcn's Land to London. T. covenanted to pay freight at the rate of 15*. per ton per month, ten days after thedeUvery of the cargo, and then consigned a cargo to defen- dants by a bill of lading, under v/hich they or their assigns were to pay freight as per charter. T. being indebted to defendants, they, on the arrival of the ship in London, sued out a writ oiji.fa. and took the cargo forcibly from the ship, exhiljiting the sheriff's warrani to the captain: they did not sell under they?, fa. but after- wards made affidavit at the custom-house that they landed the cargo as the imi>ortcrs. Plaintiff having sued them in trespass for entering his ship and taking the cargo, and to a justification under tlie writ, having replied de injuria ahnque residuo cau8£, and having new-assigned that the defendants took the goods for other purposes than those mentioned in the pleas, Held, that it was competent to the Judge to leave it to the jury to say, whether the goods were 6o«ay?rfe taken under the execution, or whether the execution was resorted to as a colour to enable the defendants to get possession of and land the cargo as importers, with- out subjecting themselves to the claim or question that might have arisen it' they had accptcd them under the bill of lading. 4 Bingham, 729. 133 Error on a bill of exceptions. Nockells, the plaintiff below, declared in trespass for breaking and entering his ship, making a noise and disturbance in it for two days, breaking open the hatches, entering the hold, and taking a large quanti- ty of oil, whalebone fins, hides, &c. in the possession of the plaintiff below, on board the ship, and on which he had alien to the amount of 6000/. for freight, due to him as owner of the vessel, and for carrying away and converting the goods to their own use, whereby plaintiff below was deprived of his lien, and lost his freight. Second count, for taking possession of his ship and goods. Third, for taking out of a certain other ship the goods of the plain- tiff below. The defendants below (Lucas and Thompson jointly, and the others severally) justified the trespass under a judgment recovered in the Court of King's Bench, by R. Ilopley, G.H. Lingham, and T. Lingham, against one Nathaniel Thornton, for a debt of 20,000/. and costs, upon which a testatum fi. fa. was sued out, directed to the sheriff of Middlesex, and indorsed to levy 6000/. besides expenses, which writ was delivered to Lucas and Thompson, sheriff of Middlesex, to be executed, who made out their warrant in writing to Davis and Bull, commanding them that of the goods and chattels of Thornton they should cause to be made the debt and costs aforesaid. It was then averred, that at the time when, &.C. there were divers goods and merchandizes belonging to Thornton on board the ship in the declaration mentioned, and that Davis and Bull being bailiffs (assisted by T. Lingham and Eickc), before the return of the writ, entered into the ship, seized Thornton's goods and merchan- dizes, sold them, and by the sale made and levied the amount of 1950/. towards satisfaction of the debt and costs aforesaid. The plaintiff below replied that the defendants below of their own wrong, and without the residue of the cause by them in their plea alleg- ed, committed the said trespasses. lie also new-assigned that the defendants below, for other purposes than those mentioned in the pleas, entered the shij), and took the goods, and that more violence was resorted to than was necessary. Upon all which issue was joined. At the trial before Lord Tenterden C. J., London sittings after Trinity term IS'Jlj, itappcarcil, that the plaintiff below was owner of the sliij) Emerald; that by a charter-parly of llie Sth August 18^2, executed at Port Jackson, New South Wales, by the son of the plaintiff below, under a power of attorney, (and reciting a former charter-party of April 1821, by wiiirh the plnintiff below did grant, nnd to freight lot, and Nathaniel Thornton did hire and take to freight all the said ship Emerald for the term of a year from May 1st, 1821, with an agreement that if the ship should be employed more than a year, she should be paid for at the rate of a guinea per ton per month, reciting, also, that the parties had agreed and did agree to put an end to and (letermine lh;it charter- party and enter into a fresh one), 'the plaintiff below and William Elliott, the master of the ship, jointly and severally rovc-nanted with Nathaniel Thornton as follows, that is to say, << that the ship should be made ready and fitted, and should take on board all such gciods as N. Thornton should tender to William Elliott, and should with all convenient dispatch |)rocecd" with her cargo to London, and should disrhnrge at FiOndon, to Thornton or his assignsj 'I'hornlon convenanting to pay *' freight at 134 Lucas v. Nockklls. E. T. 1828. the rate of 15^. per ton per month," ten days after the delivery of the cargo. Under tliis charter-party, a cargo of oils, furs, hides, &c. was shipped by Thornton, at Van Diemen's Land, for London, and Elliott signed a bill of lading, by which (his cargo was to be delivered to Messrs. Hop- ley and Liiighams, or their assigns, *< he or they paying freight for the same as per charter, with primage and average accustomed." In June 1S23, the ship arrived at Gravesend, when G. H. Linghani went on board, and after inquiring about the cargo, and receiving letters from Thornton, said he wished the ship to go to Brewer's Quay; the j)laintiir helow insisted on going into the London Docks, but after shewing Lingliam the ship's manifest, by which the goods were con- signed to Hopley and Linghams, agreed that the ship should go to Brewer's Quay, if Ilopley and Linghams would pay freight for the cargo according to the first charter-party. The plaintiff below afterwards offered to take freight at the lower rate mentioned in the second charter- party, but Lingham made no answer. After the ship had been report- ed at the custom-house, plaintiff below informed Hojiley of that circum- stance, and offered to deliver the cargo where Ilopley and Linghan)s pleased, if they would agree to pay the freight; but Hopley said he would give no promise, and after some altercation, said to the plaintiff below, " I will make something of you before I have done with you." On the 3d of July, Ilopley xmd Linghams Vv'ho were creditors of Thornton to a considerable amount, issued the fieri Jacias mentioned in the declaration, Thornton being in embarrassed circumstances; and on the 4th, T. Lir.gham, accompanied by Eicke, his attorney, and Bull and Davis, the'sheriff's officers, entered the ship with the sheriff's war- rant, which they exhibited to the plaintiff below, and although required by him to leave the ship, broke open the hatches, which had been closed to prevent them from taking the cargo, and proceeded to unload it from that time to the 17th, by which day the whole was unloaded. When the sheriff's officers came on board, the captain of the ship told the plain- tiff below he thought he was wrong in detaining the cargo, as the freight was not due till ten days after the delivery; plaintiff belovvsaid, " He'd bedamned if he cared," and ordered the captain not to allow the cargo to be taken. The captain had signed three bills of lading, one of which he gave to the plaintiff below, and left the other two with Thornton. Hop- ley and Linghams indemnified the sheriff, and it was proved that Davis had said the sale of the cargo taken outproduced 1950/. On the 4th July Hopley and Linghams presented a memorial to the commissioners of customs, as follows: — ''Honourable Sirs, — 'We have in the ship Emerald, from New South Wales, 2G0 casks of train oil, Avhich we have paid duty on, and are desirous of landing at the legal quays." On the 10th July, the captain of the sliip made affidavit at the custom- house that the cargo (describing it) was British property, and to this affidavit was annexed another, as follows — *' Thomas Lingham, for self and Co., importers, maketh oath that the within-mentioned cargo is British pro]ierty." On the 7th of August, Ilopley and Linghams annexed to a catalogue of the cargo for sale by auction, a certificate that the lots had been im- ported with twelve months; had not been previously sold or parted with;, and that that was the first sale. They also addressed a note to the auctioneer as follows: *'Wc ap- 4 Bingham, 729. 135 point you to buy for our account this day the following goods, at the prices annexed, being our property." This was concluded by a de- scription of the cargo. These two latter instruments were left by Hop- ley and Linghams at the excise-office, and the cargo was put up to sale by auction, under their direction, on the 7th of August. The Chief Justice charged the jury that he was of opinion that the pos- session of the ship was in the plaintiff below at the time of the execution, and that the question for their consideration was, whether the goods were really and bona fide i&ken by virtue of the said writ of execution} if they were, the verdict ought to be for the defendants below; or, whether the execution was had recourse to merely as a colour to enable the defendant Lingham, and his partners, who were the consignees, to take said goods, and so get possession of them, and land them as impor- ters, without subjecting themselves to the claim or question that mig'it have arisen if they had accepted them under the bill of lading; in which latter case the verdict ought to be for the plaintiff below. Whereupon the counsel on the part of defendants below objected, first, that the ques- tion proposed by the Chief Justice for the consideration of the jury was not open for their consideration upon the pleadings in the cause; for if there was ground for imputing fraud, it ought to have been specially replied; and secondly, that none of the counts mentioned in the declara- tion had been proved, and that the Chief Justice ought to direct the jury upon the evidence so produced as aforesaid, that the possession of the said ship was not at the time of the entering the same by defendants below, by law vested in the plaintiff below, and that the plaintiff below had no lien on the said goods, and, consequently, that plaintiff below was not competent to maintain the action. Upon these objections a bill of ex- ceptions was tendered and signed, and the jury gave their verdict for the plaintiff below, with damages 1950/. Three points were proposed for argument in this case. First, Whether the jilaintiff below, notwithstanding the charter-party, had still sufficient possession of the ship to maintain an action of tres- pass. Secondly, Whether he had a lien on (he goods seized in respect of which he could sue in trcsj)as8 for an illegal seizure of them. Thirdly, Whether upon the pleadings in this cause it was competent to the Lord Chief Justice to leave it to the jury to say, whether the goods were bo7ia Jidc taken under the writ of execution, or whether the execution was resorti d to as a colour for taking then), not to effect a levy by virtue of the execution, but with a view to land them without siibjocting the defendants below to the claim of the plaintiff below for freight. /■ Pollock, for the defendants below, cited SavilIc\.Cr()ved, that witliin six years, and during the lifetime of B., A. made a ])ayment on account of the note. B. afterwards died: Held, tiiat such payment operated as a new i)roniisi' bv B. to pay, ac- cording to tiic nature of tlwc instrument, and that his administrator was liable on the note. Assumpsit on a promissory note made by T. Stolt, the intestate, dated 4th March 1818, for 600/., payable to Robert Bnrlcie;b, with inter- est. Common money coimts. Plea, first, tbe froncral issue, upon wliieh issue was joined; secondly, the statute of limitations. Tim plaitilifls replied, a writ issued on the 3d of October 1826, by the plaintifTs as executors against the defendant as administratrix. Rejoinder, admitting the writ, but allcf^irif; that the causes of action did not aerrue within six years of the issuing; of tbe same, ujion which issue was joined. At the trial before Lord Tentcrden C. J., at tbe London sittings before Michael- mas term 1827, a verdict was found for tbe plaintiffs lor 625/., subject to the opinion of this Court on tbe followiti"; case: On tbe 4tb March ISIS, Thomas Burleigh and Thomas Slott signed tbe following promis- sory note: 152 BunLEiCH V. Stott. E. T. 182«. '« €G0O London, 4th March ISIS. "On dcmanil \vc jointly and severally promise to pay Mr. Robert Bin-leigh the sum of six hundred pounds, with lawful interest thereon." The note was given by T. Burleigh to Robert Burleigh for money lent, and T. Stott was merely a surety. On the 10th October 1S18 T. Burleigh paid to Robert Burleigh the interest then due on the note, and tlie following intlorscment was thereupon made upon it by Robert Burleigh: " Received the interest on this note to the 10th October 1818. R. Burleigh." On the lOlh October 1820 T. Burleigh paid to Robert Burleigh the interest then due on the note, and 100/. on account of the jirincipal, and thereupon the following indorsement was at the same time made upon the note by Robert Burleigh: *' Received the interest on this note to the 10th October 1820; also 100/. on account of the principal, leaving due 500/. R. Burleigh." From his signing the note till his death T. Slott had no communication with Thomas Burleigh about the note. Robert Burleigh always applied to Thomas Burleigh for money. Tlie payments on the 10th October 1818, and 10th October 1820, were made by Thomas Burleigh, without any communication with T. Stott. T. Stott died on the 3d March 1821, and Robert Burleigh died on the Sth July m that year. The writ of latitat in this cause was duly issued on the 3d October 1826. The question for the opinion of this Court was, Whether the plaintiffs, under these circumstances, were entitled to recover ? Chitly, for the plaintiff, contended that the part-payment of the money secured by the note within six years by liurleigh operated as a fresh promise by Stott to pay the residue, citing IVood v. Braddick, 1 Taunt. 101; iVhilcomhy. JVhifing, Doug. G52; PerhamY. liai/nal, 2 Blngh. 306; .^l/euis v. Trcd^old, 2 B. & C. 23. Jlldcrsnn contra, referred to Pittam v. Foster, 1 B. & C. 248; Brand V. Ilaskrii^, Boug. 652; Jackson v. Fairhank, 2 H. Bl. 340j Bran- dram V. niiarlon, 1 B. & A. 463. Lord Tenterden C. J, lam of opinion that the plaintiffs are entitled to recover. I rpiite agree with the late decisions which have established, that in order to satisfy the statute of limitations there must be evidence of a promise to pay within the six years. But I think that in this case there was sufficient evidence of a promise by the intestate within six ^ years to pay jointly and severally according to the form of this note. Suppose the note had been joint only, there could not have been any doubt that a part-payment by one of the joint promisors would refer to the nature of the note, and operate as an admission by all the joint pro- misors that the note was unsatisfied, and therefore as a promise by all to pay the residue. Here the note is joint and several, and the plaintiffs are bound to sue as if it was the several note of the intestate, because Stott, one of the joint promisors, is dead. It is said that it must be con- sidered as if there were three notes, one joint and two several notes, and that the payment by one only operates as an admission so far only as the joint promise is concerned, and no further, and, consequently, that the joint promise being at an end by the death of one of the copromisors, the action is not maintainable. If we were so to hold, I think we should put the law on too nice a distinction. I am of opinion, that a part-payment by one is an admission hy both that the note is unsatisfied, and that it operates as a promise by both to pay according to the nature of the in- strument, and., consequently, as a promise Ijy the defendant's intestate 8 Barnewall & Cresswell. 36. 153 to pay on this his several promissory note. The judgment of the Court must, therefore, be for the plaintiff. Baylet J. I consider this as a joint and several promissory note. I think that the part-payment by one operates in point of legal effect as a new promise, by all and each of the promisors, to pay according to the nature of the instrument. HoLROYD J. Whitcomh v. Whiting, Doug. 652, and Jackson v. Fairbank, 2 H. Black, 340, are in point, and must govern the present case. It is conceded that part-payment by one of two joint promisors within the six years being an admission that the note is unsatisfied, ope- rates as a promise by both to pay the joint note. I also think that such payment operates as a new promise to the full extent of the original pro- mise contained in the instrument. The joint and several promises apply to the same sum of money. It was a joint debt, though there was a several promise by each to pay it. In the case of a joint and several bond payment by one operates as payment by all. (See Bac. Abr. tit. Ob- ligation, D 4.) So a release to one is a release to all. In this case Stott has had the benefit of the part-payment, and he ought to bear the burden. It seems to me that where two persons jointly and severally promise to pay one and the same sum of money, each of them makes the other his agent for the purpose of making any payment in respect of that sum of money. That being so, then, Burleigh made the payment in question as the agent and by the authority of Stott. It was, therefore, an admis- sion by the latter that the sum remaining due on the note was an exist- ing debt, and it operated as a fresh promise by him to pay the same. Judgment for the plaintiffs. The DOCK COMPANY afKINGSTON-UPON-IIULL v. LA MARCHE.— p. 42. By an act of parliament, certain persons were incorporated as the Hull Dock Company, and premises (before the property of the crown) were given to them for the parposcs of the act, and they were authorised to make a dock, quays, wharfs, &c. which, it was enacted, should be vested in them for the purposes of the act. Amongst other things, it was provided, that "all goods, ike. which should be landed or discharged upon any of the quays or wharfs which should be erected by virtue of that act, should lie liable to pay, and should be charged and chargeable with the like rates of wharfage and ])aymcnts as were usually taken or received for any goods, fee. loaded or discharged upon any quays or wharfs in the port of London." Held, that as tlie premises were only vested in the Company for the purposes of the act, they had no common-law right to a compensation for the use of them, and that the statute did not give them any right to claim wharfage for goods shipj^ed off from their quays. The KING v. The LONDON GAS-LIGHT and COKE COM- PANY.— p. ry\. The7G. 3. c. 37. vhich enacts, that certain lands to be embanked from the river Thames shall be " free from all taxes anri assessments whatsoever," exempts the occupiers of premises built on those lands from payment of poor-rates in respect of such occupation. VOL. XV. 20 154 Donne v. Mautyr. E. T. 1828. DONNE V. MARTYR.— p. 63. A local act for cnlarp,inp, cleansing, paving, and lighting the streets, &c. in the city of London, authorized the commissioners to order a rate in the several ■wards of the city of London to be made by the aldermen and the major part of the common councilmen, upon all persons who inhabited, held, occupied, pos- sessed, or enjoyed any land, house, shop, warehouse, &c. or other tenement or hereditament within the said several wards, and who by the laws then in being should be liable to be rated to the relief of the poor, liy another clause, it was made lawful for the alderman and the major part of the common councilmen of each wai'd, at a court of wardmote to be holden for the choice of ward officers, to return to the wardmote the names and places of abode of a competent num- ber of substantial inhabitants of such ward, of whom so many as the alderman, &c. should think fit and direct, not exceeding half the number of persons sore- turned, should be chosen at the said wardmote to be collectors of the said rates and assessments for one year : Held, that the word inhal)itant, in the latter clause, meant resiant, and, therefore, that one of the several partners in a com- mercial establishment, who occupied a house for the purpose of his business in the ward, but who resided elsewhere, was not liable to serve the office of col- lector of the rates. DOE dcm. LAWRIE and Another v. DYEBALL.— p. 70. Ejectment for a messuage and tenement. Judgment entered up generally for the plaintiff: Held, no ground for reversal on error. Error to reverse a judgment for the plaintiff in ejectment, which was brought for a messuage and tenement. Chilh/, for the plaintiff in error, contended, that as ejectment does not lie for a tenement eo nomine, the judgment was erroneous, the damages not being now severable ; and he cited Goodtitle v. Otway, 8 East, 357, where a motion having been made in arrest of judgment upon a similar ground, the difficulty was obviated by entering up judgment for the messuage only. Per Curiam. It is a settled rule that if the same count contains two demands or complaints, for one of which the action lies, and not for the other, all the damages shall be referred to the good cause of action, al- though it would be otherwise if they were in separate counts. That be- ing so, there is no ground for reversing the judgment in question. Brodrick for the defendant in error. Judgment affirmed. The KING v. The Inhabitants of GREAT BOLTON.— p. 71. The 59 G. 3. c. 50, requires, inter alia, that in order to acquire a settlement by the renting of a tenement, it shall consist of a separate and distinct dwelling-house or building, or of land, or of both, bona fide hired at and for 10/. a year at the least, for the term of one whole year, and that such house or building shall be held, and the land occupied, for the term of one whole year: Held, that a set- tlement was gained under this statute by a pauper hiring and holding for one year a distinct and separate dwelling-liouse, although partof the house was let to an undertenant. The KING V. The Inhabitants of GREAT SHEEPY in the County of LEICESTER.— p. 74. The parish officers of A. bound a pauper apprentice to his grandfather, who was described as a butcher. Indentures were executed with the sanction of two 8 Barnewall & Cresswell, 78. 155 justices. The grandfather in fact did not carry on the trade of a butcher, but he and the mother colluded together, and fraudulently imposed him on the justices and the parish officers as a proper master for the pauper: Held, that there having been no fraud in the parish officers, the pauper gained a settle- ment by serving under this uidenture. The KING v. The Inhabitants of MAULDEN.— p. 78. An order of justices made under the 5 G. 4. c. 71. stated, "that the justices, after due examination had on oath, having adjudged the legal place of settlement of a pauper lunatic, confined in a lunatic asylum, to be in M., did thereby require the churchwardens and overseers of M. to pay to the treasurer of the lunatic asylum 10/. 16s. due for twenty-four weeks' maintenance, &c. being at the rate of 95. per week, and to pay the same weekly sum during so long a time as the pauper should remain therein." The parish of M. appealed against this order, and in their notice of appeal described it as an order of settlement and mainte- nance: Held, that as the parish of M. had treated this as the order of settle- ment, it must be presumed that there was no other order, and, therefore, the ■words, "having adjudged," must be understood as words of present adjudica- tion, and that the order was good in this respect: Held, secondly, that so much of the order as was retrospective was bad, but that it was good for the residue. The KING v. The Inhabitants of COMBE.— p. S2. The father of a pauper was about to put him out to service, when it was suggested to him by A., a carpenter, that it would be better for the pauper to learn his (A.'s) trade, instead of going to service; and A. afterwards hired the pauper to learn his trade, and to do any other work, as well as that of a carpenter. The pauper went to A. and served him for five years, living during that time with his parents, who provided him with victuals and part of his clothing, the re- mainder being provided l)y A. The pauper did any work his master ordered him to do, and at the end ef that time he agreed to work for the master as a journeyman at weekly wages. The ipssions having found that tliis was a de- fective contract of ajiprenticeship, and not a contract of hiring, this Court con- firmed the order of sessions. The KING v. The Inhabitants of SIIIPTON, iu the County of SA- LOP.— p. S8. The master of a parish apprentice not having work sufficient for him, proposed to him to goto a farm in adlHcrent parish, occu])iwl by the niastcr's sister. The pauper assented to the proposal, and agreed with licr to work there for a twelve-montli for his meat and drink. He worked for her for four years and four montlis. During the first two years he received from her meat and drink, Dtiring the third and fourth lie received wages: Held, first, tliat no settlement was gained by the service witli the sister, the service not l)eiMg under the inden- tures: Held, secondly, that there liad been a putting away of the apprentice without the rrjijBentof the justiccK, within the meaning of tlie statute 56 Ci. 3.c. 139. s. 9. and tliat the pauper did not by his service with the sister gain any settlement by hiring and service. The KING V. The Inhabitants of STOURBRIDGE.— p. 06. The mother of a pauper stated, that about twenty-four years ago she recciv p(J mo- ney from llie parisli officers at S. to put lier son out apprentice and tliat slie 156 Ri:x V. TiiK Inhac. oi Stourbridge. E. T. 1828. accordingly put him out; that the indenture was signed by her, the pauper, the master, and by a witness; that slie gave it to the wife of a market-gardener who attended the market of S., to take to the overseers of the parish of S. ;thit the niarkct-gardcncr and his wife were both dead, the latter having survive 1 her husband; that she did not know whether the market-gardener's wife had left any will, but had heard that she had. Evidence was then given that search had been made in the parish-chest of S. for the indenture, and that it could not be found: Held, that as it was the duty of the overseers, if tlic indenture had come into their possession, to deposit it in the parish-chest, the presumption ■was, that it was lost or destroyed, and, therefore, that secondary evidence of the execution and contents of the indenture was admissible. Upon an appeal against an order of two justices, bearing date the 27th day of April lS::i7, whereby G. Lay ton, his wife, and four children, were removed from the parish of Bromsgrave, in the county of Worces- ter, to the township of Stourbridge in tlic same county, the sessions con- tirmed the order, subject to the opinion of tiiis Court on the following case: — The respondent parish established a derivative settlement of the pau- per in the appellant township by relief given to his mother. The mo- ther of the pauper being examined on the part of the appellants, stated, that about twenty-four years ago she received some money from the overseers of Stourbridge to put her son out apprentice, and that she accordingly put the pauper, at tiie age of seven years, apprentice to one Clay, of the parish of Bromsgrave, who was her brother-in-law; that the indenture was signed by her, by the pauper G. Layton, by the master, and by the man who had filled it up; that she gave the indenture to Nanny Badger to take to Stourbridge to the overseers who had given her the money to pay for the stamp tor it; that it was directed to the overseers of Stour- bridge; that Nanny Badger's husband was a market gardener, and used to attend Stourbridge market; that sometimes he, and sometimes his wife, went to market, and the indenture was to be carried to the over- seers by either the husband or the wife when they went to market; that both Nanny Badger and her husbarlH were since dead, but that she had survived her husband; that she did not know whether Nanny Badger had left any will, but she had heard that she had. The appellants fur- ther proved by John Mosely, an overseer of Stourbridge, that he had searched diligently in the chest where the papers of the township are kept for the indenture of apprcnticoship, but had not been able to find it; and that he had applied to the executor of W. Badger, the husband of Nanny Badger, who had informed him that the indenture had never come to his hands, and that he was certain that no such paper was in W. Badger's possession when he died. Under these circumstances the appellants pro- posed to give secondary evidence of the due execution and contents of the indenture. But this evidence was objected to on the part of the respondents, and disallowed by the court of quarter sessions, on the ground that sufficient evidence had not been given of the loss of the in- denture. The question for the opinion of this court was, whether, under the circumstances stated, secondary evidence ought to have been ad- mitted of the execution and contents of the indenture? Shutt in support of the order of sessions. The secondary evidence was properly rejected, because sufficient evidence of the loss of the in- denture was not given. This was not an useless instrument, for it would be required whenever it became necessary to prove the pauper's settlement. The parish officers, therefore, had an interest in preserving 8 Barnewall & Cresswell, 96. 157 it. Application ought to have been made to the overseer to whom the indenture was sent. There was no evidence to shew that he was dead. The mother was the witness of the appellants. It was for them to es- tablish their case, and to shew that the indenture was lost. The parish chest was the proper depository; but when it was not found there, the inference is that it never had been there. It might have been delivered to the overseer to whom it had been sent, and might therefore be in his possession. M^Mahon contra. The indenture was directed to the overseers generally, not to any particular overseer. The duty of the overseers was to deposit it in the parish chest, and it is to be presumed that they would do their duty in that respect, and it was not found there. It may, therefore, fairly be presumed that it never was delivered to the over- seers, and that it has been destroyed or lost. Lord Tenteuuen C. J. I think that under the circumstances of this case there was reasonable evidence of the loss or destruction of the in- denture, and that the secondary evidence ought to have been received. If it had been handed over to the overseers it would have been placed in the parish chest, for it was their duty to place it there. Not having been found there, the natural presumption is that it is lost. Bayley J. If the indenture ever found its way into the parish chest, which was the proper ])lace of custody if it had been delivered to the parish officers, it would have been there. Not being there, the presump- tion is that it is lost or destroyed. Order of sessions quashed. The KING v. The Inhabitants of BARHAM.— p. 99. A pauper on the 6th of April 1823 hired a house for a year at the rent of 12/. per annum in the parish of A. In January 1824 he became chargealjle to that parish, and was, by an order of justices, removed to the parish of B. There was no appeal against the order of removal. The pauper returned on the same day to his house in the parish of A., and continued to occupy it until the expira- tion of the year for whicli lie had hired it, and paid the rent for the year: Held, that as the pauper had hired and held the house for a year, and paid the rent for that period, all tlie req\iisites of the statute 59 G. 3. c. 50. had Ijeen complied with, and that he gained a settlement in the parish of A. by renting a tenement. BOLLAND and Othors, Assignees of VV. MARSH and Others, Bank- rupts, and also of II. FAUNTLEROY, a Bankrupt, v. J. NASH.— p. 105. A. kept cash with M. and Co. bankers, and accepted a bill drawn by one of the partners in the house of M. and Co., and indorsed by tliat partner to M. and Co., who discounted it, and aftcrwarcJs indorsed it for vahu! to S. Ikforc the bill became due, M. and ("o. bcrami- liankrupts, havini; fmids in the hands of S. more than sufTiricnt to pay the bill, and having in tlicir liands money l)i longing to A. VV'iicn tlie bill became due S. presented it for payment to A., wlio hav- ing refused payment, S. paid himself the amoimt out of the funds of M. and Co. remaining in his hands, and delivered the bill to their assignees: Held, in an action Ijrouglit by the assignees against A., as accei)tor of the bill, that there had been before the l)ankruptcy a mutual c rrdit between the b»nkrupts and A., and that the latter was entitled to set off against the sum flue to the, bankrupts on the bill, the debt due to him from M. and Co. at the lime of their bankruptcy. 168 Rex v. Everett. E. T. 1828. The KING V. The BISHOP of ELY— p. 112. Mandiimus granted to compel a bishop to allow inspection of his register of pre- sentations and institutions to a living in his diocaee, by a person claiming the right of patronage, although the bishop also claimed that right. The KING V. EVERETT.— p. 114. An information stated that certain goods were about to be imported into Great Britain from parts beyond the seas, in respect of which certain duties would be payable; and that one R. H., at the time of committing the offence thereinaf- ter mentioned, was a person employed in the service of the customs, and that it ivas the duty of him, as such person so employed in the service of the customs, to arrest and detain all such goods as should be imported, which, upon such importation, would becomeforfeited to the king, by virtue of any act of parlia- ment relating to the customs, and which would be liable to be seized; and that the defendant, well-knowing, &c. unlawfully and corruptly solicited R. H., being such person so employed in the service of the customs, when certain goods should be imported, which, upon importation, would be liable to be seized or forfeited, to forbear to arrest and detain the same, &c. : Held, that inasmuch^ as it was not the duty of every person employed in the service of the customs to arrest and detain goods which would be liable to be seized as forfeited, this count was bad, for want of shewing that R. H. was a person whose duty it was to arrest and detain such goods. Information for unlawfully soliciting a custom-house officer to neglect his duty. The third count stated that heretofore, to wit, on the 6th day of October, in the Sth G. 4., at Holt, in the county of Norfolk, certain goods and merchandizes, to wit, spirituous liquors, were about to be im- ported and brought into Great Britain, to wit, at, &c., from parts beyond the seas, in respect of which goods and merchandizes certain duties of customs would then and there be due and payable to our said lord the King, and that at the time of committing the several offences thereinaf- ter mentioned Richard Hooper was a person employed ifi the service of the customs of our said lord the King, to wit, at, &c. ; that it was the duty of Richard Hooper, as such person so employed in the service of the customs of our said lord the King as aforesaid, to arrest and detain all such goods and merchandizes as should within his knowledge be imported and brought into Great Britain, which upon such importation thereof would become forfeited to our said lord the King by virtue of any acts of parliament relative tohisMajesty'scustomsthen in force, and which would then and there be liable to be seized as forfeited as aforesaid, in order that such goods and merchandizes might be dealt with according to law; and that the defendant well knowing the premises, but having no regard for the laws and statutes of this realm, and unlawfully devising and intend- ing to cheat and defraud our said lord the King in his said revenue of the customs, afterwards on, &.c. , with force and arms at, &c. did unlawfully and corruptly solicit him Richard Hooper, being such person so employ- ed in the service of the customs of our lord the King as aforesaid, when certain goods and merchandizes should be imported and brought into this kingdom, which upon such importation thereof as aforesaid would be- come forfeited to our said lord the King, by virtue of certain acts of parliament relative to his Majesty's customs then in force, and which would be liable to be seized as forfeited as aforesaid, unlawfully and con- SBaRNEWALL & CUESSWELL, 114. 159 trary to the duty of him Hooper as such person so employed in the service of the customs of our said lord the King, to forbear to arrest and detain the said last-mentioned goods and merchandizes, in order that the same might not be dealt with according to law, whereby our said lord the King might and would be then and there defrauded in his said re- venue of the customs, in contempt, &c. At the Spring assizes for the county of Norfolk 1828, the defendant was found guilty on the third count only, and Kelly on a former day in this term obtained a rule nisi for arresting the judgment, upon the ground that it did not appear in that count that Hooper was a person whose duty it was to make seizures of goods liable to forfeiture. On moving for the rule he contended (the allegation bsing merely that Hooper was a person employed in the serv- ice of the customs), that the law did not cast upon all persons in the service of the customs the duty of making seizures; and that although the 6 G. 4. c. 108. s. 34, enacted that goods liable to forfeiture might be seized by any officer of the army, navy, or marines duly authorized and on full pay, or officers of customs or excise, or any person having authori- ty to seize from the commissioners of his Majesty's customs or excise; the count did not shew that Hooper was a person coming within any of the three classes described in that section. It ought to have shewn that Hooper was a person whose duty it was to make seizures. The Solicitor-General and Shepherd now shewed cause. It suffi- ciently appears that Hooper was a person having authority from the commissioners of customs to seize goods, and, therefore, within the third class of persons mentioned in the thirty-fourth section; for the allegation is, that he was a person in the service of the customs, and that it was his duty to make seizures. Now a person in the service of the customs, whose duty it is to make seizures, must be intended to have authority from the commissioners to seize. Besides, Hooper also comes within the second class of persons described in the thirty-fourth section, because he is shewn to be an officer of the customs; for by the eighth section of 6 G. 4. c. 106. <' every person employed on any duty or service relating to the customs, by the orders of the commissioners of his Majesty's cus- toms (whether previously or subsequently expressed J, shall be deemed to be the officer of the customs for that duty or service." Lord Tenterden C. J. The objection must prevail. The count alleges that R. Hooper was a person employed in the service of the cus- toms of our lord the King, and that it was his duty as such person so employed in the service of the customs of our said lord the King, to arrest and detain all such goods and merchandizes as should within his knowledge be imported into Great lirilaiii, which Uj)on such iniport«- tion would become forfeited to our said lord the King by virtue of any acts of parliament, &c. The allegation that Hooper was a person cm- ployed in the service of the customs is an allegation of fact. The alle- gation that it was his duty to seize goods wliich upon importation were forfcite{S Belchek l\ SiKES. E. T. 1828. and oflccls ;is he J. lirymer did thereby admit and acknowledge, testi- fied by liis cxcciilinji; the said recited indenture. And the plaintill" for sccurinii; to J. IJrymcr the payment of tlie sum of 20,000/., residue of the said sum of 50,000/., and interest from the 1st of January then last past, had accepted certain bills of exchange therein particularly men- tioned. And also reciting that upon the treaty for such dissolution as aforesaid, it was further agreed that the plaintiff should, by his bond in a sufficient penalty, save, defend, and kcej) harmless and indemniiied J. Brymer of, from, and against all costs, losses, charges, damages, and expenses whatsoever by reason or on account of his having entered into the recited contract with the plaintiff, and by reason or on account of all other contracts entered into by J. Brymer and the plaintiff re- spectively, and in which they or either of them had an)' interest or concern as aforesaid; and, accordingly, the plaintiff had by his bond under his hand and seal, bearing even date with the recited indenture, become bound to J. Brymer in the penal sum of 10,000/., which bond, after reciting as in the indenture mentioned, was conditioned to be void, if the plaintiff, his heirs, executors, or administrators did and should, from time to time thereafter, at his and their own costs and charges, ■well and effectually save, defend, keep harmless and indemnified, J. Brymer, his heirs, executors, administrators, and assigns, and every of them, and his, and their lands and tenements, goods, and chattels, of, from, and against all claims and demands whatsoever, already made or thereafter to be made by government, upon or against J. Brymer, for or in respect of the said recited contract, or of any other contract or contracts, entered into by J. Brymer and the plaintiff respectively Avith the commissioners, and in which J. Brymer and the plaintiff, or either of them, had any interest or concern as aforesaid, and, also, of, from, and against all and singular the debts and sums of money, con- tracts, and engagements, either already or thereafter to be incurred, sustained, made, or entered into, for, or in respect of or relating to the said several contracts, or any, or either of them, and also of, from, and against all actions, suits, costs, losses, charges, damages, and ex- penses, claims, and demands whatsoever, which should, or might, at any time or times thereafter, be had, brought, commenced, sued, or prosecuted against, paid, borne, or sustained by, or be made upon, J. Brymer, his heirs, executors, or administrators, for, or by reason, or means, or on account of the same debts and sums of money, con- tracts, and engagements, or any, or either of them, or for, or by rea- son, or means, or on account of any breach or non-performance, either made or committed, or to be made or committed, of the said several contracts so entered into as aforesaid, or any, or eilher of them, or any jjart thereof, or any article, act, matter, or thing whatsoever, in any- "wise relating thereto. Jt was witnessed by the indenture that, in fur- ther pursuance of the said recited agreement, and in consideration of all and singular the premises, they, the phiintiff and J. ]3rymer, did, by mutual consent, dissolve and determine the co-partnership so enter- ed into, and then, or lately, subsisting between them, for supplying Jiis majesty's ships, &c., at, &,c., with sea provisions and victualling stores as aforesaid, under or by virtue of the recited contract, and of all other contracts in which J. ]Jrymer and llie plaintiff, or either of them, had any interest or concern as thereinbefore mentioned, and all other co-partnerships subsisting between them, the plaintiff and J. Bj'ymcr, in any manner, or ii])on any account whatsoever, and did 8 Barnewall &. Cresswell, 185. 189 tliereby declare and agree that the same co-partnership should be, and be considered, as having ceased, determined, and been utterly void to all intents and purposes whatsoever, upon the said 17th day of Septem- ber 1S13; and that notice of such dissolution of the said co-parinership should be forthwith signed by the said parties, and inserted in the Lon- don Gazette. And each of them, tlie plaintiff and J. Brymer, did thereby, for himself, his heirs, executors, and administrators, release, acquit, and for ever discharge the other of them, and his heirs, execu- tors, and administrators, of, and from all actions, suits, causes of ac- tion and suits, debts, accounts, reckonings, controversies, sum and sums of money, damages, costs, losses, charges, claims, and demands whatsoever, at law or in equity, or otherwise, which, either of them, the said plaintiff and J. Brymer, then had, or ever had, or which either of them, or either of their executors or administrators, could, should, or might thereafter have, claim, or demand against, from, or upon, the other of them, or his heirs, executors, or administrators, for or by reason, or means, or on account or in consequence of the said co-part- nership or co-partnerships between them, so thereby dissolved as afore- said, upon, or by reason, or means, or on account, or in consequence of all or any of the acts, transactions, matters, and things whatsoever, in anywise relating to, touching, or concerning the said recited con- tracts, and all other contracts in which J. Brymer and the plaintiff, or either of them, had any interest whatsoever, or the business or concern thereof, or the said copartnerships, or any or either of them, or on any other account whatsoever (save only and except the said bills of ex- change so accepted by the plaintiff as aforesaid, for the purpose of se- curing the said sum of 20,000/. and interest at the times and in the manner aforesaid, and all and every remedies, &c. to be pursued by J, Brymer, his executors, administrators, or assigns, for recovering the payment of the same or any or either of them, and also excej)t the said bond, and all means to be taken or pursued by J. Brymer, his execu- tors, or administrators, for enforcing the due execution and performance of the conditions thereof, or for recovering damages on account of the breach or non-performance of the same or any part tliereof. And it was by the indenture also witnessed, that in further pursuance of the recited agreement on the part of . I. lirymer, and in consideration of all ami singular tlie premises, he J. Brymer did bargain, sell, assign, transfer, set over, and confirm unto the plaintifl, his executors, &.c. all the share and interest of him .1. Brymer of, in, and to all and singular the debts, simi and sums of money whatsoever then due um\ owing to them the plaintiff and J. Brymer by virtue or in consc((uence of the same several contracts or otherwise, and all bonds, bills, and notes relating to the said contract debts and sums of money, or any of them, or any part thereof, and of and in all and singular other the monies, goods, chat- tels, stock, and effects whatsoever and wheresoever then of or Ix-long- ing to them the jilaintiff and J. Biymer as such copartners respectively; and all the riglit, title, and interest, j)ro])erty, claim, and demand whatsoever of him J. Jirymer of, in, to, from or out of or in rcsj)ect of the premises. 'J'o have, bold, receive, take, and enjoy the said share and interest of him .1. Brymer, assigned or intended to be as- signed by the said indenture of and in the said dehls, monies, goods, chattels, and all and singular other the effects and premises thereinbe- fore mentioned, and every part of the same, and all benefit and advan- 190 Belcheu r. SiKES. E. T. 1828. tagc thereof unto the ])l;iintifl', liis executors, administrators, and assigns, as i.nd for his and their own pro|)er monies and circcts ahsohite- ly, and with lull power and authority to and for him and them to re- cover, receive, and give eirectual acquittances and discharges for the same sum and sums of money, dehts, and premises, and every part thereof, but subject nevertheless as therein mentioned. And J,Br3^mer did thereby for himself, his heirs, executors, and administrators (amongst otiier things) covenant and agree with the plaintiff, his exe- cutors, administrators, and assigns that for and notwithstanding any act, deed, matter, or thing whatsoever made, done, committed, or suffered to the contrary by him J. Brymcr, it should and might be law- ful for the plaintiff, his executors, &c. to have, hold, receive, take, and enjoy the said sum and sums of money, debts and premises thereby assigned, or intended so to be, and every part and parcel of the same, Avitliout any let, suit, interruption, or denial of him J. Brymer, his executors or administrators, or any person or persons rightfully claim- ing by, through, or in trust for him or them. And, also, that he, J. Brymer, should not, nor would at any time thereafter, without the consent in writing of the plaintiff, his executors or administrators, or the order, judgment, or decree of some court of law or equity for that purpose first had and obtained, receive, release, acquit, or discharge all or an}' part of the same sum and sums of money, debts, and pre- mises; or without such consent, order, judgment, or decree, revoke or countermand all or any of the powers and authorities thereinbefore contained and given to the plaintitf, his executors, administrators, or assigns; as by the said indenture, reference being thereto had, will, amongst other things, more fully and at large ai)pear. Breach, that the plaintiff could not lawfully, and did not have, hold, receive, take, and enjoy the said sums of money, debts, and premises assigned by the indenture, without any let, suit, interruption, or denial of him the said J. Brymer, his executors or administrators, but, on the contrary thereof, afterwards, and after the death of J. Brymer, and in the life-time of the said Alexander Brymer, executor as aforesaid of the said J. Brymer, to wit, on the ISlh of July 1S17, at, &c., the said A. Brymer, as executor of the said J, Brymer, demanded and received of and from the commissioners, the sum of 20,000/., for and in respect, and on account of the contracts mentioned in the indenture, or some or one of them, and which said last-mentioned sum of 20,000/. was part and parcel of the money, debts, and premises assigned by the indenture, and mention- ed in the covenant so made by J. Brymer, for himself and his executors' in that behalf as aforesaid, and thereby, by the act of him A. Brymer, being such executor, interrupted and altogether prevented the plaintiff from having, holding, taking, and enjoying the said last-mentioned sum, contrary to the tenor and effect of the indenture, and of the said covenant. Second breach, that, after the making of the said indenture, the said A. Brymer, as executor as aforesaid of tlie said J. Brymer, did, without the consent in writing of the plaintiff, or the order, judgment, or decree of any court of law or equity for that purpose first had and obtained, receive, release, acquit, and discharge another large sum of money, to wit, the sum of 20,000/., part of the said sums of money, debts, and premises in the said covenant in that behalf mentioned, contrary to the form and effect of the indenture, and of the covenant so made in that behalf by J. Brymer for himself and his executors as aforesaid. Tiiird breach, that 8 BaRNEWALL & CUESSWELL, 185. 191 A. Brymer, as executor of J. Brynier, did, without the consent in writing; of the plaintiff, or the judgment, &.C., of any court of law or equity, re- voke and countermand the powers and authorities contained in the in- denture. First plea, nonest factum; second, that A. Brymcr did not at any time demand or receive any sum or sums of money, part or parcel of the money, debts, and premises assigned by the indenture and mentioned in the covenant so made by J. Brymer, from the commissioners for or in respect or on account of the contracts mentioned in the indenture, or any of them, in manner and form, &c. Third and fourth pleas negativ- ing in like manner the allegations contained in the second and third breaches. The cause came on for trial before Lord Tenterdcn C. J. at the Lon- don sittings after Trinity term 1827, when a verdict was found for the plaintiff, subject to the award of an arbitrator, to whom it was referred to decide upon all matters in difference in that cause; and also to ascer- tain what sum was received by the late Messrs. Brymer on contracts in which the plaintiff and the late J. Brymer were jointly interested, and what sum, if any, was received on contracts in which they had no joint interest; and the arbitrator was to stale the deed for the opinion of the Court whether the plaintiff was entitled to both, either, and which of the sums. The arbitrator awarded as follows: That the verdict should be entered for the plaintifl' upon all the issues, and assessed the damages for the breaches of covenant at the sum of 8594/. 2*, 2d., which said sum he awarded that the defendants should pay to the plaintiff. The arbitrator also found the following facts upon wliich his award was founded, and which by the consent of the parties were stated in the fol- lowing form, for the opinion of his Majesty's Court of King's Bench. For a long period of time, and prior to any of the contracts hereinafter mentioned, J. Brymer and A. Belcher had been concerned in conducting business together as contractors for the navy. In some contracts J. Bry- mer was solely interested as contractor; in others, A. Belcher was solely interested as contractor; and in some they were jo:ntly interested as partners and contractors. They had, however, botli been concerned in conducting all the contracts; A. Belcher having been agent in managing those contracts in which J. Brymer was solely interested, and J. Bry- mer liaving been agent in managing those contracts in wliich A. Belcher was solely interested. Under these circumstances, on the lOth day of March 1814, A. Belcher and J. Brymer dissolved partnership by the following deed. (The arbitrator, after setting out the iiulenture stated in the declaration, proceeded as follows:) At the tim(* when this deed was so executed, there were the following sums due from tlie commis- sioners of the Navy Board, viz. under a contract daied the 17th of Sep- tember 1793, the sum of 230/. 9.?. 4£/. ; under seven different contracts, two dated the 2 Ith day of .January 17f).S, one dated the 3(1 of S'-ptrmhcr 17.98, two dated the 2Gth of July 1S03, and two dated the 1th of August 1803, the sum of 7177/. 14.y. \)\d.; and, lastly, under a conlracl dated .luly Gth 1807, the sum of 11S5/. 18.y. Old. These several contracts were iluly entered into with the Navy Bonrd at the above dales. For all these .several sums which arose from the final settlement of long and compli- cated accounts under the above contracts, J. Brymer before his death made a claim on the Navy Board. This claim, subsequently to the death of J. Brymer, was renewed by his executor A. Brymer, and the several sums above mentioned were, after a long ii'.vcstigation, linally allowed, 192 Belcheh v. Sikes. E. T. IS28. ami the monies |iniil lo A. l^-ymor by the Navy Board in 1S17. Of all those liansiiolions, A. JJcIcher was ignorant, till long after the receipt of Ihc nioney hy A. lirymer. As to the contract of the 17th day of Sep- leniber 17y;>, the arbitrator found as a fact that prior to the arrangement made by the above deed of the lOlii of March ISl t, A. JJclcher was solely interested therein as contractor to tiie Navy Board. As to the contract of the 6th of July 1S07, he found as a fact that A. Belcher and J. Brymer were jointly interested therein as contractors with the Navy Board prior to and at the time of the execution of the deed of the 10th of March 1S14. And as to the contracts of the 24th of January 179S, the 3d of Septem- ber 179S; the 2Gth day of July 1S03, and the 4lh of August 1803, he fouinl th:it prior to the arrangement made by the deed dated the 10th of Marcii 1814, J. Brymer was solely interested therein as contractor with the Navy Board. He then stated, that it was contended before him, that under the true construction of the above deed all these several con- tracts were constituted by the parties as between themselves, partnership contracts, and were included in the provisions of the deed; and that if the Court shouUl think that the deed extended only to contracts with the Navy Board, in which A. Belcher and J. Brymer were jointly interest- ed prior to tlie time of its execution, then he assessed the damages for the above breaches of covenant at the sum of 1185/. 18^. 0^^. instead of the sum of 8594/. 2,?, 2d. above awarded. A rule nisi having been obtained for setting aside the award, or arrest- ing the judgment, The SolicUor-Gencral, Scay^hti, and Chilton shewed cause. The question is, whether by the deed of dissolution all the interest of James Brymer in the separate as well as the joint contracts passed to the plain- tilT. The intention of the parties must be collected from the whole con- text and contents of the deed, Earl of ClanrickarcPs case. Hob. 275. The recitals show clearly that the deed is not confined to those contracts in which both Brymer and Belcher were parties, but that it also extends to those in which Brymer was separately interested. The deed recites the contract made in 1813, and that the parties had agreed to dissolve the partnership entered into between them for carrying on the said contract, and all other contracts entered into by the said A. Belcher or James I'rymer, and in which they or either of them, were interested or con- cerned. From this recital, therefore, it is clear that other contracts be- sides those in which the parties were jointly interested were in contem- plation. Belcher then agrees to indemnify Brymer against all claims to be made on him upon or in respect of the separate as well as the joint contracts. Why should Belcher indemnify Brymer against claims on the separate contracts, unless Brymcr's interest in the separate contracts was intencjpd to pass to Belcher? The convenant for the benefit of the as- signee must be considered as co-extensive with the covenant to indem- nify the assignor. The language of the assigning part of the deed is not so large as that of the recitals; but even that part of the deed, after mak- ing specific mention of partnership contracts, conveys "all the right, title, and interest, &.c. of him the said James Brymer of, in, to, from, out, or in respect of the premises." The word premises connects the assigning part of the deed with the recitals, and, so connected, it embraces all Brymer's interest in his separate as well as his joint contracts. Besides, effect must be given to all the words of the deed. Mention is frequently made of all contracts in which Belcher and Brymer, or cither of them, 8 Barnlwall & Cresswell, 185. 193 were interested. It is impossible to give effect to those words without holding that the interest of James Brymer in the separate contracts pass- ed to Belcher by the deed. Then, as to the objection in arrest of judg- ment, the covenant is " that for and notwithstanding any act, matter, or thing done by J. Brymer, it shall be lawful to and for A. Belcher, his executors, &c., to have, hold, receive, take, and enjoy the sums of money, debts, and premises thereby assigned, without any let, suit, interruption, or denial of him the said James Brymer, his executors or administrators, or any person rightfully claiming or to claim, by, from, through, under, or in trust for him or them." The objection is, that the act of receiv- ing the money being an act done by Alexander Brymer, the executor of James Brymer, is not within the covenant; that the covenant is confined to acts done by James Brymer, and does not extend to any act done by liis executor. But an action lies against an executor or administrator "upon every contract or covenant made by his testator or intestate, which appears by any record or specialty," Com. Dig. Administration, (B.) 14., and even against an executor upon an obligation or covenant to in- struct an apprentice in his trade, though it sounds a personal act, fValker V. Hull, 1 Lev. 177, and Ben7iet^s case, Lofft. 85. It lies in every case against an executor, although he be not named, unless it be such a cove- nant as is to be performed by the person of the testator, and which the ex- ecutor cannot perform, Hyde v. Dean and Canojis of Windsor, Cro. Eliz. 552. The covenant in this case is, that Belcher shall receive, without the interruption of James Brymer, his executors, or any person rightfully claiming under him or them. Alexander Brymer claimed and received the money in the character of executor. The Navy Board have attended to no claim that was not made by, from, through, or under James, with whom they contracted. If the construction contended for were to prevail, the consequences would follow that the covenant might be nugatory. Suppose James Brymer had died the day after the execu- tion of the deed, and large sums had been due on these contracts from the Navy Board, and his executors had received those sums, Belcher could not have recovered them. 'I'hat never could have been the intention of the parties. It being shewn that the covenant reaches the executor, this is to be considered as if he, the executor, had covenanted that the plain- tiff should receive the money without any interruption. The breach therefore is well assigned; the covenant names the executor, and the breach is, that the executor interrupted. Upon this point they cited Harwnod \'. Hilliard, 2 Mod. 209; ^'Inonymous, Skin. 39; Penning v. Ladi/ Plat, Cro. Jac. 383; lielknny \\ Iijis.se II, Sir T. Jones, 180. But even if the breach be too general, it shall be aided after verdict for the plaintiff. Knight v. Leach, Comb. 204. Denmuu, lirodrirk, and l\l(inning contra. First, the judgment ought to be arrested, b(;cause the covenant on which the first i)rcach is assigned applies to acts done by the testator only, and not to acts done by his executor; and the breach assigned is in respect of an act done by the executor. The covenant is, 'Mhat for and notwithstanding any act done by James lirymcr, it shall be lawful for Belcher to receive the money without any let or interruption of him James lirymer, his execu- tors, &c." The testator binds himself and his executors against any act done by him James Brymer in his lifetime. [Lord Tcntrrden C. J. ]\Iust not the words "for and notwithstanding any act done," be reject- ed as insensible, they being wholly inconsistent with the subse(|uent VOL. XV. 25 191 Belchlr r. SiKi:s. E. T. 1828. part of the coronant by which Brynior a<2;rccs that Belcher sliall receive the money without the intcrriii)tion of him or his executors? — Bayley J. Ma}' not the meaning be, for and notwithstanding any act done before the execution of the deed ?] The worils are not in the past tense. The particular sense of those words must be collected from the context. Upon this point they cited Rich v. Rich, Cro. Eliz. 43; Broughton v. Coti- way, Dyer, 240; Ford v. lVilso7i, 8 Taunt. 543; Nind v. Marshall, 1 B. & B. 319. The objection to the second and third breaches is stronger. In the covenants on which those broaches are assigned, Bry- mcr covenants merely for the act of himself, it is the same thing as if he covenanted for the act of John Styles. Any act done.by aiiy other person would not be a breach of that covenant. The principal question depends on the construction of the deed. Belcher in this action of covenant at all events can only recover a moiety of the sums received in respect of those contracts in which he and Bry- mcr were jointly interested. The other moiety being his own share of the proceeds of the contract, belongs to him independently of the deed, and must be recovered in an action for money had and received. The arbitrator has found three distinct classes of sums received, the first on account of a contract in which Belcher was solely interested; that sum also belongs to Belcher independently of any covenant, and cannot, therefore, be recovered in this action; the second, on account of con- tracts in which they were jointly interested; and the third, on account of contracts in which Brymer was separately interested. The intention of the parties must undoubtedly be collected from the whole deed. The difficulty is created by the introduction into the recitals of the unneces- sary words " respectively or either of them;" for if full effect be given to those words, the construction must be that the deed extends to sepa- rate contracts. Such a construction is, however, at variance with the general intention of the deed. If those words be rejected as surplusage, then all the provisions of the deed will be consistent with each other, and it will be clear that all that was intended to be assigned was the interest of Brymer in those contracts in which he and the plaintiff Belchei- were jointly interested. The primary object of the deed was to dissolve and determine the partnership of Belcher and J. Brymer, in contracts for victualling his Majesty's navy. It is true that the deed recites that it had been agreed to dissolve and determine the co-partnership entered into by them for carrying on the business of the said contract and all other contracts in which they or either of them were in any ways inter- ested or concerned. The words "or either of them" hero introduced, are insensible, and must be rejected, because there could not be a part- nership in a contract in which one only was interested. The. deed then recites, that James Brymer's share in the property belonging to the part- nership should be estimated at 50,000/., and should betaken by Belcher at that sum. That was the calculated value of Brymer's interest in the partnership property. It follows, therefore, that no consideration was paid to Brymer for his interest in the separate property. It is true, that in the clause of indemnity, the words " or either of them" again occui", but those words must be rejected, and then that clause will correspond with the general intention of the deed. By the operative part of the deed, the parties dissolve and determine the said copartnership so entered into, and now or lately subsisting between them for supplying his Ma- jesty's ships with provisions under or by virtue of the said recited con- tract, and of all other contracts in which the said James Brymer and 8 Barnewall & Cresswell, 185. 195 Andrew Belcher, or either of them, had any interest or concern. Now, thout^h the words <'or either of them" occur here, the dissolution must have reference to contracts in which the parties were jointly concerned. By the assigning part of the deed, Belcher is to have the share of Bry- mer in all the debts due and owing to them (not to eiiher of them) under and by virtue of the several contracts; and the word premises which afterwards occurs, refers to the debts last before mentioned. There then follows a power to Belcher to recover and give discharges for the said debts. That must mean partnership debts; for if it were intended to authorize Belcher to receive money due to Brymeron those contracts in which he was separately interested, a power of attorney would have been executed for that purpose. The omission of such a power of attor- ney is conclusive to shew that the separate interest of James Brymer was not intended to be conveyed. Lord Tenterden C. J. I am of opinion that the plaintiff is entitled to recover the whole sum upon the tirst breach. Tlie principal question depends on the construction of the deed, and in deciding it, we must not merely consider the situation of the parties before the execution of the deed, but the situation in which they chose to place themselves by that deed. The arbitrator in his award states, that James Brymer and Belcher (the plaintiff) had been concerned in conducting business to- gether as contractors for the navy ; that in some contracts James Brymer was solely interested as contractor, in other contracts the plaintiff was solely interested as contractor; in some they were jointly interested as partners and contractors; they both, however, had been concerned in all the contracts, for the plaintiff had been agent in managing those con- tracts in which Brymer was solely interested, and Brymer had been agent in managing those contracts in which the plaintiff was solely in- terested. Under these circumstances, on the 10th of March 1S14, they dissolve partnership by the deed set out in the award. After stating the dales of the several contracts, and the sums due from the Navy Board and received by A. Brymer upon them respectively; the arbitrator states, that it was contended before him that under the true construction of the deed all these several contracts were cor/Slituted by the parties as between themselves partnership contracts, and were included in the pro- visions of the deed. I can easily understand why they should wish to dothis. Unlesssomething of this kind was done, it would have been necessary to take an account of every contract ih which they were se- parately concerned, and in which the relation of priiicii)al and agent subsisted between them. That not having been done, it may reasonably be supposed that the parties might, in order to put an end to all contracts, elect to consider all contracts as partnership concerns ; and looking to the whole of this deed, I think that intention may be collected from its different recitalsand provisions. The deed recites a contract then in esse, which bad been made in May 1.SI3, and lint the plainliffanil Bry- meron the irih ofSeptembcr 181.3 agreefPto dissolve the copartnership for carrying on the business of the said contract, and all other cnnlracla entered into with the commissioners for victualling the navy by Brymer or the plaintiff, and in which Ihcy or eiiher of ihein were in any ways interested or concerned ; and all olhercopartnerships whatsoever «ub- sisting between them. These latter words must mean partnerships in other contracts besides those entered into with the commissioners of ihe navy. It seems to me from the recital, that there was a manifest inl( nt 196 Belcheu v. Sikes. E. T. 1828. to treat all tlic contracts as having been copartnership transactions. I cannot otherwise find any sense lor the words, "or either of them," which occur not only in the recital, but in the other parts of the deed. The next recital is that upon the treaty for the dissolution, ** it was agreed that the share of Brymer in the money and property belonging to the said copartnership, or to them the said parties on account thereof, should be estimated at 50,000/. and be taken by the pkiintifT at that sum ; and that it had been agreed that the plaintiff should by bond in- demnify Brymer against all losses and damages by reason of his having entered into the recited contract, and by reason of all other contracts cniered into by Brymer and the plaintiff respectively, and in which they or either of them had any interest or concern." Now, why should Belcher become bound to indemnify Brymer against all damages by reason of the separate contracts of Brymer, unless the intent of the deed was that all the separate contracts of Brymer should, as between the parties, be considered as joint contracts ? Then by the operative part of the deed, the parties dissolve the copartnership entered into between them for supplying his Majesty's ships, under or by virtue of the recited contract and all other contracts in which they or either of them had any concern. Strictly speaking, there could not have been a partnership in a contract in which one party only was interested. But the parties (who had been partners in some contracts) might have agreed that be- tween themselves, all the contracts which either had entered into in his own name and on his own account, should be considered partnership contracts. They then release each other from all actions, &c. not only in respect of the recited contract, but of all other contracts in which Brymer and the plaintiff, or either of them, had any interest whatso- ever. The release, therefore, extends to contracts in which Brymer was separately interested. Then come the words of assignment, Bry- mer assigns to the plaintiff all the share and interest of him Brymer, of and in all the debts then due and owing to them the plaintiff and Bry- mer by virtue of the same several contracts or otherwise; and all bonds and bills relating to the said contract, debts, and sums of money, or any of them; and of and in all other the monies of or belonging to the plain- tiff and Brymer as such copartners respectively, and all the right, title, and interest, property, claim, and demand whatsoever of him Brymer, of, in, to, from, out, or in respect of the premises. The subject matter of the assignment is there described by words of reference. We must look back to the antecedent parts of the deed, to learn what those words refer to, and then it appears that the interest of Brymer, in respect of the premises, comprehends his right to receive any sums due from go- vernment in respect of the contracts, in which he had been separately interested. My opinion is, that whatever may have been the interest of the parties originally in the several contracts, they did by this deed consent to be considered as copartners, from the first, in all contracts entered into by both conjointly or by cither of them on his separate account, and that they adopted this as the best mode of settling their disputes. The remaining question is. Whether the breach of covenant is well assigned ? The breach is, that the executor of James Brymer re- ceived from the commissioners of the navy a sum of money in respect of the contracts mentioned in the deed, and thereby prevented the plain- tiff from receiving the same. The objection is, that the covenant ex- tends only to acts done by Brymer himself, and thatthe receipt of the 8 Barnevvall & Cressvvell, 185, 197 money cliarged in tlie breach being an act done by the executor, is not wiihin the covenant. It seems to me, that the covenant is not confined to acts done by James Brymer. Tiie words, *'for and notwithstanding any act done by James Brymer," seem to have been copied by the per- son who drew this deed from a covenant for title in a conveyance of real property. These words are wholly inconsistent with the words in the latter part of the covenant, by which Belcher is authorized to re- ceive the money, &.c. assigned by the indenture without the interrup- tion of James Brymer, his executors, or any persons claiming under him or them. They cannot both stand without making the covenant insensible. One or the other, therefore, must be rejected, and I think that as the subject matter of this covenant is one in respect of which an executor is generally liable, the words "for and notwithstanding any act done by James Brymer," ought to be rejected ; and then the cove- nant will be that Belcher shall receive the money without the inter- ruption of James Brymer, or his executors, and the breach is well as- signed. The rule for setting aside the award and arresting the judg- ment must therefore be discharged. Bayley J. I think the arbitrator has properly decided that those contracts which were not originally partnership contracts, were made so by the parties when they executed this deed. At the time when the deed was executed, there had been some contracts in which the parties had been jointly interested, and others in which each of them had been separately interested ; but in the latter, one of the parties had acted as agent for the other. They were in some degree concerned together in all con- tracts. This being the state of things at the time when the deed was executed, it would have been necessary to make a provision that there should be taken an account of the sums each partner was entitled to re- ceive on the joint as well as on the separate contracts in which one had acted as agent for the other. If this deed had not been intended to em- brace all the contracts, it would undoubtedly have made provision for the winding up of the accounts between the parties, or at least it would not have altogether prevented such a future settlement of accounts. Now the clause by which it is stipulated that mutual releases shall be given, shews clearly that it was the intention of the parties thattlicre should be no future reckoning or accounting between the parties. By that clause each party discharges the other from all accounts, reckonings, &:c. which either of them had or miglit thereafter have, (or or i)y reason or on ac- count of the said copartnership, or on any other account whatsoever." Thisciause entirely prevents all future reckoningsbetween the i)arties upon any contract entered into by one or the other. It is quite clear, that but for this clause there must have been reckonings between the parties. It, therefore, explains the rest of the deed, and shews clearly that the word re.spcclivch/ and the words or cil/ier of tliv.yn, which occur frequently in the deed, were introduced int^'iilionally, and not by mistake. It seems to me, therefore, that the plaintiff was entitled to receive all monies due from the Navy Board on contracts in which Brymer was either se|)aratc- ly or jointly interested. I think also that Alexander Brymer, the ex- ecutor of James Brymer, havinp; wroiigfidly received the money which the plaintiff ought to have received, has committed a l)reach of covenant. The words ''for and notwithstanding any act done," may perhaps be understood to refer to an act already done at the time of the execution of the deed, or, if they will not boar that sense, they ought to be rejected. 198 Groocock v. Cooper. E. T. 1828. LiTTLEPALE J. Assuming the arbitrator's construction of this deed to be correct, 1 think that there is no objection to entering the verdict for the entire sum upon the first breach assigned. The words "not- withstanding any act, deed, matter, or thing done by James Brymcr," if they had stood by themselves would have confined the covenant to acts done by him only. The words " without the let, suit, or interrup- tion of him James Brymcr, his executors, or administrators," &c. extend the covenant to acts done by his executors. They are clearly sufficient to make his estate responsible; and if it were necessary, in order to make the covenant consistent, to reject any of the words, I should be disposed to reject the tirst words rather than the latter. I entertain more doubt as to the second and third breaches; but it is unnecessary to decide whe- ther they are good or not. Then it is said that Belcher is only entitled to recover a moiety. 1 think it is not necessary that an action for money had and received should be brought, or a bill in equity should be fdcd, in order to enable the plaintifl'to recover the sums due to him in his own right, independently of any covenant in the deed; inasmuch as the whole is mixed up together, and the damages are entire. But I own I have con- siderable doubt as to the true construction to be put on this deed. I ad- mit that it is reasonable that the supposed arrangement should have taken place. I doubt, however, whether the language of the deed is sufficient to effisct such a purpose. It is a rule in construing deeds to give effiict to all the words, and undoubtedly if full effijct be given to the words "or either of t hem,'' there is an insuperable objection to any other construc- tion of the deed than that put upon it by my Lord and my Mroiher Bai/ley. But the language of the operative part of the deed is at variance with such a construction. The parties by mutual consent dissolve the co- partnership for supplying his Majesty's ships with sea provisions under or by virtue of the said recited contract, and of all other contracts in which the said A. Belcher and James Brymer had any interest or con- cern. Now how could they dissolve a partnership in a contract in which one only was interested? Besides, 50,000/. was the consideration paid to Brymer for his assigning his interest to Belcher in the property be- longing to the partnersliip. There was no consideration for his assign- ing his interest in the separate contracts. From these parts of the deed I should think it was not intended to include contracts in which either party was separately interested. But, on the other hand, there is a difficulty created by the indemnity clause; for Belcher is to indemnify Brymer against all claims made by govei'nment in respect not only of the joint but of the separate contracts. That clause rather shews that the interest of Brymer in the separate contracts was in the contemplation of the parties. And when I find the words "or either of them" occur- ring so frequently in this deed, I cannot say that I diffi:;r from my Lord and my lirother Buy ley, but only that I entertain considerable doubts. Rule discharged. (a) (c) This case was argued and determined on the 1st of May, but the report of it was unavoidably postponed. GROOCOCK V. COOPER and Others.— p. 211. By the 6 G. 4. c. 16. s. 31. commLssioncrs of bankrupt are authorized, by writing under their hands, to summon before them certain persons; and if any such 8 Bahnewall & Cuesswell, 211. 199 persons so summoned shall not come before them at the time appointed, hav- ing no lawful impediment made known to them at the time of their meeting-, and allowed by them, it shall be lawful for them, by warrant under their hands and seals, to authorize the person therein named to apprehend such person, and bring him before them to be examined: Held, that in order to justify the commissioners in issuing their warrant for the apprehension of a witness to ■whom they had directed a summons, it was necessary that a reasonable time should intervene between the service of the summons and the time when the ■witness was thereby required to attend, and that the question, whether the service of the summons was in that respect reasonable or not, was a question of fact to be submitted to a jury. Semble, That the commissioners are not bound to have information on oath of the service of the summons before they issue their warrant, but that it is sufficient if the summons be actually served. Trespass for false imprisonment, brougiit by the plaintiff against the defendants, who were commissioners under a commission of bankrupt issued against Messrs. Silvey and Sanderson. At the trial before Lord Tenterden C. J., at the London sittings after Trinity term, 1S27, it ap- peared, that on Monday, the 17th of April, 1826, at five o'clock in the evening, the plaintiff was served in London with a summons, whereby he was required to attend before the defendants at Norwich on the fol- lowing morning at 10 o'clock, to give evidence before the commissioners under the commission against S. and S. The plaintiff told the person who served the summons that it was impossible for him (the plaintiff) to attend on so short a notice, as he had an engagement to attend a gen- tleman from the West Indies fwhom he named) on the following morn- ing, to select goods for the Demerara market, and that he and that gentleman had also to prove a will under which they were joint execu- tors, and desired the person who served the summons to write down to the commissioners to inform them of the reasons why he could not at- tend. Before the person who served the summons left the plaintiff, he tendered him 5/. for his expenses in obeying the summons. The plain- tiff also told the person who served the summons, that if any day after Wednesday in the following week were appointed he would attend, and begged that information to that effect might be sent to the commission- ers. The plaintiff was then asked, whether the Friday following would suit, and he rej)lied it would not. The Lonilon agents to the solicitors to the commission wrote a letter on the evening of the next day (Tuesday the 18th of April) to the commissioners, and informed them of the serv- ice of the summons, and of the grounds assigned by the plaintiirfor not attending; and tlie commissioners having received the letter on Wechies- day, the 19th of April, signed a warrant for taking the plaintiff into cus- tody, and he was taken into custody, by virtueof that warrant, on Thurs- day the 20th of April, and conveyed down to Norwich, and iletaincd in custody until his examination was closed. It was proved that four coaches left London for Norwich daily, after five o'clock in the evening. It wasadmitted that plaintiffwasa person liable to be summoned, within the f» (J. 4. c. lO.s. 33. («); but it was contended, on the p.u'l of th(' jilain- (fl) Sect. 2^, of the 6 G. 4. c. K). enacts, "that after adjudication, it shnil he lawful for tlie commissioners, by writing under their liands, to summon before them any person known or suspected to have any of the estate of tlie bankrupt in liis possession, or su])posed to be iiuh-bted to tlie bankrui)t, or any ])crson wliom the commissioners believe capal)le of giving information concerning tlic pei'son, trade, dealings, or estate of such bankrujjt, or concerning any act of bankruj)tcy com- mitted by him, or any informaion ma'crial to the full disclosure of the dealings of the bankrupt; and it sliall be lawful for the commiisionerb to require such per- 200 OuoococK V. Cooi'Ku. E. T. 1828. tin', that tho cleftMulaiils were not justified in issuing their warrant, inas- much as the sunimons was not sunicimit, there not having hcen a reasona- ble time, between the service of the summons and the return, for the ]ih\intifi' to go down to Norwich, and, at all events, that this was a ques- tion of fact to be submittcil to the jury. Secondly, that the wairant itself was illegal, because the defendants had granted it without having before them any information on oath of the service of the summons; and, thirdly, that the sum of 5/. tendered to the plaintiff for his expenses was not sufficient. Lord Tenterden C. J. was of oj)inion that it was not neces- sary that the commissioners should have information before them on oath of the service of the summons, to justify them in issuing the war- rant ; that in a superior court such information on oath was necessary; but no action would lie against a judge of such a court for unlawfully issu- ing a warrant. Whereas, if a p.irty were arrested on an unlawful war- rant issued by commissioners of bankrupt, he might have redress against them by ah action at law. If a summons was, in fact, served, and no lawful impediment was made known to and allowed by the commission- ers, their warrant in this case was lawful. If they acted on a mere sup- position that the summons had been served, they did so at their peril ; but if such a summons had been served, and there was no lawful impediment made known to them, they would be justified. Here the summons was in fact served; and the only question was, Whether any lawful impedi- ment was made known to and allowed by the commissioners ? It seemed from the word allowed that they had a discretion vested in them to say whether the impediment made known to them was sufficient or not. But was any lawful impediment made known to them? The commis- sioners were informed by the letter that the plaintiff had alleged private business as a ground for not complying with the summons. But if his private affairs did, in fact, require his attention, that was not a sufficient impediment. The defendant might have reached Norwich before the return of the summons; and it was never suggested to the commissioners that the state of his health prevented his performing the journey within the time. Then there was no lawful impediment, and the warrant was therefore legal. On these grounds his Lordship directed a nonsuit. Campbell in last Michaelmas term obtained a rule nisi for setting aside the nonsuit, on the grounds urged at the trial. The Solicitor-General and Alderson on a former day in this term shewed cause. The nonsuit was right. The plaintiff ought to have made known to the commissioners at their meeting some lawful im- pediment, and that ought to have been allowed by them. Here the only impediment made known to the commissioners was, that the plain- tiff had private business to transact. That was no lawful impediment. He did not allege that he was prevented by ill health; and there was am- ple time between the service of the summons and the return for a person ill sound health to have gone to Norwich. Secondly, it was not neces- son to produce books, &c. in bis cvistody which may appear to thcni necessary to the verification of the deposition of such person, or to tlie full disclosure of any of the matters which the commissioners are authorized to inquire into; and if such person so summoned shall not come before the commissioners at the time ap- pointed, having no lawful impediment (made known to the commissioners at the time of their meeting and allowed by them), it shall be lawful for the commis- sioners, by warrant under their hands and seals, to authorize the person therein named for that purpose to apprehend and arrest such person, and bring him be- fore them to be examined as aforesaid." 8 Barxewai.l &: Cresswell, 211. 201 sary that tlte commissioners shoukl, in order to justify them in issuing their warrant, have had tlie service of the summons proved on oath be- fore them. The fact of the summons having been served gives them jurisdiction to issue their warrant, and not the information of that fact on eath. Justices, on the contrary, are justified by information on oath, \vhether the fact be true or false. Then as to the third point, that the sum of 51. only was tendered to the plaintiff: he made no objection at the time to the amount of the tender, and this was not an impediment made knoxyn to the commissioners. Be- sides, Battyt v. Gresley, 8 East, 319, is an authority to shew that it is not necessary, upon summoning the witness, to tender his expenses be- fore hand; though if he be, in fact, without the means of taking the jour- ney, it may be an excuse for not obeying the summons. Sir J. Scarlett and Campbell conirvL. By the 6 G. 4. c. 16. s. 33., the commissioners are authorized to summon all persons therein descri- bed; and if any such person so summoned shall not come before them at the time appointed, having no lawful impediment made known to the commissioners at the time of the meeting, and allowed by them, the commissioners may issue tlieir warrant. The act, therefore, requires that the party shall be summoned in a lawful manner. Here the plaintiff was not summoned within the meaning of the act of parliament; and if he was not duly summoned he was not bound to make any excuse for not attending. This case must be considered, therefore, as if he had made none. Suppose a: motion were made for an attachment for not obeying a subpoena, it would be necessary to shew that the subpoena had been served, so as that the party whose attendance as a witness was re- quired might reasonably be expected to attend. Then the question in this case is, whether the plaintiff, who was summoned at five o'clock in the evening, could reasonably be expected to attend at Norwich at ten o'clock the next morning? Was he bound to neglect all his other busi- ness? Suppose he were infirm or in ill health, would he, in order to reach Norwich at the hour appointed, be bound to travel during the night? And, at all events, wliether the service of the summons were reasonable or not was a question of fact which must depend on a variety of circumstances, as-the sex, age, or state of health of the party sum- moned. It ought to have been submitted to the jury, whether, with reference to all the circumstances, the plaintiff could reasonably be ex- pected to comply with a summons (served at five o'clock in the evening) requiring him to attend at ten o'clock the next morning at Norwich. Assuming that the service of the summons was reasonable, the commis- sioners ought to have had information on oath of the service of the sum- mons. A magistrate has no power to commit for an offence without information on oath, Morgan v. Ifughcs^ 2 T. H. 225. ^Bayley J. The only question there was whether case or trespass was the proper form of action.] Lnslly, the defriidant was not bound to obey the sum- mons without a tender of a sum of money suflicient to defray his reasona- ble expenses in going to and returning from Norwich, and 5/. was not «^"°"S'i- Cur. adv. vult. Lord Tentekpen C. J. We arc of opinion that the rule for a new trial ought to be made absolute. Our opinion is not founded upon the ground that the commissioners were bound to have information on oath before them of the service of the summons, or on the ground that the sum VOL. XV. -0 202 Haurod v. Benton. E. T. 1828. tendered to the plaintift'was insufiicient. We think that neither of those objections ought to prevail; but the ground upon which we think that there ought to be a new trial is, that I ought not to have taken upon my- self to decide that the summons which was served on the plaintifi* on Monday evening at five o'clock, and by which he was required to at- tend at Norwich on the following morning at ten, was properly served. We think it was a question for the jury to say, whether, under all the circumstances of the case, the service of the summons was reasonable or not. And in order that that question may be submitted to their con- sideration, the rule for a new trial must be made absolute. Rule absolute for a new trial. HARROD v. ELIAH WISEMAN BENTON.— p. 217. The Court will, upon motion, set aside a wari'antof attorney, judgment, and ex- ecution, on the ground that they are fraudulent against creditors, provided the facts upon which the alleged fraud depends are clearly made out by the affi- davits ; but where those facts are disputed, they will direct an issue to try the question of fraud. A RULE nisi had been obtained in this case, calling on the plaintiff and defendant respectively to shew cause why the warrant of attorney given to the plaintiff, and the judgment and execution and all proceedings thereon, should not be set aside, and why the goods taken under such execution should not be sold by the sheriff in satisfaction of an execu- tion issued at the suit of Mary Ann Hill Benton ; or if the same had been sold by the sheriff, why the proceeds thereof should not be paid over for the like purpose, and why the plaintiff or defendant should not pay the costs of this application. It appeared by the affidavits in sup- port of the rule, that Mary Ann Hill Benton had recovered a verdict in the Court of Common Pleas for 60/. against the defendant at the sittings after Hilary term, 1828, and had signed judgment on the 28th of April in that year. The plaintiff had also signed his judgment in this Court against the defendant on that day by virtue of a warrant of attorney executed on the 24th of April, but purporting to bear date on the 1st of Januar}'. Upon the affidavits on both sides it was a disputed question of fact, whether the warrant of attorney was given to the plaintiff with- out consideration, and whether the judgment and execution thereon were or were not fraudulent, as intended to anticipate and defeat the le- vy which it was known was about to be made on behalf of Mary Ann Hill Benton. Comyn shewed cause. The Court will not upon motion decide the question whether the warrant of attorney given to the plaintiff and the judgment and execution thereon were fraudulent, this being an applica- tion not by the party giving the warrant of attorney or his representa- tive, but by a stranger, an execution creditor. There is no instance in the books of such an application ; that question ought to be submitted to a jury. The plaintiff (M. A. H. Benton) in the second execution, who has obtained the present rule, may indemnify the sheriff, and then the question whether the warrant of attorney was fraudulent may be tried by the present plaintiff in an action against the sheriff for a false return, fVarmoll v. Young, 5 B. & C. G60; and which is the only legitimate course of proceeding incases like the present. 8 Barnewall & Cresswell, 217. 203 5'/eer contra. Although the question of fraud in cases of this descrip- tion is usually submitted to a jury, yet the Court has the power by the 13 Eliz. c. 5. of deciding summarily where, from the affidavits on both sides, the fraud is manifest. The Court will not impose upon an honest judgment-creditor the hardship of trying an action to establish her right to levy execution, if it appear that the other execution has no foundation in a bona fide debt, but that the whole is fabricated for the express pur- pose of defeating a just claim. There may be no decision exactly in point, but from the principles laid down in several cases, it is clear the Court has the power to determine the question without the intervention of ajur}^; and the courts of equity have in some instances so determined without sending the question to be tried in an issue, Lady jirundell v. Fhipps and Taunton, 10 Ves. 139; Taylor v. Joiies, 2 Atk. GOO; Baldwin \. Cawthorne, 19 Ves. 166; Meggott v. Mills, iLd. Raym. 286. Lord Tenterden C. J. There can be no doubt that if the warrant of attorney, judgment, and execution, were not bona fide, they will be void against creditors. The question whether they were fraudulent or not might perhaps be tried in an action against tlie sheriff for a false return; but it is hard upon the sheriflf that that question should be tried at his expense. I think that as the facts upon which the alleged fraud depends are disputed, the question ought to be decided by a jury on an issue to be settled between the parties, though I am clearly of opinion that the Court has the power to determine this question upon motion where we are satisfied and convinced that the alleged fraud lias been actually com- mitted. But this rule may be enlarged until the matter can be tried by a jury. I think the Court has a jurisdiction over the warrant of attor- ney, which it may exercise at the instance of any party who has any in- terest in supporting it or in setting it aside. It was afterwards agreed, at the suggestion of the Court, that it should be referred to the Master to enquire into the validity of the warrant of attorney in the rule mentioned, and to report thereon to this Court next term ; and it was ordered, that, in the mean time, the rule should stand enlarged, until the time of the Master's making liis report. Ex parte CULLIFORD v. WARREN, Gent., one, &c.— p. 220. The Court will not compel an attonipy to pay a sum of money lie has received in his character of attorney ; he liaving ufler tiie receipt of the money become bankrupt and obtained his certificate. Sir .1. ScAni.ETT had obtained a rule, calling upon the defendant, an attorney, to shfw cause why lie should not pay over a sum of inoncv paid by Culliford to him, as his attorney, being the amount of inlrrrst of a mortgage procured by Warren in 1S23, for Culliford, and which it was his duty to have transmitted to the mortgagee. It appeared, by the affidavits against the rulo, iliat after llin rn(>ei[»t of the money by the attor- ney for the purpose alleged, there had been a treaty lor transferring the mortgage, and that he had promised to settle the interest with the first mortgagee at the time of the transfer, in which Culliford had acquiescedt but that Warren hail, in his way to the place of meeting ajipointrnl for transferring the mortgage, been arrested for debt, and that he hail subse- quently been made a bankrupt, and duly obtained his ccrtilicatc, 204 Hastllow v. Jackson. E. T. 18,^8. Jcrtmij now shewed cause, and contended, tliat in the absence of any partionlar fraud, shewn in liis character of attorney, there was no ground for the interference of the Court; but tliat Culliford ouglil to be left to his remedy at law, and come in with the general creditors. Lord Tenterden C. J. We see nothing in this case which ought to deprive the attorney of the privilege of his certificate. Baylev .f. If an action were brouglit against Warren for money had and received, the certificate might be pleaded in bar. Rule discharged. HASTELOW V. JACKSON.(ffj— p. 221. Where A. and B. deposited money in the hands of a stake-holder to abide the event of a boxinj^-niatch between them; and after the battle A. claimed the whole sum from the stake-holder, and threatened liim with an action if he paid it over to B., which he nevertheless did, by the direction of the umpire: Held, that A. was entitled to recover from him his own stake, as money had and re- ceived to his use. Assumpsit for money had and received. Plea, the general issue. At the trial before Holroydi., at the Summer assizes for Nottingham, 1827, it appeared, that the plaintifTand one Wilcoxon had each deposited 20/. in tlie hands of the defendant, to abide the event of a boxing-match be- tween them. The battle was fought, and a dispute arose as to which Avas the winner; two referees and an umpire were chosen, who decided in favour of Wilcoxon. The plaintiff then claimed the 40/. from the defendant, and gave him notice that if he paid it over to Wilcoxon, he should bring an action to recover it. The defendant, however, after- wards, acting upon the decision of the umpire, paid over the money. At the trial the plaintiff claimed only the 20/. deposited by him; and for the defendant it was contended, that the plaintiff could not recover at all, for he had never given notice of an intention to rescind the illegal wager, but had affirmed it, by claiming the whole of the stakes, and in- sisting that he was the winner of the battle. The learned Judge over- ruled the objection, and the plaintiff had a verdict for 20/. In Michael- mas term a rule nisi for a new trial was granted, against which A'. R. Clarke shewed cause, and cited Cotton v. Thiirland, 5 T. R. 405; Smith v. Bickmore, 4 Taunt. 474; JJatev. Cariwrig/il, 7 Price, 540; Howson v. Hancock, 8 T. R. 575. Reader and Humphrey contra, referred to Lacanssade v. White, 7 T. R. 535; HowHon v. Hancock, S T. R. 575. \^Duyley J. According to my note of Howson v. Hancock, it proceeded entirely on the ground that the plaintiff had expressly assented to the money being paid over.] Ix)wry V. Bourdieu, 2 Doug. 468; Andree v. Fletcher, 3 T. R. 266; Morck V. Ahel, 3 B. & P. 35; Vandyke v. Heioitt, 1 East, 96; Lub- bock V. Potts, 7 East, 449; Tenant v. Elliott, 1 li. & P. 3; Farmer V. Russell, 1 B. & P. 296. Bayley J. I am of opinion that this rule must be discharged. The cases oi Tenant V. Elliott and Farmer v . Russell (\o not prove that the winner of an illegal wager can recover the whole of the stakes from (a) The Judges of this Court sat, as on former occasions, from Tuesday, May 20th, until Thursday, June 5th, inclusive. During that period this and the follow- ing cases were argued and determined. 8 Barnewall S;. Cuesswell, 221. 205 tiie holder, but only that when Ihc loser has paid the money into the liands oi" an agent lor tiie winner, the agent cannot set up the illegality against the claim of his principal. Tliose cases may, therefore, be laid out of consideration; and from all the others which have been cited it ap- pears that there is a material difference between actions by one party to an illegal contract against the other, and those against a stake-holder. If money has been paid upon such a contract by one party to the other, he cannot recover it unless he rescinds the contract while it remains executory. That it may, as between the parties, be rescinded before the event happens has been established by a variety of cases, Lubbock v. Potts, Vandyke v. Hewitt, Lowry v. Bourdieii, and Jiubert v. Walsh; nor am I aware of any decision to the contrary except that of Lacaussade v. White, which cannot, I think, be supported; and indeed it appears to have proceeded on the supposition that the defendant was a stake-holder, in which case it would have been right. It is too late now to consider what would have been the best rule on this subject. It might have been proper to say that the party to a wager on an illegal act, after he had done the act, should not recover his stake. But Cotton v. Thitrland, followed by Smith v. Bickmore, has established that, not- withstanding the event has been decided, and the party has concurred in doing the illegal act, he shall be allowed to recover his own stake. The case oi Smith v. Bickmore was decided long after the other, and at a time when the distinction had been taken between actions against the party and the stake-holder; and it is now a settled rule that where a wa- ger has been laid on the event of a boxing-match either party may recover his own stake from the holder. It has been urged that a decision for the plaintiff in the present case would go beyond all former cases, for that the money had been paid over before the action was brought, and the plaintilfhad done no act to rescind the wager, nor had ever intima- ted that he claimed his own money, and that only. But if a stake-holder pays over money without authority from the party, and in opposi- tion to his desire, he does so at his own peril. In Hoioson v. Hancock the jury found that the money was paid with the assent and concurrence of the plaintiff, the decision, therefore, merely amounted to this, that where money has been paid over with the assent of the party, he cannot get it back. Here, it is true, tiie whole was demandefl: the defendant said he should pay it to the other party, the phuiitilf desired him not to do so, and threatened him with an action. That was a plain expression of dissent; the defendant therefore paid over the money at his own peril, and having paid over what could not have been recovered from him, he paid it in his own wrong. VVilcoxon couhl not have recovered moie than his own money, without proving himself the winner, and that coul(' only be established by evidence of his having done an illegal act. lie therefore could not have recovered the money deposited by the plainlilf: ami the defendant having paid over the whole after the plain- tiff's prohibition, which was valid as to a moiety of the stake.-', paid over that moiety wrongfully, and is liable to refund it to the present plniiitiH". For these reasons, I think the o|)inion expressed by my hrothei' llolroyd at the trial was correct, and that this rule must be discharged. HoLRovn J. It appears to me now as at the tiial, that the case of payment to a slakeliohUr differs from that by one |)arty to the other. The question made at the trial was, whelhei- it was necessary for the plaintiff to rescind the conlracl. 1 think it was not; and that he did 206 Doe d. Long v. PuiiiG. E.T. 1828. suflicient by giving notice that he would sue tlic defendant if he paid over the money. LiTTLKDALE J. I am entirely of the same opinion. If two parties enter into an illegal contract, and money is paid upon it by one to the other, that may be recovered back before the execution of the contract, but not afterwards. In the case of persons entering into such a contract and paying money to a stake-holder, if the event happens and the money is paid over, without dispute, that is considered as a complete execution of the contract, and the money cannot be reclaimed; but if the event has not happened, the money may be recovered. With respect to a stake- holder tiiere is a third case, viz. where the event has happened, but be- fore the money has been paid over, one party expresses his dissent from the payment. Under such circumstances he may recover it; and perhaps it may then be said, that although the event has happened, yet the con- tract is not completely executed until the money has been paid over, and therefore the party may retract at any time before that has been done. Rule discharged. The KING v. The Inhabitants of WALNFLEET ALL SAINTS. p. 227. Since the 59 G. 3. c.50, a settlement may be gained by a residence of forty days in a parish, provided the party comply with the conditions mentioned in that act. And, therefore, where a pauper, since that statute, hired land for a year at the sum of 10/., and paid that rent, and occupied the land for the whole year, but resided only forty days in that parish, and not upon the land, it was held, that lie gained a settlement. DOE on the demise of CHARLES WAKEMAN LONG v. HENRY PRIGG.— p. 231. Devise to A. for life, remainder unto "the surviving children of W. J. and J. W>, and their heirs for ever; the rents and profits to be divided between them in equal proportions, share and share alike:" Held, that the word "surviving" referred to the testator's death, and not that of the tenant for life. Ejectment to recover one-seventh share of certain lands in the seve- ral parishes of Ripple and Upton, in the county of Worcester, which the lessor of the plaintiff claimed to be entitled to under the will of one W. Shipman. At the trial at the Spring assizes 1827, for the county of Worcester, the plaintiff was nonsuited, with liberty to move to enter a verdict for the plaintiff, if this Court should be of opinion that he was entitled to recover; and upon that motion being made in the subsequent term, it was agreed that the facts should be stated in the form of a case, as follows: — W. Shipman being seised in fee of the premises in question, made his will, which was duly executed and attested, so as to pass real property, and bore date the 6th day of February 1782; and by his will devised the premises in question with others to his mother, for her natu- ral life only. And after the death of his mother to his wife, for her natural life only. He then devised as follows: — "and from and after the decease of my mother and wife, I give and bequeath all the above- 8 Barnewall & Cresswell. 231. 207 mentioned premises unto the surviving children of William Jennings, of Buckley, in the county of Worcester; and of John Warren, of Phelps, in Twining, Gloucestershire, and to their heirs for ever; the rents and profits to be divided between them, in equal proportions, share and share alike." He then devised other real property immediately to his wife in fee. The will further contained the following clause: — " And ■whereas, I now stand indebted to JNIr. John Jones, of Lulsley Hill, (which said John Jones was the father of the testator's wife) in a consi- derable sum of money upon bond ; now if the said Mr. Jones will at the time of my death give up the said bond to my executrix hereafter named (testator's wife), and not insist upon the payment of the money, all the above devises respecting his daughter stand good; but if he demands payment of the money, it is my will that all the above devises to my wife shall be void and revoked, and she shall have nothing but what was settled on her before marriage. And in that case I give and bequeath unto my mother all the above-mentioned estates, real and personal, for her natural life only. And from and after her decease to the surviving children of W. Jennings aforesaid and J. Warren, and to be divided amongst them as above mentioned." The testator died in August 1785, without having altered or revoked the above in part recited will. At the time of the testator's death, there were living, his mother and wife, six children of the said W. Jennings, and one child of the said J. Warren, who was a daughter, and after- wards married one Wakeman Long, and was the mother of the lessor of the plaintiff, who was her heir at law, and attained the age of twenty- one years in September 1823. It did not appear that the said J. Jones ever claimed his debt, and the wife of the testator took the estates and interests given and bequeathed to her by her husband's will, and enjoy- ed the same until her death. The testator's wife, who was the surviving tenant for life, died in the year 1810. J. Warren's daughter died in the year 1803, and at the time of the death of the testator's wife in 1810, there were only four children of W. Jennings then surviving. The question for the opinion of the Court is, to what period the words stc?'- viving children shall refer. The case was argued at the sittings after Hilary term, by Curwood for the plaintiff. The expression "surviving children," in this will, refers to the period of the testator's rjerith. He referred to Ives V. Lcggc, 3 T. R. 488; Roue. v. /////, 3 Burr. 1881; Doc v. Lawson, 3 East, 278. G. R. Cross contra, cited Neicton v. Jiyscorigh, If) Vcs. 531; Hawes v. Ifaioes, 1 Ves. sen. 14; Striiic!;cr v. Phillijis, 1 Ya\. fa. Abr. 292; Rose v. Hill; Brown v. liigK, 7 Ves. 27!^; Hoghlon v. H'hit- greave, 1 J. & W. 14G; Cripps v. IVolcott, 4 Mad. 11. Cur. adv. vull. l^wi.EV J. now flclivcrr^d the judgment of the Court. The (iiirstloii in this case arose upon the will of^ William Shipman, and depended upon the efTcct of a limitation in remainder to the ,s?/r?'U'///i|- children of Wil- liam Jennings and John Warren and their heirs. By the will the tes- tator devised to his mother for her natural life only, remainder to his wife for her natural life only, remainder to the surviving children of William Jennings and John Warren, and their heirs for ever, the rents and profits to be divided between them in erpial proportions, share and share alike; but in a given event he revoked llie cicvisc to his wife, and 208 DoK d. Lo\(j IK Vkh.u. K. T. 1828. a;avc to his mollior for licr natunil life only, and from and after her do- (•t';iso to llio siirvi villi;- childrtMi of Willinin Jcnningis aforesaid, and Jolm \V;irroii, and to l)e divided anionr only. Tlie question is, when they wore to take in interest, whether they were to take vested estates in remainder imme- iliately upon tlie death of the testator, or whether their estates were to he contingent till the mother and the wife, in the one case, and the mo- ther in the other, died. There is no doubt but that upon an ordinary limitation by way of remainder to a class, as children, grandchildren, &.(!. all who arc in esse at the lime of the death of the testator take vested (and consequently transmissible) interests immediately upon the testa- tor's death, and that all who come in esse before the particular estates end, and the limitation takes effect in possession, are to be let in, and take a vested interest as soon as they come in esse, and that they and their representatives will take as if they had been in esse at the testa- tor's death. This is settled by Baldwin v. Karver, Cowp. 309; lioe V. Perry 71, 3 T. R. 484; Doe v. Dorvell, 5 T. R. 518; Meredith v. Meredith, 10 p]ast, 503; Right y. Creber, 5 B. & C. 8G6. There is no doubt also but that a limitation by way of remainder to such children, &.C. as shall be in esse at the time when the particular estate ends, and the remainder is to take efiect in possession, is a contingent remainder, because it depends upon the event of any of such children continuing in esse until the particular estates end. This is clear from Roe v. Briggs, 16 East, 40G. Had this devise, therefore, been merely to the children of Jennings and Warren, there would have been no difficulty in the case. It would have fallen within the class of cases to which Baldwin v. Kar- ver belongs. The difficulty arises upon the addition of the word sur- viving, and upon the meaning to be given to that word. If this woi*d refers to the time of the death of the testator, all the children who should be living at the testator's death, and all who should come in esse before the life estate ceased, or their representatives, would be entitled, and the interests would vest in every child in esse at the testator's death, and in every one who came in esse afterwards during the continuance of the particular estate. If this word refers to the death of the survivor of the mother and wife in one event, or to the death of the mother in the other, the remainder to the children is contingent, and the only persons enti- tled will be such children as were living when the wife died. The law inclines to such a construction as will tend to vest a remainder, unless a contrary intention appears, because contingent remainders are in the power of the particular tenant, and may be destroyed; and it is more likely the testator should have intended that the limitations he made should be secure, than that they should be liable to be defeated'; but where the intention is clear that the testator meant what would make the remainder contingent, his intention must prevail. We have endeavoured, without success, to find a case exactly circum- stanced as this is, where upon a devise by way of remainder to a class. as this is, words of survivorship have been held to apply to the death of the testator; but there are so many in which upon a devise or bequest to individuals they have been held so to apply, that we think we are warranted in saying that that is the right construction in this case. In 8 Baunewall <& Cresswell, 231. 209 ff'l/son V. Bayley, 3 Bro. Pari. Ca. 19S, wlicre a testator bequeathed certain leascliolds for lives and years for the benefit of his two sons, Mark and John, and their issue, but if they died unmarried and with* out issue, his will was, that his daughters, ^lary, Sarah, and Catharine, and the survivors and survivor of them, and their assigns, should be permitted to receive the rents, &.c. as tenants in common, and not as joint tenants, the House of Lords decided that the words of survivorship amongst the daughters applied to the death of the testator, not to the death of the survivor of Mark and John; and that upon the deaths of Mark and John without issue, not only one daughter who survived them, but the representatives of two other daughters who died before them, were entitled. In Perry v. Woods, 3 Ves. 205, where stock was bequeathed in trust for Ann Darby for life, and if she died without children,' the executors were to pay the principal to W. and John Prick- low, share and share alike, or to the survivor of them. Sir P. Ardcuj Master of the Rolls, held, that these words of survivorship applied to the testator's death, not to Ann Darby's; and that though John Prick- low alone survived Ann Darby, he was not entitled to the whole stock, but that the representatives of William were entitled to a moiety. Roe- huck v. Dean, 4 Bro. Cha. Ca. 403, is exactly similar: 1000/. stock, bequeathed in trust to pay the dividends to E. R. for life, and after her decease the 1000/. to be equally divided between five, and to the survi- vors or survivor of them, and this was held to vest in the five, at the death of the testatrix. In Maherly v. Strode, 3 Ves. 450, where land was devised for sale, and the interest of the produce was to be paid to testator's son Samuel for life, and upon his death the principal was to be transferred to his children, if any, otherwise to two nephews and a niece, in equal proportions, share and share alike, issue to take the parent's share, with benefit of survivorship between the nephews and niece: and, upon a question between a nephew who survived Samuel, and the representative of the other nephew and niece, Jlrden, Master of the Rolls, said, *' On tlie blind words, lu'itk benefit of survivorship, the safest and soundest construction, best warranted by the authorities, most beneficial to the parties, and most likely to have been intended, was to apply them to such as should survive the testator, not to let it remain in contingency, and vest only in such as should happen to survive Sa- muel, with the chance of the whole being lost, ami a total intestacy after the death of Samuel occasioned." In Edwards v. S'yrnons, 2 Marsh. 24, G Taunt, 213, where lands were devised to trustees in trusi, to apply the rents to the maintennnce of six younger children, till the? youngest, Elizabeth, should attain twenty-one, and on her attaining twenty-one, then to the six, and the survivors and survivor of them, their heirs and assigns for ever, as tenants in common, and one of the six survived the testator, but died before Elizabeth attained twenly-ono, the Court of Common Pleas ccTtificil to the (.'oiut of ('liancery that ho had a share, which at his death descended u|)on his heir; so that the Court of Common Pleas must have considered the words 'Mhc survi- vors and survivor" as applying to the period of the testator's death, not to the period of Elizabeth's attaining twenty-one. In Iiosc v. /////, Burr. 1881, which was cited in argument, in Doe v. /S/;r/rrow, 1 3 East,. 35.9, and in Clayton v. Lomr, .'> \\. & A. G3f), words of .survivorship were referred lo the period of the testator's death, not to any ulterior time in the case of devises of land; and in I^-oril ISiudon v. Lord Suf- VOL. XV. 27 210 Doe d. Long v. Phigo. E. T. 1828. folk, 1 P. Wms. 96, and other cases in Chancery, they have been re- ferred to the same period upon personal bequests. In many indeed, if not in most of these cases, this has been a neces- sary construction, because the devises or gifts were not to a class, but to individuals; they were to take as tenants in common; there was no spe- cific definite period but the testator's death to which the words of sur- vivorship could apply; and it would have been inconsistent with the tenancy in common to have applied them to any later period; but that objection does not apply to the cases of IVilson v. Bayley, Perry v. Woods, Maberly v. Strode, and Edwards v, Symons, because in the first three, there was the alternative between the testator's death and the death of the tenant for life; and in the last, between the testator's death and the youngest child Elizabeth's attaining twenty-one. And the tes- tator's death is in this case so much the more rational period, so much the more likely to have been intended, and falling in, as it does, with the rule of law for vesting estates as soon as they may, instead of leav- ing them contingent, that we are of opinion that the estate here vested in remainder immediately upon the testator's death, in the then chil- dren of Jennings and Warren; and that upon the deaths of those who died after the testator, and before the testator's widow, their sevenths descended upon their respective heirs at law; and, consequently, that the lessor of the plaintiff is entitled to recover one-seventh. A verdict, therefore, must be entered accordingly, and the postea delivered to the plaintiff. I have not entered into a detailed examination of the cases cited for the defendant, because no one of them is in point: none of them bear closer upon this case than Wilson v. Bayley, and the other cases I have stated; and, as far as they differ from these cases, we think these cases preferable. Postea to the plaintiff. The KING V. The Inhabitants of BROMYARD.— p. 240. On the hearing of an appeal against a poor-rate, the sessions have no jurisdiction to quash the rate for a defect appearing on the face of the rate itself, unless that defect be specified in the notice as a cause of appeal. The KING V. The Inhabitants of LOUTH.— p. 247. An indenture by which an apprentice was bound for seven years, to serve A. B. for the first four years, and his own father for the last three, to learn two differ- ent trades, is a valid indenture, and requires only one stamp. The KING V. The Justices of WORCESTERSHIRE.— p. 254. In an order of justices for stopping up an unnecessary highway under the 55 G. 3. c. 68, it must be stated that it ap])earcd to the justices, on view, tliat the way was unnecessary ; and, therefore, an order, merely stating that the "justices had, upon view, found, or that it appeared to them," that the way was Unne- cessary, is bad. 8 BaRNEWALL & CUESSWELL, 257. 211 CUB ITT V. PORTER— p. 257. The common user of a wall separating adjoining lands belonging to different owners, is prima facie evidence that the wall, and the land on which it stands, belong to the owners of those adjoining lands in equal moieties as tenants in common. \\ here such an ancient wall was pulled down by one of the two tenants in com- mon, with the intention of rebuilding the same, and a new wall was built of a greater height than the old one; it was held, that this was not such a total de- struction of ihe wall as to entitle one of the two tenants in common to maintain trespass against the other. Declaration stated that tlie defendant on, &c., at, &c., broke and entered a certain close of the plainlifi", to wit, in the city of Norwich, and county of the same city, and then and there pulled down and damaged a great pait of a certain wall of the plaintiff, then standing and being in and upon the said close, and the materials thereof, of the plaintitl, of the value of 100/., seized, and carried away, and converted, and disposed thereof to his, the defendant's, own use; and also erected and built a certain other wall, and a certain privy, and a certain other erection and building against and upon the wall of the plaintiff, and kept and continued the same other wall, &c. , upon and against the wall of the plaintiff for along space of time, and also cast divers quantities of bricks and rubbish upon the plaintiff's close, by means of which several premises the wall of the plaintiff had been and was greatly weakened and injured, &c. Plea, not guilty. At the trial hc^ove Alexander C. B., at the Summer assizes for the county of Norfolk, 1826, it appeared that the plaintiff was the oc- cupier of a cottage and garden, as tenant to one Mr. Doman. They had formerly been the property of the plaintiff's father. The defendant was the owner of premises adjoining those occupied by the plaintiff, and se- parated therefrom by a wall, part of which the defendant, in .luly 1825, had pulled down, and erected on the site of it another wall (of a greater l)eight than the old wallj, with a cottage and other buildings against it, and the present action was brought, alter the new wall hati been rebuilt, to try the right of property in that wall. There was evidence on both sides of various acts of user of the wall by the rcs|)cctive owners of the plaintiff's and riefcndanl's premises. The Lord Chief Haron, upon this evidence, told the jury to find for the defendant, if they thought the wall was his, or if, from the common user of the wall by the res|)eclive own- ers of the plaintiff's and defendant's premises, tlu-y believed tiie plaintiff and defendant had a common property in it. The verdict returned by the foreman of the jnry was, " VVc find this to be a party wall." The Lord Chief Baron .said. That is a verdict for the defendanl. After the jury had sepiratfd, the plaintiff's counsel obstirved, that Ihe wall might be a parly wall, and yet ihe plaintiff and defendant might not be tenants in common of it, or of the land on which it was built; for if each of the proprietors of the two estates contributetl the site of the land on which it was built in cfpial moities, or had conlributcd in the same proportion the expense ol building it, each of them would remain theownerol a moiety of the wall, and might maintain an action against the other for any inju- ry done to that moiety. Sforks Serjt., in Michaelmas term, lS2fi, ob- tained a rub; nisi for a new trial, upon the ground, (irst, that the atten- tion of the jnry barl not been drawn to that distinction, and that it niighl, therefore, be true thai the wall was a party wall, and yet this action 212 Ci'uiTT u. roiMcii. E. T. 1828. n'ouKl be niuinlainablc. Secondly, assuming tliat the verdict established that they were tenants in common of the wall, and of the land on which it was built, still the action was maintainable, because there had been a destruction of the subject-matter of the tenancy in common by one of the two co-tenants. Robii^son and IVaUinger now sliewed cause, citing Matls v, Ilaiu- kins, 5 Taunt. 20; Wiltshire v. Sidjord («). Storks Serjt. and F. Kelly, contra, referred to Matls v. HawkinSy 5 Taunt. 20; Co. Litt. 200 a.; Lilt. s. 322. ]3avley J. I am of opinion that the rule for a new trial ought to be discharged. This was an action for pulling down the plaintiiPs wall. If the wall was the exclusive property of the plaintiflf, then the act done by the defendant was a sufficient ground for the action. If it was entire- ly the property of the defendant, then he was justified in doing what he did. There was a third view of the case, and that was the view taken of it by the Lord Chief Baron at the trial, viz. that it might be the com- mon property of the plaintiff and defendant. The question left to the jury was, whether from the common use of the wall they would not in- fer that it was common properly? Now there was certainly very strong evidence of common use, and the nature of the right may be collected from the manner in which a thing has been used. The jury found that it was a party wall; they did not in terms find that it was common pro- perty; but on having the question whether it was common property put to them, they found it was a party wall. The Lord Chief Baron observ- ed, this was a verdict for the defendant. Until the jury had separated, no observation was made upon the subject of the direction of the Judge, or upon the answer of the jury on that point. And I think it is too late, on a motion for a new trial, to suggest that the case might have been diflferently presented to the consideration of the jury; and that if that (a) WILTSHIRE v. SIDFORD. Michaelmas, 8 G. 4. This was an action of trespass. The cause was tried before Burrou^h J. at the Spring assizes for the county of Wilts, 1827. The plaintiff was the owner of a house at Wilton, and the defendant the owner of an adjoining house, which he pulled down and rebuilt, and he built upon and against a wall dividing the former premises, and which the plaintiff claimed as being his sole property. There was contradictory evidence as to the former state of the plaintiff's premises, and con- flicting opinions of surveyors from the existing state of the defendant's premises, as to there having been two existing walls or only one, and as to the wall having been originally the exterior wall of the plaintifFs premises before the defendant's premises had been built. The learned judge told the jury, some of whom had had a view, that if they were satisfied that there had been originally but one wall, and that it had been jointly used by the owners of both the premises for nearly a century, the date of the defendant's building, he was of opinion, that the action was not maintainable, and he left ir to the jury to say, whether it was a party wall or not. The jury said they considered it to be a party wall, and found a verdict for the defendant. A rule nvii for anew trial was obtained, principally up^n the ground, that the verdict was against evidence. Upon the reading of the report, the Court called upon the couubel for the plaintiff to support the rule. I'hcy re- lied on Malta v. Ilavok'niH, 5 Taunt. 20, to shew, that it did not necessarily follow from the fact of the wall being a party wall, that the plaintiff and defendant were tenants in common. The Court distinguished this case from Malts v. Hawkins, where the quantity fif land which each party contributed was known; and said, where that was not known, the reasonable presunipti(/n, from the common use of the wall, was prima facie, that the wall, and the land on which it was built, were the undivided pro- perty of both. Tliry therefore thought the verdict i ight, and discharged the rule, Rule discharged. 8 BarNEVVALL & CuESSVVELL, 257. 213 had been clone, the verdict might have been different. The probability is against the existence of that state of things which would have justified a verdict for the plaintiff, even on that view of the case, which was not presented to the consideration of the jury. Where a wall is commoti property, it may happen cither that a moiety of the land on which it is built may be one man's, and the other moiety another's, or the land may belon5 218 Atkinson v. Hell. E. T. 1828. non ordering, still lie may afterwards deliver them to another, and there- by vest the property in that other. Although the maker may thereby render himself liable to an action for so doing, sfill a good title is given to the party to whom they are delivered. It is true that Kay saw these things while they were in progress, and knew that the bankrupt intend- ed them for the defendants: yet they might afterwards have been deli- vered to a third person. This case is not affected by the argument that these are patent articles, because they might have been delivered to a third person with Kay's assent. The case of Woods v. Russell^ 5 B. & A. 942, is distinguishable. The foundation of that decision was, that as by the contract given portions of the price were to be paid according to the progress of the work, by the payment of those portions of the price the ship was irrevocably appropriated to the person paying the money. That was a purchase of the specific articles of which the ship was made. Besides, there the ship-builder had signed the certificate to enable the purchaser to have the ship registered in his name; the legal effect of which was held to be to vest the general property in the purchaser. If in this case an execution had issued against Sleddon, the sheriff might have seized the machines. They were Sleddon's goods, although they were intended for the defendants, and he had written to tell them so. If they had expressed their assent, then this case would have been with- in Rohde V. Thwaites, 6 B. & C. 388, and there would have been a complete appropriation vesting the property in the defendants. But there was not any such assent to the appropriation made by the bank- rupt, and therefore no action for goods bargained and sold was main- tainable. Then as to the counts for work and labour, if you employ a man to build a house on your land, or to make a chattel with your mate- rials, the party who does the work has no power to appropriate the pro- duce of his labour and your materials to any other person. Having be- stowed his labour at your request on your materials, he may maintain an action against you for work and labour. But if you employ another to work up his own materials in m.aking a chattel, then he may ap])ropriate the produce of that labour and materials to any other person. No right to maintain any action vests in him during the progress of the work; but when the chattel has assumed the character bargained for, and the employer accepted it, the party employed may maintain an action for goods sold and delivered; or if the employer refuses to accept, a special action on the case for such refusal. But he cannot maintain an action for work and labour, because his labour was bestowed on his own mate- rials, and for himself, and not for the person who employed him. I think, that in this case the plaintiff cannot recover on the count for work and labour. HoLROYD J. I think that on the facts given in evidence a verdict might have been sustained on a count for not accepting the machines. I have entertained great doubt during the argument, whether a verdict might not be sustained on the count for work and labour and materials found. I think it will not lie for goods bargained and sold, because there was no specific appropriation of the machines assented to by the purchaser, and the property in the goods, therefore, remained in the maker. Then as to work and labour, the work was done, and the la- bour bestowed on the materials of the maker in manufacturing an arti- cle which never became the property of the defendants. I am of opi- nion, therefore, that the work was done for the bankrupt, and not for the defendants. 8 Barnewall & Cresswell, 277. 219 LiTTLEDALE J. I am of the same opinion. Goods bargained and sold will not lie unless there be a sale. There could not be any sale in this case, unless there was an assent by the defendants to take the arti- cles. Here there was no assent. The property must be changed, to make the action maintainable. If the property had been changed, the maker could not have delivered these machines to any one but the de- fendants. I think, however, he might have delivered them to another, notwithstanding any thing that passed, and that the defendants could not have maintained trover against the party to whom they were deli- vered. In the case of an execution or a bankruptcy, these machines must have been treated as the goods of the maker. As to the count for work and labour and materials, the labour was bestowed, and the mate- rials were found, for the purpose of ultimately effecting a sale, and if that purpose was never completed, the contract was not executed, and then work and labour will not lie. The work and labour and materials were for the benefit of the machine-maker, and not for the defendants. Rule absolute, on payment of costs. JOSEPH PRATT, Administrator of ANN PRATT, v. SWAINE.— p. 285. To a declaration in trover by an administrator, alleging the grant of letters of administration to the plaintiff, and that the defendant knowing the goods to have been the property of the intestate in his life-time, and of the plaintiff as administrator since his death, afterwards, and after the death of the intestate, to wit, on, 8cc., converted the same goods, a plea of not guilty of the pi'emises within six years is bad upon special demurrer. BRYAN V. WHISTLER, Clerk.— p. 288. V\'licrc a rector granted to A. B. by parol, leave to make a vault in the parish church, and to bury a certain corpse there, and that he should have tlic exclu- sive use of the vault; and afterwards, without the leave of A. H., opened the vault, and buried anotlicr person there: Held, that no action could be maintain- ed against liim for so doing; for that if the rector had power to grant the exclu- sive use of a vault, lie could not do it l)y parol. Semble, That a rcctDr cannot grant a vault in the church, but only leave to bury there in each particular instance. Case for disturbing a vault. The first count of the declaration stated tlint the defendant was rector of the parish church of St. Clement, il.'istings, and phiintifl" being desirous of burying one M. A. W. in a vault in that church, on, &,p. applied lo the defendant, as such rector, for permission to make a vault there for that purpose, and to j)ut up a tablet or monument near the vault to perpetuate the same; and the de- fendant, as such rector, in consideration of iiO/. to ho pnid to him for such permission, consented and agreed that the plaintill" should have permission to make such vault and to put up s ich tablet, and should liave the sole and exclusive iise of such vault, upon being paid 20/. and 1/. Is. for the service. yVveirnent, that the j)lainti(]' d'd at his expense make such vault, and cause the body of M. A. W. to he burierl thcrc- jn, and put up a tablet, and pay the defendant 20/. for such pcnnissiou, 220 Hkyan v. VViiisi leu. E. T. 1828. and 1/. Xa. lor llic service, yet the defentlaiit intending to injure the ])laintil]", and to deprive him of the exckisivc use and hehelit of the v.inlt, and riglit of interment therein, and to disturb the remains of the Siid M. A. VV., afterwards, to wit, on, &c., broke into and damaged the said vault, and wrongfully, and without the leave of the plainlifi", caused the same to be opened, and interred therein the body of another person. The second count, after stating the agreement with the de- fendant, alleged that the plaintiff, with the knowledge and consent of the defendant, put up a tablet near the vault with a certain inscription thereon, viz. "In a vault beneath this tablet (appropriated to the family of T. B.) are the remains of M. A. W., &.c. ;" and then concluded as in the first count. Third count alleged generally that the plaintiff by the consent and agreement of the defendant, given in consideration of 20/. to him paid, had become and was entitled to the exclusive use of a vault in the said church, and that the defendant wrongfully defaced and injured, and opened it. Plea, not guilty. At the trial before Gaselee J., at the Sussex Summer assizes 1827, it was proved that in the year 1819, the plaintiff applied to the defendant for leave to make a vault, as stated in the declaration; the defendant by parol granted leave, but demanded a fee of 20/., which sum was paid to him. The vault was made at the plaintiff's expense, and the defendant performed the burial service over the body of M. A. W., who was buried in the vault, to the size of which the defendant made no objection at that time. After the funeral the defendant gave the following receipt to the plain- tiff: " Received ISth September 1819, of T. B., Esq. 20/. for permis- sion to make a vault in the church of St. Clement, Hastings, between the south wall and aisle thereof, and to put up a tablet or monument to perpetuate the same, &c. &c., and one guinea for the service, &c." Soon after the funeral the plaintiff put up a tablet with the inscription set out in the second count. This was frequently seen by the defend- ant, who made no objection to it. In the year 1825 the defendant, without the plaintiff's leave, caused the vault to be opened, and buried another corpse there. Upon these facts it was contended that the plain- tiff had no such interest in the vault as would enable him to maintain the action, for that there was not any conveyance or other instrument vesting in him an exclusive right to the vault, and the case of Hewlins V. Shippam^ 5 B. & C. 221, was cited. The learned Judge gave the defendant leave to move to enter a nonsuit on that ground; and the jury having found a verdict for the plaintiff, il/f/rrya/ in Michaelmas term obtained a rule nisi for entering a nonsuit, against which Gurnoy, Hodgson, and Chilly shewed cause. They cited 3d Inst. 202; 9 Ed. 4. \\.a.\ Frunccsv. Ley, Cro. Jac. 366; Deggc's Parson's Counsellor, 176, 6th edit. ; Gibson's Codex, 542; Hewlins \. Sliippam^ 5B. &C. 221; Winlerv. BrockivclLSVydsi, 30S; Taylor \. Waters^ 7 Taunt. 374; Palmer v. The Bishop of Exeler, 1 Sir. 576. F, Pollock contra, cited Hewlins y. Shippam, 5 B. & C. 221; Tay- lor V. JValers, 7 Taunt. 374. Batley J. I am extremely sorry that an individual in the situation of the defendant, having received a pecuniary compensation for the grant of a privilege intended to be binding at all events during his own incumbency, should afterwards keep the money and recede from his undertaking. But if the question of law be with him, his defence to this action must prevail. Jt seems to me that the objection raised is 8 Barnewall & CuESSWELL, 288, 221 valid. Tlic declaration states in substance, that in consideration of a certain sum of money the defendant agreed that the plaintiff might make a vault, and have the sole and exclusive use of it. If that were an interest in land, the grant could not be binding under the statute of frauds, unless there were a memorandum in writing signed by the party granting. No memorandum was in this instance signed except the re- ceipt, which is silent as to the exclusive use of the vault, and the action is brought for a violation of the plaintiff's right to the exclusive use. If it be not an interest in land it is an easement, or the grant of an incor- poreal hereditament; which could only be effectually granted by deed, and no such instrument was executed. But even had a deed been exe- cuted, I think the defendant had not power to grant any privilege, ex- cept for the particular burial then about to take place. The rector has the freehold of the church for public purposes, not for his own emolu- ment; to supply places for burial from time to time, as the necessities of his parish require, and not to grant away vaults, which, as it seems to me, cannot be done unless a faculty has been obtained. Even by means of a faculty, a pew can only be granted to the inhabitants of a parish, and it is for the most part limited to a house, a removal from which destroys the right to the pew. Now, I cannot find any good reason why the same rules should not be applicable to a vault. In Com. Dig. Cemelry (B), it is said, " A man may prescribe that he is tenant of an ancient messuage and ought to have separate burial in such a vault within the church." This is like the prescription for a pew in Rogers V, Brooks, 1 T. R. 431. n. In the latter case the prescription implies a faculty. Why then should it not in the former? The objection to the form of action does not appear well founded, for the right claimed is not to the soil but to an easement; but for the reasons above given, I am of opinion that a nonsuit must be entered. HoLROYD J. It seems to me, that if the action were maintainable, case would be the proper form, the claim being to an easement. But whether it be an easement or an interest in land, the action cannot be supported. The declaration states, that an application was made by the plaintiff to the defendant, for permission to make a vault and have the exclusive use of it; and that the defendant agreed that he might do so. If that could be considered as giving the exclusive use of the vault for all purposes, trespass would lie; but it must be taken as giving a spe- cial use of the vault, viz, for the purposes of burial; case, therefore, was the proper remedy, as it is for the disturbance of a pew, the right to whicli is granted for the special purpose of attending divine service. But whether the grant were for a special jiurpose or general for all |)ur- poses, the right could not pass without deed or writing. Here, there- fore, tlie plaintiff proved no legal right, and consequently cannot sustain his action. LiTTLKPALK J. I am of Opinion that this action is not maintainable. The right claimed does not appear to be an interest in land, .so as to bo affected by the statute of frauds. The right said to have been granted was merely a privilege to m.ike a vault and bury there. The right is claimed as an easement, giving a sole and exclusive privilege of burial. Now, according to Com. Dig, Ccmctry (B), that must be prescribed for as appurtf;iiant tn n?i ancient messuage. Presci iption presumes a grant, and I have little dillicidly in ."laying that the rector had no power to grant the privilege claimed in this case. The right acquired can be 222 Doe d. Jeff v, Rohinbox. E. T. 1828. no liighcr than the right to a pew, which can only be claimed as appur- tenant to an ancient messuage or by a faculty. In Frances v. JLeyy Cro. Jac. 366, it is said, *'tliat neither the ordinary himself nor the churchwardens can grant license of burying to any within the church, but the parson only, because the soil and freehold of the church is only in tlie parson, and in none other;" but in Gibson's Codex, 542, this is denied to be the true reason, for it would apply equally to the church- yard, but that the ecclesiastical laws have appointed the incumbent as the proper judge of the fitness or unfitness of any particular person to have tlie privilege of being buried in the church. The incumbent, therefore, may exercise a discretion in each particular instance, where application is made for leave to bury in the church, but he has no power to grant to another the privilege of burying there whomsoever he pleases. For these reasons I concur in thinking that a nonsuit must be entered. Rule absolute. DOE on the demise of JEFF and HUNTER v. ROBINSON and An- other. — p. 296. Where the tenant of lands, granted to him and his heirs pur auter vie, devised them "to A. B.," without saying more, and A. B. died, living cestui que vie : Held, that the heir of the devisor was entitled to the lands as special occupant. This was an action of ejectment on the demise of Robert Jeff and Thomas Hunter, the demise being laid on the 16th May, 1827, against John Robinson and Thomas Dowson Robinson, for the recovery of cer- tain lands in the township of Northallerton, in the county of York. Plea, not guilty. At the trial before Bayley J. at the Yorkshire Summer as- sizes 1827, a verdict was found for the plaintiff, subject to the opinion of this Court on the following case: — By a lease, dated the 24th of November 1783, and made between the Lord Bishop of Durham of the one part, and Thomas Dowson of the other part, the said bishop did demise, lease, and to farm let unto the said Thomas Dowson, his heirs and assigns, all that half oxgang of new land, arable, meadow, and pasture, with the appurtenances lying in the fields of Northallerton aforesaid, formerly called by the name of the Chapel Garths, and then divided into eight closes, and containing in all about twenty-four acres, to have and to hold unto the said Thomas Dow- son, his heirs and assigns, from the making of said lease, for and during the natural lives of him the said Thomas Dowson, John Dowson, his son, and Thomas Robinson, and the lives of the longest life of them, at the yearly rent or sum of 5^. \d. payable at the times therein men- tioned. By his will, dated 21st November 1808, and duly made, executed, and attested to pass real estates, Thomas Dowson being then in j)ossession of the same premises under the said lease, devised as follows: — " I give my daughter Elizabeth Robinson, my two houses, situated in Bootham, nigh the city of York, now tenanted by widow Earl and William Collyer, and my two closes, lying within the township of Northallerton, known by the name of the Chapel Garths, and west of the barn close fthe said two closes being the lands in question, and part of the eight closes de~ 8 Baunewall & Cresswell, 296. 223 mised to Thomas Dowson by the Bishop of Durham). I also give her my desk in my parlour, and she to choose other furniture within my house to furnish two rooms. I give my daughter Parthenia Robinson, my three closes called Bullomoors; and also one other close called Barn Close, all the afo.tsaid closes being within the township of Northal- lerton. I give her all the said four closes for and during her natural life, and at her decease I give the said four closes to her children then living, share and share alike; and I order that Robert Robinson, my son- in-law, shall have no concern either in letting the lands, or in taking any part of the rents from the lands. And as to all the rest of my estate, both real and personal, I give to my son John Dowson, and also a secu- rity for the payment of 20/. per annum for and during the life of my daughter Ann Dowson, he paying my said daughter Ann Dowson 40/. per annum, to be paid out of the rents arising from the Turks Banks; and also all my just debts and funeral expenses, and also for leasing the half oxgang after my decease; and, lastly, I make my said son John Dow- son my sole executor of this my last will and testament." Thomas Dowson died on the 14th of March 1814, without having altered or re- voked his said will, and upon his death, Elizabeth Robinson entered into possession of the premises thereby devised to her, and received the rents thereof until her death on the 1st of February 1826, at which pe- riod John Dowson and Thomas Robinson, two of the cestui que vies men- tioned in the said lease, were still living. After the death of Elizabeth Robinson, the defendants, her only children, entered into possession of the premises in question. John Dowson, the heir at law as well as re- siduary devisee and executor of Thomas Dowson, died on the 20th Fe- bruary 1627, having previously, by his will, duly made, executed, and attested to pass real estates, and bearing date the 20th September 1822, given and devised all and every his freehold lands, tenements, and he- reditaments situate in the township of Northallerton, in the county of York; and all other his messuages, lands, and hereditaments whereof he was seised or entitled unto in reversion, remainder, or expectancy, situ- ate in the township of Northallerton aforesaid, and in or near the suburbs of the city of York or elsewhere in tlie said county of York; and all his the said testator's personal estate, unto the said Robert JefTand Thomas Hunter, their heirs, executors, administrators, and assigns, according to the respective natures and tenures thereof upon the several trusts therein mentioned. And the said testator appointed ihem executors in trust of his said will. The said Thomas Robinson, one of the cestui que vies named in the said lease of the 24th November 1783, is still living. The question for the opinion of the Court was, what interest in the said two closes passed to Elizabeth Robinson under the will of Thomas Dow.son. The case was argued at the sittings in banc after last Hilary term by Jllexandcr for the plaintilF, who referred to IVillunns v. ^t/cijl, 2 Ves. sen. 681 ; Ripley v. IVatenoorlh, 1 Ves. jun. 440; Wcslfalinir v. West- falinfr, .3 Atk. 460; 2 Roll. Abr. tit. Occupant, (C.) pi. 2; Dvcr, 328; 2 Roll. Abr. Occupant, ((i) pi. 3; Sailer v. liuller, Cro. Eliz. 901. Yelv. 9. Moore, 66 1. Noy, 46; Com. Dig. Estates, (F 1.); liac. Abr. tit. Estate for Life and Occupancy, (B 3.); St. John\ii d. JEiTt». UoiJiNSON. E. T. 1828. p. 3; Lilt. s. 5(>; 1 Inst. 11; Edward Seymour's case, 10 Co. 98; Stat. 2i) Car. 'J; Lmo v. Burrun, 3 P. W. 262; Litt. s. 3S7; 1 Inst. 239; Doe v. Liixton, (3 T. R. 291. *^lexander in reply. n ^ i u ^ ^ Liir. adv. vult. Bayley J. This was an ejectment by devisees claiming under the heir at law and residuary legatee of Thomas Dowson, against the chil- dren of Elizabeth Robinson, a devisee of the same Thomas Dowson. The property consisted of two closes at Northallerton, which Thomas Dowson held under a lease for lives from the IJishop of Durham. By that lease the closes were demised to Dowson, his heirs and assigns, for the life of himself and two other persons, and the life of the longer liver. By his will Thomas Dowson devised these closes to his daughter Eliza- beth Robinson; but there were no words in the devise to shew an in- tention'in the testator to pass his whole interest, nor any words of limi- tation; so that had the property been fee-simple, it is clear an estate for life only would liave passed; and the question is, Whether it makes any difference that the property is not fee-simple, but an estate pur autre vie? At common law, ds the original grant was to Thomas Dowson and his heirs, his heirs would have taken as special occupants upon his death, unless he had made an alienation in his lifetime to prevent it. Had he aliened in his lifetime to a particular individual, without any words of limitation, or any thing to extend that individual's estate beyond his life, his interest would have ceased upon his death. His representatives would have had no claim; and unless Dowson, or his heir, could have claimed it, it would have been open to general occupancy. By the statute of frauds, 29 Car. 2. c. 3. s. 12, such an estate as this is devisa- ble in manner therein mentioned; and if no such devise thereof be made, it shall be chargeable in the hands of the heir, if it come to him as special occupant, as assets by descent, as in case of lands in fee-simple; and if there be no special occupant thereof, it shall go to the executors or ad- ministrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands. Upon this statu-te the owner of an estate, pur autre vie, may devise it to several in succession, so as to designate who shall occupy till cestui que vie dies, and to leave no interval or chasm (3 P. Wms. 2G2); but I have not been able to meet with any case which decides what shall become of it, if it be only par- tially devised, that is, if it be devised for a period which expires before the estate pur autre vie ends. In such cases it must belong either to the representatives of the devisor, the representatives of the devisee, or become the subject of general occupancy. Upon the language of the 29 Car. 2. c. 3. s. 12, with the legislative explanation it receives from the 14 G. 2. c. 20. s. 9, it seems to me that it belongs to the devisor. The language of the 29 Car. 2. is, that "any estate pur autre vie shall be devisable." If there be a devise which will provide for the occupancy till all the lives fail, the estate, that is, the whole estate, will be devised; upon a devise which may or must leave a chasm before all the lives fail; there is only a partial devise of the estate, and as to the residue there is no devise thereof. If, for instance, A. have an estate for the lives of B., C, and D., and he devise it to E. until either B., or C, orD., die, he devises the property for a part only of the estate pur autre vie, and as to the residue of that estate he makes no devise thereof. The next provision, then, in the 29 Car. 2., "if no such devise thereof be made," 8 Barnewall & CuESSWELL, 296. 225 may, and upon the principles on which that act is founded, viz. to pre- vent general occupancy, ought to attach upon the portion which is not devised, and then that portion will be chargeable in the hands either of the heir or executor; and though it is not in terms mentioned whose heir is contemplated, it is shewn whose executor is contemplated, viz. the executor of the party that took the estate by virtue of the grant, which must mean the executor of the devisor, not the executor of the devisee. And if it be Ihe devisor's executor that is contemplated when executors are mentioned, it must be the devisor's heir that is contemplated when the heir is mentioned. And this exposition of the 29 Car. 2. is suppor- ted and explained by the provision in the 14 G. 2. c. 20. s. 9. The former statute had made the undevised estate assets in the hands of the heir, or of the executor; but it had made no provision as to the residue, where the estate was made personal assets. The 14 G. 2, therefore, provides that estates pur autre vie, of which there shall be no special occupant, of which no devise shall have been made, or so much thereof as shall not have been so devised, shall go, be applied, and be distributed, in the same manner as the personal estate of the testator or intestate. That act, therefore, evidently proceeds upon the assumption that so much of an estate pur autre vie as is not subject to special occupancy, or has not been devised, is to pass to the executor. In this case, we think that judgment must be given for the lessors of the plaintiff, inasmuch as nothing but an estate for the life of Elizabeth Robinson is devised; of so much of the estate pur autre vie as remained at her death, there was no devise, and that part, therefore, belonged not to the representative of Elizabeth Robinson, but to the heir of Thomas Dowson as special oc- cupant, and not to his devisee. Postea to the plaintiff. DOE on the demise of HENNIKER v. WATT.— p. .30S. By a memorandum of agreement, in consideration of the rent and condilionn there- inafter mentioned, A was to have, hold, and occupy, as on lease, certain pre- mises therein specified, at a certain rent jjer acre. And it was stijjulatcd, tliat no buildings should be included or leased by virtue of the agreement; and it waa further agreed and stipulated, that A. should take, at the rent aforesaid, certain other parcels, as the same might fall in; and, lastly, it was stipidated and con- ditioned that A. should not assign, transfer, or underlet, any part of the said lands and jiremises otherwise than to his wife, child, or children: Held, that by the last clause a condition was created, f"i- tlu> breacli of which the lessor might maintain an ejectment. Ejectmknt brought to recover certain lands and premises in the county of Somerset. This cause wa% tried before liurrouirfi J., at the Summer assizes for the county of Somerset, 1S27. It appeared that the defendant, in October 1825, bc-camo tenant to the lessor of tlie j)lainti(l of the premises in question, under and i)y virtue of the following instru- ment, signed by the defendant, and bearing date the 24th day of Oc- tober 182.): '* Klcmoranduni of agreement made with George Watt, bailiff, of the manor of Clialcott, othorwi.se Calcolt, in the county of Somerset, The said G. Watt, in consideration of the rent and condi- tions hereinafter mentioned, is to have, hold, and occupy, as on lease, every part and parcel of all tint piece or tract of ttirliary land, com- monly called Tlie FivcIIundrcd Acres, situate in the said manor, \>hich VOL. XV. 29 226 Doe d. Hknnikkr v. Watt. E. T. 1828. may now be in l)an(ls and disengaged or unlet, for the term of twenty • one years from Lady-day 1825, at llic yearly rent of 5s. an acre, paya- ble quarterly, and free and clear of all charges, rates, and outgoings whatsoever; and is likewise to have, at the like rent of 5s. an acre, all and every parcel of the said Five Hundred Acres which may fall in hand and become unlet between this time and the expiration of the said term of twenty-one years; provided always, that the entire or total quantity of land in the said Five Hundred Acres, occupied by the said G. Watt by virtue of this agreement, shall never exceed 100 acres in the whole; and that the term or lease of all and every parcel occupied or possessed under this agreement shall cease or determine in twenty-one years from Lady-day aforesaid. And it is stipulated that no house or cottage, sta- ble or other substantial building, nor any parcel of land on which such building now stands, or may hereafter be erected, shall be included in or leased by virtue of this agreement. And it is further stipulated and agreed that the said G, Watt shall take and occupy, at the rent aforesaid, every parcel of land in the said Five Hundred Acres as the same may fall in hand, without choice, exception, or refusal, until the total quantity amounts to 100 acres as before mentioned. And also that G, Watt shall, on possession, proceed to cultivate and improve every parcel as the same comes to his occupation, whether it be late or early in the said term of twenty-one years, in like manner or method as he means towards the parcels of which he has immediate possession. And, lastly, it is stipulated and conditioned that G. Watt shall not assign, transfer, underlet, or part with any part or parcel of the said lands or premises otherwise than to his wife, child, or children." It was proved that the de- fendant had underlet part of the demised premises; and it was insisted, on the part of the lessor of the plaintiff, that the last clause in the agree- ment operated as a condition, and that the underletting was a breach of that condition. The learned Judge was of opinion that the clause did operate as a condition, but he reserved liberty to the defendant to move to enter a nonsuit on that point, if the verdict should be against him. The de- fendant then gave some evidence which, it was contended, clearly shewed that the defendant had underlet with the knowledge, and in some degree by the directions of the lessor of the plaintiff, and amounted to a waiver, if not to an express licence. The learned Judge thought that the evi- dence applied to other lands of the lessor's which the defendant managed as his bailiff, and directed the jury to find a verdict for the plaintiff, Jeremy in last Michaelmas term obtained a rule nisi for a nonsuit, on the ground that the clause prohibiting the defendant from assigning or underletting did not operate as a condition, but merely as a covenant; and, secondly, for a new trial, on the ground that the evidence of licence had not been distinctly presented to the jury. On a former day Moody shewed cause, and cited Litt. s. 328, 329, 330; Co. Litt. 204 «.; Shepp. Touch. 120; Com. Dig. tit. Condition (A 2); Litt. s. 3G5; Plowd. 142; Co. Litt. 219 h.\ Vin. Abr. Condition (E r.); Co. Litt. 203 h\ CromwePs Cd.sc, 2 Co. 270. Jeremy, contra, cited 1 Roll. Abr. 414; 3 Vin. Abr. Condition (R), 69; Muchel v. Bunion, 2 Leon. 33; Doe d. Willson v. Phillips, 2 Bingh. 13; Doe d. Wilson v. Mel, 2 M. & S. .541; Litt. s. 328; 4 Cruise Dig. 378 ; CorbePs case-, 1 Rep. SG ; Cooper v. JindrewSy Cur. adv. vult 8 Barnewall & CiiESSWELL, 308. 227 Baylef J. This was aji ejectment brought for breach of a condition contained in an agreement for a lease. There are two questions; first, Whether the agreement contained a condition or not? the second, Whe- ther the plaintiff had not destroyed his right to enter upon the lands de- mised for the breach of the condition? because the act constituting the supposed breach \\as done with his concurrence. The Court, at the time of the argument, felt that this question had not been submitted to the jury, and, therefore, held that there ought to be a new trial, even if there was a condition contained in the agreement. But if there was no such condition, then there ought to be a nonsuit. The parties stood in the relation of landlord and tenant. There was an agreement made be- tween the lessor of the plaintiff and defendant, by which the defendant, in consideration of the rent and conditions thereinafter mentioned, was to have, hold, and occupy, as on lease, every part and parcel of the tur- bary land called The Five Hundred Acres, &c. which might then be underlet or disengaged, for twenty-one years from Lady-day 1826, at the rate of 5s. per acre, payable quarterly, clear of all charges and out-^ goings whatsoever; and to pay the like rent of 5s. per acre for all and every parcel of the Five Hundred Acres which might fall into hand or come into possession before the expiration of the said term of twenty- one years. Then it was stipulated that no house, &c. should be in- cluded in or leased by virtue of the agreement, and it was further stipulated that the said G. Watt should take and occupy, at the rent aforesaid, every parcel of the land in the said Five Hundred Acres as the same might fall in hand; and also that G. Watt should, on posses- sion, proceed to cultivate every parcel as the same came to his occupa- tion. And, lastly, it was stipulated and conditioned, that the said C. Watt should not assign, transfer, underlet, or part with any part of the said lands otherwise than to his wife, child, or children. The question is, Whether a condition be contained in the last clause? Tiiis docu- ment is not under seal; and it has been said by the defendant's counsel that it is not therefore calculated to raise a condition. But the circum- stance of its not being under seal is immaterial. A party who demises land by an instrument not under seal may introduce a condition into it, provided he use apt and proper words for the jiurpose. The words "provided always, sub condilione, ila qnocl," used in a conveyance of real estate, by themselves, make the estate conditional. But in a lease for years no precise form of words is necessary to make a condition. It is sufficient if it appear that the words used were intended to have the effect of creating a con the act ; and that where the Judge has refused to certify, this Court has no power to order a judgment of nonsuit to be entered. Held, i)y Lord Tmtrrdrn C J. at Nisi Prius, tliat it lies upon the defendant to shew that he was residing in Wales at the time when the writ or mesne process was served on him in the action, and that general evidence that his usual place of residence both l)eff)re and subsequent to thecommenccmciit of the action, was in Wales, is not sufficient. •332 Lestku v. Jenkins. T. T. 1828. LESTER V. JENKINS.— p. 339. Declnration upon a bill of exchange, drawn on the 29th November, 1827, pay- able two months after date, was entitled Koerally of Hilary term 182H} Held, that it was competent to tlie plaintiff to prove by the parol evidence of the attorney (without prodncinu; the writ) that the action was commenced after the 1st of February, when the bill became due. Assumpsit by the indorsee against the defendant, as acceptor of a bill of excliange bearing date the 29lh day of November 1827, payable two monllis after date. At the trial before Lord Tenterden C. J., at the Lon- don sittings after last Easter term, it appeared that the declaration was entitled generally of Hilar}'- term, and that the bill of exchange became clue on the 1st of February. It was contended, on the part of the defen- dant, that as the declaration was entitled generally of the term, it related to the first day of the term, and that the action, therefore, appeared to have been commenced before the cause of action accrued. The plaintiff's attorney then proved that he did not receive his instructions to com- riience the action until the bill had been dishonoured, and that he took no proceedings until after the first of February. It was insisted that this evidence of the time of the commencement of the suit was not admissi- ble, but that the writ itself ought to have been produced. I^ord Tenter- den C. J. overruled the objection, and directed the jury to find a verdict for the plaintiff, but reserved liberty to the defendant to move to enter a nonsuit. Brodrlck now moved accordingly, and cited Morris v. Pugh and Harwood^ 3 Burr. 1241; Granger v. George, 5 B. & C. 149. Lord Tenterden C. J. The indorsement on the writ is no more than the declaration of the attorney in the case. Bayley J. The memorandum is prima facie evidence of the lime of the commencement of an action, and, uncontradicted, is conclusive. But it is clearly established by authorities that either party may shew by evidence the actual time of the commencement of the suit to be dif- ferent from that which it purports to be by the record. The only ques- tion in this case is. Whether that can be shewn by any other medium of of proof than the writ. I cannot entertain any doubt upon that point. A party cannot prove the contents of the writ without producing it; but he may prove the time when the action was commenced, without proving the contents of the writ. Rule refused (a). (a) See Wilton v. GircUcstone, 5 B. Sc A. 847. Lyttletoii v. Cross, 3 B. & C. 317. The KING v. SMITH and Two Others.— p. 341. Where an indictment for a conspiracy alleged, that "at the court of quarter ses- sions holden, 8cc. an indictment against A. B. was preferred to, and found by the grand jury:" Held, that this allegation must be proved by a caption regu- larly drawn up of record, and that the minute-book kept by the deputy clerk of tiie peace could not be received as evidence of the finding of the bill, al- though no record had been in fact drawn up. 8 Barnewall & Cresswell, 341. 233 Indictment for a conspiracy. The second count slaleJ, that at the general quarter sessions of the peace holden at, &c. on &c. before cer- tain of his majesty's justices assigned, &c. a certain bill of indictment against Henry Smith, for a certain felony therein mentioned, was duly preferred to and found by a certain grand jury of the county then and there duly assembled in that behalf, and that it then and there became and was material and necessary to examine one W. B. as a witness in support of such indictment, and that defendants conspired to prevent W. B. from attending and being examined, &c. The third and fourth counts began in like manner, by stating that a bill was preferred and found at the quarter sessions. There were several other counts in the indictment not material to be noticed. Plea, not guilty. At the trial before Vaiighan B. at the Summer assizes for Monmouthshire, 1827, the prosecutor, in order to prove the allegation that a bill was found against H. Smith, called the deputy-clerk of the peace, who produced an indictment indorsed a true bill, but there was no general heading or caption to it. For the defendants, it was objected that this could not be admitted for want of a caption. The witness then stated, that it was not the practice to make up the records in form until they were desired to do so, but that in his book minutes were made of the proceedings from which the records were afterwards made up. The book was pro- duced, and the following minute read : ''Monmouthshire sessions, lOtli July 1S26. At the general quarter sessions of the peace held at Usk in and for the said county, this 10th day of July 1826, before A. B., C. D." &c. &c. Then followed minutes of the business done at those sessions. The learned Judge received this as evidence of the caption of the indictment against H. S., and two of the defendants were found guilty on the second, third, and fourth counts above mentioned. In Michaelmas term Liidloro Serjt. ol)tained a rule nisi for a new trial, on the ground that the minute-book of the deputy-clerk of the peace ought not to have been received in evidence to prove the finding of the bill. 7?M.wc// Scrjt. , 7l/f7?;/e and ^Fc/ /.so??, shewed cause. The finding of the bill at the (juartcr sessions was sufficiently proved by the minute book, without producing a record of the caption regularly drawn up. Such minutes have frequently been received in evidence when it has appeared not to be the practice of the court lo draw up the records in form, Rex v. Ihiim, Comb. .337; I'iskcr v. Lane, 2 VV. Bl. 83^1. [Lord Tenterdtn C. J. The minutes there received were of the pro- ceedings of inferior courts, the court f)f quarter sessions is a court of oyer and terminer, and is not a court of inferior jurisdiction. | In Hex V. Tooke, 23 St. Tr. lUi, the minutes of the court were received to prove the acf[uittal of Hardy. Lord Tentehuf-n C. .1. ll appears to me that the evidence given was not sufficient to sustain the allegalinn that an iiididnient against II. S, was found at the quarter scs.siuns, which is a court of (jycr and ter- miner and a court of record. In order to prove the finding of an indict- ment, it hns always been the practice to have the record rriz;ularly drawn n|), and to produce an cximiined copy. If any other evidence were al- lowed, I d(} not know how we could say that a conviction or ac 234 Tkai.ue v. HuHiiAKD. T. T. 1828. two clefciul.inis who were fountl suilty there must he a new trial. The case of /tV.r v. 7ooA-e is dislinguishabic ; for there the matter proved by the minutes occurred before the same court sitting under the same com- mission. Bayley J. I am of the same opinion. The caption is a necessary part of the record; and the record itself, or nn examined copy, is the only legitimate evidence to prove it. Rule absolute. Ex parte BAXTER.— p. 314. ^^'hcre a party, committed by commissionci-s of bankrupt for not answering to their satisfaction, wislies to be again brought before them, he must bear the ex- pense of that proceeding. TEAGUE V. HUBBARD.— p. 345. A member of a joint-stock company was employed by the company as their agent to sell goods for them, and received a commission of two jier cent, for his trouble, and one per cent, del credere for guaranteeing the purchaser. Having sold goods on account of the company, he drew on the purchaser a bill of exchange, payable to his the drawer's own order, and after it had been ac- cej^ted he indorsed it to the actuary of the company, and the latter indorsed it to another member, who was the managing director, and who purchased goods for the company : the company were then indebted to him in a larger amount than the sum mentioned in the bill. The' acceptor having become in- solvent before the bill became due, tlie drawer received from him ten shillings in the pound upon the amount of the bill by way of composition : Held, first, that the indorsee being a member of the company could not sue the drawer on the bill, inasmuch as it Avas drawn by the latter on account of the company, and that he could not recover the sum received by the drawer on the bill, be- cause that money must be taken to have been received by him in his charac- ter of a member of the company, and not on his own account. Declaration by tlie plaintiff as indorsee against the defendant as drawer of two bills of exchange ; counts for money had and received, &:c. Plea, general issue. At the trial before Lord Tentcrden C. J., at the London sittings after Trinity term, 1827, the following aj)peared to be the facts of the case : Tlie plaintiff was a shareholder and managing director of the Cornish Tin-Smelting Company. The defendant was a shareholder in that company, and also acted as the agent of the com- pany in the sale of tin, receiving a commission of two per cent, for ef- fecting sales, and an adrlitional del credere commission of one per cent, for guaranteeing the purchaser. Having sold a quantity of tin on ac- count of the company to one Richard Conncss, he, on the 1st of April 1S26, drew two bills of exchange upon Conness, one for 200/,, and the other for 133/. 'J'he 200/. bill was in the form following: ' l»f aidiii)'; tlic mayor: Ikld, tliat the mayor wis not bound to give to iht nitMnbers ol'sucli select body biJccific noiici. ol" u na-el- 2.^6 Rkx r. Pui.sFOKD. T. T. 1828. mg to \>v hiilikii for tlic puri)usc of such election; but that a reasonable and usual notice reiiuiiing theui to attend at a meeting of the corporation at a lime specified, without staling for what purpose the meeting was called, was suf- ficient. Qro warninto information for usurping the oflice of a capital burgess of the city of Wells. Plea, that by the governing charter of the bo- rough there are to be one mayor and twenty-three burgesses, who shall be called the common council, and of those twenty-three, seven to be called masters of the city; and the common council are to be aiding and assisting the mayor from time to time in all causes and matters toiiching and concerning the city; and whenever a vacancy occurs in the sixteen common counsellors, not being masters, it is to be filled up by the other common counsellors then surviving, or the major part of them, &c. Averment, that on, &.c. a vacancy happened, and that defendant vyas duly nominated and elected by the mayor and major part of the capital burgesses there and then duly assembled for that purpose, after due no- tice in that behalf. Replication, that due notice of the assembling of the mayor and capital burgesses for the purpose of electing a capital burgess was not given. Issue thereon. Many other issues were joined not material to the question decided by this Court. At the trial before Best C. J. at the Somersetshire Summer assizes, 1827, it appeared that the following notice in writing was given to each capital burgess for the meeting at which the defendant was elected: — <' Sir, — You are requested to attend a meeting of the corporation on, &c. at o'clock. " By order of the mayor, " A. B. town clerk." The Lord Chief Justice held that this notice was insufficient, and the election therefore invalid, and directed a verdict for the crown. In Mi- chaelmas term a rule nisi for a new trial was obtained; against which, on a former day in this term, Taunton^ Campbell, C F. Williams, and Bayly, shewed cause, and cited Hex v. Hill, 4 B.& C. 426; Rex v. The Mayor, 8fC. of Shrewsbury, Cas. temp. Hardw. 147; Rex v. Mayor, S,'C. of Carlisle, 1 Str. 385; Rex v. Mayor of Liverpool, 2 Burr. 723; Rex v. Mayor of Doncasler, 2 Burr. 738; Rex v. Thcodorick, 8 East, 543. R. C. Scarlett and Carter contra, referred to Rex v. Wake, 1 Bar- nard, 80. ^, / 1, ' Cur. adv. vult. The judgment of the Court was now delivered by Lord Tenterden C. J. The point on which this cause was decided at Nisi Prius was the supposed insulFicicncy of the notice of holding the meeting at which the defendant was elected. Now it appears that some days before the meeting a notice in writing signed by the town clerk, and importing that it was sent by the mayoi-, was delivered to each elector, requiring his attendance at a corporate meeting, on a certain day, at a particular hour, hut not specifying the purpose for which the meeting was about to be holdcn. The Lord Chief Justice of the Com- mon Pleas was of opinion that the purpose should have been specified, and on that ground directed that a verdict should be entered for the crown; and it has been since contended here, that as the meeting was held for an election, that should have been staled in the notice. It SBaUNEVVALL & CliESSWELL, 350. 237 would be very difficult to maintain that the object of the meeting must be stated, where it is for an election, and not where it is for other pur- poses. Many cases were cited in argument as in point, but, upon a review of them all, it appears that there is not any one decision pro- ceeding on the ground that specific notice was necessary, although cer- tainly there are dicta to that effect, as well as to the contrary. In Bex V. Hiil the election was by the body at large, which is a very different thing. And even in that case, although each of the learned Judges ex- pressed an opinion that the purpose for which the meeting was held should have been mentioned, yet, laying that point entirely out of con- sideration, the judgment stands good on other grounds. The point ex- pressly decided was, that the notice given, as stated in the pleas, was not a reasonable notice, of which there could be no doubt; for, consist- ently with every allegation on that record, the bell which was to give notice might be rung for a few minutes only, and those assembled might, as soon as it ceased, immediately proceed to an election, before the members residing at a distance could possibly attend. The present is the case of an election by a select body, and we are of opinion that it was not necessary in the notice to them to state the purpose of the meeting. But although we are of that opinion in this case, we avoid giving any opinion as to an election by a corporate body at large. The difference between them is this: the select body are appointed to be aid- ing and assisting the mayor on all occasions concerning the city, when required so to do. It is, therefore, their duty to attend whenever the mayor gives them reasonable notice that tlieir attendance is required; and wc think they are not at liberty to say that they abstained from at- tending because they did not know the specific purpose for which the meeting was about to be holden. If, indeed, it had appeared to be usual in this borough to give a more precise notice, tlie case would have been very different; but nothing of that kind is suggested. For these reasons, then, we think that the notice was sufficient, and that there must be a new trial. Rule absolute. The KliNfi V. The Commissioners of Sewers for tlic Levels of PACi- HAM, and certain other Places in the County of SUSSEX. — p. 355. Where commissioners of sewers acting bona fide for tlic benefit of tlic levels for which they were appointed, erected certain defences asaiiist the inroads of the sea, wliicli caused it to flow with greater violence against, and injure the adjoining land not within the levels: Held, that they could not be compelled to make compensation to the owner of the land, or to erect new works for his jjrotection; for that all owners of land exposed to the inroafis of the sea, or commissioners of sewers acting for a numljer of land-owners, have a right to erect such works as arc necessary for their own protection, even although they may be prejudicial to others. A RULE had been obtained calling upon the commissioners to shew cause why a mandamus should not issue, directed to them, command- ing them to issue a precept to the sheriff of the county of Suj^sex to summon a jury for the purpose of encpjiring what hurt, losH, or disad- vantage hath been sustained by VV. Coscns by reason of certain groynes and other works erected and made by the said commissioners within the 238 Hex v, I'lc.iiam. 1\ T. 1828. limits ol' the said levels, aud of assessing and ascertaining the com- j)ensation to i)e paiil to the said W. Cosens for the same; or to erect ami make sucii other works as should be necessary and sullicient to prevent further injury being done to the premises of tiie said W. Cosens by reason of the said groynes and otlier works above mentioned. Tlie rule was obtained on allidavits which stated that Cosens was owner of certain lands on the sea shore of Sussex, abutting on the west on the levels above mentioned; that, thirty years ago, he erected a mill 100 yards from high water mark, and that about that time the commis- sioners altered the groynes and other works, which had been before erected to protect the levels against the inroads of the sea, by taking away several small groynes, and erecting one large groyne in lieu thereof, at the easternmost point of the levels, and adjoining his (Co- sens's) land. That the effect of this groyne was to cause the sea to flow with increased force against his land; and that in consequence thereof his land had been gradually washed away until high water mark was within fifteen yards of his mill. That his property was thereby much reduced in value, and that he had made application to the commissioners for compensation and protection, but without effect. The affidavits in answer stated that the sea was making encroachments on the whole of that part of the coast, and that no part of it could be secure unless groynes or other works were erected for its protection. Tiiat the groyne adjoining Cosens's land was essential to the safety of the levels placed under their care; that before it was erected they had endeavoured to ascertain the best position and shape for it, and had made it merely with a view to the protection of the levels, and not for the purpose of injuring Cosens, That the effect of every groyne was to make the water flow with greater force against the land to the east- ward, but that if Cosens erected proper groynes for his own security his property would not be injured. Gtcrnei/, T/iesiger, and Caption shewed cause, and contended that the commissioners had no power to grant compensation to Cosens. Brodrick contra, cited Cardiffc Bridge, 1 Salk. 146; Rook's case, 5 ('o. 100; Keighly's case, 10 Co. 140; Callis on Sewers, 104; Rex v. Severn Railway Company, 2 B. &, A. 646; Rex v. The Vice-Chan- cellor of Cambridge, 5 Burr. 1G60. Lord Tenterden C. J. I am of opinion that this rule must be dis- charged. At the time when the motion was made the Court expressed great doubt whether it could be sustained. The matter has now been fully discussed, and the counsel for Mr. Cosens concluded by observing that it was reduced to this question, Who is to bear the expense of erecting the works necessary to protect Cosens's land.'' and I think he is perfectly correct in considering that as the substantial question. Let us see, then, how the matter stands. The commissioners of sewers, for the protection of that land which it was their duty to protect, have erected a certain work. It is not pretended that in so doing they did not exer- cise, at least, an honest discretion; and, looking at the affidavits on the one side and on the other, it is not by any means clear that they did not do the very best thing that, under the circumstances, could be done to at- tain the object they had in view, liut it is contended that this new groyne has caused the sea to flow with greater violence against the land of Mr. Cosens, and make a greater inroad upon it, than possibly it might otherwise have done; and that as the commissioner^, acting for the bene^ 8 Batinewall & Cresswell, 355. 239 fit of the level, have occasioned this damage, they must make compensa- tion for it. It may be conceived ihat such is the cllcct of the groyne; but the sea is a common enemy to all proprietors on that part of the coast, and I cannot see that the commissioners, acting for the common interest of several land-owners, are, as to this question, in a diflferent situation from any individual proprietor. Now, is there any authority for saying, that any proprietor of land exposed to the inroads of the sea, may not endeavour to protect himself by erecting a groyne or other reasonable defence, although it may render it necessary for the owner of the adjoin- ing land to do the like? I certainly am not aware of any authoiity or principle of law which can prevent him from so doing. If we were in this instance to say that the commissioners for the level in question were bound to erect a groyne for Mr. Cosens, it might, and probably would, cause injury to the land lying to the eastward in the same manner as that erected for the protection of the level has caused injury to Mr. Cosens; and the owner of the land lying eastward of Mr. Cosens would have a right to call upon the commissioners to protect him also. In like man- ner each successive proprietor of land lying to the eastward would be en- tilled to claim protection, and the commissioners might be compelled to erect defences against the sea along the whole line of coast from the le- vel of Pagham to the North Foreland; for so far, 1 believe, the sea is making inroads upon the land. The extent to which the principle must be carried, if once admitted, satisfies me that it cannot be sustained in reason or in law. I am, therefore, of opinion that the only safe rule to lay down is this, that each land-owner for himself, or the commissioners acting for several land-owners, may erect such defences for the land un- der their care as the necessity of the case requires, leaving it to others, in like manner, to protect themselves against the common enemy. For these reasons, the rule for a mandamus must be discharged. Hayley J. I am entirely of the same o])inion. It seems to me that every land-owner exposed to the inroads of the sea has a right to protect liimself, and is justified in making and erecting such works as arc neces- sary for that purjiose; and the commissioners may erect such defences as are necessary for the land entrusted to their su|ierintendence. If, in- deed, they made unnecessary or improper works, not with a view to the protection of the level, but with a nialcvolont iiilcnfion, to injure t!ic owner of other lands, Ihey would be amenable to punishment by criminal information or indictment, for an abuse of the powers vested in them. But if they act bona fide, doing no more than they honestly think neces- sary for the protection of the level, their ads are JMslirial)le, and those who sustain damage therefrom must protect themselves. It has been ar- gued that Mr. Cosens, having sustained damage from the groyne creeled by the commissioners, is entitled to compensation. I do not agree to that as an abstract proi)OHili(jn. If a man sustains damage by the wrong- lul act of another, he is (;titilleiaiiitins, with 5/. damages, and judgment was entered up generally for that sum and lieble costs, which were allowed by the Maf^ter on tin- ground that "the plainlidi were eiJi- 'Z52 Rex v. Sutton. T. T. 1828. llcd to them under ll)e 8 H. G. c. 9. s. 6. A rule nisi for a review of the iSIasfeiV taxaticm having been ol)tainccl, J\ Kclli/ shewed eause. Hy the stat. 8 II. G. c. 9. s. G. it was enact- ed, that a person put out, or disseised of any lands in a forcible nnan- ner, may have assise of novel disseisin, or a writ of trespass, and if the ])arty recover, he shall have treble damages against the defendant. Hero then the jiiaintifl's were entitled to treble damages, and, consequently, to treble costs, PilfolWs case, 10 Co. IIG. It is true that judgment has been entered up for single damages only, and the plaintiffs may bo considered as having waived the treble damages, but that docs not de- prive them of their right to treble costs. JVightman contra. The first count only was framed upon the statute, and the damages were taken generally upon the whole declaration. The plaintiffs, therefore, had no right to enter up judgment for treble da- mages, and, consequently, had no right to more tlian single costs; for they can only have treble costs as incident to treble damages. But, supposingthat not to be a sufficient answer, thestatute 8 H. 6. does not apply to this case, the wife was at most only tenant from year to year, and the statute applies only to parties forcibly dispossessed of a freehold. The words in s. G. are, that " the party grieved shall have assise of novel disseisin, or a writ of trespass against such disseisor," He was then stopped by the Court. Lord Tekterden C. J. I think it is quite plain that the statute was intended to apply to those only who have the freehold. A disseisor is. one who takes the freehold: and this is easily accounted for; at the time when the statute in question was passed no tenants at will or from year to year were known. Bayley J. The case of Hex v. Dormy, 1 Ld. Raym. 610, shews that a party is not within the statute, unless he has the freehold. Rule absolute (a). (a) See Fitz. N. B. 560. 8th edit. Dalabcr v. I.y&ter, 2 Dyer, 142. Jnony- wows, Sav. 68. pi. 141. J/ionymous, i \i:nt.r. 306. .'5 Kulstr. 71. Rex v. Wan- nofty Say. 142. MAGRAVE V. AVIIITE.— p. 412. W'liere the speaker of the House of Commons "certified tliat a certain .sum was due to A. B. , "a witness summoned by and on behalf of C. D., one of the sittini; members for Dublin, to give evidence before an election committee," the Court ordered judtjmcnt lo be entered up against C. 1). for tliat sum as upon a warrant of attorney, the certificate being held conclusive as to the fact of the witness having been summoned, and the stat. .5S C?. 3. c. 71. beingheld applicable to witnesses summoned by a sitting member, as well as to those summoned by a petitioner. The KING V. SUTTON and Others.— p. 417. Alienage is a groimd of challenge to a juror; and if the party has an opportunity of making his challenge, and neglects it, he cannot afterwards make the ob- jection. Semble, That since theV O. 4. c. 60. s.'27. alienage is not a ground even of challenge to a special juror. 8 Barnewall &. CuESSWELL, 417. 253 Indictment for a conspiracy. Plea, not guilty. At the trial before Lord Tenterden C. J., at the London sittings after last Hilary term, Sutton, and some other defendants, were found guilty, otliers were acquit- ted. The parties convicted being now brought up for judgment, Denman, on behalf of Sutton, moved for a new trial, on an affidavit that a special juror, who served on the trial, was an alien, and that this fact was not known to the defendant until after the trial. The 6 G. 4. c. 50. , for consolidating and amending the laws relating to jurors and juries, in the first section enacts, that every man (except as thereinaf- ter excepted) being the owner or occupier of certain descriptions of property there specified, shall be qualified and liable to serve on juries. In s- 2. there are certain exemptions from this liability, and s. 3. is ex- pressly applicable to this case: "Provided also, that no man, not being a natural born subject of the king, is or shall be qualified to serve on juries or inquests, except only in the cases hereinafter expressly provid- ed for;" which exception applies to juries de medietate. The subse- quent provisions as to special juries do not introduce any new descrip- tion of persons as qualified to servje, but relate only to the mode of se- lecting special jurors out of the general description before given. [Bai/- ley J. What is the consequence if a person not entitled to do so, serves as a juryman ?] The decision of the jury is void, and a new trial must be granted. Rex v. Trerneurne, 5 B. & C. 354. The Solicitor-General, (with whom was Bosanquet Serjt. ) contra. The word qualified is applied to aliens in the third section, in the same sense in which it is applied to other persons in the first section. Now by the twenty-seventh section it is enacted, <'That if any man shall be returned as a juror for the trial of any issue in any of the courts here- inbefore mentioned, who shall not be qualified according to this act, the want of such qualification shall be good cause of challenge;" and the section concludes with a proviso "that nothing therein contained shall extend in any wise to any special juror." (lie was then stopped by the Court.) Lord Tentekden C. J. The enactment in the 27th section of this statute agrees precisely with that which had before been established by the common law, for in Co. Lit. 156 b. it is stated that aliens born may be challenged propter defectum patrirc. Now, I am not aware that a new trial has ever been granted on the ground that a juror was liable to be challenged, if tlu; party had an opportunity of making his chal- lenge. In the case cited, no such opj)ortunity had been aflbrdcd. Wc ought to be very carefiil in giving way to such an application, for if wc must prant a new trial at the instance of a defendant after conviction, wc must, also, do it at the instance of a prosecutor, when there has been an acquittal; and it seems to me that, without a precedent, we ought not to interfere in this late stage of the proceedings. The proviso also, at the end of the 27th section, a[)pcars to have the efiect of taking away even this right of challenge in the case of a special juror; proljably be- cause the parly has had an earlier opportunity of making the objection. Rule refused. The KING V. RICII.\UJ)S and Others.— j). 420. The »tat. 7 Ci. 4. c. 74. s. 23., whicli provides for tlir allnwHiicc of costs to pro- secutors and witnesses in rertain cases nf niisdeiiuanor, does not apply where the indictment has been reniovcrl into K. B. bv certiorari. 254 MuiiuAY V. Rekves. T. T. 1828. MOSES V. RICHARDSON.— p. 421. The defendant, who was a married woman at the time when this ac- tion was hrought, hcing sued as a feme sole, had suffered judgment to go by default, and had been taken in execution. .QrchboM now moved to discharge her out of custody, on the ground that she was a married woman. Lord Tknterpkn C. J. The defendant ought not to have suffered the plainliQ" to incur the expense of executing a writ of enquiry. She must be left to her writ of error. Rule refused. MURRAY V. REEVES, Gent., one, &c.— p. 421. A., an insolvent, having petitioned the court for the relief of insolvent debtors to be discharged out of custody; and having been Ijrought up before that court to be examined, was opposed by B. a creditor, and remanded to a future day. Before that day arrived, C, who acted as the attorney of A., in consideration of B 's withdrawing his opposition to A.'s discharge, undertook tliat B. should. 1)6 the sole assignee of A.'s estate, and should receive 100/. out of it within three weeks from his appointment: Held, that this agreement was contrary to the policy of the insolvent act, and therefore void. Assumpsit for the breach of an agreement. Plea, non-assumpsit. At the trial before Lord Tenterdeii C. J., at the Middlesex sittings af- ter Michaelmas term 1S27, the following appeared to be the facts of the case: The plaintiff had recovered judgment against Alexander Shearer for 2686/. The latter being detained in execution at the suit of the plaintiff, petitioned the court for the relief of insolvent debtors to be discharged out of custody. He was brought up for that purpose on the 21st of July, but was opposed by the plaintiff, and by his consent, it was referred to an officer of the court to examine the insolvent, and to make a report to tlie court. The insolvent was remanded on the 21st of July. Before that day the following agreement (for the breach of which the present action was brought) was entered into between the plaintiff and the defendant, the latter then acting as the attorney of Shearer. " On condition of Mr. Murray withdrawing his opposition, Mr. Reeves will undertake to consent that Mr. Murray shall be sole as- signee of Mr. Shearer's estate and effects; and to guarantee that Mr. Mur- ray as assignee, shall receive 90/. or 100/. outof the insolvent'sestate with- in three weeks from his appointment as assignee, he taking the necessary steps which Mr. Reeves will point out to him; and also to guarantee 40/. in lieu of the furniture and effects which the assignee is entitled to aa vesting in the insolvent in right of his wife, who is now in Paris." On the part of the defendant, it was contended, that this agreement was contrary to the policy of the law, and Nerot v. Wallace, 3 T. R. 17, was cited, where a promise having been made by the defendant, a friend of a bankrupt, when he was on his last examination, that in consideration that the assignees and commissioners would forbear to ex- amine the bankrupt concerning certain sums of money with which he was charged, he, defendant, would pay those sums; the court held that the consideration was void, it being contrary to the policy of the bank- rupt laws. Lord Tcnlerden C. J. \vas inclined to think that the con- tract between Murray and Reeves was illegal, but he reserved the 8 Barnewall & CuESSwELL, 421. 255 point, and a verdict was found for the plaintiff for 105/., with liberty to the defendant to move to enter a nonsuit. A rule nisi having been obtained for that purpose, Cam/?6e// and /rj/6o?vi on a former day in this term shewed cause, citing Neroi v. IVallace, 3 T. R. 17; Kayne v. Bolton, 6 T. R. 134. Sir J. Scarlett and Hutchinson contra. Lord Tenterden C. J. now delivered the judgment of the Court. This was an action on an agreement, whereby the defendant, in con- sideration of the plaintiff's withdrawing his opposition to one Shearer, who had applied for his discharge under the act for the relief of insolvent debtors, undertook, among other things, to consent that the plaintiff' should be the sole assignee of the estate of Shearer, to guarantee that the plaintiff should, as assignee, receive a sum of 90/. or 100/. out of the insolvent's estate within three weeks from his appointment as assignee, he taking the steps that the defendant should pomt out to him, and also to guarantee a sum of 40/. in lieu of the furniture and effects to which the assignee might become entitled as vesting in the insolvent in right of his wife. And the action was brought in respect of these two sums of money. At the trial, it appeared that Shearer had, in fact, been under examination as to his schedule, which is the usual practice of the Court in cases of opposition. And on the part of the defendant, it was insist- ed, that this engagement being made in consideration of withdrawing a creditor's opposition to the discharge of an insolvent debtor, was void in law. And we are of that opinion. It is obvious that a measure of this kind takes from the commissioners that superintendance, controul, and power of imprisonment for a time, which the legislature intended to vest in them, and, consequently, deprives the other creditors of the benefit of that full disclosure, voluntarily and freely to be made, which they are- entitled to have. Such bargaining, whatever may have been intended or effected in the particular case, may, in many cases, give protection to a fraudulent concealment, to the great prejudice of creditors, and is, therefore, in our opinion, contrary to the policy of this part of tiie law, and consequently void. It was urged, that a creditor may law- fully make such a bargain as the present, because he may at any time consent to the discliargc of the debtoi-, even after he shall have been committed or remanded by the commissioners for a certain time. It may be true that a creditor may so consent, but if the debtor obtains his discharge, in that manner, his relief under the statute, as (o the debts of other creditors, will, in many cases, be rendered (juestionable; and if the imprisonment be under the seventeenth section, for fraudulent con- cealment, it will probably be lost. Whereas if the opposition made by one creditor be witlulrawn, and no other creditor lakes up the proiieed- Jng, the debtor may ol)tain the full benefit of the statute, without making that disclosure which the statute recjuires; and where one cre- ditor has begun an opposition and withdraws it, other creditors may lose the opportunity of opposing, f)r may abstain from doing .so luulcr an opinion that the debtor has done all that the law rc(iuires of him. The law requires that the debtor shall make a full disclosure, and that he shall do so in the first instance b}' his schedule; a knowledge that the effect of concealment may he obviated by .snb.se(|iii;nl !)arg:iiniug, may operate as an inducement to concealment in the (irst instance, which ought to be discouraged by all practicable means. Hargains like the pre- sent may also, in some cases, if allowo'l, operate to the prejudice of an 256 Sol TH Cakui.ina Hank v. Cask. T. T. 1828. honest debtor, wliose friends may be willing to ninkc some sacrifice in order to relieve bim from a vexalious, thongb, perhaps, groundless op- position. For those reasons, we think that the rule to enter a nonsuit should be made absolute. Rule absolute. The President, Directors, and Company of the BANK of the State of SOUTH CAROLINA, in the United States of America, v. JOHN ASHTON CASE, JOHN JACKSON, and WH.LIAM BROWN, Assijrnees of the Estate and Eilects of THOINIAS CROWDER and HENRY THOMAS PERFECT, Bankrupts.— p. 427. A., B , and C. carried on business in co-partnership as factors and commission- merchants in England and America; in England, under the firm of A., C, and Co ; in America, in the name of C. alone. When C. went to America, he had written instructions from his partners, one of which was, " It is understood that our names are not to appear on either bills or notes for the accommodation of others, and that they should appear as little as possible on paper at all, and then only as regards direct transactions with the house here." A., B., and C, in order to obtain consignments from America, made advances or granted drafts or bills of exchange, or indorsements of them, to their principals on the secu- rity of the goods consigned. In order to obtain a consignment from W., C. in his own name indorsed bills for him, which were to be provided for by others drawn by W. on A , C, and Co. in England, which were to be provided for by the proceeds of the consignment. Before the latter bills were presented for ac- ceptance, A. and B. had become bankrupts: Held, that the indorsement of the bills by C. must be considered as an indorsement by the firm, and that they were liable upon those bills. This was an issue, directed by the Vice-Chancellor, to tfy whether Tbomas Crowder and Henry Thomas Perfect, the bankrupts, and James Butler Clough, were, on the 13th day of August 1825 (the date of the commission of bankrupt against Crowder and Perfect), indebted to the said plaintiffs in any, and what sum of money. The issue stated a pro- mise by the defendants to pay the plaintiffs one shilling for every pound of the debt which might be due to the plaintiffs. And the plaintiffs aver- red 15,000/. to be due. The cause came on to be tried before Hul/ockB.f at the assizes for the county of Lancaster, when a verdict was found for the plaintiffs, subject to the opinion of this Court on the following case: — On the 3d of November 1815, J. B. Clough entered into articles of co-partnership vvith Thomas Crowder and llenry Thomas Perfect, the bankrupts, whereby they agreed to carry on the trade or business of a consignee or factor for persons trading from the United States of Ame- rica to England, and such other branches of business as they should mu- tually agree upon, in co-j)artnership for the term of four years, from the 1st of January then next; and by a clause in the articles it was declared that the firm of the partnership should be "Crowder, Clough, and Co." It was also stipukted by the articles that Perfect should forthwith proceed to the United States of America to advance the business of the concern as consignees or factors, and in such other manner as might best answer the purposes of the partnership. That no one of the parlies should carry on or be concerned in the business before mentioned on their own sepa- rate account, nor carry on any trade in partnership with any other per- S^Barnewall & Ckesswell, 427. 2.57 son or persons whomsoever durii)gthe said term, nor should they carry on any trade or business on their own account, distinct from the said partnership, nor carry on any in the name of the firm of the said part- nership, or on account thereof, without the consent in writing of each of the parties. That proper books of account should be kept in England and in America, while Perfect was resident there, in which respectively should be fairly entered and kept the accounts, dealings, and concerns relative to the aforesaid partnership transactions. He went accordingly, and transacted business in America for the partnership, but it was all done in his name. Perfect returned in 1S19, and by an agreement, bear- ing date the 9lh day of October 1819, the partnership was extended two years upon the former terms, except in some particulars not affecting the present question; and the parties agreed that the)'^ would continue to car- ry on the said trade or business for that time, and such other branches of business as they should from time to time mutually agree upon. And it was agreed that Perfect should have a yearly allowance of GOO/, for such time as he should stay in America on the partnership account ; and he again proceeded to the United States, where he continued two years, transacting the partnership business in his own name. On his return in 1821, it was agreed that the term of the co-partnership should be again extended two years; and that the parties should continue to carry on the said trade or business, and such other branches of business as they should from time to lime mutually agree upon, for that term; and that Clough siiould succeed Perfect: and a supplementary agreement wasentered in- to, bearing date the 27tli of October 1821, upon the like terms as the lormei- articles, except as tiiereby altered in some matters not affecting the present question. And it was agreed that Clough should proceed to the United States, and use his best endeavours for tiie general benefit of the concern, and should have a yearly allowance of 500/. for such time as he should remain in America on the partnership account. Previous to Clough's departure, written instructions were given him for his conduct in the United States. They bear date the 29th day of October 1821, and were signed by Crowder and Perfect, and they were approved of as a guide for ine future conducting of business. In the instructions arc the following paragraphs: — " No shipments to be made solely on our account, but the above price to regulate .•••hipments in conjunction with other par- tics, when they require us to participate in the risk to induce them to make a consignment. It is to be hoped, however, that there will be no necessity to extend this sort of business, and that it will be as much avoided as possible. Oin* main object is consignments, cither of shi|)S or produce, and with a view to secure such, should we hr. induced to risk a share of shipments, (if such can he. had without, we should prefer it,) wo should not wish a larger sum tlian .5000/. to be risked, even in the small- est degree, at any one time, in such participations; and the result of these shipments ought to be known, or safely ciilculali^d on, by advices from home, before any new arrangenienls nvc. formed. It is understood that our names arc not lo appear on either bills or notes for llic accommodation of others; and that they should appear as little as |)ossihle on paper at all, and then only as regards direct transactions with llie house here." The business of Crowder, Perfect, and ('l{)ii<;ii was that of l;iclors or comniis- «ion-merchanl.s for principals trading between (ireat Hrilain and the United States. Their business in this coin)try consisted princi[)ally in the .sale and purchase of good,«», and the collection of freights fov princi- VOL, XV. 33 258 Soi'Tii Cakolina Bank i\ Case. T. T. 1828. pals ill tho Uniteil States on commission. Their business in the United States consisted in the sale and purchase of goods, and in the collection of freights for their principals in England, on commission, and occasion- allj in the purchases of cotton, jointly with others, to secure a consign- ment; and sometimes Clough purchased cotton on speculation, notwith- standing the clause in the instructions above set forth: viz. " That no shipments were to be made solely on their account;" and in the course of this business Clough occasionally sold and purchased bills of exchange. In England the business of the house was carried on in the nanne of Crowder, Clough, and Co.; in the United States all the partnership business was transacted in the name of J. B. Clough alone. The bankrupts in England and Clough in the United States, procured con- signments for their joint benefit on commission; the bankrupts as to con- signments to the United States for sale by Clough, and Clough as tO' consignments to England for sale by the bankrupts; Clough using his own name only in these, as well as all other, transactions in the United States, In order to obtain consignments from the United States, the bankrupts and Clough made advances, or granted drafts or bills of exchange, or indorse- ments thereof to their principals in the United States, upon the security of such principals' goods consigned to the bankrupts and Clough for sale in Great Britain; and the business relating thereto was conducted as fol- lows: first. In some cases, bills of exchange were drawn in the name of •T. B. Clough upon Crowder, Clough, and Co., in favour of their princi- pals, and were delivered to such principals; secondly. In many other cases, bills of exchange were drawn by the principals upon Crowder, Clough, and Co., and indorsed in the name of J. B. Clough, and deliv- ered to the principals with such indorsements; thirdly, In other cases, bills of exchange were drawn by J. B. Clough, in his own name, on Oowder, Clough, and Co., and indorsed by him, and sold, and the pro- ceeds advanced to the consignors; fourthly. In other cases, J. B. Clough usci! to raise money for advances to consignors by drawing upon Ameri- can houses in New York, or by the consignors drawing on them, and J. B. Clough provided for these bills by sending to the American houses bills or. England to be discounted there; bills on England not being al- ways negotiable at Charleston. Consignments of cotton were procured by J. B. Clough, by means of these transactions, to the English house for sale, on account of the consignors, to a very great amount. Clough also bouc;Iit and sold bills of exchange in his own name on speculation, the profit and loss whereof was carried to the partnership account. Clough also sold and purchased goods in America in his own name, for English principals, to a large amount. The profits made by the partnership in America, in commission and exchange speculations, in the name of J. B. Clough, were very considerable, amounting in 1823 to 1377/., in 1823 to 1700/., in 1824 to 5000/., but in 1825 there was a loss. Proper partner- • ' \' books were kept: the bankrupts entering in their books all the deal- ..'j^- and transactions in this country, and Clough entering in the books kept by him in America all the dealings and transactions in the United states. At the end of each year the annual balance of profit and loss in r]n7,land and in the United States was divided between the partners. Cloijgh during the whole time that he was in the United States, viz. from 1821 to the bankruptcy, never traded or drew, indorsed, accepted, or •' rr/ciated any bills of exchange, or carried on any business on his own ---ount. But he entered into a joint speculation, intending it to be on 8 Baunewall & Cress WELL,. 427. 259 the partnership account, with two persons, Joshua T. Weyman and Mi- chael Lazarus, in his own name, to the extent of 100,000/. and upwards, notwithstanding the clause in the instructions above set forth; viz. ''We should not wish a larger sum than 5000/. to be risked, even in the smallest degree, at any one time in such participations." This transac- tion was afterwards adopted by the bankrupts. He had no individual business whatever, and the name of J. B. Clough was never used by liim in trade, or in drawing, indorsing, or accepting, or negotiating bills of exchange, except for the benefit and on account of the partnership; and all the partnership business in the United States was carried on in that name and no other, save when the consignors of goods drew bills of ex- change on England on account of their consignments; in which cases they always drew on Crowder, Clough, and Co. Clough was restricted by the partnership articles from transacting any business there in any manner whatever, except on the partnership account. Clough, who was the only witness examined on either side at the trial, swore that there was no specific agreement between him and his partners that there should he a house under the name of J. B. Clough in America; that he was sent out to form a branch of the house in America; that he had instructions not to use their name; that he had no doubt that they intended he should form a branch of the house, and that the branch was carried on in America in the name of J. B. Clough, with the sanction of all the three partners, although there was no specific agreement that it should be so carried on. Clough obtained from J. T. Weyman, of Charleston, con* signments of a large quantity of cotton to the house of Crowder, Clough, and Co. for sale on J. T. Weyman's account, and it was agreed between Weyman and Clough that J. T. Weyman should draw billsupon Coffin and Weyman, «f New York, merchants, payable to Clough, and that Clough should indorse them; it being understood between them that the Carolina bank would discount them, in order to make advances to J. T. Weyman on the credit of the consignments. Four bills were accordingly drawn by Weyman on Coffin and Weyman for 40,000 dollars, payable to J. B. Clough or order, and being indorsed "J. B. Clough," were discounted by tbe plaintifi's, who are a banking corporation duly constituted by the laws of the United States, It was further agreed between Clough and the consignor, J. T. Weyman, that the latter sbould draw other bills on Crowder, Clough, and Co., in order to provide Coffin and Co. with cash to pay the four bills on them when at maturity, which latter bills were to be paid by Crowder, Clough, and Co. out of the proceeds of the consign- ments in their hands. IJills were accordingly so drawn, and sold by Coffin and Co. to the amount of 5000/., which house, however, stop- ped payment soon afterwards, and the proceeds of the ijills were misap- plied; and Crowder, Clough, and Co. soon afterwards failing, the bills upon them worn not paid. All the consignments, however, agreed to bo made by -I. T. Weyman to the house in Englnntl wr-rc made, and receiv- ed by the Knglish house, and disposed of b}' tiiem. Bills on ICiigland are not, in general, negotiable in (^harleston, this was the cause of the ar- rangement for drawing bills in tlie first instance nn Coffin and Weyman. The bills in question were duly presented to Coffin and ('o. at maturity, and dishonoured, anrl due notice given to J. B. Clough in America. The value of the bills in question, in LnRlish money, is S.333/. 6.y. Sc/. These parlindar bills were not entererl bv.T. ]'. Cloiigh in the bonks kept by hiu), i>pcaMSP thr ogreemcnt with J. T. ^Vf ynijii un« tlut hills ucrc to he 260 (iiBuiNs V. Phillips. T. T. 1828. 'liawn on Crowdci-, Clough, and Co. to such an amount as precisely to raiso tlie amount of the four bills on Collin and Co., and thereby exactly reimburse their payments, and as the bills so drawn would be paid in England out of the proceeds of the consignments, no profit or loss could arise to J. 13. Clough or his partners from tho sale of these bills on Coffin and Co. in America, and, therefore, no entry was made by J. B. Clough in the books kept by him. J. B. Clough had no separate estate. If the plaintiffs are entitled to recover, a verdict is to be entered for 416/. 13.?., the amount of the debt due from Crowder, Perfect, and Clough being S333/. (is. 8d. ; if not, a nonsuit is to be entered. Parke for the jjlaintifTs, referred to Ex parte Emly^ 1 Rose, 61 ; Emly v. Lye, 15 East, 7; Ex parte Bolitho, Buck. 100. Patteson contra. -_ , ,. Cur. adv. vult. The judgment of the Court was now delivered by Lord Tenterden C. J., who after stating the case said, — Upon these facts it is contended, that the parties are to be charged as indorsers, that is, that the indorsement by J. B. Clough is to be considered as an indorsement by the house of which he was a member, and we think that, under the circumstances stated in tlie case, J. B. Clough is to be con- sidered as the name of the firm for the purposes of business in America. That being so, the bankrupts and Clough were liable as indorsers of the bills: and a verdict must be entered for the plaintiffs for the sum agreed upon at the trial. Postea to the plaintiff?. GIBBINS and Another, Assignees, v. PHILLIPS.— p. 437. After a verdict for a defendant, tlie Court made a rule absolute for a new trial, .ind ordered that the costs of the former trial should abide the event of such new trial. The record was carried down to the Spring assizes following, when it was made a rcmanct. It Avas tried a second time at the Summer assizes, when a vercli<5t was again found for the defendant. The Court afterwards or- dered that that verdict should be set aside, and a new trial had between the parties upon the payment of the costs of the last trial, and that the costs of the first trial should abide the event of such new trial. Upon the third trial a ver- dict \vas found for the plaintiff': Held, that the plaintiff was entitled to the costs occasioned by the cause having been made a remanet at the assizes next fol- lowing the term when the first rule was made absolute for a new trial. This cause was tried at the Summer assizes for the county of Stafford 1826, when a verdict was found for the defendant. The Court ordered that that verdict should be set aside, and a new trial had between thic parties, and that tlie costs of the former trial should abide the event of such new trial. The record was again carried down to the Spring assizes 1827, when it was made a remanet. It was tried a second time at the Summer assizes 1827, when a verdict was again found for the de- fendant. The Court afterwards ordered, that that verdict should be set aside, and a new trial had between the parlies upon payment of the costs of the last trial, and that the costs of the first trial should abide the event of such new trial. The costs of that trial (not including those of the remanet) were paid by the plaintiffs to the defendant. The cause was tried a third time at the Spring assizes 1S28, when a verdict was found for the plaintiffs. The master allowed to the plaintiffs the costs (177/. 8 Barnewall & Cresswell, 437. 261 for witnesses), occasioned by the cause having been made a remanet at the Spring assizes 1827. A rule nisi having been obtained for the mast- er to review his taxation, Taunton and Holroyd shewed cause. They cited Standen v. Hallf Sayer, 272; Sadler v. Evans, 4 Burr. 1984. Barstoto contra. Lord Tenterden C. J. The general rule is, that the party who suc- ceeds ultimately, is entitled to the costs occasioned by the cause having been made a remanet. Here the plaintiffs have ultimately succeeded. I think that, as the rule made by the Court after the second trial did not provide in express terms for the costs of the remanet, they ought to be considered as costs in the cause, and that they were properly allowed as such by the master. The present rule must, therefore, be discharged. Rule discharged. The KING, on the Prosecution of G. SPURGING, v. GILKES and Others. — p. 439. An order of justices requiring the stewards of a benefit society to re-admit A. B., who had been expelled, recited tliat it had appeared to the justices that the rules of the society had been enrolled at the quarter sessions. On the trial of an indictment against the stewards for disobeying such order: Held, that the recital was not evidence of the enrolment of the rules. In re WASHBOURN.— p. 444. A creditor had obtained judgment by default against his debtor, since the statute 6 G. 4. c. 16. s. 108., and the goods having been seized by the sheriff before, but not sold until after an act of bankruptcy was committed by the debtor, the Court refused to compel the sheriff to pay over the proceeds of the sale to the assignees of the bankrupt. BAIJ^EY, surviving Assignee of W. IIALLIVVELL, a Bankrupt, v. CULVERWELL, BROOKS, and CARROLL (a).— p. 448. A. and Co., as brokers for B., sold goods, then in their possession, to C, wliicli were paid for by a bill drawn by C. and accepted by D. C. ordered A. and Co. to keep the goods in tJu-ir hands, and sell them if they could make a cer- tain profit. Before the bill became due D. failed, and A. and Co. apjjlied to C. for security for the bill ; whereupon he gave them an order to sell the goods and apply the proceeds in payment of the 1)111. ('. afterwards, and before the goods were sold, became banknipt. A. and Co. handed over the goods to B. at his request, but he afterwards returned then), and after they were returned, C.'s assignees, having made a demand of the goods, brought trover: Held, that they could not maintain it; for tliat after the order given by C. to A. and Co. to sell the goods and ap])ly the proceeds in payment of the bill, they re- mained in their hands subject to that charge, because A. and Co. nuist be pre- sumed to liave asked security as agents for B., whose ratification of their act for liis benefit might also be inferred. (a) The Judges of this court sat, as on former occasions, from I liday the 27tli of June to Wednesday the '*'d of July inrhisive; and from Monday the 27lli of October to Wednesday the .'itii of November inclusi\ e, wlien this and the follow- ing cases were argued and determined. *^2 Bailey f. CuLv liR WELL. T. T. 182S. TnovER brought hy the plaintill" aiul Richard Emett, since deccasetfy as assignees of William Ilalliwell, a bankrupt, to recover 424 beaver skins. Plea, not guilty. At the trial before Lord Tenterden C. J., at the London sittings after Hilary term 1827, a verdict was found for the plainlifls for 1000/., subject to the following case: — The defendant Carroll, in December 1S23, sold a quantity of beaver skins by a contract in writing to the bankrupt, through the agency of the other defendants, Culverwell and Brooks, brokers, who had the skin* in their possession, for 427/. 5s. 6d., to be paid for by the bankrupt's bill on INIessrs. Walducks and Hancock, payable at four months after date. The bankrupt's bill on Messrs. Walducks and Hancock, was sent to the defendants Culverwell and Brooks, according to the terms of the contract, inclosing a letter of which the following is a copy: — ''Gentlemen, — Inclosed you will fmd a bill accepted by Walducks and Co. for 429/. 13.9. 4d. to balance for the beaver, and if you can ol)- tain 2s. per pound profit, sell them; at present let them remain with you on that principle. "William Halliwell." "January 14th, 1824." This bill was immediately handed over by the defendants Culverv/ell and Brooks to the defendant Carroll. In consequence of the above let- ter, the goods remained with the brokers for sale. On the 16th of March, before the bill became due, Walducks and Co. the acceptors of the bill stopped payment, and the defendant Culverwell in consequence thereof applied to the bankrupt for a further security, when he obtained from him the following letter: — " Messrs. Culverwell and Brooks. " Please to sell the beaver you hold of mine, and take the proceeds to pay my bill on Walducks and Hancock; any profit arising from it pay over to me. ''Yours, &c. "William Halliwell." "March 16." The goods were not sold in pursuance of this letter, but remained with the defendants Culverwell and Brooks until they were delivered under an order of defendant Carroll, as after mentioned. The bill of exchange was dishonoured on arriving at maturity, and notice thereof was duly given to the bankrupt on the 17th of May; and the defendant Culverwell, when examined before the commissioners, stated, that on the said 17th day of May they were attached at the suit of Edward Carroll, by process out of the court of the Lord Mayor of the city of London. A commission of bankrupt issued agninst the bankrupt on the 4th of June 1824, which was opened on the Uth of June, on an act of bank- ruptcy committed on the 21st of May preceding; and the plaiiitifT and one Richai-d Emett (who died since the commencement of this action), were duly chosen assignees, and the usual assignment made to them by the commissioners previous to the making of the demand hereinafter mentioned. On the U-tli of July 1824, the defendant Carroll gave an order to the other defendants to deliver the skins, to a porter who brought the order, on his account, which was accordingly done. On the 8 Barxewall & CiiESSWELL, 448. 263 .•jth of November 1824, Carroll gave an order to the other defendants to receive back the skuis, and such defendants, on the same day, received them again into their possession, where they remained until after the trial. On the 15th of Novcmlicr 1824, the plaintiffs caused a demand of the skins to be made upon the defendants Culverwell and Brooks, and at the same time offered to pay the charges for warehousing the same, when said defendants referred the plaintiff to their attornies, and refused to deliver them up. It was agreed on the trial that the skins should be sold, and they have since been sold for 311/. 14*. The question for the opinion of the Court was, whether the plaintiff was entitled to recover, and if he was, whether the full value of the skins or nominal damages only. Par/te for the plaintifi', cited Scott v. Porcher, 3 Mer. 652; JVilliams r. Everett, 14 East, 582; Yates v. Bell, 3 B.& A. 643; Solhj v. Ratk- bone, 2 M. & S. 29S. F. Pollock, contra, was stopped by the Court. Baylev J. There can be no doubt but that the assignees take subject to all equitable rights attaching upon the bankrupt. The first question, therefore, is. What was the effect of the sale to the bankrupt, and of the interference of Culverwell and Co. on the 16th of March, and the letter then written by the bankrupt. If he was bound by it so as to give Car- roll, if he acceded to it, a right to have the goods sold and the proceeds paid over to him, then when Ilalliwell became bankrupt, the goods re- mained in the hands of Culverwell and Co., subject to that right. When the goods were originally sold by Carroll, and placed in Culverwell's hands, the property vested in Ilalliwell, and Culverwell held them as his agent; and if nothing had been done by him to vary the relation in which Culverwell stood with him, the goods would have remained his, and his assignees would have been entitled to the possession of them. But on the 16th of March it was found that the bill was bad, and Cul- verwell made application for further security. In what character was that application made? In the first instance, acting as agent for the seller, he stij)ulatcd for a bill; when it was found that the l)iil would probably be unproductive, he applied for further security; that could only be in the character of a person acting for and on behalf of Carroll. It was not, indeed, by virtue of any prior authority, but there are cases innumerable establishing that the subsequent ratification of an act done by an agent relates back to the time when it was done. This was an act done for the benefit of Carroll; it was an act that could not prejudice, but might 1)C beneficial to him; and the presumption is, that a party will adopt acts done for his benefit. Now the order by Ilalliwell to Culverwell to sell tlie goods and pay Carroll, was given on the I6th of March, and, by re- l.ition, Carroll's adoption would make it binding from that time. At iliat time Ilalliwell had power to give the order, and if the adoption is to be referred to that date, he had no longer any power to revoke. The case of Scott v. Pnrc/icr is altogether different. There the order was given by a princi[)al to his agent, in that character alone: he might, therefore, at any subsequent time control that agency. Here Culverwell and Co. were not agents for Ilalliwell only, but for Carroll also. It has been urged, that if after the order was given the goods had been destroy- ed by fire, the debt to ('arroil would have remained, but that i? the rase with respect to every dcljt wIut'- goo'h iqion which lli«?rc i5 a lien fur 264 Bailey v. Culveuvvell. T. T. 1828. It are acciilentally destroyed. The debt remains although the lien i« lost, lips any thing been done by Carroll to reject tlie arrangement made between Halliwell and Culvervvell? It appears that an attachment was issued by him, but what became of it is not stated. That proceed- ing did not necessarily re])udiate tiie benefit of Ilallivvell's order. Per- haps Carroll did not then know of the order, and he may have abandon- ed the attachment upon being informed of the order. We now come to the question, What is the legal operation of the transaction of the 14th of July, when the skins were handed over to Carroll? If that was a con- version, the action lies for nominal damages. There is no doubt that Culvervvell was to sell, and Carroll had no right to the possession of the goods. But was the delivery to him a wrongful conversion, and were not all things restored and in statu quo before the assignees of Halliwell in any way interfered? No damage was sustained by them, and I think that the mere change of possession for that interval of time worked no wrong, for which an action of trover is maintainable. For these reasons I think that Halliwell and his assignees were bound by the bargain of the 16th of March, that the delivery to Carroll was not a good ground of action, and, consequently, that a nonsuit must be entered. LiTTLEDALE J. I am entirely of the same Opinion. After the goods were sold, and the bill delivered in payment, both the property and pos- session were out of Carroll, and the goods were entirely at the disposal of Halliwell. Culvervvell, however, applied to Halliwell for security. In what character did he do so? He sold the goods and received the bill for Carroll, and had nothing whatever to do with it on his own ac- count. Halliwell, upon his application, gave the letter authorizing a sale of the goods and the application of the proceeds to the payment of his debt to Carroll. It is said that as this was not communicated to him, and there vyasnoevidence of his'having'ratified the act of Culvervvell, he is to be treated as a stranger, and cannot avail himself of it after the bankruptcy of Halliwell. These matters certainly are not expressly stated; but if the Court, from the facts stated in the special case, can reasonably infer that there was such ratification, they may give judg- ment accordingly. Now it is clear that Carroll was endeavouring to secure himself as far as possible, for he made an attachment, and it is but reasonable to suppose that he would ratify any act done by Culverwell for his benefit. Then as to the second point, the facts do not shew a wrongful conversion. The case differs from Solly v. Rathbone; there the factors of the plaintiff had handed over the goods to the defendant upon some arrangement between them, and the latter had actually sold them. Here the goods were returned by Carroll, and were in the hands of Culverwell and Co. at the time when tlie demand was made. The rule for entering a nonsuit must, therefore, be absolute. Rule absolute. SWANN v. The Earl c-f FALMOUTH and JENNINGS.—p. 156. AVhere a landlord's agent went upon the tenant's premises, walked round them, and gave a -written notice that he had distrained certain goods Iving there for an arrcar of rent, and that unless the rent was paid, or the goods replevied ■within five days, they would be appraised and sold, and then went away, not leaving any person in possession: Held tliat this was a sufficient seizuic to give 8 Baunewall & CresswelL; 456. 265 ' Ihe tenant a right of action for an excessive distress; and that quitting the pre- mises without leaving any one in possession was not an abandonment of the tlistress, the 11 G. 2. c. 19. s. 10. giving the landlord power to impound or other- wise secure on the premises goods distrained for rent arrear. Case for an excessive distress. Plea, not guilty. At the trial be- fore Gase/ee J., at the last Spring assizes for Cornwall, it appeared that the plaintitf was tenant to the Earl of Falmouth of a wharf called Point Quay, at the yearly rent of 150/., where he carried on the business of a dealer in coals, timber, iron, and other things. On the 9th of January there was an arrear of rent amounting to 262/. lO.s. due to the earl, and on that day the other defendant (clerk to the earl's attorney) went to the plaintitf's premises and inquired of his clerk whether the plaintiff was there. He was answered in the negative, and then said, "Mr. C. Lord Falmouth's steward is now on the quay, and intends to distrain for Lord Falmouth's rent." The steward and Jennings then walked round the wharf, upon which the plaintiff had various separate parcels of goods lying, and afterwards left the following notice of distress, signed by Jennings: " Take notice, that by virtue of a proper authority from the Earl of Falmouth I have this day taken and distrained at Point Quay, and the cellars and premises thereunto belonging, situate,lying, and being in the parish of Feock, in the county of Cornwall, which you now hold of him at the yearly rent of 150/., the following goods and chattels, to wit, a quantity of coals now lying in heaps on Point Quay aforesaid, a quantity of slate ditto, a quantity ol balk ditto. All which goods and chattels 1 have left on the said premises, and have distrained the same for the recovery of the sum of 262/. IO5. due to him at Christmas last, for rent and arrears of rent of the said premises. And you are further to take notice, that unless you pay the said rent and arrears so due, together with the costs and charges of this distress, or cause the said goods and chattels to be duly replevied within five days from the delivery hereof, the same will be ^apjjraised and sold according to law. Dated fllh January 1827." Defendant Jennings and the steward then weut away, and did not leave any person in possession of the goods seized, which were worth more than 1000/. On the 12lh of January, the plain- tiff refjuested that some handbills which had been prepared to give notice of a sale of the distress, might not be published; this was consent- ed to, and he afterwards paiil the arrears. All the goods on the wharf having been seized, the plaintiff was prevented from carrying on his business for several days. Upon these facts, it was contended for the defendants, that the mere walking round the premises, without marking or even touching the goods, or leaving any person there to keep pos- session, did not amount to a seizure, and that, consequently, the action was not maintainable. The learne(l Judge overruled the nbjection, and left the case to llie jury, wlio found a verdict for the |)laintill wilh 10/. damages. In Easter term a rule nisi for a new trial was obtained, on the grounds that no seizure was in fact proved, and that thc'damagejj were exrcssive: and now the (^ourt railed upon Follctl to support the rule on the first ground, who referred to Fitz. N. IJ, 102, (F.); Dod v. Mon'Tcr, Mod. 215; Blades v. Arundalc, 1 M. &S. 711. (Upon a suggestion from the Court, the plaintiff's counsel consented that the damages should he reduced to 20/.) Haylky J, This is not a question bclwenn llie landlord and a third person, but between him and hi-< tenant; and the points to be considered vol.. XV. !M 2G6 Elsmoue v. St. Buiavells. T. T. 1828. are, wholhcr, as between them, there ever was a seizure, and whether there was such an abandonment of the distress by the landlord as could have deprived him of the right to treat the tenant as a wrong-doer, had he taken away the goods. The agents of Lord Falmouth went upon the premises for the purpose of distraining, and afterwards sent written no- tice of what tliey had been doing. That is evidence against the landlord that they had actually made a distress. Then, was the distress abandon- ed .■* If it was, no doubt the possession re-vested in the tenant. The statute 11 G. 2.c. 19.s. 10. enables the landlord to <' impound, or other- wise secure upon the premises," goods that have been distrained. Then look at the notice delivered by Jennings. He says that the goods have been distrained, and unless they are replevied, or the rent paid within five days, they will be appraised and sold. That does not indicate any in- tention to abandon the distress, but to leave the goods on the premises in the custody of the law. The case of Dod v. Monger must be con- sidered with reference to the state of the law at the time when it occur- red. The landlord, then, had no right to keep the goods on the premis- es; if, therefore, he quitted possession of the goods whilst they remain- ed on the premises, that was an abandonment of the distress; but the mere leaving of the goods in a place where he has aright to keep them, with- out any thing to indicate an intention to abandon the distress, cannot ope- rate as an abandonment. It would be very hard upon the tenant if this were otherwise, for then, in all cases of distress by the landlord, upon premises where a man cannot remain in possession, he must immediate- ly remove the goods. In the present case, it could not be expected that the landlord's agent or servant should remain all night upon the wharf; and if that had been necessary in order to retain possession, the goods must have been carried elsewhere, which would have produced a very serious injury to the tenant. HoLHOYD J. The tenant, by asking indulgence, recognized that which liad been done as an act of seizure, and was not unlike some cases of ar- rest where the party submits to it without a corporal touch by the bailiff. LiTTLEDALE J. I am of opinion, that as between these parties there was an original seizure; and that there was not an abandonment; for since the statute 11 G. 2. the landlord may keep the goods on the pre- mises. The case might have been different, had the question arisen be- tween the landlord and an execution-creditor, or a purchaser for valuable consideration without notice, for the landlord might, perhaps, be consi- dered to have lost his right as against third persons if he neglected to give i-easonablc notice of it. The rule for a new trial must, therefore, be dis- charged. Rule discharged. Erskine and C'olcri(fu;r wore to have opposed the rule. ELSMOKE V. The Inhabitantsof the Hundred of ST. BRIA- VELLS.— p. 461. A building intended for, and constructed as, a dwelling house, but which had not been completed or inhabited, and in which the owner had deposited straw and agricultural implements. Held, not to be a house, outhouse, or barn within the meaning of the stat. 9 G. I.e. 22. s. 7. so as to entitle the owner to maintain an action against tlic hundred for an injury sustained by him in consequence of malicious setting fire to the same. 8 Baunewall & Ckesswell, 471. 267 The KING V. The Inhabitants of HIPSWELL.— p. 466. The statute 28 G. 3. c. 48. s. 4. makes void all indentures whereby children un- der eight years of age are bound apprentices to chimney-sweepers, and no set- tlement can be gained by serving under them. CORNISH and Another v. JOHN SEARELL.— p. 471. A. being tenant of premises under an indenture of lease granted by B., a seques- tration issued out of the Court of Chancery against the latter. A. then signed the following instrument : — "I hereby attorn, and become the tenant to C. and D., two of the sequestrators named in the writ of sequestration issued in the said suit in Chancery, and to hold the same for such time and on such conditions as may be subsequently agreed upon :" Held, that this was an agreement to become tenant, and required a stamp : Held, secondly, that the defendant not having received possession of the premises from C. and D., might dispute their title, and that tlic lease not being proved to have been surrendered, was an an- swer to the action. Assumpsit for use and occupation. Plea, general issue. At the trial before Littledale J., at the Spring assizes for the county of Cornwall, 1828, the plaintiffs, in order to prove that the defendant held the pre- mises as tenant to them, put in the following document, signed by the defendant, and bearing date the 31st of January, 182G, as an acknow- ledgment by him of that fact: " I do hereby attorn, and become the tenant of a certain estate and premises called Goulds, and also of certain closes of land, and orchard, and premises, called Cleave and Westaway, situate in Staverton, in the county of Devon, to James Cornish and Frederick Angel, two of the sequestrators named in a certain writ of sequestration issued in a certain cause now pending in the Court of Chancery, between Richard Marshall, George Drake, and Allen Browne, plaintiffs, and Allen Searcll, defendant, and to hold the same for such time, and on such conditions, as may be subsequently agreed on be- tween me and the sequestrators aforesaid." It was objected by the de- fendant's counsel that this document amounted to an agreement, and re- quired a stamp; and even assuming that it was a mere acknowledgment by the defendant that lie bad i)ecome tenant to the plaiiiliirs, tlicy as se- questrators having no legal estate in the premises could not maintain this action. 'J'lie learned Judge reserved the point. The plaintills then called a witness, who slated that he, on the part of the plaintills, had, in May 1826, apjdied to the defendant for payment of rent, but tlie lattei refused to pay, and in fact never had paid rent to the jilaintid's. 'J'Ik^ defendant then put in an in(l(;nture of lease, dated in June 1816, where- by Allen Searcll, the father of tlie defendinit, demised to him the pre- mises in question for twenty-one years, at the rent of 20/. , and contend- ed, that as he held under this lease, and had never surrendered it by deed, or by act and operation of law, he still continued to hold nndei- it, and, therefore, that he was Iial)le not to tin; plaintifls, but to the les- sor for rent. The jilaintiffs objected that the defendant having attorned, could not dispute their title. 'I'o that it was answered, that that was the rule where the tenant attorned to a person dcrivini; title from the original landlord. Here the plaintills were strangers, and had no leg.d title to the land, or to receive the rent. Tin; jury found fur tin: plain- 268 CoKMsii i\ Skauei.l. T. T. 1828. tiffs, and tliat llicrc was no ;ipi)licatioti for rent in May 1820. A rule nisi for entering a nonsuit having been obtained by Wilde Serjt. in last Easter term, ]\[ereicethcr Serjt. and R. I^oyhj now shewed cause. They cited Grey V. Smi//i, 1 Campb. 387; IVatkins v. Hewlett, 1 Brod. &13. 1; Drant V. Brown, 3 B. & C. 60" 5. Bavley J. I think that the plaintifls arc not entitled to recover. On the 1st of January 1S26, the defendant held tlie premises in ques- tion under a lease granted by his father, Allen Searell, against whom a sequestration issued out of Chancery. The plaintiffs were the seques- trators. The defendant, at the time when this action was brought, must have continued to hold under that lease, unless it had been put an end to by actual surrender by deed, or by act and operation of law. Unless there was evidence to shew that that lease had been surrendered or put an end to, he was liable by law to pay the rent to the lessor according to the covenants in the lease. On the 31st of January 1826, the defendant signed the instrument, which it is contended, is an attornment; but which appears to be an agreement or bargain, in distinct terms, between the plaintiffs and the defendant, that the latter should become the tenant to the plaintifls as sequestrators; and if it be an agreement, then it clearly required a stamp. By the latter part of the instrument, it is stipulated that the defendant shall hold for such time, and on such conditions, as the parties may subsequently agree upon. It has heen insisted, that that stipulation was evidence to go to the jury, that the lease was not at that time a subsisting lease. I think that that at most was only evidence to shew that the lease might thereafter have been put an end to, not that it was already determined. The tenant may have intended to continue to hold under the lease, if the sequestrators ofTered him terms less benefi- cial to him than those contained in the lease, but to surrender it if they offered him better terms. I tliink, therefore, that as it was not proved that the lease had been surrendered at the time when the instrument (which is said to be an attornment) was signed, it was an answer to the action. But even if there were no lease, I should have great difficulty in saying that the plaintiffs were entitled to maintain this action. The instrument describes the character of the persons to whom the defendant was to be- come tenant; they are stated to be two of the sequestrators. As se- questrators, they have no legal right to receive the rents. It has been said, that the defendant, having agreed to become tenant to the plain- tiffs, cannot dispute their title. If the defendant had received possession from them, he could not have disputed their title. In Rogers v. Pitcher, ♦j Taunt. 202, and Gravener v. fVoodhouse, 1 Bingh. 'iS, the distinction is pointed out between the case where a person has actually received jjossession from one who has no title, and the case where he has merely attorned, by mistake, to one who has no title. In the former case the tenant cannot (except under very special circumstances) dispute the title; in the latter he may. In this case the defendant agreed to become tenant to the plaintiffs as sequestrators. They may have an equitable title to the rent, but not a legal one. And as it appears on the fiice of the instru.ment, which the plaintiffs rely upon in support of their claim, thai they have no legal right to receive the rent, I incline to think that, independently of the lease, they could not recover in this action. It is iiimecessary, however, to decide the case on that ground. I am of opinion, firft, that the instrument was not admissible in evidence for want of a stampj and, secondly, that as there is no ground for inferring 8 Barnewall & Cresswell, 471. 269 that the lease was put an end to, it was a subsisting lease, and that be- ing so, the father of the defendant was entitled at law to receive the rent. The rule for entering a nonsuit must, therefore, be made absolute. HoLROYD J. I think this action cannot be supported. Where the original landlord parts with his estate, and transfers it to another, and the tenant consents to hold of that other, the tenant is said to attorn to the new landlord. The attornment is the act of the tenant's putting one person in the place of another as his landlord. The tenant who has at- torned, continues to hold upon the same terms as he held of his former landlord. But here the agreement is for a new tenancy, and is for a time, and upon conditions which may vary from those in the former lease, according to the agreement of the parties. I think, therefore, that this instrument was an agreement, and not a mere attornment, and required a stamp. The plaintifls are described in ihe paper which they have given in evidence as sequestrators. As such they have no legal estate. I doubt, therefore, whether, independently of the lease, they could recover for the occupDtion of the premises by the defendant. In Fron- tin v. Small, Ld. Raym, 1418, a person was empowered by warrant of attorney to execute a deed for another: and it was held, that a lease importing to be made by the lessor, as attorney for another, was void upon the face of it. The former lease is at all events an answer to the action. There was no evidence to raise any inference that it had been surrendered to the original lessor, and the plaintifls as sequestrators could not accept a surrender. There seems to me to be a want of con- sideration for the defendant's agreement to give up the term he had un- der that lease. LiTTLEDALE J. I think the document ought to have been stamped. It contained an agreement that the defendant should become tenant to the jjiaintifls, who had no legal estate in the premises. That is not an attorn- ment. I think, also, the lease would prevent the plaintifls from recovering in this action. The defendant, by setting up the lease, does not disputethc title of the person by whom he was let into possession, or of any person claiming under him. Besides, by the agreement, the defendant docsfnot recognize the title of the plaintifls as individuals, but as sequestrators. In that character they can have no legal title to the rent; atall events, the lease being an existing lease, was an answer to the action, inasmuch as it thereby appeared that the title to receive the rent was in a tliird person. Rule absolute. PHILLIPS V. ALLAN.— p. 477. A discharge of an insolvent debtor upon a ccssio l)ononim l)y tlic court of ses- sion in Scotland, is no answer to an actif)n broni^lit by an l-jii^lish snl)if( t in a coin-t in this country to recover a (k-l)t contracted in JMif^^land, altlioii^h it appeared that the plaintiff opposed the discharjjc of the defendant in tli(; Scotch court. Scnible, That it would have been an answer to the action if the plaintiff had claimed to have the benefit of the Scotch law, and to take a distributive share of the property of the insolvent. DEfi.ARATioN by the plainlifl", as drawer, against the defendant, as acceptor of a bill of exchange for lo.'j/. , d;itrd London, 1 7th day of December 15:31, payable two month.'! after date, Plea, that after the •270 Phillips v. Allan. T. T. 18'28. accruinj; of llic several causes of action in tlic declaration mentioned, and before the commencement of tliis suit, to wit, on the 4th of July 182«, the defendant was a prisoner for debt, at the suit of one John Sim, in a certain prison called theTolbooth ofCanongate, in that part of the United Kingdom called Scotland, to wit, at, &c. ; and being so in prison he, de- fendant, afterwards, to wit, on, &.c., at, &c., did present unto the Lords of his Majesty's council and s ssion of that part of the United Kingdom called Scotland, a written petition, setting forth that on the 20th of May 1S26, he, the defendant, was incarcerated in the Tolbooth, by virtue of letters of caption, raised at the instance of Sim, and that he, defendant, was thereafter arrested in the Tolbooth, by virtue of letters of caption at the instance of certain other persons therein named, and that he was con- tinually oppressed, and in danger of being arrested at the instance of other persons thereinafter named, his real or pretended creditors, (na- ming, among others, the plaintifi',) and also that the inability of him, defendant, to pay his debts, was not occasioned by any fraud in him, but was owing to misfortunes and losses sustained by him, as would, if required, be particularly condescended in the course of that process, and although he had offered to convey his whole effects to his said creditors, yet they refused to accept thereof, or consent to his being set at liberty; and, therefore, that it ought and should be found and declared, by de- cree of the J^ords of council and session, that the inability of him, defend- ant, to pay his debts was not owing to fraud, but to misfortunes, and that it being so found and declared, he, defendant, should be ordained to be set at liberty from the said prison, upon his granting a disposition om- nium bonorum upon oath in favour of his creditors in such form as the Lords should direct, and all judges, &.c. of his Majesty's law should be discharged from putting any diligence into execution against him, and from troubling, molesting, or incarcerating him in time coming for pay- ment of any debts due by him to the persons named in the petition, and others; and that the said Lords of council and session ought to dispense with his, the defendant's, wearing the habit directed to be worn by bairkrupts, by an}' law or practice, or otherwise, after the form and tenuur of the laws antl daily practice of Scotland used and observed in the like cases in all points: whereupon afterwards, to wit, on &c., ac- cording to the practice of the court of the Lords of council, &c., it was ordered that notice should be given to the creditors named in the pe- tition, and, among others, to the plaintiff, to compear before the Lords, &.C. , at Edinburgh, or wherever, &c. , the 20th of June 1826, to answer at the instance of the defendant, in respect of the matters contained in the petition. Averment, that on, &c., notice was given to the creditors named in the petition, and among others to the plaintiff, to compear as aforesaid, whereupon afterwards, to wit, on, Sic, at, &c., the subject- matter of the petition was heard before the Lords, &c., and certain creditors of defendant (and among others the plaintiff) appeared by coun- sel, and were heard in op|K)sition to the defendant in respect of the pe- tition, whereupon it was afterwards adjudged in the said Court that the Lords, &c. , found the defendant entitled to the benefit of the process aforesaid, upon lodging in process a disposition of his effects, and also upon making oath in the terms of the acts of sederunt, whereupon de- fendant, afterwards, to wit, on, &c. lodged in process a disposition of his effects, anrj also made oath, in terms of the acts of sederunt, and thereupon became entitled to be discharged, and was then discharged out 8 Barnewall Si Cresswell, 477. 271 of custody. Averment, that from the time of the imprisonment to the time of the discharge from custody, the plaintiff had no cause of action or de- mand whatsoever against the defendant, except tlie causes of action in the declaration mentioned; that afterwards certain funds, goods, and chattels of defendant, of the value of 100/ , became available, and might have been recovered under the said disposition for the benefit of the creditors of defendant, and for the benefit, among others, of the plaintiff; that all and singular the proceedings aforesaid were pursuant to, and in con- formity with, the laws of Scotland aforesaid, and that, according to those laws, the said Lords, &c. were competent to act as aforesaid in the pre- mises, &c., whereby, and by tlie efiect of the aforesaid laws, he, the de- fendant, had become absolutely discharged, in resppct of his person, lands, goods, and chattels from the several causes of action aforesaici, and this, &c. Replication, that the causes of action mentioned in the declaration severally accrued to the plaintiff within the kingdom of Eng- land, and this, &:c. Demurrer and joinder. Barstow in support of the demurrer, cited Smith v. Buchanan, 1 East, 6. Alderson contra was stopped by the Court. Bavlev J. It has been very properly conceded that a discharge in a foreign country will not of necessity preclude an English creditor from suing in an English court, in respect of a debt contracterl in England. It has been decided that a certificate under a commission of bankruptcy issued in Ireland, since the Union, does not discharge a debt contracted in England, Lewis v. Owen, 4 B. & A. 654. But a discharge of a debt pursuant to the provision of an act of parliament of the United Kingdom, which is competent to legislate for every part of the kingdom, and to bind the rights of all persons residing either in England or Scotland, and which purports to bind subjects in England and Scotland, operates as a discharge in both countries. In Sidaway v. Hay, 3 B. &. C. 12, this Court decided upon that principle that a debt contracted by a trader residing in Scotland was barred in this country by a discharge under a sequestration issued in conformity to the statute 54 G. 3. c. 157. The defendant in this case was not discharged pursuant to the provisions of that act of parliament. He was discharged on making a ccssio bonorum, which, by the law of Scotland, operates as a discharge of the person in respect of debts contracted in Scotland. The court of session in Scot- land, prima facie, is competent only to bind Scotch subjects, and to ad- judicate in respect of debts contracted in Scotland. The phiinfilF is an English subject, and sues in respect of a (lc!)t contracted in England. Prima facie, therefore, he is not bound by the judgment of ;i court in Scotland. Hut it is insisted that he has sought relief from the Scotch court; that he, therefore, by implication consented to be bound l)y the law of Scotland, and, conseriucntly, tiiat he is barred by the judgment of that court, pronounced according to that law. Hut I think it docs not appear upon this record that the plaintiff did seek relief from (he Scotch court. The plea states that the defendant, being incarcerated in the Tolbooth, presented to the Lords of session a |)eliti()n, stating that the plaintiff, among others, was one of his creditors, and that the defendant liad offered to convey his effects to his creditors, and that they (including the plaintiff) had refused to accept such rc)nv»'3'rince; and then the pray- er was, that he, the defendant, shoidd be set at liberty upon his granting a disposition of al! his goods in favour of lii5 creditors, and that in future 272 TiiiLLiPS V. Allan. T. T. 1828. lie sliovild not 1)0 incorccralcd or tiouhlcd for payment of any debts diir lu the persons named in the j)etition. The object of the petition, there- fore, was, that he should be free from restraint in Scotland in respect of those debts. The plea then states, that it was ordered that notice should be given to the creditors named in the i)etition, and, among others, to the plaintill", to compear. The object of that notice was that the creditors should have an opportunity of shewing cause why the prayer of the petitioner should not be granted. It then avers that notice was given to the creditors, and, among others, to the plaintifl"; that the subject- matter of tiie petition was heard, that the j)laintiil aj)peared by counsel, and was heard in opposition to the defendant in respect of the petition. It has been insistetl that the fact of the plaintiff's having appeared in the Scotch court, and tiiere opposed the granting of the prayer of the pe- tition, distinguishes this case from ihaio^ Sf nil h v. Buchanan, 1 Kast, G, but I think it does not. The plea does not shew that the plaintiff desired to take a distributive share of the defendant's property (which lie might have had by the law of Scotland), but only that he endeavoured to prevent the defendant's being free from restraint in Scotland in re- spect of his debt. One part of the prayer of the petition was that all judges and law officers might be restrained from molesting the defend- ant in respect of his debts. But for that provision the plaintiff might have sued the defendant in the Scotch courts in respect of the debt owing to him. By opposing the defendant, he only shewed that he did not wish to be deprived of the liberty of suing him in the Scotch courts. He may have insisted in that court that the defendant was a fraudulent debtor. There was no consent, therefore, of the plaintiff to be bound by the judgment of the Scotch court. If he had asked to have the benefit of the Scotch law, and to receive a share of the defendant's property, there might have been ground for saying that he had consented to be- come bound by that law and by the judgment of the Scotch court. It seems to me that the debt is a subsisting debt, and that the plaintiff, an English creditor, is not prevented from enforcing payment of it in an English court of justice. HoLROTD J. This case falls clearly within the princij)le of the de- cision in Smith v. Buchanan, unless it be distinguishable from that case on the ground that the plaintiff appeared in the court in Scotland, and opposed the discharge of the defendant. By the law of Scotland the defendant was entitled to be discharged from custody in respect of this debt, on condition of making a cessio bonorum. The plaintiff is an English subject, suing for a debt contracted in this country, and is not bound by the Scotch law. It is said that he has consented to be bound by the Scotch lavv by reason of his having appeared in the court in Scotland, and opposed the defendant's being discharged out of cus- tody. But I think his having appeared in that court makes no differ- ence in this case. If he had asked relief from the Scotch court, and sought to have the benefit of the lavv of Scotland by taking a share of the defendant's property, that might have made a difference. He may have appeared in the Scotch court for the purpose of objecting to the jurisdiction; and if so, it is quite clear he may now insist that their judg- ment is a nullity, in the same manner as a party, who has appeared in the spiritual court, may insist that the judgment of that court is void. LiTTLEDALE J. I am of the same opinion. It is admitted that the plea could not be supported, unless it alleged that the plaintiff appeared 8 Barnewall & Cresswell, 477. 273 in Ihe court in Scotland : but I think that does not make any difl'erence. If the plea had alleged that the plaintiff sought to avail himself of the law of Scotland, by taking a distributive share of the defendant's estate, the case then might have been different. But here the allegation is, that the plaintiff appeared by his counsel, and was heard in opposition to the defendant, in respect of the petition. He may have opposed the prayer of the petition on the ground that the Scotcii court had no jurisdiction, or that the defendant was not a person entitled, by the law of Scotland, to be discharged on making a cessio bonorum. The ground, however, on which the plaintiff opposed tiie defendant is wholly immaterial, un- less he souglit relief by availing himself of the Scotch law to obtain a distributive share of the defendant's property. The judgment of the Court must be for the plaintiff. Judgment for the plaintiff. PAUL and Others v. ELIZABETH NURSE and EDMUND NURSE.— p. 486. Covenant against the assignee of the lessee for non-payment of rent. Plea, that before the rent Ijccame due, the defendants assigned all their estate and inte- rest in the demised premises to A. B. Replication, that in and by the inden- ture, the lessee for himself, his executors, administrators, and assigns, cove- nanted that he, his executors, or administrators should not assign the premises thereby demised without the consent of the lessor, and that no consent Avas given : Held, upon demurrer, first, that the replication was bad, inasmuch as the covenant of the lessee not to assign did not estop the assignee from setting up the assignment ; and, secondly, that the action being founded on privity of estate, the liability of the defendant ceased as soon as the privity of estate was destroyed. Declaration stated tliat one R. Chcatlc, deceased, before the time of making the indenture thereinafter mentioned, was seised in his de- mesne as of fee of the tenements with the appurtenants thereinafter mentioned to have been demised, to wit, at, &c. ; and being so seised on the 30th of April ISIG, at, &.C., by a certain indenture then made between Chealle of the one part, anil one Coj)eland of the other part, Cheatle, for the considerations therein mentioned, granted and demised to Copeland certain -premises, with the ajjpurtcnants. Habendum from the lllh October 1815, for the term of twenty-one years, at a rent of SO/., payabli; half-yearly. Covenants by Copeland, for payment of rent. Averment, that all the estate, right, title, and interest of Cope- land, by assignment vested in the defendants, whereby they, as assignee.** as aforesaid, then entered upon the demised premises, with the appur- tenants, and became and still were possessed thereof, for the residue of the term; that being so possessed, and the reversion belonging to Chea- tln, hf, on the 27tli March 1R2.1, by will, dovised the reversion to the plaintiffs, llieir heirs, &c., and died on the 8lh Septeml;er lS2Ct. Breach, non-|iayment of half a year's rent, due the 11th October 1827. Plea, that, before the rent became due, the defendants assigned all their estate, right, title, and interest in the demisr-d [)rfniisns to Edmund Nurse, the cider. Replication, that in and by the indenture of lease Copeland for himself, his executors, administrators, and assigns covenanted that he, Copeland, his executors or administrators, shnuhl not assign, underlease, dispose of, or grant any part of the prr-misrs thereby demised, to any VOL. XV. 35 274 Vw.i: V. Newman. T. T. 1828. person, uillioiit tlie consent of Clicatle, his heirs, or assigns; lliat neither Cheallc, in his lifetime, nor the jilaintifTs, since his death, had given any such consent. General demurrer. KcUy for the plaintiffs, referred to Du7npor^s case, 4 Coke, 119; Doe d. Boscawen v. Bliss, 4 Taunt. 735. Baylet J. This action being founded on privity of estate, the ob- ligation of the defendants to perform the covenant arose only from their fdiing the j)arlicular character of assignees of the estate, which the lessee had under the lease. As soon, therefore, as they ceased to be as- signees, their obligation to perform the covenant was at an end. The plaintiffs' remedy is by an action on the covenant not to assign. Be- sides, it may admit of some doubt whether the defendant is within the covenant; for the lessee only covenants that he, his executors or admin- istrators, will not assign. The judgment of the Court must be for the defendant. Judgment for the defendant, {it) (o) See Doe dem. Chure v. Smith, 5 Taunt. 795. PAGE v. NEWMAN.— p. 489. A suit commenced in K. B. by latitat, may be well continued by a bill of Middle- sex, sued out by the plaintiff, with intent to implead the defendant for the same causes of action. Declaration on a promissory note of the defendant, dated the 18th of April 1814. Plea, that the causes of action mentioned in the de- claration did not accrue within six years next before the exhibiting the plaintifTs bill. Replication, that within six years after the several causes of action accrued to the plaintiff, to wit, on the 30th of June 1819, in the 59 G. 3., he, plaintiff, for recovery of his damages sustained by him, by reason of tlie not performing the several promises and undertakings in the said declaration mentioned, sued out a latitat, whereby, (after re- citing a previous bill of Middlesex commanding the sheriff of that county to take the defendant and him safely keep, so that he might have his body to answer the plaintiff in a plea of trespass, and also to a bill of the plaintiff to be exhibited against the defendant for 300/., upon promises, and a return thereto of non est inventus;) the King com- manded the sheriff of Kent to take the defendant, &c. to answer the plaintiff in the plea, and the bill aforesaid. It then set out a return of non est inventus, and the non-appearance of the defendant, and then stated that the plaintiff prayed another latitat to the sheriff of Kent, re- turnable on Monday next after eight days of St. Hilary, for the defend- ant to answer in the plea and to the bill aforesaid; and that on that day in the court of King's Bench at Westminster, came the plaintiff, by his attorney aforesaid, and offered himself against the defendant in the plea and bill aforesaid; and the shcrifi" of Kent did not send the last- mentione'd writ, nor did he do any thing thereupon, nor did the defend- ant come or appear in the court of King's Bench, according to the exi- gency of the said writ. The replication, after stating similar continu- ances from term to term to Easter term 1826, proceeded thus: — Where- fore the plaintifl", for recovery of his damages by him sustained by rea- 8 Barnewall & Ckesswell, 489. 275 son of the not performing of the said promises and undertakings in the said declaration mentioned, prayed another precept, called a bill of Middlesex, against the defendant in form aforesaid, and it was granted to him, returnable before our lord the now King at Westminster, on Friday next after the morrow of the Holy Trinity, for the defendant to answer the plaintiff in the plea and the bill aforesaid, and the same day, &c. After stating the appearance of the plaintiff and defendant it averred, that the said several writs, and the said last mentioned precept respectively, were so sued and prosecuted by the plaintiff against the de- fendant as aforesaid, with intent to implead the defendant upon and for the said several causes of action in the said declaration mentioned, and to cause and compel the defendant to appear in the said court here, in order that the plaintiff might, ujjon such appearance, exhibit his bill, and declare against him, defendant, for the said several causes of action in the said declaration mentioned, &c. And the plainTiff afterwards, in Trinity term in the 7 G. 4., exhibited his bill, and declared thereon against the defendant, to wit, at, &c. Averment, that the said several causes of action did accrue to the plaintiff within six years before the issuing of the first-mentioned writ, in manner and form, &c. Rejoinder, that no precept, called a bill of Middlesex, against the defendant was sued out or prosecuted by the plaintiff, previously to the said prayer of the plaintiff of another precept called a bill of Middlesex, and so sued and prosecuted by plaintifi' against the defendant, as in the replication was mentioned. And this, ike. Demurrei*. Header for the plaintiff, cited Co/es v. Sibsi/e, Styles, 156; Davei/v. Clinch, I Sid. 53; Culliford v. Bhindford, Carth. 233; Brown v. Bahingtnn, SLd.-Raym. SS2; Wood v. Newlon, 1 Wils. 141; Fos- ter V. Bonner, Cowp. 451; Price v. Jackson, 1 M. & S, 442; Kar- verv. James, Willes, 255; Loi'd Middlcton v. Forbes, Willes, 25d ii. Comyn contra. 13ayley J. I have no doubt that the bill of Middlesex was in this case a good continuance of the suit which had been commenced by lati- tat. It has been decided, that a latitat is a good commencement of a suit. To continue a suit, the process by which the party is ultimately brought into court, must be of the same description as that which was originally sued out. A bill of Middlesex and a latitat are process of the same kind. The court, in virtue of its jurisdiction in the county where it sits, issues against parties resident in that county a bill of Middlesex. If the defendant be not found in the county of Middlesex, the court is- sues a hitilat into some oilur county. The latitat issues, therefore, on the supposition that a bill of Middlesex has previously been issued, and that the defendant has not been found in that county. 'I'lie repli- cation in this case set out a latitat, whereby (alter reciting that a bill oi" Middlesex had issued, whereby the sherill of that county was command- ed to lake the defendant, &.c. &c. to answer the plaintiff in a plea of tres- pass, and to a bill to be exhibited against him,) the King commanded the sherilf of Kent to take the defeiulant, &c.. to answer the [ilaintiff in the |)l(\'i and bdl aforesaid; and by the latitat subsequently issued Ironi term to term, and the bill of Middlesex issued in Hasterlerm l.Siifi, the defendant is call- ed upon to answer the plainlilf in the plea and the bill aforesaid. The last ])rocess, therefore, issued toronip(d the delV'udant to answer the plaintiff in the same plea, and to the same bill, which he was called upon to an.' wer by lli<: latitat which was liisl sued out. So that, upon the face of the pio- 276 Doe d. Ruunb v. Mautyn. T. T. 1828. cess itself, tlic bill of Middlesex woidd rather appear to have Ijccn issued in the same suit. But the plaintill" then avers, that the said several writs, and the said last-mentioned precept respectively, were so sued out by the plaintiir against the defendant with intent to implead the defendant upon the several causes of action in the declaration mentioned. It must be taken, that the bill of Middlesex and the latitat were issued with the intent to prosecute the same causes of action. The defendant by the rejoinder, alleges, that no bill of Middlesex was sued out by the plaintifl" belorc that which issued after the last latitat. But it having been de- cided, that a suit may be well commenced by a latitat without a previous bill of INIiddlesex, the fact stated in the rejoinder is wholly immaterial. The rejoinder, therefore, is no answer to the replication. I think the replication is good. A suit commenced by latitat may be continued by process of the like kind. A bill of Middlesex and a latitat are processes of the same kind; for they are frequently issued in the same suit: and one instance has been put in argument, where a bill of Middlesex would of necessity be the only process by which a suit commenced by latitat could be continued. It is clear, therefore, that a bill of Middlesex may be a good continuance of such a suit. And as it appears by the replica- tion that it was sued out with the intent to implead the defendant for the same causes of action as those for which the latitat was sued out, I think that in this case it was a good continuance of the suit. I am, therefore, of opinion, that the suit which was originally commenced by latitat was properly continued by the bill of Middlesex, and, consequently, that the plaintiff is entitled to the judgment of the Court. Judgment for the plaintiff. HUBBARD v. WILKINSON.— p. 496. A defendant having been arrested, paid into court the sum indorsed on the writ, together with 20/., as a secvn-ity for costs, pursuant to the statute 7 & 8 G. 4. c. 71. s. 2. The Court, on the application of the defendant, allowed the plaintiff . to take out of court a given portion of the sum paid into court, and unless he ronsentcd to accept thereof, with costs, in full discharge of the action, ordered it to be struck out of the declaration, and that the plaintiff should not give any evidence at the trial as to that sum. DOE on the several demises of CHARLES PRIDEAUX BRUNE and EDWARD COODE, v. WILLIAM MARTYN the younger. p. 401. By marriage settlements between W. M. and T. M., son and heir apparent of VV. M., of the first part; J. H. and Mary H. of the second part; and L. G. and J. n., trustees, of the third part; \V. M.and T. M. l)argained and sold to the trustees certain lands called Ninnisses and Sundry's Fields, and other lands called Varwell, then in possession of W. M. and T. M., to hold unto the trus- tees, their heirs and assigns, as to Sandry's Fields and NinnisseS, to the use of W. M. for life; remainder to the use of the trustees during the life of W. M. ui)on trust to preserve contingent remainders, with remainder to the use of the said T. M. for life, remainder to the said trustees and their heirs during the lif'- of T. M. upon trust to preserve contingent remainders, with remainder to tin: first and other sons of 1". M. by M. H. successively in tail male, with itmaind'.r tvthc use of the right h-.irs male of T. iVI. for ever; and as to all 8 Barnewall & Gresswell, 497. 277 the other settled premises to the use of T. M. for life, with remainder to the use of trustees, their heirs and assigns, during the life of T. M., in trust to preserve contingent remainders, with remainder to the use of M. H. for her life, for raising out of the rents and profits an annuity of 25/. per annum, and subject thereto to the use of the first and other sons of T. M. by M. H. suc- cessively in tail male, with remainder for want of issue male by T. M. on the body of M. H. begotten; or if such issue male should die without issue male, and T. M. should have any daughter or daughters by M. H. at the time of his death, then that the trustees, their heirs and assigns, should stand seised of the said hereditaments to the use of the issue female of T. M. by M. H., for raising portions as therein mentioned to such daughter and daughters; and that until twenty-one the trustees and their heirs should out of the rents raise such maintenance of such daughter and daughters as to the trustees should seem meet, and after raising the said sums for the maintenance for such daughter and daughters as aforesaid, or in default of issue female, to the use of the right heirs male of T. M. for ever: Held, First, that the last words were words of limitation and not of purchase, and that T. M. took the ultimate remainder in fee; and. Secondly, if they were words of purchase still they would create a contingent remainder during the life of T. M., which would vest immediately upon his death in his heir, who might devise the same. Thirdly, that by the limitation as to the Varwell and Crugmere Closes, the trus- tees took an estate only during the infancy of the daughters; and. Fourthly, even if they took a fee, it was a fee determinable when the portion should have been raised ; and twenty years of possession adverse to their claim having occurred, the presumption was, that the right of the trustees had been released and satisfied. VV. M. died leaving two sons, who died without issue. The survivor of them devised the estate to his wife for life, remainder to all and every the children of Richard E. and M. P. who should be living at the time of his wife's death. There were living at her death nine children of R. E and M. P. Of these, two during her life, and while their estates remained contingent, had levied fines sur conusance dc droit come ceo of their shares. In Api'il 1824 A. B. entered upon the lands comprised in the marriage settlement, and kept pos- session, and in May 1824 all the children of R. E. and M. P. by lease and re- lease conveyed the lands comprised in the marriage settlement in given pro- portions to a purchaser : Held, that the children of R. E. and M. P. might con- vey their interests without having first made any entry into the land, although A. H. was in possession. Secondly, as to the shares of the two who had levied fines while their estates were contingent, that their interest was not thereby extinguished. Ejectment for the recovery of certain lands in the parish of Pad- stow, in the county of Cornwall. At the trial before Btirroiigh J., at the Lent assizes for that county in 1825, a verdict was found for the plaintiffs, subject to tlic opinion of this Court on the following case: — Uy indentures of lea.sc and release, dated the 5th and fitli of Novem- ber 1722, the release being tripartite, and made between William Mar- tyn, Gent, and 'I'liomas JNInrtyn, (lent, son and In-ir apparent of tlio said W. Martyn, of the first part, Jenefer Hooper, widow, and JMarllia Hooper, her daughter, of the second part, and Lawrence Grovvden, (ient. and John Hooper, (ient. of the third part, in consideration of a marriage then intenderl between said Thomas JNIartyn, and said Martha Hooper, and of the marriage portion of Martha Hooper, and for se- curing to her a competent jointure, and for limiting the said heredita- ments, thereinafter mentioned; and in consideration of 10,y. , W. Mar- tyn and T. Martyn did grant, bargain, sell, alien and enfeoff, re- mise, release, convey, secure and rordirni unto the said L. Growden and John Hooper one field called Ninnisse5, in the village of Trctor, 278 Doe d. Bkune v. Mautyn. T. T. 1828. in Padstow, two fields called Sandry's Fields, lying in the village and fields of Crugniere, in Padstow, and divers other fields, amongst which were some called the Varwcll Closes in Crugmere, in Padstow, all >vhich said premises were then in the possession of the said W. Martyn and T. ISlartyn, or one of them. And the reversion, &c. and all the estate, &c. and all deeds, &c. to hold unto L. Growden and John Hooper, their heirs and assigns; as to Sandry's Fields and Ninnisses, to the use of the said W. Martyn for life, remainder to the use of L. Growden and John Hooper, and their heirs during the life of said W. Martyn, upon trust to preserve contingent remainders, with remainder to the use of the said Thomas Martyn for life, remainder to the use of the said trustees and their heirs during the life of the said Thomas Mar- tyn, upon trust to preserve contingent remainders, with remainder to the use of the first, second, third, &c. and other sons of the said Thomas Martyn, by the said Martha Hooper successively in tail male, with remainder to the use of the right heirs male of Thomas Martyn for ever. And as to all other of the said settled premises, to the use of Thomas Martyn for life, with remainder to the use of the trustees, their heirs, and assigns, during the life of Thomas Martyn, in trust to preserve contingent remainders, with remainder to the use of Martha Hooper for her life, for raising out of the rents and profits an annuity of 251. and subject thereto, to the use of the first, second, third, and other sons of Thomas Martyn by Martha Hooper successively in tail mail, with remainder for want of male issue by Thomas Martyn on the body of Martha Hooper, or if such issue male should die without issue male, and Thomas Martyn should have any daughter or daughters on the body of Martha Hooper lawfully begotten and living at the time of his death; then that Lawrence Growden and John Hooper, iheir heirs and assigns, should stand and be seised of the said hereditaments to the use and behoof of the issue female of Thomas Martyn on the body of Martha Hooper, for raising and levying out of the rents, issues, and ])rofits thereof such sum and sums uf money to pay and satisfy such portion and portions to and with such daughter and daughters at such time and times as are hereinafter mentioned, that is to say, if one daughter, the sum of GOO/., and if two daughters, to each of them the sum of 400/., and if more than two daughters, the sum of 800/. to bo equally divided between them at twenty-one; but if it should happen that the said sums and sum aforesaid could not be advanced and risen by and out of the profits of the said hereditaments at the times of payment thereof as aforesaid, then and notwithstanding the said premises should stand and be charged with the pavment of the portion or portions aforesaid, when and as soon after as the same could be advanced and raised out of the rents, issues, and profits thereof. And that until twenty-one the trustees and their heirs, and the survivor of them and his heirs, should, out of the rents, raise such maintenance of such daughter and daughters as to the said trustees, their heirs, and assigns should seem meet and convenient. Proviso, that if such daughters should marry without consent, or the said Thomas Martyn should by deed or will revoke the said portions,, the same portions should go to such other persons as the said Thomas Martyn should direct. And from and after raising, levying, and pay- ing of the sum and sums of money as aforesaid to an^th June I'^T', made between ihe said Evelyn 292 CiiATHELU V. Parkek. T. T. 1828. l^ierrepoiiif, Lord Dormer, of the fust pari; W. S. and J. C. of Ihc second |Kirt; and T. Dawes of the lliird part, in consideration of 14,99S/. paid to the said E. P. Lord Dormer out of the funds, and on behalf of the society or partnership in manner therein mentioned, he the said ¥j. p. Jjord Dormer did grant, &c. unto the said W. S. and J. C, tlicir executors, &.c. an annuity of 1725/. to be paid and payable for nine- ty-nine years, to be computed from the day next before the date of the indenture, and thenceforth if the said E. P. Lord Dormer should so long live, to be charged and cliargeable upon, and payable out of (inter alia) the premises mentioned in the declaration, habendum for ninety-nine years, and thenceforth if the said E. P, Lord Dormer should so long live, and that the said E. P. Lord Dormer did grant, bargain, sell, and de- mise unto the said T. Dawes, his executors, &c. (inter alia) the pre- mises mentioned in the declaration, habendum to Dawes, his executors, &c. for 100 years, to be computed from the day next before the date of the said indenture, if the said E. P. Lord Dormer should so long live, in trust to pay the said annuity out of the rents and profits, &c. It then re- cited, that the said E. P. Lord Dormer had contracted and agreed with tire said W. S. and J. C. for the absolute sale to the said W. S. and J. C, as two of the directors of the said Pelican Life Insurance Company, on behalf of the company, of an annuity of 800/. to be paid to them W. S. and J. C, their executors, &c. for ninety-nine years, to be computed from the day next before the date of the indenture of the 14th March 1820, if the said E. P. Lord Dormer should so long live, at and for 6998/., and that in pursuance of the said agreement, they W. S. and J. C. had paid that sum to the said E. P. Lord Dormer; and that upon the treaty for the purchase of the said annuity of 800/., it was agreed that the an- nuity of 1725/., and all powers, remedies, and trusts for securing the same, should be ratified and confirmed, and subject thereto, that the said annuity of 800/. should be charged upon (inter alia) the premises mentioned in the declaration. The indenture then witnessed, that in pur- suance of that agreement, he the said E. P. Lord Dormer had ratified and confirmed the annuity of 1725/. granted by the indenture of the 18th June 1819, and that in pursuance and further performance of the said agreement, and in consideration of the sum of 6998/. paid to him by W. S. and J. C. as thereinbefore mentioned, he the said E. P. Lord Dormer had granted, bargained, sold, and confirmed to W, S. and J. C. their heirs, executors, &c. an annuity of 800/. to be paid and payablefor ninety-nine years, if the said E. P. Lord Dormer should so long live, to be charged and chargeable upon the lands (inter alia) in the declaration mentioned. The indenture then further witnessed, that in consideration of 6998/. paid to the said E. P. Lord Dormer as thereinbefore mention- ed, and for the further and better securing the regular payment of the said annuity of 800/. to W. S. and J. C, their executors, &c. , and in consideration of lOs. paid to him the said E. P. Lord Dormer by Chatfield, he the said E. P. Lord Dormer granted, bargained, sold, and demised, &c. to Cliatfield the premises mentioned in the declaration, which vvere before charged with the payment of the said annuity of 800/. ; habendum the premises thereinbefore granted, and every part and parcel of the same, but subject and charged as thereinbefore was men- tioned to Chatfield, his executors, &c. for the term of 200 years, to be computed from the day next before the dale of the indenture, and thenceforth next ensuing, and fully to be complete and ended without im- 8 Barnewall & Cresswell, 543. 293 peachmeut of waste, if the said E. P. Lord Dormer should so long live. The defendant then demurred specially to the replication. Serjt. JE. Lawes in support of the demurrer, cited Co. Litt. 303 b. Field V. JVinlow, Cro. Eliz. S97; Cole v. Hi?ulson, 6 T. R, 234; Shad- get t V. Clipson, S East, 32S; and Evans v. Kingj Willes, 554. Piatt, contra, was stopped by the Court. Bayley J. This is an action of trespass. Actual possession is suffi- cient to entitle a man to maintain trespass against a wrongdoer. The defendant by his plea says he is not a wrongdoer, because in January 1S23 he recovered judgment against John E. P. Lord Dormer, and sued out an elegit, by virtue of which an inquisition was held, and the jurors found that at the time when judgment was obtained. Lord Dormer was seised for life of lands, (including the premises mentioned in the declara- tion,) and that the sheriff delivered to him those lands. In order to give the defendant a good title against the plaintifij (who is admitted by the demurrer to have been in possession,) the defendant ought to shew that Lord Dormer had some title to the land in question, at the time when the elegit issued. By the inquisition set out in the first plea, it is found that Lord Dormer was seised for life. Assuming that to be a sufficient allegation that he was so seised, does the replication confess and avoid the matters stated in the i)lea? It states that Lord Dormer being seised for life before the judgment (mentioned in the plea), in March 1S20 by in- denture bargained and sold to the plaintiff the tenements, (including the premises mentioned in the declaration,) and that he entered and became possessed, and continued so possessed until the committing of the tres- pass. Tiie plaintiff and defendant claim under Lord Dormer. The plaintiff claims by virtue of a deed executed in 1820; the defendant by virtue of a judgment obtained, and elegit issued, in 1823. The title of the plaintiff is prior in point of time. The lease supersedes Lord Dor- mer's right. It has been insisted that the lease set out in the replication is not an answer to the plea, because it appears by the plea that the judg- ment was obtained against Lord Dormer, sued by one christian name, and it appears by the lease set out on oyer, that Lord Dormer, who granted that lease, docs not use the same christian name. But the replication alleges that the said Lord Dormer being seised for life by indenture, de- mised the premises. The replication, therefore, shews that Lord Dor- mer, who granted the lease, and Lord Dormer, against whom the judg- ment was obtained, was the same person. It is not competent to the defendant upon demurrer, to say that it was not the same Lord Dor- mer. Lord Dormer may have been sued by a wrong Christian name in tlie suit in which judgment was obtained against him, or he may have used a wrong Christian name in the lease. The lease is not void by rea- son of the lessor having used a wrongChristian name. But it is said that the lease set out on oyer bhews that th(; plaintiff had no right to the pre- mises in question. It recites an indenture made by Lord Dormer in ^une 1819, whereby he granted an annuity of 1725/. for ninety-nine years charged upon (inter alia) tiie premises mentioned in the tleclara- tion, and he granted, bargained, and demised those premises unto II. Dawes, habendum for 100 years. It then recites, that he had agreed to sell another annuity of 800/. for ninety-nine years, and lie confirms the annuity of \12'jl., and subject thereto charges the premises in the decla- ration willi tlir- annuity of 800/. ; and for better securing the regular pay- ment of that annuity, hargnin", ^elN, au'I demises unto the plaintiff 294 CilATFlELU V. Paukeu. T. T. 1828. (amoMC, others) the premises mentioned in the declaration, for 200 years. It appears, tlierefore, by tlie lease set out on oyer, that those premises were charged with an annuity of 1725/., and for better securing the pay- ment of that annuity had been conveyed to Dawes. The demise to the plaintiff was subject to the right of Dawes. But Dawes was not bound to enter; and if he" did not enter, the plaintiiV had the right. It is averred in the replication, that the plaintift" entered and became possessed, and continued in possession until the trespass was committed. The repli- cation shews that the plaintiif had a right to the land against every per- son but Dawes. The demise to the plaintiff was to commence the day preceding the date of the indenture. It must be presumed, therefore, that Dawes had not entered at that time. It is quite sufficient, however, for the purposes of this case, to say that the lease set out upon the record destroys all right of the defendant, who claims under a judgment obtain- ed against Lord Dormer in 1S23, because it shews that Lord Dor- mer at that time had no interest in the premises mentioned in the declaration. The defendant, therefore, could derive no title from him, and was consequently a wrongdoer; and the plaintiff having shewn that he was in actual possession at the time when the trespass was committed, is entitled to maintain this action. The judgment of the Court must be for the plaintiff. HoLROYD J. concurred. Judgment for the plaintiff (a). (a) This action was originally commenced in the name of John Doe. The de- fendant pleaded the judgment and elegit, &c. The plaintiff replied, the demise by indenture to Chatfield, his entry, and that after such entry the said plaintiff, in Hilary term, 1826, commenced an ejectment against the defendants, in which action the said John Doc, as the nominal ])laintiff, complained, &c. (setting out the declaration). It then stated that John Doe, in Michaelmas term in that year, recovered judgment, and afterwards entered. Upon demurrer to this replica- tion, the Court, after argument at the sittings in banc, after Hilary term 1827, held the replication to be bad; first, for stating that Chatfield was in possession at the time of the trespasses, thereby negativing John Doe's possession of them at that time, which was a departure from the declaration; and, secondly, because the replication did not, and, as it seemed, could not shew any right to the posses- sion in John Doe, or even state that he was a nominal plaintiff in this action, as well as the ejectment, but only that John Doe, as the nominal plaintiff in the eject- ment, complained, 8cc. ; and they intimated that the plaintifi' had better amend, by making Chatfield the plaintiff on the record instead of John Doe, and the amendment was made accordingly. F.ND OF rniNITY I F.RM. CASES ARGUED AND DETERMINED IN THE COURT OF KING'S BENCH, IN IVnCHAELMAS TERM, In the Ninth Year of the Reign of George IV.— 1828. MEMORANDA. In the early part of this term, Mr. Justice Holroyd resigned his seat in this Court. He was succeeded by James Parke of the Inner Temple^ Esq., who was called to the degree of Serjeant, and gave rings with the motto "Justitiae tenax." He took his seat in this Court on Tuesday, the 18th day of November, and was afterwards knighted. Thomas Den- man, Esq. took his seat within the bar, having received a patent of pre- cedence. HELPS v. GLENISTER.— p. 553. The st.itute 58 fi. 3. c. 7.5. prohibits i\\v. buying <>f pheasants in all cases, and tlierefore by u contract for the sale of live pheasants, no property passes to the purchaser. WHITNASH and Another v. H. GEORGE and W. GIFFORD.— p. 55G. In an action upon a bond ^^ivcn to bankers, conditioned for tlie ndelity of a clerk. «ntries of the receipt ot sums of money made by tlie clerk in I)ooks kejjt by lun\ in the discharge of his duty as clerk, arc. after his death, evidence against his sureties of the fact of the receipt of the money. Debt on bond, dated the Gih of October IS'Jl. The defendant George siiffcrrid juflgmont by dcf;iult. Tiic defendant Gilford craved oyer of the bond and roixlilion. The condition, after reciting that the plaintiffs had taken one Samuel Pitman into their service as a clerk, and that II. George and H. Gilford bad agreed to enter info the bond for his fidelity in the .said enii>loy, was tlint Pitman should from lime to time. 296 WniTNAsii V. Gkouge. M. T. 1828. and at all times, so long as he should he in the service of tiie plaintifl'5, well and truly and faithlully account for, pay over, and deliver unto the plaintifl's, their executors, &c., or to such other person or persons as they, or any or cither of them should direct, all sums of money, hooks, papers, matters, and things of or belonging to the plaintiffs, which should at any time, and from time to time, be received by, or come to the hands of him, the said S. Pitman, and also did and should act and conduct himself, at all times, with fidelity, integrity, and punctuality in and concerning the matters and things which should or might be reposed in or intrusted to him as such clerk as aforesaid. Plea, that Pitman did from time to time, and at all times, so long as he continued in the service of the plain- tiff, well, truly, and faithfully account for, pay over, and deliver unto the plaintiffs all sums of money, books, papers, matters, and things be- longing to the plaintiffs, which at any time, and from time to time, was or were received by, or came to the hands of him. Pitman; and act and conduct himself at all times with fidelity, integrity, and punctuality, in and concerning the matters or things which were reposed in or intrusted to him as such clerk as aforesaid, Replication, that during the said time that Pitman so remained in the said service of the plaintiffs as such clerk, to wit, on the 7th of October 1824, he. Pitman, as such clerk, had and received, for and on account of the plaintiffs, divers sums of money, amounting to 2000/. belonging to the plaintiffs, yet Pitman, although often requested, had not accounted for or paid over the same, or any part thereof, to the plaintiffs. Rejoinder, that Pitman did not as such clerk have or receive, for and on the account of the plaintiffs, the said sums of money in the replication mentioned, or any part thereof. At the trial before Littledalei. at the Summer assizes for the county of Somerset 1828, it appeared that the plaintiffs were bankers at Yeovill, in Somer- setshire; and that Pitman became their clerk in October 1824, and con- tinued to act as such until February 1826, when he died. It was his duty, as such clerk, to keep the plaintiffs' books. In order to prove that Pitman was indebted to the plaintiffs at the time of his death, on account of money received by him in his character of clerk, the plain- tiffs produced the book kept by him in which there were entries in his hand-writing of various sums of money received by him during the time he continued in their service as clerk. It was objected, that although these entries would have been evidence against Pitman, they were not evidence against the defendants, who were his sureties. The learned Judge received the evidence, and directed a verdict to be found for the plaintiffs, but reserved liberty to the defendants to move to enter a non- suit. Mereivether ^^r'^i. now moved accordingly, citing Cutler v. Newlin, Mann. Dig. 137; Goss v. Watliugton, 3 Brod. & Bingh. 132. Lord Tenterden C. J. It appears by the recital in the condition of the bond, that the plaintiffs had agreed to take Pitman into their service as a clerk, and that the defendants had agreed to become bound for his fidelity in the said employ; and the condition was, that Pitman should well and truly account for, pay over and deliver to the plaintiffs, or to such other persons as they should direct, all sums of money, books, papers, matters, and things belonging to the plaintiffs, which should come to his Pitman's hands. The defenilants plead general performance. The plaintiffs reply, that Pitman, as such clerk, had received, for and on accountof the plaintiffs, divers sums of money belonging to the plaintiffs. 8 Barnewall & Cresswell, 556. 297 and had not accounted for or paid over the same to the plaintiffs. The defendants rejoin, that Pitman did not, as such clerk, have or receive, for and on the account of the plaintiffs, the said sums of money in the replication mentioned; and upon that allegation issue is joined. It lay upon the plaintiffs, therefore, to shew that Pitman did have and receive sums of money for which he had not accounted. In order to prove that fact, the plaintiffs produced the books kept by Pitman in discharge of his duty as their clerk. Those books contained entries made by him, whereby he charged himself with various sums as having been received by him on account of the plaintiffs. The question, therefore, is, whether those entries be evidence after his death against the defendants who bound themselves to the plaintiffs, that he should faithfully discharge his duty as clerk, and account to the plaintiffs or to their nominee. I think those entries whereby he charged himself with sums of money as having been received by him for the plaintiffs, were admissible la evidence against the defendants in an action on the bond, whereby they became bound that Pitman should faithfully discharge his duty as clerk. It is part of the duty of a banker's clerk to make entries (in the books kept by him) of all sums of money received by him for his employers. Such entries made by the clerk must, as against his sureties, who con- tracted for the faithful discharge of his duty, be taken prima facie to have been made by him in discharge of that duty. I think, therefore, that in this action the entries made by Pitman (in those accounts which it was his duty as the clerk of the bankers to keep), whereby he charged himself with the receipt of sums of money, were after his death admissible evidence of those sums having been received by him, not altogether as declarations made by him against his interest, but because the entries were made by him in those accounts which it was his duty as clerk to keep, and which the defendants had contracted that he should faithfully keep. Baylky J. The foundation of the decision in Goss v. Watlingtoiiy 3 Brog. & Bingh, 132, was, that the entries made by the collector were admissible, not merely as a declaration made by him against his interest, but on the ground that they were entries in those very books, which by the condition of the bond the principal was bound faithfully to keep. The entries were evidence against the surety, because they were made by the collector in pursuance of the stipulation contained in the condition of the bond. That case in principle is the same as the present. Rule refused. ALLEN and Another, Assignees of SCOTT, a Bankrupt, v. SU- GRUE.— p. 501. Where a vessel ins\irc- (licrcin mentioned; 300 Coles v. Hulme. M. T- 1828. ami also tlic sum of 1500/. on the 1st day of November then next, being the money ailvanced by P. Coles in his lifetime to the joint trade; and also, on the 1st of January 1809, 1179/. 10*. lid., being one moiety of the sum of 2359/. Is. 'S^d., the moiety of the value of the partnership effects; and on the 1st day of January ISIO, the further sum of 1179/. lOs. lid; being the remaining moiety of the said sum of 2359/. \s. 3\d.y together with interest, the bond was to be void. It was objected by Sir James Scarlett that the bond was void for uncertainty, because it did not specify any description of money; it might, therefore, be marks, guineas or pounds. Lord Tenterden C. J. was of opinion, that as it appeared by the condition that the bond was given to secure various sums of money described as being composed of pounds, &c. it might fairly be inferred that the penal part of the bond which was given to secure the payment of those sums should be m the same species of money, and that in furtherance of that intention the word "pounds" might be supplied; and he directed the jury to find a verdict for the plaintiff, but reserved liberty to the defendant to move to enter a nonsuit. Sir James Scarlett now moved accordingly. He cited Com. Dig. tit. Obligation (A), citing Dodson v. Kayes, Yelv. 193; tit. Fait, (F) 1., citing Pigot's case, 11 Co. 27; 10 Coke, 133. a.; Com. Dig. tit. Obliga- iion (B), 3; Loggias v, Titherton, Yelv. 225; Com. Dig. Obligation, (B) 5; Partrose's case, cited in Hills v. Cooper, Cro. Jac. 603; Roll's Abr. Obligation, (D) 147. Lord Tentekden C. J. In every deed there must be such a degree of moral certainty as to leave in the mind of a reasonable man no doubt of the intent of the parties. The question in this case is, Whether there is in this bond that degree of moral certainty as to the species of money in which the party intended to become bound? I thought at the trial there was. The obligatory part of the bond purports that the obligor is to become bound for 7700. No species of money is mentioned. It must have been intended that he should become bound for some species of money. The question is, VVliether from the other parts of the in- .vtrument we can collect what was the species of money which the party intended to bind himself to pay ?. [His Lordship then read the recitals in the condition, and proceeded as follows:] It appears, therefore, that the intent was that the defendant should enter into a bond for securing to P. Coles various sums of money described in these recitals as being composed of pounds sterling and other money of a smaller denomination. That being so, I cannot entertain any doubt that the intention was that the obligor should, in order to secure the payment of those sums, be- come bound in a penalty consisting also of pounds sterling; and if that •were the intention, then the bond ought to be read as if the w or di pounds were inserted in it. Bavley J. It l-as been decided, that in furtherance of the obvious intent of the parties, even a blank may be supplied in a deed (a). In (a) The case alluded to by tlie learned judge was, probably, that of Lloyd v. Lord Say and Se/r, 10 Mod. 46. There the name of the bargainor was omitted in the operative part of a bargain and sale, and it was supplied in K. B., it mani- festly appearing from the other parts of the deed th;it Lord Say was the grantor; and the judgment of the I'ourt of K. B. was afterwards affirmed in the House of Lords, 1 Brown's Parliamentary Cases, 379. In Langdon v. Goole, 3 Lev. 21., a man was bound in an obligation, but it was not said to whom, and that was sup- plied. Sec a\i,o Uvcdale v.Half/iDuiy, 2'P.'Wms. 151; Ex parte 6'»/"'^"^*> ' ^^^> 200; Fu/io/i V. Church, 2 Vcs. Sen. 100. 371; Targns wPui^ef, 2 Yes. 194, and Cholmondehj v. Clinlov, 2 Jac. 8c W. 1. 8 BaRNEWALL & CUESSWELL, 568. 301 Waugh V. Russell, 1 Marshall, 214, the word hundred was omitted in the latter part of the condition of a bond. It was held that it might be supplied, and that in pleading the bond might be described according to its legal effect, as if the word hundred had been inserted in it. I think in this case that it is obvious that the obligor meant to bind himself in a penal sum consisting of pounds sterling, and, therefore, that the omission of the word pounds may be supplied. LiTTLEDALE J. I have entertained some doubts whether the word pounds could be supplied; but, upon the whole, I think it sufficiently appears, from the recital in the condition of the bond, to have been the intention of the parties that the penal part of the bond, which was to secure the payment of various sums stated in the condition in pounds sterling, should also he pounds. Rule refused. CARPENTER v. BLANDFORD.— p. 575. A. ngreeil to sell to B. his interest in a public-house, and his furniture, &;c. at an appraisement lo be made by two appraisers, the same to be paid for on B.'s taking possession, which was to be on or before the 2oth of March then next ; and 30/. was paid by B. as a deposit ; and he agreed that if he should not com- plete his part of the agreement, the sum so paid should be forfeited. The buyer and seller appointed appraisers respectively. On the 25th of March the two appraisers met, and the seller's appraiser was then informed that the appraiser of the buyer could not conveniently on that day complete the valua- tion, but would finish the business the next day ; no objection was then made to the proposed delay. The appraiser of the buyer went to the seller's pre- mises the following clay to make the valuation, but the seller refused to allow him so to do, and said he would not complete the contract: Held, that, under the circumstances, it was incumbent on the seller, if he intended to insist that the contract should be completed on the day mentioned in the agreement, to have notified such intention to the buyer ; and not having so done, that the lat- ter was entitled to recover back the deposit. Assumpsit for money had and received. Plea, the general issue. At the trial before Lord Tenterdcn C. J., at the Middlesex sittings after last term, the following appeared to be the facts of the case: — Hy an agreement of the 25th of February 1828, for the sale of the interest in a public-house and stock in trade of a publican, between the plaintiff and defendant, in consideration of 262/. to be paid as good-will to the defendant, he agreed to sell to the plaintiff his interest as tenant at will in a public-house, and all his household furniture, goods, fixtures, and effects on the premises at a fair appraisement, to be made by two ap- praisers or their um[)irc, and all his stock in trade, the value of such stock to be ascertained by two proper persons or their umpire; in con- sideration of which the jjlaiiitiff agreed to accept the said house and pre- mises as tenant at will, and pay the sum of 262/. good will, and to pur- chase the household furniture, goods, fixtures, stock, and effects upon the premises at a fair valuation to be made in the manner above stated, and to pay for the same at the time of his taking possession of the pre- mises, which it was mutually agreed by the parties should be on or be- fore the 2.5th of March 1828, and as earnest nf tlic agreement, the plaintiff had paid into the hands of the defendant the sum of 30/., to be allowed in part payment on the completion of the agreement, but should the plaintiff not complete his part of the agreement, the said sum of 30/. 302 Carfenteu v. Blandfoud. M. T. 1828. paiil as a deposit was to become forfeited; and it was furtlicr agreed, lliat either of thcni not performing all and every part of the agreement, the ])arty ilefaulling should pay to the otiier 100/. as liquidated damages; and further, that should Messrs. Calvert and Co. refuse to accept the plaintid'as tenant, the deposit money was to be returned, and the agree- ment was to be void. It appeared that the plaintiff and defendant had appointed appraisers respectively to make the valuation of the furniture, stock, &.C. mentioned in the agreement. On the 25th March the defen- dant's appraiser was informed by the plaintiff's appraiser that he was so busy on that day that he could not complete the valuation of the defen- dant's stock in trade on that day, but that he would on the following day. No objection was then made to the delay. The plaintiff attended with his appraiser at the defendant's premises at nine o'clock on the fol- lowing morning; but the defendant told him he had come too late, that he ought to have come on the preceding day, and prohibited the broker from making any valuation. It was further proved, that the brewers had not refused to accept the plaintiff as tenant. Upon these facts it was contended, that as the defendant was ready to complete the agreement on the 25th March, and the plaintiff had made default, the deposit was forfeited by the terms of the agreement. Lord Ttnterden C. J, was of opinion that under the circumstances of this case the plaintiff was not bound to complete the contract on the 25th, that as the defendant's agent was told on the Tuesday that the plaintiff's appraiser could not at- tend on that day, but would on the day following, he, the defendant, was bound, if he meant to avail himself of the strict rule of law that the contract should be performed on the day mentioned in the agreement, to send notice to the plaintiff that he would insist that the contract should be completed on that day; and he directed the jury to find a verdict for the plaintiff Sir James Scarlett now moved for a new trial, and contended that the time fixed for the completion of the contract was at law an essential part of the contract, Berry v. Yarning, 2 Esp. G40; Lloyd w. Collett, 4 liro. C. C. 469, 4 Ves. 69S. Here, therefore, the plaintiff was bound by the terms of the agreement to be ready to complete his contract on the 25th of Marcli; he made default, and then by the terms of the agree- ment the deposit was forfeited. Bayley J. The defendant in this case insists on a forfeiture, which is strictissimi juris. He ought, therefore, to shew that he has done every thing which he was bound to do to entitle him lo Insist on the forfeiture, and that he has not done any thing to waive that right. It appears by the agreement between the parties, that the contract was to be completed on the 25th of March, The stock in trade was to be valued by appraisers. Each party had appointed one. On the 25th of March the plaintiff's appraiser informed the appraiser appointed by the defendant that he, the plaintiff's appraiser, would not be able to finish the valuation until the day following at three o'clock; to which the de- fendant's appraiser made no objection. It was the duty of the defen- dant's agent to inform his principal that such a communication had been made by the plaintiff's agent; and it must be presumed that he did so. If that communication was made, and the defendant meant to insist on the forfeiture, it was his duly to inform the plaintiff tha*. he should insist on the forffilurc unless the contract was completed on that day. Such 8 Barnewall & Chesswell, 578. 303 communication not having been made, I think the plaintiff was entitled to recover back the money dcj)Osited. LiTTLEDALE J. concurred. Rule refused. PATTISON V. JONES.— p. 578. A. having discharged his servant, and hearing that he was about to be engaged by B., wi'ote a letter to B., and informed him that he had discharged him for mis- conduct. B., in answer, desired further information. A. then wrote a second letter to B., stating the gi-ounds on which he had discharged the servant. In an action by the servant against A. for a libel contained in this letter, it was held, that assuming the letter to be a privileged communication, it was properly left to the jury to consider, whether the second letter was written by A. bona fide, or with an mtention to injure the servant. Declaration stated that the plaintiff, before, &c., had been retained and employed in the service of the defendant as his butler and servant; aiid in that capacity had behaved with good temper, ability, sobriety, honesty, and general propriety of conduct, and never was or until the time of, &c. suspected to have been guilty of drunkenness, absence from duty, misconduct, audacity, or of having made free with or stolen or purloined wines or goods of the defendant, his master, by means where- of he, the plaintiff, had not only deservedly gained the good opinion of all his neighbours, &c. but had also supported himself, and wouhl there- after have supported himself by his exertions in the service of his mas- ters and employers, had not such grievances been committed as there- inafter mentioned; that the plaintiff before, &c. had applied to be, employed by and in the service of one A. F. Mornay as a butler and servant, yet the defendant well knowing the premises, but contriving, &c. to cause it to be suspected and believed by those neighbours, &.c. and particularly by A. F. JMornay, that the plaintifl' was not fit to be employed or trusted as a servant, and that he had been guilty of drunk- enness, absence from duty, and misconduct, and that he had mode free with, and stolen and purloined the wines of the defendant wiiilst the plaintiff vvas in the service of the defendant as bullcr nfores;iid; and thereby to prevent A. F. Mornay from employing him, plaintiff, in his service, and to wholly ruin him and to deprive him of the means of supporting himself by honest and industrious means, on, &c. at, &.C. wrongfully and malicioiisly did write, compose, and publish a certain false, malicious, and defamatory libel of and concerning the plaintiff, and of and concerning the conduct of the plaintiff whilst he was in the service of the defendant, in the form of a note or letter directed to A. F. Mornay, containing therein the false, malicious, defamatory, and libellous matter, &c. &c. of and concerning, &c. that is to say, *< Sir (meaning the said A. F. Mornay), Having been informed that you had an intention of taking my butler into your service, I feel it incum- bent upon me as a neighbour to inform you that I have just discliarged him for misconduct, and that I cannot feel myself juslincd in recom- mending it to you to er)gngc him; I have bi-en rather surprised that you have not applied to me for his character, but I shall not think any more about it." A second count charged the defcnflant with publishing the following libel: *♦ I (meaning the defendant) have no hesitation in in- forming you that I discharged my butler, not only on account of drunk- 304 Pattison v. Jones. M. T. 1828. enncss anil absence from his duty in my house, but on account of my having jjroat reason to Ijelieve that he had made free with a great deal of my wines, &.c. in whicli 1 ibund a very great deficiency upon an ex- atninaiion with the ccllarman who packed it up to be brought down to Putney, w'ho took a regular account of it, which I have got. Pattison liad the audacity to open all those packages without any authority from me; and he acknowledged that fact yesterday before witnesses, when he was so conscious of his misconduct that he said he would not take any situation in the neighbourhood of Putney." By means whereof the plaintiff iiad been greatly injured in his good name and character amongst ills nciglibours ami other subjects, and particularly with the said A. F. JSIornay, insomuch that they had hitherto suspected and believed the plaintiff to have been guilty of drunkenness and felony whilst in the service of the defendant as such servant or butler, and to be unfit to be trusted or employed in the capacity of a servant; and also by reason of the premises, and on no other account whatever, A. F. Mornay afterwards wholly refused and declined to retain and employ the plaintiff in his service, as he otherwise would have done, and by reason thereof the plaintiff had not only been deprived of the sup- port, wages, &c. which would have accrued to him from being so retained and employed as last aforesaid, but had hitherto continued and still was out of service and employ, and deprived of the means of supj)orting himself, and was otherwise greatly injured and damnified and almost wholly ruined. Plea, general issue. At the trial before Lord Ten- terden C. J., at the Middlesex sittings after last term, the plaintiff prov- ed the handwriting of the defendant to the two letters set out in the de- claration, and the following letter of Mr. Mornay to which that set out in the second countwas an answer: ''Sir, — It is necessary that you should state the particulars of the misconduct of your steward to determine me to deprive him of the situation for which he has applied to me. Is he .sober and honest? You will of course consider that there ought to be strong grounds for depriving a man of his character and his bread;" — and claimed to recover damages for the libel set out in the second count, hut abandoned the first count, and all claims for special damage. It was objected by the defendant, that as it appeared that the letter containing the alleged libel was written to a third party, who had invited the defen- dant to give him a character of the plaintiff, it was prima facie a privi- leged communication; and that it therefore lay on the plaintiff to shew malice in fact, or that the defendant was actuated by ill-will towards the plaintiff (a). To this it was answered by the counsel for the plaintiff, that in an ordinary case where a master is called upon by a third party to give a character to a servant, and communicates slanderous matter, it is supposed to be done in discharge of a duty, and is a privileged commu- nication, the inference of malice in law resulting from the nature of slan- derous matter being rebutted by the occasion on which that matter is written or spoken. In that case it is incumbent on a plaintiff to prove malice in fact. But in this case the defendant wrote the first letter with- out being required so to do. That letter imputes misconduct to the plain- tiff, and invited the third party to make further enquiry. The writing of that letter, under those circumstances, was evidence to go to the jury that the defendant was actuated by malice in fact or ill-will against the (fl) See Bromage v. Prosper, 4 B. 6c C. 24,7. 8 Baunevvall & CresswelL; 578. 305 plaintift". Lord Tenterden was of opinion that under the circumstances of this case it was a question for the jury whether the defendant when he WTote the second letter acted hona fide. The defendant's counsel then proposed to call witnesses to prove the truth of the statements, in order to shew that they were made bona fide. Lord Tenterden received the evidence, but expressed doubts whether it was admissible under the general issue; and he finally directed the jury to find for the defendant if they thought from the evidence that he made the communication bona fide, but for the plaintiff", if they thought he made the communication with the intention to injure tlie plaintiti^. The jury having found for the plaintiff", Sir James Scarlett now moved for a new trial. Lord Tenterden C. J. It appeared in the case proved on the part of the plaintiff" that the defendant wrote the first letter to Mr. JNIornay, without being called upon by him so to do. The second letter, which contained the libellous matter in respect of which the plaintiff claimed to recover damages, was certainly written in answer to enquiries made by Mornay ; but inasmuch as those enquiries were invited by the defendant, I thought it was a question for the jury, whether the communication con- tained in that letter was made by the defendant bona fide, acting under a belief that he was discharging a duty which he owed to the party who was al)out to take the plaintilF into his service, or whether it was made maliciously with an intention of doing an injury to the plaintifl'. The jury found that it was made maliciously, which entitled the plaintiff to a verdict. Bayley J. Assuming that the libel set out in the second count was a privileged communication, it seems to me that the case was properly sub- mitted to the jury. Generally speaking, any thing said or written by a master when he gives the character of a servant is a privileged commu- nication. If a servant, therefore, charge a master with publishing a li- bel, it is competent to the latter, under the general issue, to prove that the alleged lil)cl was writt(!n under such circumstances as to make it a privileged communication, and therel)y throw on the plaintiff the neces- sity of shewing that it does not come within that protection which the law gives to a privileged communication. 13ut if the supposed libel be not communicated bona fide, it docs not fiill within the protection which the law extends to privileged communications. Here liie second letter of the defendant was written in answer to one calling upon him to give an account of the plaintin"'s conduct, but the defendant wrote his first letter without being railed upon so to do. I do not moan to say that in order to make libellous matter written by a master privileged, it is es- sential that the party who makes the communication should he put into action in con.sequencc of a third party's putting questions to him. I am of opinion he may (when he thinks that another is al)Out to take into his service one whom he knows ought not to be taken) set himself in motion, and do some act to induce that other to seek information from and put fpiestions to him. The answers to such questions, given bona fide with the intention of communicating such facts as the other parly ought to know, will, although they contain slanderous matter, come williin the scope of a privileged communication. Hut in such a case it will be a question for the jury, whetlicr the defendant has acted bona fiilc, intend- ing honestly to discliargc a duty; or whellipr he has acted maliciously, in- tending to do an injury to the servant? In forming their judgment, the VOL. XV. 39 306 LiNDENALi V. Desbouough. M. T. 1828. jury in this case were bound to take into their consideration the fact of the defendant's having voluntarily put himself into motion, and thereby ineflect having, by the first letter, desired Mr, Mornay to put questions to him. These questions were put, and gave occasion to the second let- ter. Tlie question for the jury to consider was, whether the defendant acted honestly and bona fide in making the representation contained in that letter ? The jury had that question submitted to their considera- tion, and they were of opinion that the communication was not made bona fide, but that it was made with the intention to injure the plaintiflT; and if it was made with that intention, it was not a privileged commu- nication. LiTTLEDALE J. It seems to me that the letter, taken by itself, is a libel; but if it was a privileged communication, it was not necessary for the defendant to plead a justification, he might make that a defence on the general issue, and give evidence to satisfy the jury, that under the circumstances of the case it was a bona fide communication. That ques- tion was properly submitted to their consideration, and they have come to a conclusion that it was not made bona fide, and that the defendant was actuated by malice. I perhaps should not have come to the same conclusion; but I think the verdict ought not to be disturbed. Upon the question, whether a master who has written a libel in giving the character of a servant has acted bona fide or not, it may make a very material difference whether he volunteered to give the character, or had been called upon so to do. At all events, when he volunteers to give the character, stronger evidence will be required that he acted bona fide, than in the case where he has given the character after being required so to do. Rule refused. LINDENAU V. DESBOROUGH— p. 586. It is the duty of a party effecting an insurance on life or property, to communi- cate to the underwriter all material facts within his knowledge touching the subject matter of the insurance; and it is a question for the jury whether any particular fact was or was not material. Assumpsit against the secretary of the Atlas Insurance Company, on a policy of insurance on the life of the Duke of Saxe Gotha. Plea, the general issue. At the trial before Lord Tenterden C. J., it appear- ed that in 1824 an insurance was effected on the life of the Duke with the Union Assurance Company. That company had an agent in Ger- many, who, on behalf of his principals, submitted certain questions to the physicians of the duke, many of them as to specific diseases, and his habits of life; and the last was, " Is there any other circumstance with- in your knowledge wliich the directors ought to be acquainted with ?" and tliis was answered in the negative. Tliere was alsb a private certi- ficate sent by the agent to the directors in answer to their enquiries as to certain points. In this also there was a general question. *< Do you know any other circumstance which ought to be communicated to the directors ?" which was answered as follows: " Agreeably to our infor- mations, the duke has led a dissolute life in former days, by which he has lost the use of his speech, and, according to some informations, also that of his mental faculties, which, however, is contradicted by the me- 8 Barnewall & Cresswell, 586. 307 dical men; and as little as we believe that this has any influence on his natural life, we find it our duty to mention it." The physicians in one of their answers said the duke was hindered in his speech, but did not mention the state of his mental faculties. An application was made to the Union to insure a further sum on the duke's life; but that being con- trary to their general rules, their agent handed over the proposal to the Atlas, and at the same time gave the latter company the private an- swers received from their agent in Germany. The plaintiflf signed the usual declaration, and declarations by the duke's physicians were made to the Atlas similar to those made to the Union. Upon receiving these documents the Atlas entered into the policy. In 1S25 the duke died, and it was then discovered that there had existed in his head for many years a large tumour pressing on the brain, to which the loss of speech and mental faculties might be attributed; but all the medical testimony went to establish that the symptoms during the duke's life were not such as were likely to excite suspicion that such a tumour existed, or that he was afflicted with any particular disorder tending to shorten life. One foreign physician, however, said, that had he been consulted he should have thought it right to state that he attributed the loss of speech to a paralysis of tlie organs of speech. x\nd an English surgeon called for the plaintiff, on cross-examination said he should, in answer to the general question, ''Whether he knew any other cii'cumstances that ought to be communicated to the directors?" have thought it right to mention the state of the duke's mental faculties. Upon hearing this evidence Lord Tenlerden told the plaintiff's counsel he thought it made an end of his case; and he should leave it to the jury to say whether there were any facts material to be known which were not mentioned to the assurers, and that if there were, the policy was void. The plain- tiff's counsel thereupon elected to be nonsuited, leave being given to him to move for a new trial, on the ground of misdirection. Brougliam now moved accordingly, and referred to Maync v. Wal- ter^ Park, Ins. 531; Ila^utnin v. liuijlcy, G Taunt. ISO; Carter v. Boehin, 3 Burr. 1910; Haywood v. Rodders, 4 East. 590; Boss v. Bradshaw, 1 W. Bl. 312; Bnfe v. Turner, 6 Taunt. S38. Lord 'I'kntkrukn C. J. At the trial before me amongst other de- positions thnt of a foreign physician named Stark was read, wherein he stated that he would have certified that the duke was in bodil}' health, but that he would not have failed to obsorvo that he laboured under an inability to speak, which he attributed to a paralytic state of tiie nerves of the organs of speech. In arldition to this, Mr. Clreen, a surgeon, stated, that if consulted he should have thought it right to mention tho state of the duke's mental faculties; whcroupon I expressed an opinion tiiatthe cause was at an end, and said that I shoidd direct the jury to find far the defendant if they thouglit the plaintiff had fiiled to com- municate to the insurers any material circumstance within his knowledge. The only question now is, wlictlu;r that direction would Inve been cor- rect or not ? At the lime of the tri;d I bad in my recollection, although not very accurately, the case of Morrison v. Muspratl, 1 Bing. 60, which was tried before me at Liincoln. Ky the printed report it appears that in April 18L'3 an insnranc; was effecleil upon thf life of a lad)', who at the cnil of 18'JJ li:ul suffered from a pulmonary atlatdi, and was atten- ded by a surgeon. In Mardi lyj.'la meiliral |)ractitintier who had known her for some year.**^ but did not attend her during that illness, was sent 308 LiNDiiNAu 7'. Di:sBououtiii. M. T. 1828. iov lo examine licr willi a view to cflccliiig tlic insurance in (inestion; and he cortifioil llial ,slie was in i;oo(l lieallli. In 18i24 she died of a j)iilinonary disease. I left it to the jury generally to say whether any misrepresentation had been made; and the jury having found a verdict for the phiintifT, the Court of Common Pleas granted a new trial, on the ground that the jury ought to have been called upon to say whether it was material for the defendants to have been made acquainted with the illness of the lady in 1822. In the present case, the insurance was upon tiie life of a foreigner. It appeared that a previous insurance had been eflected with an olhce that had an agent abroad. That office was reques- ted to make a further insurance, and being unwilling to do so, the secretary handed over to the defendant the certificate received from their foreign agent. If that had distinctly disclosed the fact now in (jucstion, I am not prepared to say that the defendant would have had any ground of comj)laint; hut the state of the duke's faculties is not dis- tinctly stated in that certificate. Then it is said that the party is not bound to do more than answer the questions proposed, unless he can be charged with some fraudulent concealment. Admitting this not to fall within any of the specific questions, which is not by any means clear, still the general question put by the office requires information of every fact which any reasonable man would think material. It certainly seems to me tiiat the circumstances proved as to the state of the Duke of Saxe Gotha's mental faculties were material; and, upon the authority of the cases of Morrison v. Muspratt and Biife v. Turner, I think I should not have done wrong in leaving the case to the jury in the manner proposed at the trial. Bayley J. I think that in all cases of insurance, whether on ships, houses, or lives, the underwriter should be informed of every material circumstance within the knowledge of the assured; and that the proper question is, Whether an}' particular circumstance was in fact material ? and not whether the party believed it to be so. The contrary doctrine would lead to frequent suppression of information, and it would often be extremely diflicult to shew that the party neglecting to give the informa- tion thought it matei'ial. But if it be held that all material facts must be disclosed, it will be the interest of the assured to make a full and fair disclosure of all the information within their reach. Besides the cases already mentioned, there are others establishing that the concealment of a material fiict, although not fraudulent, is sufiicient to vitiate a policy on a ship. On these grounds and authorities, I am of opinion that the I)roper question for the jury was not whether the party believed the in- formation withheld to be material, but whether it was in fact material. LiTTLEDALE J. I am of the same opinion. It is the duty of the assured in all cases to disclose all material facts within their knowledge. In cases of life insurance certain specific questions are proposed as to points afTecling in general all mankind. But there may be also circum- stances afiecting ptiriiculr.r individuals which are not likely to be known to the assurers, and which had they been known would no doubt have been made the subject of specific enquiries. The general question ap- jiears to have been proposed in order to meet such cases, and I think the question on such a policy is not whether a certain individual thought a particular fact material, but whether it was in truth material, and of that the jury are by law constituted the judges. I therefore think the proposed direction would have been riglit, and that the nonsuit ought not to be dis- turbed. Rule refused. 8 Barnewall & Cresswell, 598. 309 The KING V. The Justices of LANCASHIRE. («)— p. 593. By the statute 4 G, 4. c. 95. s. 87. a right of appeal is given in certain cases, if the party gives notice within six days after the cause of comphiint ai'ises. Two justices having made an order upon the surveyors of the roads in a township to perforin a certain part of the statute duty on a turnpike road running through the township, and to pay to the surveyor of that road a certain part of the money received as a composition for statute duty: Held, that the cause of complaint did not arise until a copy of the order in writing had been served, and that notice of appeal given within six days from that time was valid. (a) This case was heard and determined at the sittings in banc, after last term. CROWDER and Another v. P. LONG, Gent., one, &c.— p. 598. A fieri facias issued against the goods of A. The goods were seized by the bailiff. The execution creditor authorised the bailiff to quit possession, the debtor con- senting that he might return at any time and sell the goods. The bailiff ac- cordingly gave up possession, and at the end of some months returned, and notice of sale was given. Before the sale, another fieri facias issued at the suit of a second creditor. To that writ the sheriff returned nulla bona. The second creditor brought an action for a false return, and recovered the value of the debtor's goods against the sheriff. The sheriff, having previously paid the value of such goods to the creditor under the first fi. fa., brought an action to recover from him that money: Held, that he was entitled to recover the same, unless it were shewn by the defendant that at the time when the sheriff made the payment he was acquainted with the fact of the misconduct of his officer, and that, as between the sheriff and the execution creditor, the act of the bailiff' was not to be considered the act of the sheriff, so as to fix the latter with know- ledge of the misconduct of his officer. Assumpsit for money had and received. Plea, general issue. At the trial hcfore Lord Tenterden C. J., at the London sittings after last term, the following appeared to be the facts of the case: In 1825 the plaintiQs were slicrifis of London. The defendant was an attorney, and in No- vember in that year, one Rowley was indebted to him in a large sum. Rowley also had a creditor of the name of Rounds, and having been pressed for payment, consulted the defendant Long professionally on the subject. The defendant advised Rowley to execute to him, the defendant, a warrant of attorney to confess judgment; and, at the dufendant's sug- gestion, one Jackson, an attorney, was employed to prepare the warrant of attorney. On the 18th of Novend)er, Rowley executed the warrant of attorney for securing the sum of 147/. 9.v., and on the same day judg- ment was entered up, and a writ of fi. fa. issued against the goods of Rowley, returnable on Monday next after fifleen days of St. Martin. The writ wag delivered to one Denham, an oflit'cr of the plaintifls, and he by virtue of that writ seized the goods of Rowley. Ou the 2filh of November 1825, Jackson directerl Denham, on payment of the sheriff's poundage and oflicer's fees, to discharge the goods of Rowhiy taken in execution, and IcMve the warrant in the iiaiids of one Wood. Wood was a servant of Rowley. Rowley signed a consent in writing lliat the plain- tiffs and their ollicer might hold possession of his goods, and that they might continue in such possession or re-enter after the writ was returna- ble, and that they might sell on thn premises, and that he would pay all expenses attending the 3.\le. On the 2'ilh of November the execution 310 Chowdeu v. Long. M. T. 1828. was willulrnwn, and on the 13th of December Rowley paid tlie sheriff's j)Ouiulai;c to Denham. In Hilary term, 1S26, Long, the defendant, ruled the plaintiffs to return the writ, and they returned that the goods re- mained in their hands unsold for want of buyers. In May 1826 Long directed tlie ollicer to proceed to a sale of the goods, and on the 26th of that month notice of the intended sale was published, and on the 27th Rowley's goods were sold. In that month another fi. fa., at the suit of one T. Wade, was issued against the goods of Rowley, and delivered to the plaintiffs to be executed. In July, after the sale of the goods, and whilst the proceeds remained in the hands of the plaintiffs. Wade gave notice to them not to pay over the proceeds of the sale to the defendant Long. Tlie plaintiffs then requested Long to indemnify them, which he refused to do. In November 1826, the plaintiffs paid over to the de- fendant 200/., being the proceeds of the sale, and returned nulla bona to the fi. fa. issued at the suit of Wade. The latter brought an action against the plaintiffs for a false return, and recovered against them a verdict for 200/. ; and they paid Wade the damages and 95/. for costs. The present action was brought by the plaintiffs to recover from the defendants the 200/. which they had paid him as the proceeds of the goods, and 95/., the costs incurred in tlie action brought against them by Wade. It was ob- jected that the plaintiffs were not entitled to recover, because they must have paid the money to the defendant with a full knowledge of all the facts. First, it was clear that Denham was acquainted with the fact of the execution having been withdrawn, and it could not be doubted that he had communicated that fact to the plaintiffs, his employers. But, secondly, assuming that he had not done so, still in point of law, the plaintiffs must be taken to have known every thing that their officer knew; for the act of the officer is the act of the sheriff, and the know- ledge of the officer that of the sheriff. The fact, therefore, of the execu- tion having been withdrawn with the assent of the defendant, must be taken to have been known to the plaintiffs at the time when they made the payment to the defendant. Lord Tenterden C. J. told the jury that in point of law it was not competent to a creditor to put in an execution, withdraw it, and afterwards renew it. When the execution was with- drawn by Long there was an end of it. Wade became entitled to recover •ngainst the sheriff by reason of the defendant's execution having been withdrawn with his assent. It was true tliat if a man pays money with a full knowledge of all the facts, he cannot recover it back again. The question for the jury was, whether the plaintiffs at the time when they made the payment to the defendant were acquainted with the fact of the execution having been withdrawn by the authority of the defendant. Denham undoubtedly knew that fact, and, generally speaking, the she- riffs are liable for all acts done by the officer by their authority, but not for acts done witliout their authority at the request of an execution credi- tor. He directed the jury to find for the defendant, if they thought that the sheriffs knew every thing that the officer knew; but if not, for the plaintiffs. The jury having found for the plaintiffs, damages 186/., Joshua Evans now moved for a new trial, and cited Brishaiie v. Dacres, 5 Taunt. 143; Jindrew v. Hancock, 1 Brod. & B. 37; Bram- ston V. Robins, 4 Bing. 11; Milnes y. Duncan, 6 B. & C. 677; Sky- ring V. Greenwood, 4 13. & C. 281; Woodgale v. KnatchbiiU, 2 T. R. 151 ; Pechell v. Layton, 2 T. R. 712; Tyle v. Glodc, 7 T. R. 267; Par- rolt w.Mumford,'2 Esp. 585j Sturm'y v. Smith, 11 East, 25; t^ck- 8 Baunewall & Cresswell, 598. 311 worth V. Kempe, Doug. 40; Saunderson v. Baker, 3 Wils. 317; Norlfi V. Miles, 1 Campb. 389. Lord Tenterden C. J. I should be sorry to break in upon the gen- eral rule which applies to actions brought against a sherifi for breach of his duty in executing process, that the act of the bailiff is the act of the sheriff. But I think that, under the circumstances of this case, the act of the officer is not, as between the sheriffs and the defendant, to be con- sidered the act of the sheriffs. The sheriffs have already been made answerable for the misconduct of their officer in the action brought ao-ainst them by Wade for a false return. The return of nulla bona made by the sheriffs in that case would have been proper if the execu- tion of the present defendant had been in force at the time when the writ issued at the suit of Wade; but the defendant's execution was not then in force, because the officer had improperly quitted possession, and upon that ground Wade recovered from the present plaintiffs the value of the goods seized by the sheriffs. The question which arose incidentally in that case was, whether Denham had been guilty of misconduct; and in the result it was found that he had. The question now is very dif- ferent. It appeared that the act of the officer was done without the knowledge of the sheriffs, but with the full knowledge and assent of the defendant; and that the sheriffs were compelled in consequence of that misconduct of the officer so authorized by the defendant, to pay to a third person the value of those very goods, which they had already paid to the defendant. Now it is quite clear that the sheriffs are entitled to re- cover the money so paid to the defendant, unless at the time when such payment was made they were acquainted with the fact of the misconduct of their officer. I think that as between these parties, the act of the officer is not to be considered the act of the sheriffs, so as to make the latter by implication parties to the misconduct of the officer; but that it was incumbent upon the defendant to shew that the sheriffs had actual knowledge at the time when they made that payment. Baylev J. According to the general rule, the act of the officer is, in point of law, the act of the sheriff. But the present case is an ex- ception to that rule. If the officer be guilty of misconduct, and (hat misconduct is produced by the act of the execution creditor, it is not competent to the latter to say that the act of the officer done in breach of his duty to the sheriff, and induced by the execution creditor, is the act of the sheriff. The facts of this case arc, an execution issued at the suit of the present defendant against Rowley. That execution, for any thing the sheriff knew, was an honest execution. It wos the duty of the officer, ds between himself and the sheriff, to seize the goods of the debtor, and sell them. But the present defendant (the execution credi- tor) desired the officer not to sell, but to go out of possession, and ho did go out of possession. That was misconduct in the sheriffs' officer, hut who induced that misconduct? The present defendant. The sheriff was not privy to it. ThaUbcingso, it would be contrary to all princi- ple to permit the defendant to say that that was tiie act of the sheriff. In May the officer re-enters, and is directed by the defendant to sell the goods. But in tliat month another execution issued at the suit of Wade, and he insisted that the goods of the debtor were his. The sheriff returned nulla bona to Wade's writ, and he brought an action against the sheriff for a false return, to try the validity of Long's execution. The question in that action was, whether Long or Wade was entitled :il2 Doe d. LmuBiRi) v. Lawson. M. T. 1828. to the preference. It was decided that Wade was entitled to Uie pre- ference. Then, in consiMjiience of tlie misconduct of the ollicer, so induced l)V Lonu;, the sherifT was compelled to pay Wudc the value of the goods which he had previously paid to Long. Considering that there was collusion hclwcen Long and the ollicer, the sheriff ouglit not to be compelled to pay the value of the debtor's goods to both the creditors. I think, considering this as the action of the sheriffs, they arc entitled to recover the money which Long ought never to have received. If it could be shewn to be the action of the odlcer, then, perhaps, the rule in pari conditione melior est conditio po.ssidentis would prevail. But here the money was paid by the sheriff to the defendant. LiTTLKDALK J. I am not disposed to break in upon the rule that the act of the oHicer must, in point of law, be considered the act of the sheriflT. But we shall not break in upon that rule by our decision in this case. The rule is, that the act of the officer, in execution of the au- thority received from the sheriff, is the act of the sheriff. But here the act done by the officer, was an act done, not in pursuance, but in direct contravention of that authority; for the officer had authority from the sheriff to seize and sell the goods of the debtor, but he seized, and then gave up possession, and the sheriff was thereby compelled to pay the value of the goods seized to Wade. The sheriff, at the time when he paid the value of the goods to the defendant, had no knowledge of the misconduct of his officer. That misconduct was induced by the act of the defendant. As between the sheriffs and the defendant, therefore, the act of the officer by which the sheriff has been damnified, was the act of the defendant, and not of the sheriff. Rule refused. See Coo/c v. Palmer, 6 B. &C. 739. DOE on Iho demise of LIDGBIRD v. LAWSON and Another.— p. G06. A fine was levied by A. in Hilary term, 1821. A. and B. claimed to be heir at law of C. There being several actions depending to try, whether A. or B. was heir at law, it was agreed that the rent should be paid into a banker's, to abide the event of one of those causes. The cause was decided in favour of A. in 1823, and the rent paid into the banker's was then paid over to him. It included half a year's rent due from the tenant on the 25th of March 1821 : Held, in an ejectment brought subsequently on the demise of B., in which he succeeded in shewing that he was heir at law of C, that A. had no seisin in Hilary term 1821, when the fine was levied, and consequently that the fine did not operate as a bar to the ejectment. EjEfTMEXT for lands in the county of Kent. At the trial before Lord Tenterden C. J., at the Summer assizes for the county of Kent, 182S, the following appeared to be the facts of the case; — The lessor of the plaintiff claimed the premises in question as heir at law of Francis I^idgbird, who died in October 1820, seised of the premises in ques- tion; the defendant, as devisee of Henry Wilding; and the question upon the merits was, whether the lessor of the plaintiff, or Henry Wilding, was the heir at law of Francis Lidgbird. The lessor of the 8 Barnewall & Cresswell, 60G. 313 plaintiff having proved his pedigree, and thereby established that he was the heir at law of F. Lidgbird, the defendant set up a fine levied by Henry Wilding in Hilary term 1821, with proclamations made in that and the three following terms; and in order to shew that Henry Wilding, the party levying the fine, was at that time seised of an estate of freehold in the premises in question, proved that Wilding, in April, 1S21, having distrained upon the tenant of the premises in question for half a year's rent, due at Lady-day 1821, the tenant replevied: and there being other actions depending between Wilding and other tenants of lands, of which F. Lidgbird died seised, in which it was intended to try the question. Whether the lessor of the plaintiff, or Wilding was the heir at law of the person last seised, it was agreed between the respective attorneys that one cause only sliould be tried, and that the rents should be paid into a banker's to abide the event of that cause- In pursuance of that agreement, the half year's rent, due at Lady-day 1821, was, in March 1822, paid into a banker's, and it was agreed that it should remain there until after the trial of the cause, and then be paid to Wilding, the defendant, in replevin, in case a verdict should bo found for him, or otherwise to the plaintiff. That cause was tried at the Summer assizes, 1823, and a verdict was found for the defendant, and the rent was then paid over to the executors of Wilding, he having died in the meantime. It was insisted, on the part of the defendants, that as the rent which became due on the 25th March 1821 had been paid to the executors of Wilding, he must be taken to have been seised of a freehold by relation, from the time of the death of F. Lidgbird ia October 1820, and, consequently, that he was so seised in Hilary term 1821, when the fine was levied, and that an entry ought, therefore, to have been made to avoid it. The counsel on the other side relied upon Lord Townsend v. Jishe,{a) as an authority to shew that a fine levied before any receipt of rent, by a person who had taken possession by wrong, has no effect, and that perception of the rent, after the levying of the fine, though for a period antecedent to the fine, was no evidence of a seisin, even at the lime when that rent became due. Lord Toi- lerde'n C. J. was of opinion, that Wilding, not having actually receiv- ed any rent at the lime when the fine was levied, had no seisin. A verdict having been found for the lessor of the plaintiff. Sir James Scfirlott, on a former ilay of the term, moved for a new trial, and cited Lord Tuwnscnd v. .Qshe, 3 Alk. 33t). (hir. ado. vull. Lord Tentehdkn C. J. now delivered the judgment of the Court. The case of Lord Townsend v. ^'^Islic, was cited at the trial to siicw that the fimj, under the |)cculiar circumstances of tliis ca.si;, did not operate, because the party who levied it had not then any seisin; and that case seems to be in point. Tlicre the lines were levied of shares in the New River, in Hilary term, 1733. y\t that time tiic parties who levied the fine had not receiveil any profits of those .sii:ir(,'>i, but on the 23d Feliruary 1733 they received from the New River Company the first payment, which was due on the 25th December preceding, and they afterwards continued receiving the rents till 1740. It was con- tended, that as no profits had been received till after the fine levied, there was no disseisin, and, consequently, that the fine did not operate. in) " Atk. "36. more fully reported in Cruisr. I)ij^. tit. 3j r. 5. s. 31. vol. v. 121. VOL. XV. 40 I NoiuoN r. IMcKF.RiNc. INI. T. 1828. 'I'll this it was answered, that the first payment, thougli not received till February, was due at Christmas, and that the reccij)t should relate lo the time when the money was chic. Upon this Lord Ilardwicke said: <*The answer given on the plainlifis' part was, that no rent was received by the defendants till after liic lines levied; and this 1 think a full answer, for, till then, there could be no disseisin. The profits were in the hands of the compan)' at the time of the fines levied; and they must be considered as received by them for the party who had right, and not for a wrongtlocr. Nor can the subsequent payment have relation to the receipt before that time: for fictions and relations in law arc good to support right, but not to work wrong." Now that case is an autho- rity to shew that the payment in 1823, of the rent which became due at Lady-day 1S21, was no evidence of a seisin in Wilding, even at the iime when the rent became due. Here it was insisted that it was evi- dence of a seisin in Wilding in Hilary term 1521, before it became due. Upon the authority of that case we think that Wilding was not seised when he levied the fine; and, consequently, that the fine did not operate, and was no bar to the present action. s Rule refused. NORTON V. PICKERLNG.— p. 610. A bill was drawn by A. upon B. for the accommodation of C, who indorsed it for value to D. Neither A. nor C. had any effects in the hands of B. The bill %vas dishonoured by B. : Held, that the drawer was entitled to notice. Tuis was an action by the plaintiff, as the indorsee, against the defend- ant as drawer of the following bill of e:;change: •* Two months after date pay to myself, or order, 50/., value received.'' It was accepted by Sheppard and Co., indorsed by the defendant to Naylor and Ellis, and by them to the plaintiff. At the tiial before Bayleyi., at the Summer a.ssizos for the county of York, 1828, it appearetl that Naylor and Ellis, being indebted to the plaintiff for goods sold by him, requested the de- fei/dant to draw and indorse the; bill, and Sheppard and Co. to accept the same; and Naylor and Ellis then indorsed the bill to the plaintiff. Neither Naylor and Ellis nor the defendant had any effects in the hands of Sheppard niul Co. during the time the bill was running. No notice of the tlishouor of lliC bill w;is given. The learned judge was of opinion that the defendant was entitled to notice of dishonor, and nonsuited the plaintif], but reserved liberty to him to move to enter a verdict. MUner now moved accordingly, referring to Cory v. Scott, 3 B. & A. Gl.9; IValnnjn v. .SV. Quinlinl \ Ji. & P. (i52. Lord Tentuudkn C. J. I think the case of Cory v. Scott, 3 B. & A. G19, was properly decitled, and that it must govern the present case. It may be questionable whether it might not have been more conducive to the interests of commerce to have decided that the holder of a bill is not at liberty to give evidence of any circumstances to excuse the want of notice. Here the defendant docs not seek to avail himself of cir- cumstances dehors the bill. He being drawer of the bill, by the law of merchants, was entitled to notice of dishonor. Tlie ])laintiff does attempt to get rid of the law merchant, for he says the acceptor had no effects of the drawer in his hands. I think the defendant was entitled to notice of dishonor, and that the nonsuit was right. Rule refused. 8 Bakxewali, & Ckesswell, 612. 315 HOLDERNESS and Another, Assio;nees of FOXTON, v. SHACK- ELS.— p^ 612. A., B., and C, together with others, were part-owners of a ship ent^aged in the Avhale fishery. The usual mode of managing the cargo was, that on the arrival of the vessel at her homeward port, the whalebone was taken into the pos- session of B., and sold by him, and the proceeds were applied towards the dis- charge of the expenses of the ship. The blubber was deposited in a warehouse rented of C. by the owners of the shi]), and the oil produced from it was then put into casks, each owner's share being weighed out, and placed separately in the warehouse, in casks marked with his initials. After the division, the prac- tice was for the warehouseman to deliver to the order of each part-owner his share of the oil, unless notice was given by the ship's husband that the part- owner's share of the disbursements had not been paid. In that case, the ware- houseman used to detain the oil till the ship's husband's demand had been satis- fied. The ship having arrived from her voyage in 1825, the above course was followed. The share weighed out and set apart for A. was twenty-nine tons, which was stowed in the warehouse in casks, which had A.'s initials put on them. In January 1826, A. became bankrupt. Twenty tons of the oil had been delivered to A. before his bankruptcy; the remaining nine tons remained in the warehouse at the time of his bankruptcy. In January 1826, the warehouseman had orders from C, the sliip's husband, not to deliver to A. the remaining oil, as his share of the disbursements of the ship had not been paid: Held, in an action of trover brought by the assignees of A against C, for the residue of A.'s oil, that the other part-owners had originally a lien on it for his share of the disbursements of the sliip, and that this right was not devested by the separation of A.'s share from the residue, and placing it in casks marked with his name. Trover for twenty Ions of whale oil, of the vnhic of 1000/. The first count of the declaration alleged the property to belong to the bank- rupt before his bankruptcy; second count stated the property to be iu the plaintiffs, as his assignees. Plea, general issue. At the trial before Buyley J., at the last Spring assizes for the county of York, a verdict was found for the plaintills, damages 2-JO/. lO*., subject to the ojiinion of this Court on the following ca.se: The plaintiffs were the assignees of Foxton, under a commission dated the 2d of May lS2r),and their title to sue in that cliaractcr was fully pro- veil. The bankrupt Foxton, jointly with one Locking and the defendant, and some other persons, was part-owner of the ship Jane, a vessel belong- ing to Hull, engaged in the whale fishery. Locking was the ship's hus- band. The usual mode of managing the cargo was as lollows: On the ar- rival (.f the vessel at Hull from the lisiury, the wli.debone was taken into the possession of Locking, and sold by him for the parl-di.scharge of the expenses of the ship. Tlie blubber was lai\iled and deposited in a yard belonging to the defi-iidant, in which were s(;veral warehouses, each of which was a|)proprialed to a particular shi|). One of these was rented from the defendant by the nwniu-s of the ship Jane, and appropriated exclusively to that shi|). The blubber was boiled in a boiling-bou.sc in the yard by one flilchrist employed at the defendant's yard as fore- man, and paid by the owners of the several sliips; and for this a certain price per ton was charged by the defendant. The blid)bcr being then reducer! into the shape of oil, was put into ca.sks: each ]iart-owner's share was then weighed out, and |)lared sep»ralcdy in tiu; warehouse rented by the owners of tin- ship; and the particular casks containing 'his oil were marked with bis initials in chalk. Ciilchrist kept llu; key of the warehouse, and lived in the yud Mh-r each divisuui, tin' JlO HoLUEUXESS V. SlIACKELS. M. T. 1828. practice was for iiiin to deliver to the separate orders of each owner the oil hclonning to them, unless previously to tlie delivery he received a Motificalion from the ship's husi)and, that the part-owner's share of the dishursemcnts had not been ])aitl to him. In that case, he used to de- tain the oil till the ship's husband's demand had been satisfied. It was ojitional for the owner to have his oil in his own or the ship's casks. In the latter case, he was to send away the oil in the shi|)'s casks, he returning the casks or paying for them when wanted. In June 1825, the ship Jane arrived with a cargo, and the above being the usual course, was followed on that occasion. The share weighed and set apart for the bankrupt Foxton, before his bankruptcy, was twenty-nine tons and tliirty-six gallons. Part of this was stowed in the ship's casks. All the casks were set apart in the ship's warehouse, and had the bankrupt's initials u|Don them in chalk. Foxton, before his bankruptcy, gave vari- ous delivery-orders to Gilchrist, under which twenty tons of this oil had been delivered. The remainder, being nine tons ihirty-six gallons, being all in tlie shiij's casks, remained in the ship's warehouse at the time of the bankruptcy. In January 1826, Gilchrist had orders from Locking, as the ship's husband, not to deliver to Foxton the remaining uil, as his share of the disbursements of the ship was not paid. Lock- ing, the ship's husband, became bankrupt in April 1826. Foxton stop- ped payment in January 1826. There were two accounts between Locking and Foxton, one being the ship's account, and the other a ge- neral account-current. In the ship's account it appeared, that after charg- ing every disbursement on account of the vessel, as if they had actu- ally been paid by him, (except the rent of the warehouse and the charges of boiling, which remained due to the defendant,) and after giving credit for the sale of the whalebone, and a small portion of oil, there remained due from the bankrupt Foxton, at the time of his hankruptc)', in respect of his share of the shi|), the sum of 5G4/. 125. Tiiis sum was due to the defendant and the other own- ers. The other owners have paiil up Foxton's share by making deductions from balances which Locking owed them. Locking had not i)aid every disbursement before he failed ; he has paid them since by money received from the other owners. Upon the general account-current, there was a balance against Locking of 261/. 7*- 4i(/. But Foxton had credit therein for two of his own acceptances for 300/. and 450/., which were afterwards dishonoured. On the 8lh of January last, the plaintiffs, as assignees of Foxton, formally demanded posses- sion of the nine Ions thirfy-six gallons of oil from the defendant, offer- ing to pay to him a sum which exceeded what he demanded in respect of rent and charges for boiling the blubber. This sum he had himself, bv an account in his own handwriting, fixed at 5'Jl. 6,s. In answer to liiis demand, the defendant staled that he wished the matter to stand over for a few days. Accordingl}', on the 31st of January, the plaintiff Ilolderncss called again upon the defendant, and tendered to him the sum due in respect of his demand for rent and boiling, but the defend- ant then absolutely refused to receive the monies or give up.the oil. He, however, slated, that the oil was in his possession and under his control, and that he could give it up if he thought proper; but he added, that the owners of the Jane had instructed him not to do so. The value of lhf» oil so detoiiied was 220/. \0s. ' j'J. II. ^'ILi'tson fur the p'aintiffs. The defendants, who were part- 8 Bauxewall >k CuESSWELL, 612. 317 owners of the ship, had clearly no lien on the oil, even if it had not been separated from the residue. Secondly, if they had any lien in point of law, still, in fact, there was nothing due from Foxton at the time of his bankruptcy to the other part owners. Thirdly, assuming that there was such a debt, and that the part-owners had a lien, still the separation of this oil from the residue, and the putting of Foxton's name on the casks in which it was contained, was an appropriation, and vested the property in him. He cited Smith v. De Silva, Cowp. 469; Doddlnglonv. Halleit, 1 Ves. 497; ex parte Yoiuig, 2 Ves. &:B. 242; ex parte Harrison, 2 Rose, B. C, 76; Hurry v. Alangles, 1 Camp. 452; Stoveldw. Hughes, 14 East. 308; Hammond y .Anderson, 1 Bos. &Pul. N. R. 69. Parke contra was stopped by the Court. Lord Tenterden C. J. This is not the case of a claim of lien on the share of the ship, but a claim by persons, being part-owners of a ship, engaged together in an adventure; and the subject-matter, in re- spect of which this action is brought, is part of the proceeds of that ad- venture, viz., part of the oil which had been obtained on a fishing voy- age. Now it is clearly established as a general principle of law, that if one partner becomes a bankrujit, his assignees can obtain no share of the partnership cfl'ect?, until they first satisfy all that is due from him to the partnership. The case of *SV;^^7/t v. I)e Silva, Cowp. 469., is a very entangled case, and the facts stated in the report are not very clear or perspicuous. It appears that Dc Silva had originally made advances, not as part-owner of the ship, nor even as partner in the adventure, but as a person appointed by all the part-owners to manage tlie adventure for them, rather as their agent than as their partner. He afterwards acquired an interest by purchasing a part of the ship, and so became a partner in the adventure; but he was not an original partner. Smith v. De Silva may, therefore, have been properly decided, without break- ing in on the general j)rinciple to which I have adverted. Then, sup- posing that the partners had in this case a lien originally, has any thing happened to take it away ? First, it is said that they had no lien against Foxton, because nothing was due from Foxton to the then jwrt-owners; but if the account be taken as between Foxton and Locking generally, there can be no question Ihat the bankrupt was indebted to the other j)art-owners. For they were ultiniately obliged to pay the cxiiensc which had been incurred before the bankruptcy. The next point turns on the separation of that portion of the oil which belonged to the bank- rupt, upon which great reliance has been placed on the |)art of the plaintifl'. It has been said, that the;e has been an appropriation of that (piantity of oil to the bankrupt, and that the property thereby vested in him, and cannot be devested. But in order to decide whether the ])roporty vested in him or not, it is necessary to look at the practice of the part-owners of this ship in antecedent voyages, in order that we may know what was the cflcct of marking particular casks with the initials of any of the part-owners. The case states, that when the blubber had been reduced into oil, eacli part-owner's shaif. was weighed out, arul placfid se|)arately in the warehouse rented by the owners of the ship, and the particular casks containing his oil were marked with his initials in chalk; that (lilclirist kept the key of the warehouse and lived in the yard; that after each division, the prarlire was for him (tlilrhrist) to de- liver to the separate orders of such owners the oil belonging lo them, 318 HoLDKKNtss f. Shackels. M. T. 1828. i unices, ])ru\ ioiisly to the tlolivcry, he received a notification from tlie .ship's hushanil thai liie part-owner's share of the disbursements had not been paiil to him. In that case he used to detain the oil till the ship's luishand's demand had been satisfied. Tliat having been the practice l)et\veen the parties, it appears lo nie that the separation of the oil of a particular part-owner tVoni the residue, and ])Ultiu. Rex V. Harris, 3 Burr. 1420. Ifereford's cane and CV //?//* case, 1 Sid. 200. Er/e, contra, was stop|)ed by tlie Court. Uavley .1. At the end of the report o^ Rex v. IV/iile, \A. Rayn). 1379, Lord Rai/7nond adds a note, •• It was certainly wrong, for the re- turn was a gooil return, and has been often made to siicli mandamuses and actions brought upon the refurn, and fried;" and he refe no doubt that a party may, by keeping out of view a written instrument, make out by parol testimony, a prima facie case of tenancy; and it then lies on the opposite party to rebut the prima facie case so made out. Here a prima facie case was made out by the appellants. The respondents attempted to vary tliat case by proving that in fact the premises were let to the pauper jointly with two others^ but that letting was by a written instru- ment. It is quite clear that it eould be proved only by the production c^the written instrument. LiTTLEDALE J. Robinflon was called to prove who were the tenants. He was asked to whom he let them: he said, he let them by a written instrument. Parol evidence was not admissible to prove that fact, for that would be to let in parol proof of the contents of the written instru- ment. This case is perfectly different from the case of Rex v. The Ho-- ly Trinity, Hull. Tlicre the tenancy was proved by occupation and payment of rent. That was prima facie evidence of tenancy. Here the parol evidence was adduced to negative tlvj presumption of tenancy arising from occupation and payment of rent. PAr.Ki: J. The substance ot the case is, that the pauper occupied and paid taxes in respectofatenementoftiicyearly valueof 10/. The respon- dents, in answer to that, attcmj)led to shew that some other persons con- tracted jointly with the pauper to liold the premises, though the pauper alone occupied them. That fact alone must be proved by the contract. which was in writing. Order of sessions quashed. The KING V. The Inhabitants of CROWLAND, in the Parts of HOL- LAND in the County of LINCOLN.— p. 711. By an act. of parliament, ]jasscd for draining; certain fcn-laiids, 5000 acres of the said fcn-lands ucrc vested in certain trustees as a recompense to the under- takers; and it was enacted, that all the inhabitants that might be thereafter up- on anv part of the lands so allotted to the trustees, and were not able to main- tain themselves, should l)v; maintained by the said trustees, their heirs, Sec, and never become chargeable to all or any of the respective parishes wherein such inhabitants should reside: Held, that the lands so vested in the trustees were not thereby made extra-parochial, and that a party, by hiring and service on those lands, gained a settlement cither in the parish where that part of the al- lotted lands where the service was pcrl'ormcd was situate, or in the allotteti l«nds themselves, which, for this purpose, were lo t)c considered an incorpo- rated district. ^ Baunewall &. Cresswell, 717. 331 £)0E on the demise of TPIOMPSON and Others v. CLARK.— p. 717. A cottage standing in the corner of a meadow (belonging to tlie lord of a manor), but separated from it and from a high road by a hedge, had been occupied for above twenty years without any payment of rent. The lord then deinanded possession, which was reluctantly given, and the occupier was told that if he were allowed to resume possession it would only be during pleasure. He did resume and keep possession for fifteen years more, and never paid any rent ; Held, that the possession was not necessarily adverse, but might be presumed to have commenced by permission of the lord. Ejectment by the lessors of the plaintifl', and devisees and mortgagees of John Blackburn, deceased, who had been the owner of an estate in the parish of Bradley, and lord of the manor of Bradley. At the trial before Park J., at the Summer assizes for the county of Hants 1S2S, it appeared that th-e action was brought to recover posses- sion of a cottage, which stood in the corner of a meadow next adjoining the high road in the village of Bradley, in the county of Hants. A hedge and high bank separated the cottage from the meadow. There was no waste in the village, but there was waste at the extremity of the manor. The land on both sides of the road belonged to the lessors of the plaintifl". It appeared that the cottage had been occupied first by one Weston, lifty-four years ago, and afterwards by one James Piiillips^the latter oc- cupied it forty years, till his death, at the age of eighty, in 1S27, when it was sold by his son to the defendant. One Holloway, who had been gamekeeper to Edward Blackburn in his manor of Bradley, was called as a witness : he proved that in 1S13 he went with the Rev. Henry Blackburn, who was the clergyman of the parish of Bradley, and broth- er of E. Blackburn, the then owner of the estate, to Phillips's house; that H. Blackburn told Phillips and his wife, that he, on behalf of his brother, had come to take possession of the house, and desired them to get another cottage as soon as they covild, as his (II. Blackburn's) brother wished to pull it down. Phillips's wife, in the presence of her husband, said, she had as much right to be there as Mr. Blackburn, for they had tiever paid any rent. 11. Blackburn told thcni it would be better for them to give up quietpossession. The husband said to his wife, " It i.9 of no use making a piece of work: we had better go out at once." Phillips and his wife then went out into the road, without the garden-gate, and were asked for the fastenings or keys: they said Ihcy were in the habit of fastening their house only in the inside. Phillips was then asked if there was not a fastening: he s.iiil there was a chain, which Holloway looked for but did not find. Holloway then wont to his cot- tage, forty yards oil, for a chain, and left 1 1. Biar.kburn and the others in the road. He brought a chain, put it round the wicket, and locked it. H. Blackburn and Holloway then went into the house, where they re- ninincd a few mirmlris, and then unlocked and locked the gal'J. H. iilackburn then told Phillips and his wife, "If he let them in again, it would be (luring his brother's jilca.sure;" and then delivered the key to I'hillips. It appeared, further, that Phillips never paid any rent after- wnrd.s. Witnessfts were called on the ]);ut of the deftMidaiit to impugn the evidence of Holloway. The learned Judge told the jury, that an uninterrupted possession of land for twenty years was conclusive of the right in ejectment: but that, if during the twenty years the party in pos- session had made any acknowlodgnient that he occupied by the permi."!^- sion of another, that occupation was to be deemed permissive, and not adverse; thai the payment of rent during the twenty years was conolu- 3:v.» I),)K il. Thompson v. Clauk. M. T. 1828. sivc cvulciice, Ihat he occupied witli the permission of that person to whom he liad paid it. If the occupier make such acknowledgment other- wise tlian by the payment of rent, it was evidence tliat he held by per- mission of another. The learned Judge then told the jury to consider whether tlicy believed the evidence of Ilolloway; and, if they did, then, whether IMiillips did not, in 1S13, acknowledge that he occupied the cottage by permission of E. Blackburn ? if they believed the evidence of HoUoway, the lessors of the plaintiff were entitled to the verdict. The jury having found for the plaintiff, a rule nisi for a new trial was obtain- ed, against which Selwin and Follctt shewed cause, and relied on the case of Doe v. JVilkinson, 3 B. & C. 413. MerewethcrS>cT]\.. and Greemvood contra. Bayley J. I think tiiat the rule for a new trial ought to be discharg- ed. There was no evidence to shew under what circumstances the cot- tage was built. It may have been built by, and afterwards occupied adversely to the former lord of the manor; or it may have been built, and afterwards occupied by Phillips, by the permission of the lord. There must be an adverse possession for twenty years to give title. Phillips was eighty years of age when he died; he probably knew Under what circumstances he occupied the cottage, and whether he lived there by the permission of Blackburn. Now Pliillips, while living there in 1813, did an act which was evidence of an acknowledgment by him that he occupied by the permission of the then owner of the estate. The question is. Whether the jury were warranted in concluding from that act, that he did occupy by such permission? Itappeared that E. Black- burn, under whom tiie lessors of the plaintiff derived title, then claimed the cottage, and that his claim was reluctantly acquiesced in by Phillips and his wife, for they surrendered the possession to him. H. Blackburn then told Phillij)3 that he should come tlicrc in future only by the per- mission of his brother E. Blackburn, and Phillips was let into possession on those terms. It was a question for the jiu'y, under those circum- stances, to say, whether he remained in the cottage by adverse title, or by the permission of Blackburn. There certainly was not in this case any payment of rent, the case, therefore, may not be so strong as that of Doe V. IVilkimon, 3 B. & C. 413. But there was a case for the con- sideration of the jury. If Phillips, in 1813, had refused to give up pos- session, and an ejectment had been brought, it is possible that the then owner of the estate might have ijccn able to prove by witnesses that Weston and Phillips came into the possession of, and occupied the cot- tage by permission. I cannot saj' the jury came to a wrong conclusion, and, therefore, think that the verdict ouL^lit not to be disturbed. This rule must, therefore, l)e flischargcd. J^iTTLEDAi-E and Pakke Js. concurred. Rule discharged. MORLANI) and Another, Assignees of DICKINS and WARRICK, Bankrupts, v. PELLATT.— p. 722. Judgment was entered up on a warrant of attorney given by two joint traders, and H fi. fa. issued, returnable on the 2d of May. On the 1st of that month the shcrifPs officer received from the defendants the money directed to be levied. 8 Barnewall & Cresswell, 728. 333 On the 2d of May one of them committed an act of bankruptcy, and the other on the 5th. On the 11th a commission of bankrupt issued, and on the 19th the sheriff paid over the money to the execution-creditor. In an action by the as- signees : Held, that he was entitled to retain it, not being creditor having a se- curity at the time of the bankruptcy. W. THOMAS V. WILLIAM COOK.— p. 72S. Where A. at the request of B., entered into a bond with him and C. to indemnify D, against certain debts due from C. and D., and B. i)romised to save A. harm- less from all loss by reason of the bond : Held that this promise was binding, although not in writing, and that A. might recover from B. the whole of the monies which he was compelled to pay by virtue of the bond. Assumpsit. The declaration stated that on, &c. a certain partnership in trade between one W. Cook, since deceased, and one N. D. Morris, was dissolved; that it was agreed between W. Cook, since deceased, and Morris, that the former should take upon himself the payment of certain debts Cspecified in the declarationj; and that it was also agreed that a bond of indemnity, executed by W. Cook, since deceased, and two other persons, should be given to Morris, to save him harmless from the payment of the said debts. And thereupon afterwards, to wit, on, &c. , in consideration that the plaintiff, at the request of the defendant, would, together with the defendant and W. Cook, since deceased, execute a bond of indemnity to Morris in the sum of 4100/. conditioned to save him harmless from the said debts; the defendant undertook and pro- mised the plaintiff that he, the defendant, would save harmless and in- demnify him from all payments, damages, costs, and expenses which lie (plaintiff) should or might incur, bear, pay, sustain, or be put unto by reason or means of his so executing the said writing obligatory. Averment, that plaintiff was afterwards compelled to pay on account of liic said debts the sum of 3G0/., and that defendant had not indemnified him. The second and tiiird counts were in substance tlie same. The fourth count alleged, that in consideration that the plaintifl", at the re- quest of the defendant, would, as surety for W. Cook, since deceased, togolher with the said W. Cook and the defendant, make and draw a certain Ijill of exchange for 500/. upon certain j)crsons (named', and would indorse and deliver the same to Morris, in order that he might negotiate the same for his own use, the defendant undertook to indem- nify the ])laintin from any loss or damage by reason of his drawing and indorsing the bill. Averment, that plainlill did draw and indorse the bill in manner aforesaid, and was afterwards by reason thereof com- pelled to pay it, whereof the defendant had notice, but did not indem- nify him. Counts for money lent, paid, had, and roccivcd, and on an account stated. I*lea, the general issue and statute of limitations. Re- plication, that defentlant promised within six years. At the trial before I'fir/c J., at the Hereford Lent assizes 1S28, it appeared that the j)Iain- (ill and defendant had executed the Ijond, and drawn the bill mentioned in tlie declaration; that the defendant had requi.sted the iilaintill to do so, and promised that he should not be a loser. It was also proved, ibnt on account of payments made by the ])Inintiff towards the debts spc- cifieil, and the bill of exchango, a sum of 100/. remained due to him in 1825. A promissory note for that sum given by W. Cook, since dc- 334 Thomas v. Cook. M. T. 1828. o.easeJ, to the plaintiff, and bearing date in the year 1823, was then pro- duced to the defendant, and he signed it, and altered the word J, at the beginning, to fFe. After this time the plaintiff received from the estate of W. Cook, since deceased, 100/., leaving a deficiency of 300/. Several acknowledgments of a debt by the defendant within six years were proved. For the defendant it was contended, that the note was void on account of the alteration, and that the plaintiff could not recover on the special counts for want of a written agreement, the promise there laid being to answer for the debt of a third person, and consequently that he could only recover against the defendant as co-surety on the count for money paid, one moiety of the 300/. The learned Judge di- rected the jury to find a verdict for the plaintiff for 300/., and gave the defendant leave to move to reduce it to 150/. A rule nisi for that pur- pose was obtained in last Easter term, against which Taunton and Chilton now shewed cause, and relied on Rex v. Pen- dleton, 15 East, 449; Dover v. Maestaer, 5 Esp. 92; Williams v. Lea- per, 2 Wils. SOS, 3 Burr. 1886; Houlditch v. Milne, 3 Esp. 86; Cast- ling V. Aubert, 2 East, 325. Russell Serjt. and Curwood^ contra, cited Jones \. Cooper j Cowper, 227; Matson v. fV/iarajn, 2 T. R. 80. Bayley J. It is provided by the fourth section of the statute of frauds, that <'No action shall be brought to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized." Here the bond was given to Morris as the creditor; but the promise in question was not made to him. A promise to him would have been to answer for the default of the debtor. But it being necessary for W. Cook, since deceased, to find sureties, the defendant applied to the plaintiff to join him in the bond and bill of exchange, and undertook to save him harmless. A promise to indemnify docs not, as it appears to me, fall within either the words or the policy of the statute of frauds; and if so, there was sufficient evi- dence to entitle the plaintiff to a verdict for 300/. Parke J. (a). This was not a promise to answer for the debt, default, or miscarriage of another person, but an original contract between these parties, that the plaintiff should be indemnified against the bond. If the plaintiff, at the request of the defendant, had paid money to a third person, a jjromise to repay it need not have been in writing, and this case is in substance the same. The rule for reducing the verdict ought, therefore, to be discharged. Rule discharged. o (a) Litllcdale J. was at Uk- Old ]');iiley. The KING v. The Inhabitants of MATTISIIALL.— p. 733. Before the execution of an indenture, the master said that the intended appren- tice should have better clothes. The apprentice then applied to the parish officers, who ai^reed to give liim 21. on the execution of the indenture, for the pui-pose of buying clothes, which they did accordingly : Held, that tlie money 8 Barnewall & CuESSWELL, 767. 335 paid by the parish-officers was an expense incurred by reason of an indenture nf apprenticeship, within the meaning of the 56 G. 3. c. 139. s. 11, and, there- fore, that the indenture required the assent of two justices. ROWE V. BRENTON.— p. 737. Where the crown is interested the Attomey-Genei-al may, as a matter of right, demand a trial at bar. Where in trover for copper ore it was proved that the plaintiff was in possession of land in which he sunk a shaft and raised the ore in question, and the same witness on cross-examination proved that the ore was taken away by a person who had a shaft in an adjoining close, and who was getting the same lode of copper ore under the plaintiff's land when he sunk his shaft: Held, that this was prima facie evidence of the plaintiff's title to the ore, which must be left to the jury. On account of the interest which the crown has in the duchy of Cornwall, all acts which affect the possessions or revenues of the duchy are to be considered as public acts; and, on this ground, a document purporting to be a caption of seisin taken to the use of the first Duke of Cornwall by certain persons assign- ed by his letters patent to do so, was received in evidence to shew the rights of the Duke. An ancient extent of crown lands found in the proper office, and purporting to have been taken by a steward of the king's lands, and following in its construc- tion the directions of the stat. 4 Ed. 1, will be presumed to have been taken under competent authority, although the commission cannot be found. The enrolment of a lease granted by the Duke of Cornwall is evidence, in the same manner as if it had been granted by the crown when there is no Duke of Cornwall. Where in each of several manors belonging to the same lord, and part of the same district, it appeared that there was a class of tenants answering the same de- scription, and to whom their tenements were granted by similar words : Held, that evidence of what rights had been enjoyed by those tenants in one manor, might be received to shew what were their rights in another. Answers to interrogatories may be read without producing the interrogatories, if they cannot be found. DOE on the Demise ol" ROBY v. ]MAISEY.(fl)— p. 767. In ejectment bv mortgagee against mortgagor, it is not necessary to demand pos- session before action brought. Wlitre llu- mortgagee suffers the mortgagor to remain in possession of tlie mortgaged ])remiscs, the latter is not tenant at will to the former, but at most tenant by sufferance only ; and may be treated either as tenant or trespasser at the election of the mortgagee. Ejectment. At the trial before Gasclec 3., at the la-st Gloucester Summer a3.sizes, it appeared that the premises had been mortgaged in fee by the defendant to the lessor of the plaintiff, that the mortg.ige was forfeited, and that the defendant remainc^d in posse.ssion. The usual evidence of the mortgage deed was given, but there was no proof of any demand of po.ssession. Upon this it was contended, that the plaintiff ought to be nonsuited; but the learned judge directed a verdict for the plaintif]', with liberty to the dfifrnd.int to move to enter a nonsuit. Tuljnurd now niovcrl accordingly, to enter a nonsuit. He admitted, that the long established practice had been for n mortgagee to recover ('/) This f-asc was moved carl) in the term. 336 Wells V. GuuNEY. JVI. T. 1828. without jiroof of any notice; but lie contciulcd that the mortgagor, when allowL'il to remain in ))ossc.ssion, was in the situation of tenant at will to tlic niorla;agee, and tiunelbre ooulil not be treated as a trespasser till the determination of the will; and he cited Partindgc v. Bere, 5 B. & A. ()0l, to shew that the relation of landlord and tenant subsisted. But Lorii Tkntkrdkn C. J. The mortgagor is not in the situation of tenant at all, or at all events, he is not more than tenant at sufferance; but in a peculiar character, and liable to be treated as tenant or as tres- passer at the option of the mortgagee. Rule refused. WIIITTAKER V. WHITTAKER and Another— p. 7GS. In fictions by original, the judgment relates to the essoignday of the term in which it is signed. WELLS, Administrator, v. GURNEY.— p. 769. Where, by the contrivance of plaintiff's attorney, a party had been arrested on a Sunday on criminal process, for the purpose of effecting his arrest on civil process, ;md he was detained in custody till Monday, and then arrested on the civil process, the Court ordered him to be discharged out of custody. Quxrc, Whether a party can be arrested a third time for the same cause of action. A RULE nisi had been obtained for discharging the defendant out of custody, he having been arrested a third time for the same cause of action. Upon cause being shewn, the court referred it to the master to report on the fi\cts. He made the following report: — The action was brought on a bond; and on the 7th July, the defendant was arrested the first time, and discharged from custody on the ground that there was no ac etiam to the writ. He was immediately arrested a second time, and discharged by Bay ley J. on the ground that the first action had not been discontinued. On Sunday, the 16th November, he was apprehended upon a warrant for an alleged assault upon one Parlett, and on the fol- lowing day taken to Bow Street, where he was bailed for the assault, and arrested there again the third time. The defendant in his affidavits suggested, that the charge of assault was fictitious, and a contrivance of Bozon, the plaintiff's attorney, to get the defendant to liow Street for the purpose of arresting him. He, however, failed in establishing that the charge was fictitious altogether, but proved that there was a hostile feeling towards him on the part of Bozon the attorney, and that the latter and Parlett were acting in concert, and that the carrying of the defend- ant to Bow Street was made use of to effect the arrest. Crowder and Kelly now shewed cause. The defendant was properly arrested. The charge of assault was not fabricated. An actual assault was proved before the magistrate, and thodefendant was ordered to find bail. The warrant was taken out by Parlett before he had any com- munication with Bozon, and nut for the purpose of this cause. It might lawfully be made available afterwards for the purpose of executing civil process. This case is distinguishable from J5e/'C/^ v. Prodger, IN Rep. 8 Barnewall (& Cresswell^ 769. 337 135: there tlie person arrested was illegally seized in the first instance by the plaintift'in the cause; the original taking was unlawful. In this case, the original taking was lawful, and was not eflectcd by the plain- tiff. If some contrivance be not allowed to apprehend those who seek to elude the service of process, the administration of justice will be fre- quently prevented. It is suHicicnt if the means used be lawful. The third arrest is not vexatious. [Fay^ke J. Is there any case in which a third arrest for the same cause of action has been held to be valid ?] There is no such case: but, on principle, such an arrest may be valid. Where the defendant has been released from an arrest previously made, on a point of form, and the plaintifT has been guilty of no vexatious con- duct, he is entitled to arrest the defendant again; and in Kearney v. King, 1 Chit. 272, after a nonsuit on the ground of variance in a former action, in which the defendant was arrested, it was held, that he might be arrested in a second action for the same cause. Campbell (with whom were F. Pollock and Holroyd), contra, was stopped by the court. Bayley J. An arrest cannot be made on civil process on a Sunday; but ver}' different means may be used to execute civil and criminal pro- cess. For the purpose of executing the latter description of process, the outer door may be broken open; while for that of executing the former, it cannot. In this case, the defendant has been a third time arrested; and it is clear that the criminal process was used on the Sunday to give the plaintiff an oppoi-tunity of making the arrest on the civil process on ^Monday, and by the execution of the criminal process on the Sunday, ihc defendant was taken into custody and detained till Monday, and the plaintiff was thereby enabled to ari-est him on the civil process on that day. It is said that the plaintiff might lawfully use these means to arrest him; but I think, that as the arrest on civil process would not have been good upon the Sunday, the arrest on that process on the Monday, ef- fected by means of the previous arrest on the criminal ])rocess and detention till the Monday, ought not to be allowed. I admit that con- trivances must sometimes be used, in order to execute the civil process of courts of justice; but those contrivances ought to be such as may be lawfully used on the execution of civil process, and an arrest by means of criminal process is not a lawful ccmtrivanco. Pahkk J. I think it very d(jubtful whether a plaintiff can, in any case, lawfully arrest his debtor a third time for the same cause of action. 'I'hc general rule is, that a man shall not be arrested a seconil time for the s.1me cause of action. I Jut where a plaintiff has not been able to make the first arrest available, he may then, |)rovided it be without any vexatious conduct on his pari, arrest a second time. That is an excep- tion to the general rule. Without giving any decided opinion on that point, I doubt whether the excejition can be extended to warrant a third arrest. Hut, for the rensons given by my lirother Baylcij, \ (liink iho ride ought to be marie absolute. Rule absolute. The defendant to bring no action if IJozon should williiu tao djiys p:iy the costs. The KING v. HOliEUTSIIII'TON. -p. 772. "The Rtatutr \f) C. 3. r, 1 '.'i " enacts, tlint in nil cascb where the rrRulcnce or vor,. XV. 13 "^s' 333 Syson v. Johnson. M. T. 1828. establishment of business of the person to -wliom atiy child shall be bound, shRll l)c> williin a diften-nt county from that within which the place by the officers whcrctf sucl\ child shall be bound shall be situated, and in all other cases where the justices of the peace lor the district or place within which the place by the officers whereof such child^hall be bound shall be situated, and who shall sign the allowance of the indenture by which such child shall be bound, shall not hi'.vc jurisdiction, every indenture by which such child shall be bound shall be allowed, as well by two justices of the peace for tlie county or district within whicli tlie place by the officers of which such child shall be bound shall be situ- ated, as by two justices of the peace for the county or district within which the place shall be situated wherein such child shall be intended to serve: Held, that in such case the indenture must be allowed by four distinct persons, two of them being justices of the county from which the apprentice is to be bound; and the other two being justices of the county into which he is to be bound. The KING V. JOHN WINTER, Esq.— p. 785. An order of justices, for diverting and stopping up a highway, substituted for the old highway a new road, Avliich passed partly over a road, described in the order as a new line of turnpike road. The sessions confirmed the order, sub- ject to a case. This Court quashed the order of sessions, because it did not appear on the face of the order, or of the case, that the public had the same permanent right to pass over the new road as they had to pass along the old one- Qusre, Whether justices can divert a road for carriages and continue it for foot- jjussengers. SYSON and Anotlicr v. JOHNSON and Others.— p. 795. Bv statute 16 & 17 Car. 2., tlie trustees or adventurers for draining Deeping Fen were seised of 10,0.'56 acres of land, and the rates and taxes for completing the drainage of the fen were to be levied on the 10,036 acres. They were called taxable lands. There were 5000 acres called free lands, and tlie other lands in the fen consisted of common land. The adventurers were at their own costs and charges to keep the river (ilen with sufficient diking, roading, scouring, -.Old banking. By a subsequent act of the 41 G. 3. reciting the former act, and that the works of drainage were insufficient, and that the owners and pro- prietors of free lands, and persons interested in the commons, notwithstanding their exemption from the costs of making works of drainage, together with the adventurers, being desirous to obtain a better drainage for all the said lands, and more effectually to protect the same from injury by a breuch in any of the banks of the river, had agreed that the respective works of drainage therein- after mentioned should be made, erected, maintained, and supported, at the expense of the tixists, proprietors, and persons, in the proportions thereinafter mentioned. By a subsequent clause, the commissioners under that act were thereby required v/ell and sufficiently to enlarge, deepen, and scour out the river, and straighten the course thereof where necessary, and enlarge and straighten the bunks of the river in such manner as in the judgment of the com- missioners should be requisite; and the costs of executing all the said works were to be paid and borne by the several persons then respectively liable to the repairs of such banks, in conjunction with the owners and jiroprietors in- terested in the drainage of the said commons, in such proportions as to the ccmmissicners should seem just and equitable, and as they by their av/ard should appoint, and such res])eclive banks, after the commissioners should have com- pleted the same, should from time to time be repaired by such persons,as the commissioners should by their award direct: Held, that the adventurers were not, by this statute, released from the obligation imposed on them by the 16 8c 17 Car. 2. of cleansing and securing the river Glen. 8 Baunewall St Cresswell, 813. 339 DOE (Icm. WARREN v. AARON BRAY.— p. Sl;3. An entry in the register-book by the minister of the parish of the baptism of a child, which had taken place before he becin*e minister, or had any connec- tion with the parish, and of which he received information fi-om the parish clerk, is not admissible in evidence, nor is the private memorandum of the fact made by the clerk, who was present at the baptism. Ejectment. At the trial before Vaiighcai B., at the Spring assizes for the county of Worcester 1S2S, the question was, Whether the de- fendant, Aaron Bray, was the legitimate son of his father ? On the part of the defendant, among other evidence, the register-book of baptisms of the parish of Castlemorton, in the county of Worcester, for the year 1776, was produced; and it contained an entry of baptism of Aaron, the son of John Bray, and Elizabeth his wife, on the 6th of February 1776. It appeared, on cross-examination of the witness, that the entry was in the hand-writing of tlie Rev. Dr. Smith, and that he did not be- come minister of the parish till the year 1777; that, during the years 1775 and 1776, the then incumbent of the parish was very infirm ; and that the then clerk, who continued in office for several years afterwards, entered on slips of paper an account of the baptisms, &c; and his me- moranda, which had been preserved, were produced, and there was no doubt that Mr. Smith had made from them the entries in the register- book. It was objected, under the circumstances, that neither the re- gister nor the memoranda made by the clerk were admissible in evi- dence. The learned Judge received them. A verdict having been found for the defendant, a rule nisi for a new trial had been obtained, on the ground, that the evidence ought not to have been received. Catnphell and R. V. Richards now shewed cause, and cited Newham V. Raithby, 1 Phill. 15; May v. May, 2 Sir. 1072, cited 3 Burn, 299, the 70th canon, 3 Burn's E. L. 290. ^ Cur. adv. vult. liATLEV J. There must be a new trial in this cas*^. The register ought not to have been received in evidence. Registers should be made up promptly, and by the person whose duty it is to make them up. The register of baptism, in this case, purports to bear date the 6th of February 1776, but it was not made up till Juno 1777, and then it wan made up, — not by the person who was minister of the parish at the time of the baptism, or by a person who appeared at that lime to have any connection witii the jjarish, — but by one who afterwards be- came the minister of tfie jjuri.sh. It must be taken, therefore, that he made this entry after the death of the minister cf the parish who was present at this baptism. lie was recording a fact, therefore, not within his own knowledge, but one of which he received information from the clerk. I think, therefore, the register itself clearly ought not to havo been received in evidence. liut, then, supposing there was no register, it has been said that the clerk's memoranda wore admissible evidence to prove all the farts that could lie jjrovcd by the register. It was not his duty to make such memoranda: they are mere private entries. 71/ay v. May., to which I referred during the argument, shews that a day- book, from which the entries in a register wen; made, is not adniis.Mible in evidence. The editor of I{iirn\s Krcl. l^avv, sftrr stating tlint case in vol. iii. p. 293, makes the lollowing observation : — " 11, iiidfr'd, the 310 \)oE d. VVarrbn v. Buay. M. T. 1828. vuivy in Utc day-book, representing the plaintifl" as illegitimate, had been signed by the reputed father or the mother, or made under their direction, such evidence would have been admissible as the declaration of a deceased parent on a question of legitimacy; for the declarations of deceased persons, supposed to have been married, (who might them- selves be examined, if alive,) are admissible to disprove the fact of mar- riage, Jicx V. Bramlcy^ G T. R. 330, ; but if, on the other hand, in the absence of such proof, the entry appeared to be merely a private memo- randum, kept for the purpose of assisting the clerk to make up the re- gister (and of that nature it seems here to have been considered), in that case it should not be received as the original authenticated entry." The editor, therefore, thought that the entry in the day-book would not be receivable in evidence in the character of a register, but that if it had been signed by the reputed father and mother, it might have been re- ceived as a declaration of the deceased parents. In the case oi Newham v. Raithby, 1 Phill. 315., the copies of the register of a dissenting chapel were not allowed to be pleaded in evidence in the ecclesiastical court, on the ground that they were mere private memoranda, and not copies of public documents, which are in official custody. So, in this case, the entries made by the clerk were mere private memoranda. They were not, therefore, admissible in evidence. The rule for a new trial must be made absolute. Rule absolute for a new trial F.NI) OF iMICHAFT.MAS TF.RM. REPORTS OF CASES ARGUED A>D DETERMINED IN THE COURT OF COMMON PLEAS, AND OTHER COURTS. By peregrine BINGHAM, OF THE MIDDLE TEMPLE, ESQ., BARniSTER AT LAW VOL. V. rr.ni.iining Cases irom 'ruiNiTV Term, 9 Geo. IV. 1S2.S, to EA.STEa Tnrm. 10 Geo. IV. 182!>, both inclunlvf ^f-i c\ S E S ARGUED AXD DETERMINED IN THE COURT OF COMMON PLEAS, AND OTHER COURTS, IN TRINITY TERM, In the Ninth Year of the Reign of George IV. — 182S. CALVERT V. TOMLIN— p. 1. WTiere a cognovit was given on the 8th of February in Hilary term, v?ith a con- dition that judgment should not be entered, unless default should be made in payment on the ensuing 1st of April, and the defendant died in Hilary vaca- tion, before the 1st of April, judgment entered up on the 10th April in Hilary vacation, after defendant's death, was held regular, as relating to the first day of Hilary term, as also execution tested of a day in that term anterior to the defendant's death. The defendant, on the 8lh of February in Hilary term last, gave a cognovit for .50/., with a condition "that no judgment should be entered up or execution issue, unless default were made in payment the 1st of April next." On February 16th he died. The plaintiff on the 10th of April, in Hilary vacation, entered up judgment, and issued a fi. fa. tested in Hi- lary term, of a day anterior to defendant's death. Wilde Serjt. obtained a rule nisi to set aside this judgment and ex- ecution, as having been entered up and issued after the death of the defendant. Cross Serjt. shewed cause. The judgment has relation to the first day of Hilary term, which wa.'? anterior to the defendant's death; and the writ being also tested of a day anterior to his death, the proceed- ings are regular. A cognovit is a mere acknowledgment of a debt, which authorizes the plaintiff to sign judgment at any time, and is dif- ferent from a warrant of attorney: H'yhornc v. lioss, 2 'I'aunt. 68; liran^ncr v. Lungyticad, 7 T. K. 20. 21 ; iruir/wrnc v. JMngmead, IH. &P. .571. ff'i/f/c, contra, cited 2 Archb. I'r. K. ]}. 23. IJest C. J. As the law stands at present, a cognovit is revoked by the death of the party, although it is difficult to find a satisfactory reason for this, since the parly h.Ts nothing more to do after giving the cogno- 344 Cai.veut v. Tomlin. T. T. 1828. vit, wliicli distinguishes it from the case of a submission to an award. The Courts, however, have allowed a liction to prevail for the further- ance of justice, and in Bragncr v. Langincad, it was decided, that a 'judgment signed in any part of the term or subsequent vacation, re- lates bnck to the first day of tlie term, notwithstanding the death of the defendant ])cforc judgment actually signed; and that an execution against the goods of tlic dcicndant might be taken out upon it, tested the first day of the term. So in JFag/iorne v. Langmead, it was holden, that if a fi. fa. were tested before defendant's death, but delivered to the sheriff and executed after, the execution was regular. These cases are direct authorities in support of the present judgment, unless there be any thing in the circumstance, that if the party had been alive, the money could not, according to the agreement, have been levied during that portion of the term which elapsed previously to his death. The learned writer who makes the distinction, does not cite any case, and it does not appear in the decisions I have mentioned, whether the judgment could have been entered up before the death of the party or not. In the present instance, the money was not levied in fact till after the period at which, according to the agreement, it was to be paid; and if a judgment entered up at that time will relate to a period prior to the death of the party, we have ill that justice and forms require. The proceedings have been regular, and the rule must be discharged. Park J. I am of the same opinion. The cases which have been cited are decisive of the point. The teste of the writ corresponded with the judgment in being anterior to the death of the party, and the judgment, though not entered up till the money was payable, having relation to the first day of term, the proceedings must be esteemed re- gular, according to the case of Bragner v. Langmead. BuRROUGii J. The debt was ascertained in the life-time of the party, and time was given to pay it till April 1st. The intent of the parties was, that, at all events, judgment should be entered up, although time was to be allowed for the payment of the debt. The judgment when entered up, has relation to a time when the defendant Avas living, and the proceedings are, therefore, regular. Gaselee J. I think the proceedings are regular. There is a dis- tinction between a cognovit and a warrant of attorney. When judg- ment is entered up on a warrant of attorney, it must be shewn that the party is living, because if the Court know him to be dead, they will not allow judgment to be signed. But where there is already a confes- sion of the debt on record, the plaintiff does not want the authority of the Court to enter up judgment, which follows as of course upon the ''^g"^^'^- Rule discharged. JOHNSON V. GILLETT.— p. 5. The Court of C. P. has not authority under the 6 G. 4. c. 16. s. 96. to compel parties to tnrol the proceedings under a commission of bankrupt. The aji- I>lication must be made to the Court of Cliancery, 5 Bingham, 7. 345 LAWRENCE v. HOOKER —p. G. In an action between A. and B., the Court refused a rule to compel B. to pro- duce, for the purpose of stamping, an agreement between B. and C, althougli by an affidavit of C's it appeared that tl\c art complained of by A. arose out this agreement. REVETT V. BROWN.— p. 7. The plaintiff, who had built a chapel, conveyed it to defendant by a deed the validity of which was questionable. Defendant took possession, and gave the key to a gardener, who, withhis permission, lent it to the plaintiff topreach in the chapel. The plaintiff thereupon locked the chapel, and refused to re-deliver the key : Held, that he had not sufficient possession to maintain trespass. Trespass for breaking and entering a cliapcl. The defendant justi- fied tlie trespass under Hudson, who was alleged to be the owner of the freehold. At the trial before Garrow B. Suffolk Summer assizes 1S27, it ap- peared that plaintiff had built the chapel, but afterwards being in em- barrassed circumstances, he conveyed all his property, including the chapel, as it was alleged, to Hudson, in trust for the payment of plain- tiff's creditors. The deed was executed with a blank, for a sum alleged to be due to one Mills, which blank was afterwards filled up with the sum of 14,858/. as a balance due to Mills, the recital of the deed stating that a balance had been adjusted between him and the plaintiff. Hudson, who was put into possession under this deed, loft the chapol in the care of a gardener, to whom he delivered the key, with permis- sion to allow the plaintiff to preach in the chapel. The plaintiff, who had been accustomed to preach in the chapel, bor rowed the key of the gardener for that purpose, and then having locked the chapel up, refiised to rc-drliver the key, whereupon the defendant, by Hudson's orders, broke the chajiel open. The gardener had been accustomed to lend the key to preachers of various persuasiofis, who frcrpicntly preached in succession, on the same day. The validity of the deed was much dispnlod at ttie trial; but without giving any opinion on that point, the learned IJaron left it fn the jury to say whether the plaintill was suflieienlly in posj-Tssion of the pre- mises to maintain trespass against a wrong-doer. Subject lo (his ques- tion, which was also reserved for the Court, a verdict was found for the plaintiff; which Storks Scrjt. moved to set aside and enter a nonsuit instead, on the ground that the possession of the premises, if not the complete title, was in Hudson. ti'ildc Scrjt, shewed cause, and argued that the deed (o ilmlson wa^ void by reason of the filling up tbr; blank after execulior), and that, therefore, Hudson look nothing under if. No opinion, however, was given on this point; the dfcision (\^ tlir f!oiirt turning ;dtou,rtlior on the f|uestion, Wbf^lhcr tlu- pliinliU li.-td ;i Mnnifj.'iit possession to maintain trespass. Best C. .1. The plaintiff had not such a possession as would entitle liim to sue in trespass. FosMcssion alone is indeed «:nffirieiit for that VOL. XV. 44 aiG Wood v. Nunn. T. T. 18:e8. j)urposc, as ngainst a vviong-doer; but then it must ben clear and exclu- sive possession. Now the gardener had the key of the chapel, not from the plaintilV, but from Hudson, and he delivered it to the plaintifl, not as a symbol of possession, but merely for the purpose of preaching. If that were suflicient, any person who preaches in a chapel might main- tain trespass against the owner. This rule must be maile absolute. Park J. If the plaintiff had enjoyed the constant and exclusive use of the chapel, the case might have been difl'erent; but the key was de- livered to the gardener with permission to allow the defendant to preach, and many others preached there also. This was not sufficient evidence of possession to go to the jury. The rest of the Court concurred, and the rule was made Absolute. WOOD v. NUNN.— p. 10. A landlord, to whom rent was in arrear, hearing his tenant and a stranger dis- puting about the property of an article on the premises, early in the morning entered and said, "The article shall not be removed till my rent is paid." The stranger, nevertheless, removed the article. On the same day, after the removal, the landloi'd sent his broker to distrain for the rent : Held, that the distress was sufficiently commenced by the landlord to entitle him to the article in question. Trover foi*a lathe. At the last Cambridge Summer assizes, before ^^.lexander C. B., it appeared that the lathe in question was in the house of one Saunders, who owed the defendant two years' rent. One morning, between six and seven o'clock, the defendant hearing that the plaintiff was about to remove the lathe, entered Saunders's house, where he found the plaintiff and Saunders, who had formerly been partners, disputing about the property in the lathe, the plaintiff endeavouring to remove it as his own, under an award, and Saunders averring that he would die by the lathe rather than suffer it to be re- moved; upon which, the defendant, laying hands on the machine, said, — "I will not suffer this or any of the things to go off the premises till my rent is paid." The plaintiff, nevertheless, succeeded in carrying the lathe off the premises; but the defendant, about twelve o'clock the same day, made a formal distress, by his bailiff, of the goods in Saunders's shop, and caused the latlie to be retaken and brought back to the shop. On the part of the plaintiff it was urged, that there had been no dis- tress till the defendant sent his bailiff, and, the lathe having been car- ried away before that time witiiout fraud, on a bona fide assertion of property, the defendant had no right to retake it. The learned Chief Baron tiiought the distress was sufficiently made by what fell from the defendant upon his entering Saunders's house early in the morning, and said it would be a strange state of law if a landlord, finding the goods on the premises in peril of being removed, could not commence a dis- tress at once, and complete the formal part of the proceeding afterwards. A verdict having been found for the defendant, Wilde Serjt. obtained a rule nisi for a new trial, which the Court, without hearing the other side, now called on him to support. He urged, that the lathe belonging to the plaintifl*, and having been detain- 5 BlNQIIAM, 10. 317 ed on ihe premises by the wrongful resistance of the tenant, the land- lord had no right to seize it. If he were allowed to do so, a landlord and tenant might always collude, to satisfy rent with the property of a stranger. But the lathe was removed bona fide before the distress took place; for the defendant, by sending his broker or bailifi' at twelve, shewed clearly, that in his view of the afl'air, no distress had been made in the morning. Best C. J. There was no collusion here between landlord and te- nant, for Saunders claimed the lathe for himself, and not for his land- lord; nor is it true that the lathe was removed before the distress com- menced. The distress commenced when the landlord came on the pre- mises, and said — "This shall not go till my rent is paid." From that time the property was in the custody of the law, and being improperly removed, the landlord had a right to get it back. The verdict for the defendant must stand. Park J. There was no collusion between the landlord and tenant, and there is no ground for making the rule absolute. BuRuouGH J. The distress commenced when the landlord came on the premises; and as he was not privy to the transactions between the plaintiff and Saunders, the rule must be discharged. Gaselee J. The lathe was on the premises in the morning when the landlord came, and he was entitled to distrain it. There is no ne- cessity for entering into the supposed case of a tenant bringing property on the premises for the purpose of its being distrained. No such fact appears in the present case, and the rule must be Discharged, WHALE V. LENNY and Others, Assignees.— p. 12. In an action against tlic assignees of a bankrupt, the Court refused to permit defendants to plead non est factum, and that the premises did not come to them by assigiunent. Covenant against the defendants, as assignees of a bankrupt. Pro- fert excused, on the ground that the deed was in the possession of the defendants. Jones Serjt. moved to plead several matters, viz first, non est factum; second, that the deed was not in the possession of the defendants; third, that the premises did not come to the defendants by as.signment; fourth, performance. The Court refused to allow non est factum, and that the premises did not come to the defendants by assignment, to stand together, and put Jonei to his election, when he abandoned the non est factum. I pon a former day tlic Court gave out, in a cose 'vhirh was not pressed to a decision, that whore a title was deduced through a number of succes-sive links, they would only allow the defendant to traverse the material allegation, and not to take issue on every distinct averment of fact immaterial to the decision of the cause. — See (lulh/ v B'u'ihop of Exeter, post. p. 300. 3'18 Field v. Cauu. '1\ T. 1828. FIELD and Others v. CARR.— p. 13. Dcfciuhiiit ucccptcrl a bill of exchange drawn by C, who indorsed it to liia bank- t-rs; tlity entered it on the credit side of C.'s account, but the bill having been dishonoured, entered it afterwards on the debit side. A few days' after thisdis- lionour, defendant paid to C. the amount of the bill, but omitted to take it out of the banker's hands. C. subsequently paid in to the banker on his general account more than enough to cover all the items of the account preceding the bill item, and that ftem also, and the bankers, for a space of three years, treated the bill as paid, they then sued defendant on" his acceptance: Held, that he was not liable. This was an action on two bills of exchange drawn by Thomas Craw- sliaw, payal)lcat four months after date, on tiie defendant, and accepted by him. They became due February 22, 1823, and amounted together to 132/. 4d., the price of certain wool which defendant had bought of Crawshaw. These bills Crawshaw indorsed to the plaintiffs, his bankers, who before they became due, entered the amount of them to his credit as cash. When due they were dishonoured : upon which the plaintiffs entered to Crawshaw's debit an equal sum, as for bills returned. In Apiil 1823, a few days after the bills were due, defendant jMiid the amount of them to Crawshaw, but neglected to require him to deliver up the bills. Crawshaw continued his banking account with the plaintiffs, and by the 13th of January 1824 had paid in to his own credit a sufficient sum to cover all the items placed to his debit up to that date, including the amount of the above bills. There was no specific appropriation of these payments to any particular debit; but the balance against him upon a set- tlement of accounts at the end oftlie year 1823, was 52G/. 95.; at the end of 1824, lOGl/. 9^.; and at the end of 1825,426/. 25. 10^. The balances were duly struck, and no demand was made in respect of these bills. In April 1826 Crawshaw became bankrupt; the plaintiffs proved their full demand against him under the commission, and deposed that they had received no security or satisfaction whatever, save and except certain bills of exchange referred to in the deposition, and which were not the bills in question. From the lime the bills became due, to the com- mencement of this action, in 1827, no demand was ever made by the plaintiffs on the defendant in respect of the bills. Upon the trial before Bayleyi., York Summer assizes 1827, a verdict was found for the plaintiffs. Whereupon Jones Serjl. obtained a rule nisi to set it aside upon affidavits disclos- ing the state of the accounts between Crawsliaw and the plaintiffs, and some other matters in respect of which the defendant had been sur- prised at the trial. Spankic Serjt. who shewed cause against llic rule, argued that the plaintiffs always held these bills as an additional security ; that the accep- tor could not be discharged except by payment to the holder; and that, therefore, the plaintiffs' claim did not f^all within the rule in Claytoii's case, 1 Mer. .572. Jones relied on Clay io/i^s case; Bodenham v. Piirchus, 2 B. & A. 39, and Simson v. Ingham^ 2 li. & C. 05. Best C. J. Upon the principle established in Clayton''s case, and re- cognised in Jiodenham v. Piirchas, and Simson v. Ingham, the defen- dant is entitled t© have this rule made absolute, 'i'he action is brought 5 Bingham, 13. 349 on two bills of exchange drawn by Thomas Crawshawon the defendant, at four months' date, and accepted by him. They were given for the price of certain wool purchased by the defendant of Crawshaw, and in- dorsed by Crawshaw to the plaintiffs, his bankers. In April 1823, short- ly after the bills became due, the defendant paid the amount of them to Crawshaw, but neglected to require him to deliver up the bills. That payment alone would not have discharged the defendant, the plaintiffs having been at that lime the holders, and entitled to the amount of the bills. But the ground on which the defendant is entitled to have this rule made absolute is, that the plaintiffs not only entered the bills to the de- bit of Crawshaw, but treated them as having been jiaid ; and if so, ac- cording to the rule in Clayton's case, the defendant is discharged. There is indeed an exception to that rule, but the exception does not apply here. Bayleyi. says, 2 B. & A. 45, <'The principle is this, that where there are distinct accounts, and a general payment, and no appropriation made at the time of such payment by the debtor, the creditor may ap- ply such payment to which account he pleases; but where the accounts are treated as one entire account by all parties, that rule does not apply." — "It certainly seems most consistent with reason, that where payments arc made upon one entire account, such payments should be considered in discharge of the earlier items.*' The Master of the Rolls says, "In such a case," (that is, a banking account,) " there is no room for any other appropriation than that which arises from the order in which the receipts and payments take place, and are carried into the account. Pre- s imably it is the sum first paid in that is first drawn out. It is the first item on the debit side of the account which is discharged or reduced by the first item on the credit side. The appropriation is made by the very act of setting the two items against each other." Neither the Master of the Rolls nor Bayley J. say that such act is conclusive. It is undoubtedly open to the party to shew a payment on account of the particular bill, but in the absence of proof of any such ap- plication of the sums paid in, the first payments must be applied to the discharge of the first debts. In the present instance, although there was always a balance against Crawshaw, yet enough had long since been paid in to discharge all the items of the account preceding the bills, and the bills also. And the defendant's case is stronger than those which have preceded it, because in 1S23, 1821, and 1825, the idaintifls treat- ed these bills as paid. In 1S2(), wiien Crawshaw became bankrupt, no- thing was said about the bills, and it was not till 1827 that the plaintiffs thought of calling on the defendant. Under these circumstances, it would be inconsistent with every princi|jle of law and honrsly that the plaintiffs should recover. The rule settleil by Sir W. (Iraiit has received the sanction of every court in Westminster Hall. Pakk J. The rule in Clayton's case has been ado[)ted by all tho courts ill Westminster Hall, ;iiid the only (|Ucstion is, wliellKM- the facts here come within it? I am of opinion that they do, and that the case is |)regnant with circumstances in favour of the defendant. (iASKi.KE .1. (a) The (|uestion is, whether, under all the circumstances, the |)lainti(Is' claim has been destroyed? I think it has by their own conduct ; and in that view it is not material whether they have been paid by ('arr or not. By the course of llieir accounts it is admitted that they have been paid by Crawshaw. Rule absolute. {nynurrovi^h J, was nt Chambers. ;^30 Aiiciiuisuor OF Tuam «;. Robeson. T. T. 1828. AUCIIUISHOP of TUAM v. ROBESON and Another.— p. 17. It is a libel to ])ublisli of a Protestant Archbishop, that he attempts to convert Catholic priests by oficrs of money and preferment. LiisEL. The declaration stated that the plaintiif, at the time of pub- lication, was, and still is, Archbishop of Tuam : That at the time of publication one Thomas JNIaguire acted as a priest o he Roman Catholic church in Ireland : That the plaintifl'had acted honourably as Archbishop : 'J hat the plaintifl' never promised nor oflered to Maguire, nor to any person, any sum of money as an inducement for him to cease to act as a priest of the Roman Catholic church, or to accede to become a Pro- testant clergyman; nor a living of SOO/. a year, nor any living for such a purpose; nor did he ever offer any living, but in the due discharge of his duty as Archbishop: Yet the defendants well knowing the premises, but contriving and maliciously intending wrongfully to injure the plaintiff in his good name, fame, credit, and reputation, and in the respect and good opinion which he had obtained, and to bring him into public scandal and disgrace, and to cause it to be believed that the plaintiff had misconducted himself as such Archbishop as aforesaid, and had promised to the said Thomas Maguire a large sum of money and a living of 800/. a year, and that the plaintiff had written to a Protestant clergyman to make such offer, in order to induce the said Thomas Maguire to accede to become a Pro- testant clergyman, did, on the Sth of November 1827, at Westminster, &c. falsely, wickedly, and maliciously, print and publish, and cause and procure to be printed and published, in a certain newspaper called The Morning Herald, a certain false, scandalous, and malicious libel, of and concerning the^plainliff, and of and concerning the conduct of the plaintiff" as Archbishop, and of and concerning the plaintiff's supposed offer to the said Thomas Maguire as aforesaid, containing therein the false, scandalous, malicious, and libellous matter following, of and concerning the plaintiff, and of and concerning the conduct of the plaintiff as such Archbishop as aforesaid, and of and concerning the plaintiff's supposed offer to the said Thomas Maguire as aforesaid; that is to say, *' Ireland: Dublin, November Sth. The speech of the Rev. Mr. Maguire (a) at the Roscommon Catholic mcetmg, has excited a pro- digious sensation. The second reformation did not need this last shock to destroy it, but now that it has come, a vestige of the fabric does not remain. Who do you think was the Archbishop who promised Maguire, the priest of the mountains, 1000/. in cash, and a living of 800/. a year? Why, no less a personage than the Archbishop of Tuam!!! This state- ment I received this day from Mr. M. himself. The Archbishop wrote to a Protestant clergyman desiring him to make the offer, and to shew the letter; but not to surrender it into his possession, unless Maguire was disposed to accede, and the induction into the living was to take place within eight days! All these facts are capable of proof, and will be proved, if their authenticity is denied. A writ has been served on him by a country innkeeper, at whose house he resided for about three (a) The innuendoes of identity arc omitted to avoid prolixity. 5 Bingham, 17. 351 months, three years since (when he first took possession of his misera- ble parish), for the seduction of his daughter. As a proof of the fair- ness of the saints, it may be observed, that with the 5000 copies of the published report of the discussion between Pope and Maguire, which they printed, they have bound up Dr. Otway's Strictures on the Argu- ments!!! The Report, it was understood, should go out on its own merits:" Meaning, by the said libel, that the plaintiff had offered the said Thomas INIaguire 1000/. in cash and a living of 800/. a year, if the said Thomas Maguire would accede to become a Protestant clergyman. There were other counts, but the innuendo was the same in all; and though the introductory statements diflered, none of them stated any matter of fact as explanatory of the libel, except that the plaintiff was Archbishop of Tuam, and that Maguire had acted as a Roman Catholic priest. The defendants pleaded the general issue; and a verdict with 50/. damages having been obtained lor the plaintiff, Taddy Serjt. moved to set it aside and enter a nonsuit, or arrest the judgment, referring to Goldstein v. Foss, 4 Bing. 4S9; Lord Kerry v. Thorley, 4 Taunt. 355. Best C. J. Probably the declaration might have been more accurate- ly drawn; but after verdict, the question is, whether enough appears on the record to sustain the action? It is not easy to perceive why any dis- tinction should be made between written and oral slander; but the case referred to. Lord Kerry v. Thorley, has established it too firmly to be shaken. According to that case, in order to support an action lor oial slander, something criminal must have been imputed; but in a libel any tendency to bring a party into contempt or ridicule is actionable, and, in general, any charge of immoral conduct, although in matters not punish- able by law. Is then immoral conduct imputed to the plaintiff by this libel? (After reading this libel his Lordship proceeded:) Maguire is re- presented as having said that the plaintill had offered him 1000/. and a living of 800/. a year if he would change his faith, and the whole state- ment concludes, "all these facts arc ca])ablc of proof, and will be prov- ed, if their authenticity be denied." Among tiiesc facts is the disgrace- ful employment of a church of England clergyman to tanipor with the conscience of a priest, and the mi.saj)plicatiun of church ol lOngland pre- ferment; for such we must take it to be, as the archbishoj) wuuhl have no other in his gift. Would it be immoral in the archbishoj) if he attempt- ed to bribe a man to renounce his religion, and to endow such a prose- lyte with church of England preferment ? Would it be immoral to em- ploy, in making hyjjocrites, funds tiestined to the support of the Pro- testant Church? If the seduced be guilty, it is impossible to say that the seducer is innocent. But it has been urged, that nothing immoral is imputed, since (he legislature has held out to Catholic priests the same kind of temptation to become Protestants. Even if that wore so, it would not persuade me that such a course was moral. But the legisla- ture hns not done this; it has only said, that if a man be converted he shall not be left to starve in tlie midst of a hostile comn)unily. The le- gislature has provided a maintenance for him, not to persuade him to become a convert, but to .support liim when converted: the sum allow- ed is too small to operate as a tcniptalioM to insincerity. We collect, therefore, from this record, that there i." a charge reflecting on the moral 332 Arciiuisiioi' or Tn am v. Robeson. T. T. 1828. comUict of the arolibishop; ;\ charge whicli, if trup, ought to exclude liinr from the situation which lie iills. But we have been referred to the case o( Go/(istein v. Foss, and have been told that the record is defective in introiluctory averments to support the various innuendoes. However, neither the facts nor the judgment in that case interfere with the present decision. There the declaration alleged, that whereas divers persons had been associated together under the name of *'The Society of Guar- dians for the Protection of Trade against Swindlers and Sharpers," and the defendant under pretence of being secretary of the society, iiad from time to time, published printed reports for the purpose of announcing to the society the names of such persons as were deemed swindlers and sharpers, and improper persons to be proposed as members of the society; and whereas the plaintiff was a merchant of good character; yet the de- fendant falsely and maliciously published of and concerning the plaintifl, in his trade and business, the following libel: — "Society of Guardians for the protection of Trade against Swindlers and Sharpers. — I, E. F,, am directed to inform you that the persons using the firm of Goldstein (meaning the plaintiff) are reported to the society as improper to be proposed to be balloted for as members thereof;" thereby meaning that the plaintiff was a swindler and a sharper, and an improper person to be a member of the said society: and it was held that the innuendo could not be supported without a previous averment that it was the custom of the society to designate swindlers and sharpers by the terms, "improper persons to be members of that society." The libel in that case was different from the present in this respect, that on the face of it there was no imputation of immoral conduct. There is quite enough in the language here to constitute this a libel after verdict. Park J. I am of the same opinion. Sufficient is stated here' to ren- der this a libel on the plaintiff. The paper charges an archbishop, not with endeavouring to extend the Protestant faith, but with having selected a person who was under a charge of seduction for the ministry of a Protestant church, and with offering to reward him, not for a sin- cere conversion, but for a colourable profession of conformity. That is the gist of the allegation, and that is a libel. An innuendo without pre- vious explanation will not, it is true, make that a libel which is not otherwise libellous; but the imputation of immoral conduct is sufficiently clear on the present record. BuRROUGH J. If we arc to understand the language of this attack as the rest of the world would do, there can be no doubt it is a gross and infamous libel. The plaintifl' is charged with having sought to induce an improper person to abandon his religious creed, not by reasoning, but by a gross bribe. The libel is such as not to need explanation, and the innuendoes are sufficient. Gaselee J. The misconduct laid to the plaintiff's charge is, the hav- ing offered to a Catholic priest 1000/. and a living of 800/. a year, to be- come a Protestant. It has been urged, that there is no preliminary al- legation sufficient to warrant such an innuendo; but it is alleged that the defendant, seeking to cause it to be believed that the plaintiff, as arch- bishop, had promised Maguirc 1000/. and a living of 800/. a year, and had written to a Protestant clergyman to make such offer to induce Ma- guire to become a Protestant, published of and concerning the conduct of the plaintiff, and of and concerning fhr plaintiff's said supposed ofler, the libel following. That is a sufficient allegation of the offer to which 5 Bingham, 17. 353 Ihe libel refers; (or in Rex v. Horrie, Cowp. 672, in an indiclment for a li- bel on thekine;and his troops, it was held a sufficient alleii;ation, that the libel was published of and concerning the king and his troops. The jury have found that this was published of and concerning the plaintiff, and that gets rid of the objection to the frame of the declaration. As to tha merits, this is equally a libel, whether it proposed to impute to the plain- tiff indiscretion or dishonesty; the manifest object of it was to bring him into disrepute. It charges him, also, with a consciousness of incorrect conduct, because it is alleged that he desired his letter not to be shewn. Rule refused. PREECE V. CORRIE.— p. 24. Avowant, who had a term which expired on the 11th of November 1826, let the premises orally from the 11th of September to the llih of Novemberin that year, for 270/., payable immediately: Held, that this was a lease, of which parol evidence might l)e given, and not an assignment requiring a writing; but that being' a demise of the whole of avow- ant's interest, he had no right to distrain. To a cognizance by the defendant for rcnt-arrear from the plaintiff, as tenant to Thoma3 White, under a demise for a certain term, to wit, from the 11th day of September 1826 till the 11th of November in the the same year, the plaintiff pleaded. First, that he did not hold the premises, as tenant to White, by vir- tue of the said supposed demise; Secondly, that by the said supposed demise. White demised and grant- ed the premises to the plaintiff, for all the residue and remainder of his, White's, estate, term, and interest in the same, and that he had not at the time vvhen,&c., or at any time during the supposed demise to tha plaintiff, any reversionary estate, term, or interest in the premises, ex- pectant, or to take effect, upon or after the expiration of the term grant- ed to the plaintiff by the supposed demise. The defendant took issue on the first plea, and to the second replied, that White did not demise and grant the premises to the plaintiff, for all the residue and remainder of White's estate, term and interest in the same; and on this issue was joined. At the trial before Littlcdale J. Hereford Summer assizes, 1827, it appeared, that White had a tnrm in the premises, whicii expired on the 11th of November 1S2G; and that on the 11th of September in that year, in the completion of some arrangements between him and the plaintiff, he let the premises orally to the plaintiff, to hold till the same 11th of November, paying 270/. rent immodiafcly. The jury found, first, that White deniised tn the plaintiff; secondly, that White parted with the whole of liis term. The latter finding negativ- ing in fjffect the defendant's right to distrain, and so amounting to a ver- dict for the plaintiff, liiisscll Serjt. moved to set aside Ihe verdict and have a new trial, or enter a verdict for the defendant, on the ground that the plaintiff's plea of non tcnuit had been found in favour of the defendant; and liiat no ad- missible evidence had bcfii adduced in support of the second pica, which amounted in effect to an allegation, that Thoni.is White had assigned all hi.s interest in the premises, and such an assignment could not, under VOL. XV. 15 3r)4 Seaton v. Bknkdict. T. T. 1828. llic ^latlltc of" frauds, be effeclcd, except by writing. If tlie plea did not amount to an allegation of assignment, it must be taken to shew an under- lease from White to the plaintiff; and in that case he would have been entitled to distrain. A rule nisi was granted, against which Lxidloiu Serjt. was to have shewn cause; but the Court called on Russell to support his rule. He cited Bac. Abr. Assignment; 2 Inst. 483; Bolting v. Martin, 1 Campb. 318; Poxdtney v. Holmes, 1 Str. 405 ; Smith v. Maplcback, 1 T. R. 445 ; Alchorne v. Gomme, 2 Bingh. 54. Best C. J, There is no pretence for the motion. This was an action of replevin, and the defendant made cognizance as bailiff of White, alleging that the plaintiff held as his tenant under a demise, from 11th September 1826 to 11th November in the same year, at a rent of 270/. To this there were two pleas: first, non tenuit; secondly, that White, by the demise mentioned in the cognizance, granted the premises for the whole of his estate in them, leaving no reversionary interest ex- pectant on the determination of the term. Upon these pleas issue was joined. The jury found for the defendant upon the non tenuit; but on the last plea they found that there was a demise of While's whole estate. Both findings are proper. At first sight it might appear, that, con- sistently with the second plea, non tenuit ought to have been found for the plaintiff: but this demise, though not entitling the lessor to distrain, ought to be considered as a lease, and not as an assignment; and in Poult- ney v. Holmes it was decided, that a party might sue in debt upon such a demise. This was a lease in fact, though even if it had been an assign- ment it might have been received in evidence; for it would have been an assignment by operation of law, which the statute of frauds does not require to be in writing; but the transaction was in fact a lease, and the finding of the jury on both issues was proper. If the plea itself is bad the defect is on the record, and the parties may proceed further; but on this we give no opinion. My brother Park {a) concurs as to the cor- rectness of the finding. The rule must be discharged. BuRROUGH J. was of the same opinion. Gaselee J. In Smith v. Mapleback, the Court held that the lessor could not distrain upon a demise like the present, though it was held to be sufficiently a demise to entitle him to sue in assumpsit for the sum reserved. Rule discharged, (a) He vras at Chambers. SEATON V. BENEDICT.— p. 38. 1. Payment of money into court upon a general indebitatus assumpsit is no ad- mission of a contract beyond the amount of the sum paid in. 2. A husband, who supplies his wife with necessaries in her degree, is not liable for debts contracted by her without his previous authority or subsequent sanc- tion. Assumpsit for goods sold and delivered. The defendant pleaded the general issue, except as to 10/. which he tendered and paid into court. By a bill of particulars, it appeared that the plaintiff's demand amounted 5 Bingham, 28. 355 to 28/. 5s. 6J., for kid gloves, ribbands, muslins, lace, silks, and silk stock- ings, thirteen pair of which, of a very expensive description, were charged for, as having been delivered on one day. At the trial before Btn-rough J., Middlesex sittings after Hilary term last, it appeared that the defendant, a gentleman in the profession of the law, was, at the time when the plaintilf furnished the goods, living with his wife at Twickenham, and had supplied her wardrobe well with all necessary articles; that the plaintiff, a tradesman at Richmond, had, without the defendant's knowledge, furnished the defendant's wife with the articles for which this action was brought, the greater part of which were delivered to her in the plaintiff's shop, and the remainder into her own hand at the defendant's door. It did not appear tJiat the defendant had seen her wear any of them, except, perhaps, the gloves and some of the silk stockings, the price of which did not amount to 10/. On behalf of the defendant it was contended, that these articles were not necessary for the wife of a person in his degree; that no actual au- thority for them had been proved; and that an authority could not be implied for the purchase of any thing but necessaries. The learned judge told the jury that he should have been of this opin- ion, but for the plea of tender; that plea admitted that the wife had au- thority to purchase someof tiie articles; and as it was not stated in respect of which of them the tender had been made, it must be taken to apply to all, admitting the authority to purchase them all, and contesting only the price at wliich they were charged. A verdict, therefore, was taken for the plaintiff for 18/. 5s. 6d., with leave for the defendant to move to set it aside, if the learned Judge should he thought to have given an effect to the tender which it ought not to have. Wilde Serjt. accordingly obtained a rule nisi for a new trial, on the ground that the goods furnished were not necessaries, and that no au- thority could be implied from the tender except an authority to purchase goods to the extent of 10/. Taddy Serjt. shewed cause, and cited Bennelt v. Francis, 2 B. & P. 550; Montague v. Benedict, 3 IJ. & C. 631 ; Holt v. Br ten, 4 B. & A. 252; Bnrtley v. Griffin, 5 Taunt. 35G. JVildc referred to C'o.r v. Parry, \ T. R. 4G4; Blackbiirne v, SchoaleSf 2 Campb. 3H; Etherington v. Parrot t, 1 Salk. 118. Bkst C. J. I think there ought to be a new trial in this case. The learned Judge left the point correctly to the jur)', but gave too much effect to the payment of money into court. Independently of this, the defendant, in point of law, was entitled to a verdict. A husband is only liable for debts contracted by his wife on the assumption that she acts as his agent. If he omifs to furnish her with necessaries he makes her impliedly his agent to purrhasf tiicm. If he supplies her properly, she is not his agent for the j)urch:ise of an article, unless lie sees her wear it without disapprobation. In the present case the husband furnished his wife wilh all n(!cessary apparel, and lie was ignorant that she dealt with Ihc plaintiff. No article was delivered in his presence, nor was there distinct proof that any had been worn. If, therefore, money had not been paid into court, the defendant was clearly entitled to a verdict. What, then, is the effect of that payment 1 If the money had been fiald in on the first items of the bi|l, an authority to contract at the datu of 356 Crofts v. Stock ley. T. T. 1828. these items would have been acknowledged — an authority which could not aftervvarils have been retracted but by express notice. But there is no evidence to shew that the money was not paid in on the last items; and if so, there was no agency for the first. The payment into court, therefore, recognizes no agency beyond the amount of 10/. And if so, there is no pretence for supporting this verdict. It may be hard on a fashionable millinc:- that she is precluded from supplying a lady without previous enquiry into her authority. The Court, however, cannot enter into these little delicacies, but must lay down a rule that shall protect the husband from the extravagance of his wife. Gaselee .!.(«) It isdiflicult to lay down an abstract rule with respect to the liability of the husband; but on the subject of the payment of money into court I entertain no doubt. Payment into court generally in assumpsit admits nothing beyond the amount of the sum paid in. Where, indeed, there is a special contract, the payment into court admits that contract; but where, as in the common indebitatus assumpsit, the demand is made up of several distinct items, the payment admits no more than that the sum paid in is due. In Cox V. Barry, Blackburn v. jSchoales, and Bennett v. Francis, the claim arose on a single transaction. On these grounds it seems to me that too much weight was attached to the circumstance of the payment into court. The jury were probably embarrassed by it, and the verdict ought not to stand. Rule absolute. (a) Park J. ^\'as at the Old Bailey, and Buri-oxi^ J. gave no opinion. CROFTS V. STOCKLEY and Another.— p. 32. If it appears on the whole, that the condition of a bail-bond is to appear in the Common Pleas, it may be dcsQvibed as such in the declaration, although the expression on the bond is, " toappcar before cur lord the King at Westminster," instead of, "before the justices of our lord the King." Debt on a ball-bond by the assignee of the sheriff. The declaration, after alleging that the plaintiCfhad sued out of the court of our lord the now King, before Sir W. D. Best, knight, and his companions, then his Majesty's justices of the Bench at Westminster, a certain writ by which our said lord the King commanded the sheriff that he should take William Wright, if found in his bailiwick, and safely keep him, so that he might have his body before the justices of our said lord the King at Westminster on the morrow^of AH Souls then next, to answer, &c. and after averring the indorsementof the writ for bail, the caption of Wright, and the taking the bail-bond for his appearance, stated the condition of bond to be that Wright should appear, according to the exigency of the said writ, in the said court on the morrow of All Souls, to answer the plaintiff in a plea of trespass, and also to answer him according to the custom of his said Majesty's Court of Common Bench in a certain plea of debt. At the trial before Park J. Middlesex sittings after last Hilary term, the condition of the bond appeared to be for Wright to appear before our said sovereign lord the Kin^ at Westminster, on the morrow of All Souls, to answer the plaintiff in a plea of trespass, and also to answer 5 Bingham, 32. 357 him according to the custom of the King's Court of Common Pleas, in a certain plea of debt. A verdict having been found for the plaintiff, notwithstanding it was objected that there was a material variance between the condition of the bond given in evidence and that set out in the declaration, Lxidloiv Serjt. obtained a rule nisi to enter a nonsuit on the ground of this variance. In Renalds v. Smith, (J Taunt, 551, it was holden that a condition to appear before the King at Westminster was a condition to appear in the Court of King's Bench. Mereivether Serjt. shewed cause. Coupling the ac etiam clause with what precedes, it is sufficiently plain that the condition of the bond is to appear in the Court of Common Pleas, as alleged in the declaration. Ludlow. If the pleader had set out the bond truly the declaration would have been demurrable, and he ought not to escape the conse- quences of a demurrer by a palpable mis-statement. Best C. J. In Renalds \. Sinith, Gibbs C.J. sa)'s, "Taking the whole record together, I cannot doubt that the bail-bond points out the Court of King's Bench," I cannot doubt here that, taking the whole of it together, the bail-bond points out the Courtof Common Pleas, and that the statement in the declaration corresponds in substance with it. The rule must be Discharged. LEES v. WHITCOMB.(a)— p. 34. A written agreement, " to remain with A. B, two years for the purpose of learning atrade," is not binding, for want of an engagement in the same instrument by A. B. to teach. Assumpsit. The plaintiff declared, in the fourth count of his declara- tion, that in consideration the plaintiff, at the special instance and request of the defendant, would receive the defendant into his service, and cause her to be taught the trade and business of a dress-maker and milliner by the wife of the plaintiff, the defendant agreed and undertookand faithfully promised the plaintiff to continue with the wife of the plaintiff for two years, from the 5th of June 1826, for the purpose of learning the busi- ness. Averment of the defendant's reception and instruction by the plain- tiff's wife, and of her staying in his service till April 14th 1S27. 15rcach, her refusal to remain in his service for the remainder of the period of two years. In the fifth count the consideration was stated to he simply the re- ceiving the defendant into his service, and the undertaking, to serve. There were other counts; but these came nearest to the agreement between the parties, and were the only ones relied on. Plea, non- assumpsit. At the trial before Park J., Middlesex sittings after Hilary term, the plaintiff, in support of his action, gave in evidence the following agree- ment, signed by the defendant: — *' I hereby agree to remain with Mrs. Lees, of 302, Kcgcnt street, for {a) Communicalcd to ihc editor by a i;cMtlrmaii at the b^r. 358 Lees i^. VViin comb. T. T. 1828. two years from the date hereof, for the purpose of learning the business of a dress-maker. As witness iny liand this 5lh day of June 182G. "Amelia Whitcomb." No premium was paid by the defendant, who, on the day mentioned in the agreement, entered tiic plaintiff's house, and left him in April fol- lowing, by which time she had made such progress in learning the busi- ness that her services were becoming valuable to the plaintiff. It ap- peared that dress-making and millinery \vere two distinct businesses. On the part of tiie defendant it was objected, that there was no mutu- ality in the above agreement, and that, therefore, it was not binding on the defendant; that the plaintiff not having bound himself to teach, al- though the defendant had agreed to remain and learn, there was an en- tire absence of consideration for the defendant's agreement; and that the agreement given in evidence did not correspond with that set out in the declaration. The plaintiff was thereupon nonsuited, with leave to move to set aside the nonsuit, and have a new trial. Toddy Serjt. moved accordingly, and a rule nisi having been granted, Wilde Serjt. shewed cause. The fifth count is not supported by the evidence, because a contract to serve is very different from a contract to learn. And there is no con- sideration on the face of the agreement to support the fourth, as there ought to be under the statute of frauds. IVain v. fVarlters, 5 East, 10. Saunders v. Wakefield, 4 B. & A. 595. Jenkins v. Reynolds, 3 B. & B. 14. The plaintiff does not bind himself to teach, nor is the agreement even signed by him as a party to be charged. The Court here called on Taddy, who cited Rex v. Lynn, 6 B. & C. 97; Egerton v. Matthews, 6 East, 306. Best C. J. I am opinion that none of the counts are proved. The contract does not bear the meaning which is put upon it in the declara- tion. The businesses of milliner and dress-maker are very different, and that disposes of the fourth count. The fifth count alleges the considera- tion to be the plaintiff's receiving the defendant into his service, and the undertaking, an engagement to serve; but there is by the contract no ob- ligation on the defendant to serve; her engagement is merely to remain for two years, and the plaintiff could not have compelled her to serve. It was probably the plaintiff's intention to prevent the defendant from leaving him and setting up for herself the moment she had learned his business, and there might have been a sufficient consideration for that if he had undertaken to teach; but there is nothing in the agreement to in- sure such instruction to the defendant. BuRRouGH J. There is no consideration expressed in the agreement for the defendant's undertaking; and since the case of Wain v. Warltcrs that is indispensable. Gaselee J. The service in the fifth count is alleged generally, and not as a service for the purpose of learning. I feel some difficulty, but not sufficient to render it necessary for me to differ from the rest of the Court. Rule discharged. HILLS v. STREET.— p. 37. A tenant distrained on for rent requested the broker not to proceed to sale, and 5 Bingham, 37. 359 engaged, in consideration of forbearance, to pay the broker's charges. Time was given and the charges paid, but the tenant objected to the amount of them, and to the amount of rent demanded: Held, that this was not a voluntary pay- ment, and that the charges, if irregular, might be recovered back in an action for money had and received. Assumpsit for money had and received by the defendant to the use of the plaintifl". At the trial before Gaselee J., Middlesex sittings after Michaelmas term last, it appeared that the defendant, as broker for H. Elwes, had on the 2Sth of April 1827 distrained on the plaintiff for 230/. 10,5., alleged to be due to Ehves for seven quarters' rent. The defendant, upon written requests made by the plaintiff from time to time, and on condition of his paying the charges for distraining, for- bore to remove or sell the goods distrained, the plaintiff engaging to pay the expence of keeping a man in possession. Accordingly the rent not having been satisfied, the plaintiff, upon the defendant's instances, paid him on the ISth of May 8/. 5s. as broker's commission on a distress for 230/. 105. (at ti»e rate of 5/. for tlie first hundred, and 2/. 10^. forevery hundred over,) 4/. 4^. for the expences of a man in possession twenty-one days, and 1/. for drawing the form of the above-mentioned requests. On the 11th of June he again paid the defendant for the expences of the man in possession twenty-four days 4/. 45., and for drawing four more re- quests 1/., making altogether 19/. 5s. which the plaintiff now sought to recover, as having been illegally demanded and paid. The man in possession having on the 23d of June quitted the house for the purpose of procuring a van to remove the goods distrained, the plaintiff refused to let him in again. In consequence of this a second distress was made on the 16th of July, when the plaintiff replevied. Early in the transaction the plaintiff had alleged that onl}- six quarters' rent were due, but it did not distinctly appear at the trial whether be- fore or at the time of the payments made to the defendant the plaintiff had expressed any intention to replevy. It appeared, however, that he had objected to the amount of the defendant's charge, when the defendant said "The law allowed it, and he would have it." For the defendant it was contended, that the charge for making the distress was reasonable and legal, and that whether the charge for keep- ing the man in possession were legnl or not, yet that having l)ccn incur- red at the express request of the plainliff for his sole accommodation, and having been paid voliintarily wil!i a fidj knowledge of all the facts, itcould not now be recovered at the hands of the defendant. BrisbiDic v. Dacres, 5 Taunt. 143. The learned Jiulge thouglit, thatas the distros.s, in respect of which the charges were made, had never been brought to a conclusion, the goods not having been sold, but having actually been replevied under a subse- quent distress, it was doubtful whether the charge for distraining could be sustained, (the stat, .57 (•. 3. c. 93. s. H. applying only to cases where the goods distrained are sold,) and whether the payment could be es- teemed voluntary; which hn told the jury it could not, if at the time it was made the plaintiff intended to replevy. Whereupon a verdict was foimd for the phiinfiff for 5/. \0s. on the sum paid for making the distress, with leave for the defendant to move to set it aside and enter a nonsuit instead. Accordingly JVilde Scrjt. in Hilary term last obtained a rule nisi to that effect ; against which 360 (Il'Lly v. HisHoi' of ExiiiEK. '1'. T. 1828. ^indrcws Serjt. was to have shewn cause; but the Court called on If'ih/e to support his rule, who referred to Lindon v. Hooper y Cowp. •114; Knibbs v. Hall, 1 Esp. N. P. C. 84; Fxilham v. Down, 6 Esp. 26. Bkst C. J. Althougli under the circumstances of this case I would al- low for the legal expences of making the distress and inventory, yet this rule must be discharged; for that allowance could not be sufficient to turn the scale in the defendant's favour, the prothonotary stating to us, that on taxation of costs the broker's charge for distraining would not be per- mitted to exceed one guinea. But I am clearly of opinion that this was not a voluntary payment. The broker is in possession of goods distrained for rent. The party dis- trained on is anxious that the goods should not be sold, and that time may be'allowcd him to pay the rent. The broker requires, as a condi- tion of the indulgence, that he shall be furnished with a written request not to sell, and an undertaking to pay the expences; this is given and en- forced, but it is clear that it is given under an apprehension the sale would' proceed unless the demand were complied with; and it is impos- sible to call a payment under such circumstances, voluntary. If the payment were not voluntary, the plaintiflf is entitled to recover back all that was paid improperly, which exceeds in amount the verdict he has obtained. Lindon v. Hooper only decides that an action for money had and received does not lie to recover back money paid for the release of cattle damage feasant, though the distress were wrongful; replevin or trespass being the proper form of action to try such a question. But the present question could not have been tried in replevin. There is no form of action but assumpsit for money had and received, in which a party can recover money paid, as this was, under duress. Gaselee J. The broker is the agent of the landlord, and must look to him for these expenses. But the broker, acting as a public officer, has no right to charge for giving time. The rest of the Court concurred, and the rule was Discharged. GULLY and Others v. The Bishop of EXETER and DOWLING. p. 42. Where the plaintiff's title to an advowson was traced in quare imfitdil through a period of two centuries, and the defendant's claim arose on the alleged inva- lidity of a deed of 1672, the Court would not allow him to traverse all the alle- gations in the declaration, or to plead more pleas than were necessary to contest "the deed of 1672. In this case, (see ante, page 6S,) the plaintiff in quare impedit having been obliged to trace his title through a period of two centuries, and the defendant having in forty-thrce pleas traversed every allegation in the declaration, although the plaintiff's claim rested solely on the va- lidity of a deed of 1G72, which the defendant sought to invalidate by setting up a subsequent deed of 16.92, the Court rescinded the rule to plead several matters, as having boon made an improper use of. E. Lawes Serjt. thereupon obtained ;i n< \v rule nisi, to plead the several matters following: — 5 Bingham, 42. 361 1. That the deed ot" the 29th of April 1G72 was fraudulent and void as against subsequent purchasers. 2. Aon concessit as to that deed. 3. Issue on descent from Lewis Stephens to J. Stevens. 4. Non concessit as to the deed of the 5th January 1699. 5. Non devisavit as to the will of J. Stevens, 6. Non concesserunt as to the deed of the 20th December 1719. 7. Nul tiel record of the fine of Hilary term, 6 G. 4. S. That it was not levied to the uses stated. 9. Nul tiel record oi ihe, recovery of Easter term, 6 G. 1. 10. Riens passa as to the bargain, sale, and release of the 10th and 11th November 1731. 11. Non devisavit as to the will of John Davie. 12. Riens passa as to the lease and release of the 23d and 24th April 1777. 13. Issue on the descent from John Davie to Joseph Davie. 14. Non concessit as to the grant of the next turn by Joseph Davie to William Slade Gully. 15. Non devisavit as to the devise thereof by William Slade Gully to the plaintiff. IG. The defendant's title; against which IVilde Serjt. now shewed cause, and objected, as before, that all the pleas except those which disputed the validity of the deed of 1672, and asserted the validity of the deed of 1692, were an abuse of the rule to plead several malters, being calculated only to put the parties to a great expense, and wholly immaterial to the merits of the cause, so that if the defendant succeeded on them he would gain nothing. E. Lawes. Unless the defendant be permitted to traverse the alle- gations in the plaintiff's declaration, it is useless to require the plaintiff to make them. It has always been the practice of the Couit to permit the defendant to take issue on every matter of fact advanced by the plaintiff, and to hold him, like the prosecutor in criminal proceedings, to the strict proof of his title. liut without resorting to the discretion of the Court under the statute of Ann, a defendant may at common law, if he confines himself to one point in the plaintiff's case, employ seve- ral pleas to meet that point. In the jjlaintiff 's case here are two points: 1. the allegation of his title; 2. the disturbance by the defendants: but the disturbance being admitted, the defendants may apply tiiemsclvcs exclusively to the title, and if that title consists of an allegation of many facts, may traverse them all. In Roivles v. Lustrjy 4 IJing. 42S, whirix was a writ of enlry for abatement of divers messuages and mills, a pica that 1{. S. devised them to T., who devised them to S., wile of ]{. \). C, who levied a fine to the tenant, was held not double; and the Court said, ** No matters, however multifarious, will operate to make a plead- ing double, i)rovi(Ied that all tnken tntfcfher ronslilule but one con- nected proposition or entire point." " Duplicity is when two distinct matters, not being part of one entire (h^fenic, arc attempted to be put in issue. IJut this can never ap|)ly to, nor docs it preclude a party from introducing several mnttcrs into a plea, if they are constiluont parts of the same defence; for tliough it be trur; that issue must Ix- taken on a single point, yet it is not necessary, nnr eviT ran he, that such single j)oint must consist only of one single fact." In the case of Robinson v. Ray ley, 1 Burr. 316, to an action of trespass defendant had pleaded, VOL. XV. 46 3f>2 (li i.iA i. The Hisiiop of Exeter. T. T. 1828. amongst other things, a right of common. Plaintifl" in his replication traverscil, that thu cattle were the defendant's own cattle, that they were levant and couchant, and that they were conwionablc cattle. To this there was a special demurrer, *Mhat the replication is multifarious, and that several matters (specifying them) are put in issue, whereas only one single matter ought to be so." Lord Mansfield said, <' As to the present case, it is true you must take issue upon a single point, but it is not necessary that this single point should consist only of a single fact. Here the point is the cattle being entitled to common: this is a single point of the defence. But in fact they must be both his own cattle and also levant and couchant, which are two ditferent essential circum- stances of their being entitled to common, and both of them absolutely requisite." Best C. J. I am glad this question has been fully brought before the Court; for though merely a matter of practice, it is a point of great importance. On the decision of this question it depends, whether suits shall be carried on at great and unnecessary expense, or whether the real object of pleading shall be attained, that of reducing causes to a sin- gle point to be tried. At common law a defendant was permitted to plead one plea only, and it was a principle that pleadings ought to be true. That can rarely be the case when many pleas are pleaded. But as it was sometimes- found difficult to comprise the merits of a defence in a single plea, the statute of Ann permitted a party to plead as many as might be necessary to his defence, provided he obtained leave of the Court; thereby con- fining him to such as might be deemed, in the discretion of the Court, essential to the justice of his cause. We have enough of the merits of this cause before us to see what justice requires. The living in dispute was conveyed by a deed of 1672; the defendant claims under a deed of 1692, under such circumstances, that if the deed of 1672 is valid, the defendant can have no interest in the property. The justice of the case, therefore, requires that the defendant should plead nothing that does not tend to shew the invalidity of the deed of 1672. He, however, insists on going into matters long subsequent even to the deed of 1692. But if his right accrues from that deed, what can he have to do with the sub- sequent matters? It has been urged that it is in vain to require the plainliflf to make certain allegations, if the defendant may not deny them. But the ob- ject of pleading would be defeated, as it is already in some actions, if the defendant were to put the plaintiff upon tracing his whole title. The object of pleading is to narrow the matter in dispute to a single point, and a defendant ought not to be permitted to traverse a series of facts wholly immaterial to his own claim. Here he ought to break in on the plaintiff's title but once; that is, to dispute the validity of the deed of 1672: he may find it advisable to do tiiat in more ways than one, and, therefore, he may add the plea of non concessit, but he shall only dis- pute the plaintif! 's title in the point material to him. The practice in criminal proceedings, which has been alluded to, bears no analogy to the present (juestion. The humanity of our law allows the prisoner to put the prosecutor upon proving his case in every particular; but in civil proceeding the interest of both parties requires that they should be put to as littlt:; expense as possible. Perhaps we may not be able to return to the ancient sim^ilicity of pleading; but we must approach it as nearly 5 BiXGHAM; 42. 363 as we can, and remove, if it be possible, that reproach which iias lately been so justly cast on the administration of justice. It is an important duty of the Court to exercise its discretion as to pleas, and to render justice as cheap and as expeditious as possible. Park J. concurred. BuRROUGH J. I am happy at this opportunity of giving a death-blow to a practice which has improperly prevailed for many years, and which I have long discountenanced. If in this case the deed of 1 672 be set aside, all the other issues fall to the ground. As to the practice of the Court, it cannot repeal the statute of Ann, and by that statute we are bound to exercise a discretion in the permission we grant to parties to plead several matters. It has been urged that all the issues proposed form but one point of the defence; if that were so, they might all be combined in a single plea. But they raise a great number of points wholly unconnected with the defendant's claim, and do not in any respect resemble those matters which are usually combined in a single plea, and make in effect but one alle- gation; as, for instance, that cattle are commonable, and levant and couchant. Gaselee J. Tlie statute of Ann would never have been passed if such abuses had been anticipated as have taken place. The existing practice has given a defendant a most inconvenient advantage over a plaintiff. Before the passing of the statute of Ann a party might have two or three substantial defences to an action, and yet could only bring forward one. The statute has enabled him, where he has more than one, to plead it, with the permission of the Court. Has he more than one in the present case? He may endeavour to perplex the plaintiff, but his only defence rests on the alleged invalidity of the deed of 1672. It has been urged, that he must refer to the other deeds to throw light on that; but he may do so in the way of evidence, and produce any documents which, in his opinion, tend to shew tiiat the deed of 1G72 is fraudulent. What is now asked at our hands is, not to allow an additional ground of defence, but to throw difficulties in the way of the plaintiff. It is the more necessary, too, fur us to be cautious, because, if the plaintiff be tripped up, it is a matter of doubt whether the defendant might not be entitled to a writ to the Bishop upon a mere fabricated title; but on that I give no opinion. It has been argued, that as the plaintiff brings the defendant into Court, the plaintiff ought to stand the shock of all attacks on his title ; Ijut the defendant here has never been in |)Ossession, and it is he in fact \vho i)rings the plaintilf into Court, by entering a caveat with the bishop. Tlie allegation that the several facts which it is proposed to dispute con- stitute but one point is far from being correct; and the case of Iiowlcs v. Lusly has no ap[)lication to the present, because the several convey- ances mentioned in the plea in that case formed but one assurance. The true princij)le of pleading several milters is, that if the justice of the case requires that a party should allege several defences, the Court will not prevent it; but they will not allow a party to [)lead, merely for the purpose of throwing difficulties in the way of his o[)poiient. In the present case there is nothing essential to llif. defeiulanl's case, but to contest the validity of the deed of 1G72. The defendant, therefore, shall be put to elect which link of the plaintiff'** title lie will contest; 364 Cholmeley v. Paxton. T. T. 1828. and if he contests tlic dccil of 1G72, lie may plead non concessit, and that llic ilccd was fraudulent. Rule discharged as to the other matters. CHOLMELEY v. PAXTON and Others.— p. 48. 1. Where money, which uiuicr a power in a will was directed to be raised by the sale of an estate, and to be invested by trustees with the consent by deed of the party interested, was invested partly in 1783, without any such consent by deed, and partly in 1806, by the person interested himself, the trustee hav- ing become non compos, and an act of parliament, reciting these investments, appointed a new trustee, Held, that neither the act nor the lapse of time cured the defective execution of the power, as against a writ of formedon. 2. The issue was, whether the money had been invested with the consent of the cestui que trust, according to the directions of this will : Held, that it was cor- rect to direct tlie jury to consider, whether it had been invested with the con- sent of the cestui que trust manifested by deed. Formedon. The demandant claimed under the will of Sir Henry Englefield, who devised the property in question to the use of trustees in trust for his son, Henry Charles, for life, without impeachment of waste; remainder to the first and other sons of Henry Charles in tail male; remainder to his son Francis Michael for life without impeach- ment, &c. with like remainder to his sons in tail male; remainder to devisor's daughter, Theresa Ann, for life, without impeachment of waste; remainder to her first and other sons in tail male. The devisor's son, Henry Charles, took possession of the property, and died without issue, as did Francis JNIichacl; and the devisor's daugh- ter married Francis Cholmeley the father, by whom she had issue, the present demandant, who, upon her death, commenced the present suit. The defendants, after taking issue on most of the allegations of fact in the declaration, pleaded eigluhly and ninthly, That the devisor by his will declared his further will to be, that not- withstanding any of the uses or estates before created, the trustees might, from time to time, during the lives of Henry Charles, Francis Michael, and Theresa Ann, or any of them, at the request and by the direction and appointment of the person who, for the time being, should be entitled to the rents and profits of the property in question, signified by deed under his or her hand and seal, attested by two or more wit- nesses, sell or exchange the property for such prices as to the trustees should seem reasonable; and in case of sale, should invest the money in the purchase of other lands under the same trusts, and till such pur- chase, in real or government securities, with such consent as aforesaid, testified as aforesaid, the interest to be applied to the same trusts as the rents of the lands. They then averred the death of the devisor in 1780, and that in 1783, the trustees, (Lord Cadogan and Sir Charles Bucke,) by inden- ture of bargain and sale, sold the property in question (being a portion of that devised), for 13,400/. (to William Byam Martin, under whom the defendants claimed); and that Henry Charles Englefield, (then Sir Henry Charles, J by the same indenture, sold the standing timber to him for 2448/. (a) (a) Sec 3 Bingh. 207. 5 Bingham, 48. 365 It was then averreil, that as well the said sum of 13,400/., as the sum of 244S/., were, with the consent of the said Sir Henry Charles Englefield, placed at interest on government securities in the name of Lord Cadogan, (who had survived Sir C. 15ucke,) according to the di- rections of the said will, for the purposes and on the trusts therein mentioned. This allegation the demandant traversed, and issue was joined on the point. At the trial before Litlhdale J., last Berkshire Summer assizes, the defendants, in support of their ninth plea, proved, that in 17S3 Lord Cadogan had invested the 13,400/. in real and government securities; and that in the year 1806 Mr. Nowell, the solicitor of Sir Henry Charles Englefield, having, in the course of conversation with the latter, dis- covered that Sir Henry had received the 2448/. for the timber left standing, told him, that as the timber was not cut down he had no right to receive the money, but the same ought to have been paid to Lord Cadogan, and held by him on the same trusts as the 13,400/. were held. Sir Henry then said he would rectify the error, and on the 29th July 1806, he transferred to the account of Lord Cadogan 3681/. 14^. 3 per cent, consolidated bank annuities, (being the amount of stock, which said 2448/. would have purchased at the time the same was paid to Sir H. C. Englefield,) and t!ie draft of a deed of declaration of trust there- of was prepared by JVIr. Nowell, and left for the approbation of Mr. White, of Lincoln's Inn, the solicitor to Lord Cadogan. Before this draft was engrossed Lord Cadogan died, and consequently no declaration of trust was ever executed, nor was the stock accepted by him; but the whole of the money was applied under the trusts of the testator's will. On the 13th July 1819, by an act of parliament, intituled ^^ An act for appointing new trustees for carrying into execution the trusts and powers contained in the will of the late Sir Henry Englefield, Baronet," and to which the demandant was a consenting party, Reciting (inter alia) the loan of 12,500/. to Lord JNIiddleton, Marma- duke Constable, and Robert Dynely, upon mortgage of estates in York- shire, and that the residue of trust-money arising from sales under the will of Sir II. C. Ktiglnfiold, consisted of 4282/. 14^. ^^d. 3 per cent, consolidated bank annuities, then standing in the name of Lord Cado- gan in the bank books, ('this sum was made up of the 3681/. 4*., trans- ferred as before mentioned by Sir II. C. Englefield, and 601/. invested by the trustees,) Also the dcatli of Charles Lord Cadogan in 1807, having by his will appointed Lord Orford, Hans Sloanc, and Joseph White, executors, Also a commission of lunacy, dated 30lh October, 1S08, against Charles Henry, I-larl of Caflogan, the son, and that Lord Orloril and Hans Sloane were aj)|j(jiiitc(i cummittccs ol' his person and estalcs, Also that Francis Chohnclcy, the son, (the demandant,) had attained the age of twenty-one years, and under tlie will of Sir H. Englefield was tlie first tenant in tail of the manors, &c. thereby devised. Also that Sir H. C. Englefield and I''ranris ("liolnuley were desirous that the estates, trusts, and powers given by the testator's will, which became vested in said Charles Ilrnry Earl of Cadogan, on (he decease of said Charles I^ord Cadogin, should he vested in new trustees. 366 Cholmeley v. Paxtox. T. T. 1828. It was enacted, that all and singular the manors, &c. (except such of (hem as had been sold,) should be vested in VVm. Cruise and Edward Jernin2;ham, Esqrs., their heirs and assigns; and that the said Lord Orfordand Hans Sloane should immediately assign to Cruise and Jer- ninfham the said sum of 12,500/. secured upon mortgage, and all the messuage, &c. comprised therein, and also transfer to Cruise and Jer- ninghanj, the said sum of 42S2/. 14*. 9d. 3 per cent, consolidated annu- ities, to the uses, and upon the trusts, &c. subsisting under the testa- tor's will, &c. The learned Judge directed the jury that the tenants had not establish- ed their allegation that the money was invested according to the direc- tions in the will, inasmuch as the will required that the money should not only be laid out with the consent of the tenant for life, but that such consent should be given by a deed attested by two witnesses, whereas no such attested consent had been proved as to the investment of the 13,400/.; and the 2448/. as not having been obtained by a sale, pur- suant to the directions of the will, could not be said to have been in- vested under the will. The jury found all the issues for the demandant, and particularly that the 244S/. had not been invested under the directions of the will. Peake Serjt., in Michaelmas term, moved to set aside this verdict, and have a new trial, on the ground that the evidence established the allegation in the ninth plea, and that the jury had been misdirected. Cross and Russell Serjts., who shewed cause, contended that the evi- dence failed to establish any consent by deed attested; that in the ab- sence of such consent the 13,400/. and the 2448/. had not been invest- ed pursuant to the directions of the will; that the issue, therefore, di- rectly raised the question as to that consent; and that consequently the direction given to the jury was right. The act of parliament did not alter the case, for it merely recited that the sales had been made, and the money invested, without sanctioning the investment, or shewing that it had been made pursuant to the directions of the will. They re- lied on the decision in the same case, ante, 3 Bingh. 207. Bosanquet, Peake, and Ludlow, Serjts., in support of the rule. Best C. J. The issue was properly left to the jury, and properly found by them. It is impossible to say that these monies were laid out according to the directions of the testator's will. Without discussing the question whether or not a deed attested was essential to the consent of Sir H. C. Englefield, it is sufficient to observe that one of the sums was not so much as invested by Lord Cadogan. In general, qui facit per alium, facit per se; but that maxim cannot be applied in the present case, for the legislature appointed new trustees, because the second Lord Cadogan was non compos mentis; and it is impossible to say that, if he had been in his senses, he might not, if applied to to make the invest- ment which was made by Sir H. C. Englefield, have refused to have done so, or to have attempted to patch up a transaction invalid from the beginning. The rest of the Court concurring, the rule was Discharged. 5 Bingham, 34. 367 HOLL and Another v. CAROLINE MARY HADLEY.— p. 54. Variance. Evidence that according to the custom of the trade the plaintiffs de- livered coals to N. H. daily, and that at the end of every month he gave a bill, payable in two months. Held, not sufficient to charge defendant upon a guarantee for the payment of coals to be delivered to N. H. at a credit of two months from the delivery. The plaintiflfs declared that by a certain memorandum of agreement made j between the plaintiffs and one Nathaniel Hadley the younger, and the defendant, — after reciting that the plaintiffs had for some time past supplied Nathaniel Hadley the younger with coals, on a credit of two months from the delivery, and having been requested to furnish coals to an increased amount, had declined to do so without having some security for the payment thereof, and that accordingly Nathaniel Hadley the younger had requested the defendant to become such securi- ty, which she had consented to do, — the defendant did thereby agree to and with the plaintiffs, that she would pay and discharge all such sums of money as might thereafter become due to them for coals sold by them to Nathaniel Hadley the younger, to any amount not exceeding 300/., in case Nathaniel Hadley the younger should not pay the same within one month after the expiration of the aforesaid credit of two months; and the plaintiffs thereby agreed to give the defendant a further period of three months for making good any claim, which they might have to make under the said guarantee, and which should be in equal propor- tions with Nathaniel Hadley and Charles Simpkin, who were also guar- antees for Nathaniel Hadley the younger. The plaintiffs, after an allegation of mutual promises to fulfil the agreement, averred a delivery of coals to Nathaniel Hadley the younger to a large amount upon the aforesaid credit of two months. Breach, that although as well the said credit, and the time for pay- ment of the price of the said coals by Nathaniel Hadley the younger to the plaintiffs, as also one month after the expiration of the said credit, had elapsed, heretofore, to wit, on, &:c. at, &c. yet N. Hadley the younger did not, although he was afterwards, to wit, on, &.c. at, &c. re- quested by the plaintiffs so to do, pay to the j)laintiffs, or either of them, the said sum of money so due and payable to the plaintiffs as aforesaid, or any part thereof, but wholly neglected and refused t^o to do, of all which premises the defendant afterwards, to wit, on, &c. at, &c. had notice; and although the said further period of three months from the expiration of the said credit of two months, and (he said further time of one month, for the defendant's making good the claim which the plaintiffs had under the said guarantee, had long since elapsed, and al- though the equal proportion of the said claim of the plaintiffs to be borne and discharged by the defendant in pursuance of the said agree- ment amounted to a large sum of money, to wit, the sum of .'300/., and the defendant afterward.s, to wit, cmi, &.c. at, &c. hail notice of the premises, and was then and tlicre requested by the jdaintifl's to pay them the said sum of .300/., yet the (h:rendant, not regarding her said agree- ment and her said promise and undertaking, liad not yet paiil. On the trial of the cause before licst C. J., at the sittings in London in Easter term last, the plainlilfs proved the agreement set forth in their de- claration, namely, a guarantee for coals to be supplied to the defendant's 368 CoATESu. Baindridge. T. T. 1828. brother on a credit of two montlis from the delivery. The plaintifls' witness who was called to prove the delivery of the goods, stated, that they were delivered according to the custom of the trade, which was, that coals were supplied to the dealer daily during the course of a month, and that on the last day of the month the dealer gave a bill at two months for the amount of the coals supplied in the course of that month, so that he had a credit of three months from the delivery of such of the coals as were supplied on the first day of the month, and more than two months' credit for every parcel of coals supplied, ^except such as might be delivered on the last day of the month. On the part of the defendant it was contended, that this was a dealing at variance with the express language of the guarantee, which was for a credit of two months from the delivery. On the part of the plain- tiffs it was urged, that the delivery being according to the custom of the coal trade, which must have been in the contemplation of the par- ties at the time the guarantee was executed, the whole supply of coals for each month must be considered as delivered on the last day of the month, which was a delivery within the terms of the guarantee. The plaintiffs, however, were nonsuited. JVilde Serjt. having obtained a rule nisi to set aside the nonsuit, on the grounds urged on the part of the plaintiffs at the trial, Bosanquet Serjt., who shewed cause, urged that the variance was material; for a large quantity of coals might be delivered on the first day of a month; the dealer might be solvent at the end of two months from that day, and insolvent before the expiration of three; so that by extending the credit in this way to three, the defendant's responsibility would be enlarged greatly beyond what she had stipulated for; and her agreement contained no mention of the custom of the trade. JVilde. It appears from the recital of the agreement to have been the intention of the parties that the supply of coals should be continued on the same footing as before; and the evidence shews that it was the course of dealing between the parties not to reckon the days of the cur- rent month, but to consider the coals as delivered all on the last day of the month. There is, perhaps, a latent ambiguity in the agreement, but the evidence has cleared it up. ^^^^ ^^^ ^^^^^ Best C. J. now said. With ever)' anxiety to get rid of the nonsuit in this case, we are of opinion it cannot be set aside. Rule discharged. COATES and Another, Assignees of PLASKETT, a Bankrupt, v. BAINBRIDGE and Others.— p. 58. Defendants' agents abroad, by order of defendants, received money on defend- ants' account, and stated the fact in a letter to defendants. Defendants repli- ed, acknowledging the receipt of the agents' letter, and giving them directions as to the disposition of the money : Held, that the agents' letter was, coupled with tlie defendants', admissible in evidence to charge the defendants with tlic receipt of the money. Action for money had and received by the defendants to the use of plaintiffs as assignees of Plaskett. 5 Bingham, 58. 369 At the trial before Best C. J., London sittings after Hilary term, a verdict was taken for the plaintiffs for 956/. 5s., subject to the opinion of the Court upon a special case, with liberty to turn it into a special verdict. Of this case it is only necessary for the purpose of the pre- sent decision to state the following facts, the Court having ordered sun- dry contested points on which tiiej' delivered no opinion, to be re-argued upon a special verdict. Thomas and Flaherty, merchants at the Cape of Good Hope, to whom Plaskett had been in the iiabit of consigning goods to be sold on his account, owed 1100/. to Plaskett before his bankruptcy, which took place on the 2d of November 1820. In September 1820, Plaskett was much pressed for payment by one Stevens, to whom he owed 1000/. Plaskett, therefore, gave him four bills of exchange for 250/. each, drawn on Thomas and Flaherty, at six, nine, twelve, and fifteen months, together with a letter of advice to them. After the act of bankruptcy, these bills were returned by Stevens to Plaskett, and cancelled, because by some mistake they did not corre- spond with the letters of advice, and Plaskett drew in lieu thereof four other bills on Thomas and Flaherty, at six, nine, twelve, and fifteen months, bearing date the 30th of October, but not in fact drawn till after the 2d of November. Stevens indorsed these bills to the defendants as a collateral security for a debt due to them from Stevens. In February 1821, defendants, at the request of Stevens, sent these bills with the letter of advice, and a letter of recommendation which they had procured, to Marsh and Cadogan at the Cape, with authority to present them to Thomas and Flaherty there. Marsh and Cadogan answered as follows: — "Gentlemen, — The arrival of the Antelope on the 11th ult. put us in possession of your favour of the 17th February last, enclosing the four bills drawn by Mr. John Plaskett on Messrs. Thomas and Flaher- ty, each for 250/,, at six, nine, and twelve months' sight. *' For these bills we have this day settled on the condition of interest deducted 4 3/. 15*., and of your guaranteeing tiiem against future liabi- lity on their payment. <'The sum thus paid to us this day, is rix dollars 11,475, being 95()/. 5.S., at 140 exchange. For the conversion of this currency, (less our commission,) we must wait necessarily until the first government draw- ing. "Hoping that this settlement may favour us with your approbation, we subscribe ourselves very truly, " Cape of Good Hope, Mausii and CAnn(;AN." "2d August 1821, "Messrs. Bainbridge and Brown, I>ondon." Immediately on the receipt of the above letter, the defendants inform- ed Stevens that the bills had boen ])aid to Mar.^b and rampany. The case in Lord Raymond, therefore, \» immediately in point. As to the bye-law's having had the sanction of the Chancellor and the Judges, the bye-law in the case just alluded to must have had that, for it is requisite to all. Ti)c bye-law there was to give a dinner to a company on a staled day, or pay a penalty; and it did not appear that any business was to be performed on the occasion: it was argued, ''the bye law is ill, because it is not said that this dinner was appointed to the end that the company should assemble and consult 376 Carteu v. Sanderson. T. T. 1828. of things beneficial to the corporation: it docs not appear but thia was only lor luxury:" to which the Court agreed, " as members of corpora- tions are npt bound to perform bye-laws unless they are reasonable; and the reasonableness of them is examinable by the Judges. Then this bye- law cannot be good in this case of a new corporation, because it docs not appear for what purpose the dinner was made, and it may be only for good fellowship." If that bye-law was bad, this must be bad also; the dinner not being required for any purj)ose but good fellowship. There is also an uncertainty as to what the master is to contribute, which is an essential defect in the law; but it is bad on another ground of no light importance, — tlic impolicy of multiplying oaths, — which ought not to be administered except on solemn occasions for the pur- poses.of justice. This law is enforced by a penalty of 20/., which a de- fiiulter must pay, unless he will degrade himself by swearing he is not ^vorth 300/.; an oatli which it is illegal to take, and illegal to adminis- ter. The oath which must be taken to excuse a man from serving the office of sheriff is necessary for the purposes of justice, in the adminis- tration of which the sheriff is deeply concerned; but it is not necessary that an oath should be administered upon the occasion of a dinner, for good fellowship. BuRRouGH J. (a) If this decision were to turn solely on the oath, I should have desired time to consider the point, because an oath is not unusual on similar occasions. But the declaration is bad for want of an averment that a due allowance had been made to the defendant in re- spect of the dinner; that allowance is a condition precedent by the very terms of the bye-law, for the kind of dinner must altogether depend upon the amount of the allowance. Gaselee J. I think the declaration is bad, for the reason assigned by my Brother BurroKgh. The party who was to provide the dinner was to have an allowance for so doing, and to provide accordingly; and the tender of the due allowance ought to have been averred. On the bye-law itself I give no opinion. I doubt whether we can, as it has been contended, judicially take notice of the proceedings on Lord Mayor's day, or of the companies that attend on the occasion in Westminster Hall. At all events, it might have been alleged in this declaration, that the company to which the defendant belongs was bound to attend, and that the dinner was provided in consequence of such at- tendance. On this bye-law, too, as laid in the declaration, the same person might be appointed to serve as steward every year; and if there be any restriction to such re-appointment, it ought to have been stated. I give no opinion on the point, whether justices of the peace should administer the oath which has been referred to, although I think it desi- rable that some other mode should be devised of establishing a right of exemption to serve the office of steward. Judgment for the defendant. {a) Park J. was absent. HENLY v. The Mayor and Burgesses of LYME.— p. 91. .\n individual who has sufievcd loss in consequence of the decay of sea-walls, which a corporation is directed to repair under the terms of a grant from the 5 Bingham, 91. 377 crown conveying a borough, and pier or quay with tolls, to the corporation, may sue the corporation for damages. Case, for neglect to repair sea-walls, per quod, &c. At the Dor- chester Spring assizes 1S2S, before Liilledale J., after the evidence had been gone through, a verdict was, by consent of counsel on both sides, taken for the plaintiff on the two first counts of the declaration. The first, stated, That on the 20th of June in the tenth year of Charles I., to wit, at the parish of Lyme Regis, in the county of Dorset, our said late sovereign by his certain letters patent duly sealed in that behalf, after reciting as therein was recited, did for himself, his heirs and suc- cessors (amongst other things) give, grant, and confirm to the maj'or and burgesses of Lyme Regis aforesaid, and their successors, the bo- rough or town of Lyme Regis; and also all that the building called the pier, quay, or cob, of Lyme Regis; with all and singular the lil)erties, privileges, profits, franchises, and immunities to the same town or to the same pier, quay, or cob in anywise howsoever belonging or apper- taining; to have, hold, and enjoy the aforesaid borough or town, and also all that the building aforesaid, called the pier, quay, or cob of Lyme Regis, with all and singular the liberties, franchises, privileges, and immunities, to the aforesaid mayor and burgesses of the borough afore- said, and their successors, to the only and proper use and behoof of them the same mayor and burgesses of the borough aforesaid, and their suc- cessors, in fee farm for ever; yielding of fee farm to our said late King Charles I. his heirs and successors, of and for the aforesaid borough or town, with its liberties and franchises, as in the said letters patent in that behalf mentioned; and our said late sovereign King Charles L did further of his abundant special grace, and of his special knowledge and mere motion, for himself, his heirs, and successors, pardon, remise, and release to the same mayor and burgesses of the borough or town afore- said, and their successors for ever, twenty-seven marks, parcel of thir- ty-two marks of the farm of the same borough and the liberties thereof, anciently by letters patent or in any other manner due; and did direct that the aforesaid mayor and burgesses of the borough of I^yme afore- said, and their successors, all and singular the buildings, banks, sea sliores, and all other mounds and ditches within the aforesaid borough of Lyme, or to the aforesaid borough in anywise belonging or appertaining or situate between the same borough and the sea, and also the said build- ing there called the pier, rpiay, or the cob, at their own costs and ex- penses thenceforth from time to time for ever, should well and sufli- ciently repair, maintain, and support as often as it should be necessary or expedient: and further, did grant to the aforesaid mayor and bur- gesses of the borough aforesaid, and their successors, that the mayor ol" the same borough for the time being for ever thereafter, should he clerk of the market within the borough or town aforesaid, and the liberties and precincts of the same; and that the mayor of the bnrongh aforesaid for the time being should do and excculr-, and might and shoidd be able to do and execute there for ever all and whatsoever lo the office of clerk of the market of our said late King Charles the First's household there pcrtaineil to be tione and performed, so neveitheless that the clerk of the market of our said late King Cliailes the First's liousehold for the time being, together with the aforesaid mayor for the; litnc being, might exercise the ofiicc above said, and intromit when he would fo do any thing wliich pertaincfl to the office of f lerk of the market there in the borough vol.. XV. 48 378 Ul.>ly <;. TnhMAToit of Ltmk. T. T. 1828. aforesaid, and the liberties and precincts of tlie same: and further, our said late King Charles the First for himself and his heirs and successors, did, by his said letters patent, give and grant to the said mayor and bur- gesses of the borough and town aforesaid, and their successors, all and singular the fines, amerciaments, and sums of money before the said clerk of the market of the town or borough aforesaid, or the clerk of the market of the said late King Charles the First, or his deputy, by either or any of the inhabitants of the borough or town aforesaid, after the date and making of said letters patent forfeited or thereafter to be forfeited and assessed in the same borough, to have and enjoy to the same mayor and burgesses of the borough aforesaid, and their successors, to the useoftheaforesaid mayor and burgessesand theirsucccssorsfor ever,of the said late KingCharlcs the First's gift, without account or any other thing for the same to our said late King Charles the First, his heirs or successors, in anywise howsoever to be rendered or paid, and to be levied by their own servants and ministers without estreats thereof to be sent to the ex- chequer of our said late King Charles the First: and, moreover, of his more ample special grace, and of his certain knowledge and mere mo- tion, our said late King Charles the First did will and by letters patent did for himself, his heirs and successors, give and grant to the said mayor and burgesses of the borough aforesaid, and their successors, full power, authority, and licence from time to time for ever to dig stones and rocks in any places whatsoever within the borough and parish of the town aforesaid, out of the sea and on the sea shore in the borough and parish aforesaid, adjoining to the said borough or town, for the reparation and amendmentof theportand building aforesaid, called the pier, quay, or cob, and other necessary reparations and common works of the same town and borougli, and belonging and appertaining to the building aforesaid: and our said late King Charles the First did also by his said letters patent will and grant to the aforesaid mayor and burgesses of the borough aforesaid, and their successors, that the same mayor and burgesses and their successors should have, hold, use, and enjoy, and might and should be able fully, freely, and entirely to have, hold, use, and enjoy for ever all the liberties, free customs, privileges, authorities, acquittances, and licences aforesaid, according to ihe tenor and eflectof said letters patent, without the let or impediment of said late King Charles the First, his heirs or successors whomsoever, our said late King Charles the First willing not that the same mayor and burgesses and inhabitants of the borough or town aforesaid, or either or any of them, by reason of the premises or either or any of them, should be thereof hindered, molest- ed, aggrieved, or vexed, or in any thing disturbed by him the said late King Charles the First, or his heirs, or by his or their justices, slierifls, escheators, or other the hailifTs or ministers of the said late King Charles the First, his heirs or successors whomsoever: which said letters patent the mayor and burgesses of the borough aforesaid, afterwards, to wit, on the same day, &c. to wit, at, &c. duly accepted, and the same thence hitherto have been and still are one of the governing charters of the said borough, to wit, at, &c. And plaintiff further said, that said mayor and burgesses from the lime of their acceptance of the said letters patent hitherto have had, held, received, and enjoyed all the benefits, profits, and advantages granted to them by such letters patent as aforesaid: That before and at the time of the committing of the grievances by defendants as thereinafter next mentioned, plainlifi" was lawfully po»- 5 BiKGHAM, 91. 379 sessed of and in divers, to wit, five messuages, five cottages, five build- ings, and divers, to wit, twenty closes of land with the appurtenances, situate and being in the county aforesaid, to wit, in the borough afore- said : That before and at the time of committing of the grievances by defen- dants as thereinafter next mentioned, divers, to wit, five other messu- ages, five other cottages, five other buildings, and divers, to wit, twenty closes of other land, with the appurtenance?, situate and being in the county aforesaid, to wit, in the borough aforesaid, were in the possession and occupation of divers persons as tenants thereof respectively to plain- tiff, the reversion thereof then and still belonging to plaintiff, to wit, at, &c. : All which said several messuages, cottages, buildings, and closes of land, with the appurtenances, before and at the time of the committing the several grievances by defendantsas thereinafter next mentioned, were abutting on or near the seashore there, to. wit, &c. : That before and at the time of the sealing of said letters patent, and the acceptance thereof as aforesaid, by said mayor and burgesses, and also at the time of the committing of the several grievances by defen- dants as thereinafter next mentioned, divers, to wit, ten buildings, ten banks, ten sea shores, and ten mounds, had been, and were then re- spectively standing and being within the borough of Lyme Regis afore- said, and divers, to wit, ten other buildings, ten other banks, ten other sea shores, and ten other mounds, had been, and respectively were be- longing and appertaining to said borough; and divers, to wit, ten other buildings, ten other banks, ten other sea shores, and ten other mounds, had been and were at those times respectively standing and being and situate between said borough and the sea, to wit, in the borough afore- said; all which said buildings, banks, and sea shores, and mounds re- spectively, at the times of the committing of the several grievances by the defendants, as thereinafter next mentioned, were near to, and then and there constituted and formed and were a protection and safe-guard, and still of right ouglit to form and be a [)rotection and safe-guard to the said several messuages, cottages, buildings, and closes of land of the plaintiff, with the appurtenances aforesaid, and then and there have hin- dered and prevented, and still of right ougiit to hinder and prevent, the sea, and the waves and waters tliercof, from running or flowing on, up- on, against, or over said several messuages, cottages, buildings, and closes of land last aforesaid: and all which buildings, banks, sea shores, and mounfls, defendants, at the times of the committing of the several griev- ances by them as thereinafter next mentioned, were, under and by vir- tue, and in pursuance of the aforesaid letters patent, and the acceptance thereof as aforesaid, liable to, and ought, at their own proper costs and charges, well and sufliriently to have repainul, maintained, and sii[)[)nrl- ed, and still are liable to, and ought, at tiieir own proper costs and charg- es, well and sufficiently to repair, maintain, and support, when and so often as it .should or might have been, or shall or may be necessary or expedient so to do, so as to prevent dam.itj;^ or injury to sn\(\ messuages, cottages, buildings, and closes of pl.iinlill, by the sea, or llie waves, or waters thereof, to wit, at, &c. Yet tlefendants, well knowing the premis- es, and not regarding the saifl letters patent, or their duty in that behalf, but contriving and wrongfidly and unjustly intending to injure, preju- •dice, and aggrieve thf plaintiff, and todrprive him of th« ii«p and hens- 380 He.nly v. Thk Mayor or Lyme. T. T. 1828. fit of his several messuages, collages, buildings, and closes first above nientioncd, and also to injure, prejudice, and aggrieve him, plaintiff, in his reversionary interest of and in said messuages, cottages, buildings, anil closes secondly above mentioned, so being in the possession and oc- cupation of the said persons as tenants thereof to him the plaintiff as aforesaid, and in which he, plaintiff, was so interested as aforesaid, there- tofore, to wit, on the 1st January 182 1, and from thence for along space of time, to wit, continually, until the commencement of this suit, to wit, at, &c., wrongfully and unjustly suffered and permitted the said build- ings, banks, sea shores, and mounds, to be and continue, and the same during all the lime aforesaid were ruinous, prostrate, fallen down, wash- ed down, out of repair, and in great decay, for want of due, needful, proper, and necessary repairing, maintaining, and supporting the same, to wit, at, &c., by means of which said several premises the sea, and the waves, and waters thereof, afterwards, to wit, on the same 1st January 1821, and on divers other days and times between that day and the com- mencement of this sui^, to wit, at, &c., ran and flowed with great force and violence in, upon, under, over, and against said several messuages, cottages, buildings, and closes of plaintiff, and in which he was so inter- ested as aforesaid, and thereby then and there greatly inundated, damag- ed, injured, undermined, washed down, beat down, prostrated, levelled, and destroyed the said several messuages, cottages, and buildings, and the materials of the same messuages, cottages, and buildings, together with divers, to wit, ten thousand carts load of the earth and soil; and di- vers, to wit, five acres of the said several closes were washed and carried away, to wit, at, &:c. By means of which said several premises, plain- tiff not only lost and was deprived of the use, benefit, and enjoyment of his said messuages, cottages, buildings, and closes in that count first above mentioned, but was also thereby then and there greatly injured, prejudiced, and aggrieved in his reversionary estate and interest of and in said several messuages, cottages, buildings, and closes in that count secondly above mentioned, so being in the possession and occupation of said persons as tenants thereof to plaintiff as aforesaid, and in which plaintiff was so interested as aforesaid; and plaintiff had been and was, by means of the premises aforesaid, otherwise greatly injured and dam- nified, to wit, at, &c. The second count stated, — that Charles the First, by his letters patent, <icce of land, consisting of about •l.'jO acres, by the slow, gradual, atul imperceptible projection, alluvion subsidence, and accretion of oo/e, soil, sand, and matter slowly, gradually, and impercepti- bly, and by im[)erceptible increase in long time cast up, deposited, and settled by and from llux and reflux of the lioe, and waves f)f the sea in, («) Tiie fa( ts and argnmcntb in thib case, and the decision of the Court of King's Bench, are in ". B. ifcC. 'Jl. 404 GiFFORD V. Lord Yarhouough. T. T. 1828. upon, and against thc'outside and extremity of the said demesne lands hath been iormed, and hath settled, grown, and accrued upon, and against, and unto the said demesne lands. Does such piece of land so formed, settled, grown, and accrued as aforesaid, belong to the Crown or to A., the owner of the said demesne lands? There is no local cus- tom on the subject." The Judges have desired me to say to your lordships that land grad- ually and imperceptibly added to the demesne lands of a manor, as stated in the introduction to your lordships' question, does not belong to the crown, but to the owner of the demesne land. All the writers on the law of England agree in this: that as the King is lord of the sea that flows around our coasts, and also owner of all the land to which no individual has acquired a right by occupation and improvement, the soil that was once covered by the sea belongs to him. But this right of the sovereign might, in particular places, or, under circumstances, in all places near the sea, be transferred to certain of his subjects by law. A law giving such rights may be presumed from either a local or general custom, such custom being reasonable, and proved to have existed from time immemorial. Such as claim under the former must plead it, and establish their pleas by proof of the ex- istence of such a custom from time immemorial. General customs were in ancient times stated in the pleadings of those who claimed under them: as the custom of merchants, the customs of the realm with reference to innkeepers and carriers, and others of the same description. But it has not been usual for a long time to allude to such customs in the pleadings, because no proof is required of their existence; they are considered as adopted into the common law, and as such are recognized by the Judges without any evidence. These are called customs, because they only apply to particular descriptions of persons, and do not affect all tlie subjects of the realm; but if they go- vern all persons belonging to the classes to which they relate, they are to be considered as public laws; as an act of parliament applicable to all merchants, or to the whole body of the clergy, is to be regarded by the Judges as a public act. If there is a custom regulating the right of the owners of all lands bordering on the sea, it is so general a custom as need not be set out in the pleadings or proved by evidence, but will be taken notice of by the Judges as part of the common law. We think there is a custom by which land from which the sea is gradually and imperceptibly re- moved by the alluvion of soil, becomes the property of the person to whose land it is attached, although it has been the fundus maris, and as such the property of the King. Such a custom is reasonable as regards the rights of the King, and the subjects claiming under it; beneficial to the public; and its existence is established by satisfactory legal evidence. There is a great difference between land formed by alluvion, and de- relict land. Land formed by alluvion must become useful soil by de- grees too slow to be perceived: little of what is deposited by one tide will be so permanent as not to be removed by the next. An embank- ment of a sufficient consistency and height to keep out the sea must be formed imperceptibly. But the sea frequently retires suddenly, and leaves a large space of land uncovered. When the authorities relative to these subjects are considered; this 5 Bingham, 163. 405 difference will be found to make a material distinction in the law that applies to derelict lands, and to such as are formed by alluvion. Un- less trodden by cattle, many years must pass away before lands formed by alluvion would be hard enough or sufiiciently wide to be used bene- ficially by any one but the owner of the lands adjoining. As soon as alluvion lands rise above the water, the cattle from the adjoining lands will give them consistency by treading on them; and prepare them for grass or agriculture by the manure which they will drop on them. When they are but a yard wide the owner of the adjoining lands may render them productive. The lands which are of no use to the King will be useful to the owner of the adjoining lands, and he will acquire a title to them on the same principle that all titles to lands have been acquired by individuals, viz. by occupation and improvement. Locke in a passage in his Treatise on Government, in which he de- scribes the grounds of the exclusive right of property, says: " God and man's reason commanded him to subdue the earth; that is, improve it for the benefit of life, and therein lay out somethmg upon it that was his own, his labour. He that in obedience to that command subdued, tilled, and sowed any part of it, thereby annexed to it something that was his property which another had no title to, nor could without in- jury take from him." This passage proves the reasonableness of the custom that assigns lands gained by alluvion to the owner of the lands adjoining. The reasonableness is further proved by this, that the land so gained is a compensation for the expense of embankment, and for losses which frequently happen from inundation to the owners of lands near the sea. This custom is beneficial to the public. Much land which would re- main for years, perhaps for ever, barren, is in consequence of this cus- tom rendered productive as soon as it is formed. Although the sea is gradually and imperceptibly forced back, the land formed by alluvion will become of a size proper for cultivation and use; but in the mean time the owner of the adjoining lands will have acquired a title to it by improving it. The original deposit constitutes not a tenth part of its value, the other nine-tenths are created by the labour of the person who has occu- pied it; and, in the words of Locke, the fruits of his labour cannot, without injury, be taken from him. The existence of this custom is established by legal evidence. In liracton, book 2. cap. 2., there is this passage: ''Item, quod per allu- vioncm agro tuo flumen adjecit, jure gentium tibi acquirilur. Est au- tcm alluvio latens incrementum; et per alluvionem adjeci dicitur quod ita paulatini adjicitur fiuod intcUigerc non possis fjuo inoincnto teniporis adjiciatur. Si autem non sit latens incrementum, coulrarium erit. " In a treatise which is published as the work of Lord Ilale, treating of this passage, it is said: "that Bracton follows in this the civil law writers; and yet even according to this the common law doth regularly hold between parties. J5ut it is douljtful in case of an arm of the sea.(a) It is true that liiacton follows the civil law, for the passage above quoted is to be found in the same words in the Institute, lib. 2. tit. 1. s. 20. But Br.'icton, by inserting this passage in his book on the laws and customs of England, presents it to us as part of (hose laws and (rt) Hale do jwrc Maris, p. 28. 406 (liiFOiii) V. Lord Yauhouough. T. T. 1828. ciislonis. Lord Hale adniils that it is the law of England in cases be- tween subject and subject; and it would be diilicult to lind a reason why the same question between the crown and a subject should not be de- cided by the same rule. Bracton wrote on the law of England, and the situation which he fdled, namely, that of Chief Justice in the reign of Henry the Third, gives great authority to his writings. Lord Hale in his History of the Common Law (cap. 7.), says, that it was much im- proved in llie time of Bracton. This improvement was made by in- corporating nuicli of the civil law with the common law. We know that many of the maxims of the common law are borrowed from the civil law, and are still quoted in the language of the civil law. Notwithstanding the clamour raised by our ancestors for the restoration of the laws of Edward the Confessor, I believe that these and all the Norman customs which followed would not have been sufficient to form a system of law sufficient for the state of society in the times of Henry the Third. Both courts of justice and law writers were obliged to adopt such of the rules of the digest as were not inconsistent with our principles of jurisprudence. Wherever Bracton got his law from, Lord Chief Baron Parker, in Fortescue408, says, *' as to the authority of Bracton, to be sure many things are now altered, but there is no colour to say it was not law at that time. There are many things that have never been altered, and are now law." The laws must change with the state of things to which they relate; but, according to Chief Baron Parker, the rules to be found in Bracton are good now in all cases to which those rules are applicable. But the authority of Bracton has been confirmed by modern writers, and by all the decided cases that are to be found in the books. The same doctrine that Brac- ton lays down is to be found in 2 Roll's Abr. 170; in Com. Dig. tit. Prerogative, (D. Gl.); in Callis, (Broderip^s edition,) p. 51; and in 2 Blac. Com. 261. In the case of fhe Abbot of Peterborough, Hale de jure Maris, p. 29, it was holden: "quod, secundum consuetudincm patriae, domini maneriorum propc mare adjacentium, habebunt marettum et sabulonem per fluxus et refluxus maris per temporis incrementum ad terras suas costerae maris adjacentes projecta." In the treatise of Lord Hale it is said, *' here is custom laid, and he relies not barely on the case with- out it." But it is a general, and not a local custom, applicable to all lands near the sea, and not to lands within any particular district. The pleadings do not state the lands to be within any district, and such a statement would have been necessary if the custom pleaded were local. The consuetude patriae means the custom of all parts of the country to which it can be applied; that is, in the present case, all such parts as adjoin the sea. The case of The Kirigy. Oldsworth{a) confirms that of the Abbot of Peterborough as to the right of the owner of the adjoining lands to such lands as were ''secundum majus et minus prope tenementa sua projecta."(i) That case was decided against the owner, because he also claimed derelict lands against the crown. Here it will be observed that there is a distinction made between lands derelict and lands formed by alluvion: which distinction, I think, is founded on the principle that 1 have ventured to lay down, namely, («) Hale dc jure Maris, p. li. (6) Id. p. 29. 5 Bingham, 163. 407 that alluvion must be gradual and imperceptible, but the dereliction of land by the sea is frequently sudden, leaving at once large tracts of its bottom uncovered, dry, and fit for the ordinary purposes for which land is used. But still what was decided in this case is directly appli- cable to the question proposed to us. The Judges are, therefore, war- ranted by justice, by public policy, by the opinions of learned writers, and the authority of decided cases, in giving to your Lordships' ques- tion the answer which they have directed me to give. My Lords, the answer to your Lordships' question is the unanimous opinion of all the Judges who heard the arguments at your Lordships' bar. For the reasons given in support of that opinion I alone am re- sponsible. JNIost of my learned Brothers were obliged to leave town for their respective circuits before I could write what I have now read to your Lordships. I should have spared your Lordships some trouble if I had had time to compress my thoughts; but I am now in the midst of a very heavy Nisi Prius sittings, and am obliged to take from the hours necessary for repose the time that I have employed in preparing this opinion. If it wants that clearness of expression which is proper for an opinion to be delivered by a Judge to this House, I hope that your Lordships will consider what I have stated as a sufficient apology for this defect. The Lord Chancellor. My Lords, I beg to express my thanks to the learned Chief Justice, and to the Judges, for the attention they have paid to this subject; and I have only to add that I entirely concur in the conclusion at which they have arrived; and I would recommend to your Lordships, as a necessary consequence of the opinion which has been expressed, that the judgment of the Court of King's Bench upon the matter should be affirmed. Earl of Eldon. My Lords, I heard only part of the argument, and therefore I have some difficulty in stating my opinion in this case; but having had my attention called to sul)jects of the same nature on former occasions, it does appear to me, I confess, after reading the fmding of the jury, that the opinion of tiie Judges must be that which the learned Chief Justice has now expressed. I therefore concur in the opinion the Lord Chief Justice has expressed. Judgment affirmed. KN1> ()!■• TIUNITV TI'.KM. CASES ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS, AND OTHER COURTS, IN MICHAELMAS TERM, In the Ninth Year of the Reign of George IV.— 1828. GULLY and Others v. BISHOP of EXETER and BOWLING.— p. 171. 1. Where a bishop has omitted to present to a living lapsed to him for want of presentation within six months, a party who may present, if the bishop omits to do so, is not a competent witness for one who claims in the same right as such party. 2. A conveyance of a fourth part of an advowson in 1672, is not to be deemed voluntary, because the only pecuniary consideration expressed in the deed is twenty shillings. 3. An answer in Chancery, touching an advowson, filed by one who had been seised of the advowson, twenty years after he had conveyed it away, Held, not admis- sible in evidence against a party who claimed the advowson through him. VALE and Others, Vouchees. — p. 176. "Where one of the vouchees became insane between the time of executing the war- rant of attorney and the passing of the recovery, the Court refused to let it pass as to him, but permitted it as to the other parties. MACKIEv. WARREN— p. 176. The Court will not discharge a defendant from custody under a ca. sa. on the ground that he has been before irregularly taken and discharged under criminal process at the instance of the plaintiff. Ludlow Serjt. moved for a rule nisi to discharge the defendant from custody under a ca. sa. in this suit, on the ground, that some weeks before, he had been, at the instance of the plaintiff, apprehended under criminal process, irregularly issued, and then set at large, upon 5 Bingham, 177. 409 the irregularity being discovered, the plaintiff paying the costs. Ludlow urged, that the defendant could not have been retaken if he had been discharged after arrest on a ca. sa., and that he ought to be equally exempt after discharge from the criminal process. But The Court, admitting, that if the defendant had been discharged after he had been once regularly taken, he could not be taken again for the same cause, refused the rule, on the ground that the first taking here was altogether irregular; and Liid lota Took nothing. CHURCHILL and Another, Assignees of CADOGAN, a Bankrupt, V. CREASE— p. 177. 1. A payment made in June 1825 by a debtor, bona fide, without intention of fraudulent preference, eight days before a commission of bankrupt was issued against him. Held to be protected under the eightv- second section of 6 G. 4. c. 16. 2. The debtor, a prisoner, went, eight days before a commission of liankrupt was sued out against liim, to a fire-ofhce, to receive money, payable to him in respect of a loss by fire; * creditor, for labour done, who knew the time when the money was to be paid, without any intimation from the debtor, met him at the office, and obtained out of tlic sum so received, payment of his own debt, not knowing that his debtor was a prisoner or insolvent, a jury having negatived fraud, lield, that this was not a fradulent preference by the debtor. HENMAN V. DICKINSON.— p. 183. Where a party sues on an instrument which, on the faCe of it, appears to have been altered, it is for iiim to shew that the alteration has not been improperly made. This was an action brought to recover the amount of a bill of exchange, purporting to have boon drawti Ihc 29th of February 1828, for 19/. 17*. Gi/.. by one (ieor;;c Potter, ace :ptod by the defendant, and iiulorsed to the plaintitr, but appi-aring ou the face of it to have undergone altera- tion. On the trial of the cause before I>r.fl ('. J. London sittings after Trinity term, the wife of the drawer staled tiiat tb(; bill was drawn ou tiie 'J'Jil February 1828, that it was accx'ptcd on the 22d, for 10/. 1 7.v. fir/., and Hotter in her presence altered tiic bill to 4f»/. IT.v. Hr/. al)OMt ciuiht days briforc be indorsed Jt to the plaintilf. This evidence was objected to, and the [)oiiit was reserved; but the learned ('biff Justice thinkinu;, (bat where therr; a|)pcared an alteration on liie face of a bill of (•x<'b;Mi;j;(', the ouus of proof to shew that such alteration had not b(!en made since it was accej)ted, lay with tlic plaintifl, a verdirt was fqund for the defendant, with leave for the plaintiff to move to set it aside.* 7\ff/t/i/Srrj\. now moved accordingly, on the ground that Mrs. Totter bad proved a forgery, and that a wife could not be permitted to give evi- dcnfo to crimiinti- bf-r husliand. /ir.r v. Ciioiitr;ilors have exceeded their authority in ordering payment by the defendant; at all events, in ordering payment without finding or requiring evidence of assets. The pleas, therelorc, are not affected by the cases relied on for the plaintill, for in all those cases the submission was substantiallv of all matters in (Iil1ereiic(;, and Pearson v. Henry is in point for the defendant. He also cited Love V. Honryhournc, 4 Dowl. & Ityl. vS14. But tlie declaration is ill; for the action being against an executrix is improperly conceived in de.bt. 1 Wms. Saund. t»y. note 2. Pinchon^s case, 9 Rep. 87 b. Russell in reply, cited Kins; v. Jfilliayns, 4 Powl. &: Ryl. M. Bkst C. J. This is an actir)n ot" debt ai;ainst the defendant as execu- trix of Sutton, on an award which has proceeded on her submission. VOL. XV. 53 418 R FDD ELL V. Sutton. M. T. 1828. It hfls been objected on her part, first, tliat the action of debt does not lie against an executor: but the principle on which that has been decided is, that an executor cannot wage his law of a debt contracted by his tes- tator; it does not apply, therefore, to a case like the present, where the undertaking to pay has originated with the representative, who is there- fore better acquainted with the transaction than the testator could have been. It has been contended, secondly, that a plea of plene administravit is a good answer to the plaintifl's demand; I think it is not. The case of JRobson V. , contains all the good sense that bears on the subject: if a reference be submitted to by an executor, and he does not protest in the first instance that he has no assets, he should not be afterwards allowed to say so, because in that case the opposite party will have been put to the expense of an arbitration to no purpose. The arbitration should be placed on the same footing as an action, in which, if an executor omit to plead that he is without assets, he cannot afterwards set up that ground of defence. There is no ground for asserting that the arbitrator's authority was in this case limited to the investigation of accounts and finding a balance. The agreement set out in the declaration recites, that disputes and dif- ferences were depending between the plaintiff and defendant respecting certain unsettled accounts, and that iox finally settling such disputes and differences, it was agreed that the said matters in dispute between the parties should be referred to the final award and determination of the arbitrators. But the arbitrators could not finally settle the disputes between the parties by merely finding a balance. The allegation that no evidence of any assets was tendered to the ar- bitrators, cannot be the subject of a plea. For aught that appears on the plea in which this is alleged, the possession of assets might not have been disputed; and if the arbitrators have misconducted themselves, that is ground for another mode of proceeding. Our judgment must be for the plaintiff. Park J. 1 have no doubt in this case. The third plea goes chiefly to shew misconduct in the arbitrators, which ought, if it existed, to be the subject of an application to the Court, and not of a plea. But look- ing at the recital in the submission, and at the vi^hole of the case, I think it clear that the defendant admitted assets, and submitted to a final set- tlement of all disputes: that could not be but by paying what should be found due. BuRROuGH J. There could be no wager of law in this case, the cause of action being a written agreement^ which is set out in the first count. The arbitrators had authority to decide in the manner they have done, and to award payment. The pleas are a mere experiment. Gaselee J. I thought the point too clear to be argued, and am still of opinion that the plaintiff is entitled to judgment. The objection on the ground of wager of law does not apply, because this action is not brought on a contract of the testator's. With regard to the question of assets, the defendant, by submitting to a reference, without protesting that she was not furnished with assets, must be taken to have left the mode of payment to the consideration of the arbitrator. Judgment for the plaintiff. 5 Bingham, 208. 419 AMNER and Another v. CATTELL.— p. 208. The Court discharged a rule for changing the venue, on an affidavit that the de- fendant's attorney had said he should change the venue to postpone the trial, and (which was the fact), that in the interim, an act would come into opera- tion which would defeat the plaintiff's claim. Gaselee J. dissentiente. Indebitatus assumpsit, to which the defendant pleaded the statute of limitations, and the plaintiff replied that the cause of action accrued within six years. Adams Serjt. having obtained a rule nisi, on the part of the defen- dant, to change the venue from London to Warwick, on the usual aflBi- davit, Merewether Serjt, shewed cause upon an affidavit of the plaintiff's at- torney, which stated that he had, upon commencing the action, written to the defendant's attorney, informing him of the defendant's admissions and promises of payment of the debts sought to be recovered; that he afterwards called on the defendant's attorney for his undertaking for the appearance of the defendant, when the attorney informed him that Lord Tenterden's act came into operation on the 1st of January, and that he should change the venue, and beat the plaintifl, as he had no promise in writing. The learned Serjeant contended that it was evident the defendant did not seek to change the venue, because the cause of action arose in Warwickshire, or to further the purposes of justice, but because the trial would by such change of venue be postponed to a period at which the plaintiff's claim might be defeated by a law coming into operation after the commencement of his action. The object of permitting a change of venue was to advance the ends of justice; and where such a design as the present was made manifest, the Court would best consult the ends of justice by discharging the rule. Adams. The rule for changing the venue has, hitherto, been always granted as a matter of right, unless the opposite party will undertake to give material evidence in the county from which it is proposed to remove the cause. It is, therefore, unnecessary to enter into tiic alleged conversation on the subject of the new statute; but if that statute were passed for the furtherance of the ends of justice, by setting disputes at rest after a certain lapse of time, the defendant's intention, as alleged, is in furtherance of the statute, and has notliitig in it opposed to the ends of justice. At all events, he should be allowed to answer an affidavit so out of the usual course on such a rule. Best C. J. I think the venue ought not to ho changr-d in tliis case; hut, in discharging the application, the Court does nothing inconsistent with the provisions of the new act; on the contrary, it falls in with the in- tentions of the legislature, because it was with a view to prevent an ex post facto operation with respect to suits already commenced, that the period of the act's coming into force, was postponed till six months af- ter it passed. To make tiiis rule absolute would be, in effect, to put off the trial till afl<;r the next term, while, if it wore tried after the pre- sent term, the plaintiff miglit snceed on a parol promise, which when the act came into operation might f)rov«j iiisiifficiefit ; though upon tit.tt point I abstain from pronouncing any ')pinion: hut aitin;; on the spirit of the poslj)oning clause, \vc might not to prevent the plaintiff fiom 420 Amnku v. Catteli.. M. T. 1828. li yiiig Jiis cause, il lio be enabled to do so, within the time limited by the act for the continuance ol' the oUl law. I do not agree that no cause can be shewn against a rule of this sort, but undertaking to give material evidence in the county from which it is sought to remove the venue. I have often heard other causes shewn; and where it appears that justice cannot be had if the venue is changed, il ouglit not to be changed. Supposing a piaintifi'to rely on a promise, which would be available but for the postponement of a trial, it would be doing injustice to post- pone it. I think, therefore, this rule ought to be discharged. Pauk J. I am of the same opinion; and I agree that upon motions of this kind other causes may be shewn against the rule, besides under- taking to give material evidence in the county from which it is sought to remove the venue. In the King's Bench they are made the subject of a separate motion, but in this Court they may be brought forward in shewing cause against the original rule. With respect to the new statute requiring a written promise to render a party liable in respect of a debt extinguished by the statute of frauds, no one approves of it more than I do. But, in seeking to further the object of that statute, we must be careful not to do injustice. When the legislature gives six months before allowing the act to come into operation, it indicates an intention to enable parties, now relying on parol promises, to sue on them effectually. The plaintiff, for that purpose, lays his venue in London, where his cause will come to trial before the six months have elapsed; the defendant seeks to defeat the claim by removing the cause to Warwick, and we should be lending ourselves to injustice if we were to assist him in his attempt. BuRROUGH J. thought the defendant had a right to change the venue as a matter of course, unless the plaintiff undertook to give material evidence in the county in which it was first laid; and that if the plain- tiff had any malpractice to complain of, he should make it the subject of a separate motion, in which the defendant might answer his affida- vits. It would lead to great inconvenience if he could, on the defend- ant's motion, prevent the change of the venue by an affidavit which the defendant had no opportunity of answering, and which might be all false. Upon the present occasion he proposed tliat the defendant's attorney should be allowed to answer the affidavit of the plaintiff's attorney, but was willing to concur in discharging the rule, if such affidavit should not prove to be an answer to the former. Gaselee J. I think this lule ought to be made absolute, although I agree that the plaintiff on shewing cause may allege other matters, be- sides an undertaking to give material evidence in the county where he has l;ii(l the venue, and tiiat we may, where it is requisite, permit the defendant to answer the matters in the plaintiff's affidavit. But we are to consider the law as it now stands, and not to look at an act which is not yet come into operation; and under the law as it now stands the phiintiff has shewn no cause why the venue should not be changed. But, even with rcsjjoct to the new law, if we were to discharge the de- fendant's rule, we should, contrary to the spirit of the act, encourage suits upon every parol promise made since last May. The Court then jiorniiUcd the defendant's attorney to answer the aflidavit of the piaiuliff's alloriifv; but the answer not containing, in 5 Bingham, 212. 421 the opinion of the Court, an explicit denial of the language ascribed to him in the affidavit of the plaintiffs attorney, the rule was Discharged. MACKLIN V. WATERHOUSE, CLENCH, and L. 0. WEEKS.— p. 212. A notice that the proprietor of a general coach-office will not be responsible for the carriage of parcels of more than 5/. value, unless entered as such, will not avail the proprietor of a coach who takes a parcel from the office, unless it be otherwise shewn that he is connected with the office. 2. The carrier's agent telling the female servant of the owner of a parcel above that value, that it ought to be insured. Held, not a sufficient notice of the lim- itation of the carrier'b responsibility. The plaintiff declared, that whereas he, at the special instance and request of the defendants, had caused to be delivered to them, on, &c. at, &c., and the defendants had then and there received into their care and custody a certain package or parcel containing divers promissory notes, for the payment of divers sums of money to bearer on demand, and divers pieces of current coin of the realm, of great value (sc. 49/.), to be safely and securely carried and conveyed by the defendants, by a certain conveyance called the Exeter mail, from Salisbury to London, and at London to be safely and securely delivered for the plaintiff, for certain reasonable hire and reward to the defendants in that behalf, yet the defendants, not regarding their duty in that behalf, did not safely or securely carry or convey, or cause to be carried or conveyed, by the said conveyance called the Exeter mail, or in any other manner, the said package or parcel and its contents, from Salisbury to London, nor at London safely or securely deliver the same for the plaintiff; but so neg- ligently and improperly behaved and conducted themselves in the pre- mises, that by and through the negligence, carelessness, and default of the defendants in the premises, the package or parcel aforesaid, and its contents of the value aforesaid, became and were wholly lost to the plaintiff, to wit, at, &.c. There was a second count in trover. Plea, not guilty. At the trial before Best C. J., London sittings after Easter term, it appeared that the defendants were |)roprietors of the mail-coach running from Exeter through Salisbury to Loiulon: That the |)Iaintiir'3 agent sent his female servant with a parcel con- taining country bank-notes and sovereigns, amounting in value to lU/.^ to a coach office in Salisljury, kept l»y one Weeks; on the outside oT which was painted «' Weeks's mail and general coach-offirc:" but whether he was Weeks, one of the defendants, did not a|)pear: The servant stated, thak.-8he told the office-keeper it was a parcel of consc- f|uenrp; a parcel of value, though she did not know of what value; and the office-keeper said, he lhereuj)on told her it must be in.suied. It was booked for London, however, and not insured. The following notice was suspended in the office: — "Take notice: the proprietor of this office will not be arcouiil.ible fur any pnrcid or package exceeding the value of live pounds, unlc^.'5 entered as such, and paid for accordingly. '' 422 Riley v. Horne. M. T. 1828. The plaintiff and his agent were aware of this notice in Weeks'* office. Tlie parcel was forwarded to London by the defendants' coach; and ill London it was, according to an admission of one of the defendants, stolen by a boy appointed by them to watch that and other parcels. No account was given by the defendants of the boy's character when they took him into their service. On the part of the defendants, it was objected by Wilde Serjt. that evidence of a loss by felony did not sustain the allegation in the decla- ration, that the parcel was lost by negligence; especially as the defend- ants were not charged as common carriers: that the statement of their contract ought to have been accompanied with a statement of the notice by which they had limited their responsibility; Latham v. Rutley, 2 B. & C. 20: and that, at all events, the notice was sufficient to exonerate them from liability for any loss, that did not occur through gross negli- gence. The question on this point was reserved; and the jury, under the direction of his Lordship, found for the plaintiff. They found also, that there had been no negligence or concealment on his part, and that there had been negligence on the part of the de- fendants. Wilde Serjt. having, upon the foregoing objections, obtained, in Trinity term, a rule nisi to set aside this verdict, and enter a nonsuit, or have a new trial instead, Taddy Serjt. shewed cause, and cited Clarke v. Gray, 6 East, 564; Smith V. Horne, 8 Taunt. 146; Beck v. Evans, 16 East, 247; Brooke V. Pickwick, 4 Bingh. 218. Wilde {Spankie Serjt. was with him) referred to Newbond v. Just, 2 Carr. &P. 76; Harris v. Packwood, 3 Taunt. 264; Marsh v. Horne, 5 B. & C. 322; Nicholson v. Willan, 5 East, 507; Lowe v. Booth, 13 Price, 329; Bodenham v. Bennett, 4 Price, 31; M'AIanusv. Crickett, 1 East, 106; Cro/t v.^/llison, 4 B. & A. 590; Finucane v. Sinall, 1 * ' ' , Cur. adv. vult. For the judgment, sec the end of the next case. RILEY and Others v. HORNE and Others.— p. 217. Semble, that where carriers run a coach from A. to B. and back, notice that ihcj limit their responsibility on the carriage of parcels from A. to B., is notice that thev limit it likewise from B. to A. Case against the defendants as common carriers, for negligence in losing goods entrusted to them to be safely conveyed by them from Kettering to London, and there to be delivered to the plaintivSj for reward to the defendants in that behalf. Plea, not guilty. At the trial before Best C. J., London sittings after Hilary term 1828, it appeared that the plaintiffs were silk-weavers residing in London, and carrying on business there and at Kettering: that the defendants' coach ran from the George and Blue Boar, London, to Kettering and back: that at the George and Blue Boar there was a notice, that the proprietors of coaches which set out from that office would not be responsible for goods above the value of 5/., unless entered as such, and paid for accord- 5 BlNGHAM; 217. 423 ingly: that the plaintiffs were aware of this notice, and in the habit of sending goods up and down by the defendants' coach: that the goods in question, silks, to the value of about 46/., were delivered to the defend- ants by the plaintiffs' servant, at the defendants' office at Kettering, to be conveyed to London, and that the servant saw no such notice in the office at Kettering: that the goods were never delivered to the plain- tiffs. The learned Chief Justice, thinking the notice in the office at the George and Blue Boar, of which the plaintiffs were cognizant, applied only to the journey out to Kettering, and not to the journey back, a ver- dict was found for the plaintiffs, with leave for the defendants to move to set it aside. Andrews Serjt. obtained a rule nisi accordingly, in Easter term, on the ground that the plaintiffs, having an establishment at Kettering as well as in London, must be presumed to have known that the coach which came from Kettering was that which set out from the George and Blue Boar; if so, they were bound by the contents of the notice at that office. In Mayhexo v. Eames, 3 B. & C. 601, an agent employed by a commercial house in London to collect debts in the country, delivered a parcel containing bank-notes to a common carrier, to be forwarded to his principals in London : which parcel was lost. The carriers had given notice that they would not be accountable for parcels containing bank- notes. The agent had no knowledge of such notice, but the principal had. It was holden, that it was their duty to have instructed their agent not to send bank-notes by that carrier, and that the latter was not re- sponsible. Wilde Serjt. shewed cause. In Mayhew v. Eames, the plaintiffs knew that the coach which brought their parcel from the country was the coach which started from an office in London, where the carrier's liability was limited by notice. There was no proof here that the plain- tiffs knew that the coach from Kettering was the coach which started from the Georee and Blue Boar. r^ j t, ° Cur. adv. vull. Best C. J. In a state of society such as that we live in, — in which we are supplied with the necessaries and conveniences of life by an inter- change of the produce of the soil and industry of every part of the world, — so much property must be entrusted to carriers, that it is of great importance that the laws relating to the carriage of goods should be rendered simple and intelligible; and that they should be such as to provide for the safe conveyance of property, and at the same time protect the carrier against risks, the extent of which he cannot know, and, therefore, cannot determine what precautions are proper for his security. Fearful of laying down any rule which might be injurious either to the public or to those most useful servants of the public, cominon carri- ers, we thought it right to avail ourselves of the leisure afforded us by the long vacation, to consider the cases of KiUy v. Home and Macklin v. IVdterhorisc. When goods are delivered to a carrier, they are usually no longer under theeye of the owner; he seldom follows or sends any servant with them to the place of their destination. If they should be lost or injured by the grossest negligence of the carrier or his servant.^, or stolen by them, or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss; his witnesses must be the carrier's ser- 424 Riley v. Horni;. M. T. 1828. vants, and they, knowing that ihey could not he contradicted, would excuse their masters and themselves. To give due security to property, the law has added to that responsi- hility of a carrier, which immediately rises out of his contract to carry for a reward, namely, that of taking all reasonable care of it, the respon- sibility of an insurer. From his liability as an insurer, the carrier is only to be relieved by two things, both so well known to all the country when they happen, that no person would be so rash as to attempt to prove that they had hap- pened when they had not — namely, the act of God and the King's ene- mies. As the law makes the carrier an insurer, and as the goods he carries may be injured or destroyed by manj'^ accidents against which no care on the part of the carrier can protect them, he is as much entitled to be paid a premium for his insurance of their delivery at the place of their destination, as for the labour and expense of carrying them there. In- deed, besides the risk that he runs, his attention becomes more anxious, and his journey is more expensive, in proportion to the value of his load. If he has things of great value contained in such small packages as to be objects of theft or embezzlement, a stronger and more vigilant guard is required than when he carries articles not easily removed, and which offer less temptation to dishonesty. He must take what is offered to him to carry to the place to which he undertakes to convey goods, if he has room for it in his carriage. The loss of one single package might ruin him. By means of negociable bills, immense value is now compressed into a very small compass. Parcels containing these bills are continually sent by common carriers. As the law compels carriers to undertake for the security of what they carry, it would be most unjust if it did not afford them the means of knowing the extent of their risk. Other insur- ers (whether they divide the risk,, which they generally do, amongst several different persons, or one insurer undertakes for the insurance of the whole,) always have the amount of what they are to answer for speci- fied in the policy of insurance. If the extent of risk is ascertained in cases in which persons are not obliged to insure, and if they do insure may fix their own rate of premi- um, there is greater reason for ascertaining it where one is compelled to become an insurer, and can only charge what the magistrates in sessions, if they think proper to settle the rates of carriage, will allow under the statute of William and Mary, and where no such rates are made, what a jury shall think reasonable. It would be inconvenient, perhaps impos- sible to have a formal contract made for the carriage of every parcel in which the value of the parcel should be specified, as well as the price to be paid for the carriage. But it would add very little to the labour of the book-keeper if he entered the value of each package, and gave the per- son who brought it a written memorandum of such entry, like the slips now made on an agreement for a policy of insurance. The giving of such memorandums would entirely put an end to the litigation which the notices of carriers now give occasion to, and would make the practice of carriers, as nearly as circumstances will permit, con- formable to that of all other insurers. Perhaps such memoranda might bring the parties within the reach of the stamp laws; and the apprehen- sion of this may have prevented carriers from adopting a practice so et- 5 Bingham, 217. 425 fectual for their security, and have driven them to the expedient of giv- ing notices that they will not be answerable beyond a certain sum, unless the parcels are entered and paid for as parcels of value. In Batson v. Donovan, 4 B. & A. 21, the Court of King's Bench considered a notice of this sort, the knowledge of which was brought home to the party sending goods, as equivalent to a request on the part of the carrier to know the value, and that it made it the duty of the owner of the goods to apprise the carrier that the parcel was of value. The legislature would probably think, if its attention were called to the subject, that a stamp-duty on contracts relative to inland carriage would be a very heavy and very inconvenient tax, and would remove the objection to written evidence of such contracts. A carrier has a right to know the value and quality of what he is re- quired to carry. If the owner of the goods will not tell him what his goods are and what they are worth, the carrier may refuse to take charge of them; but if he does take charge of them, he waives his right to know their contents and value. It is the interest of the owner of goods to give a true account of their value to a carrier, as in tlie event of a loss he cannot recover more than the amount of what he has told the carrier they were worth; and he cannot recover more than their real worth, whatever value he may have put on them when he delivered them to the carrier. It was decided in Gibbons v. Paynton, 4 Burr. 2298, that any arti- fice made use of to induce a carrier to think that a parcel of jewellery contained only things of small value, would prevent the owner from re- covering for the loss of his parcel. In Kenrigg v. Eggleston, Al. 93, it was held that the owner was not required to state all the contents of the parcel, but it was for the carriers to make a special acceptance. In Tyly and Others v. Morrice, Carth. 4S5, in which the preceding case is recognised and confirmed, it is snij that the true principle is, that the carrier is only liable for what he is fairly told of. In Titchbiirne v. IVhite, Str. 14.5, it was determined that a carrier is answerable for money, althougli he was not told that the box delivered to him contained any money, unless he was told that llie box did 7iot contain money, or he acccjjted it on the condition th;it it did not contain moncv- It may be collected from those authorities that it is the duty of the carrier to enquire of the owner as to the vniue of his goods, and if he ne- glects to make such enquiry, or to make a special acce|)tancc, and can- not prove knowledge of a notice limiting his responsibility, he i? re- .sponsiblc for the full value of the goods, however great it may be. Thi.'^ is a convenient rule; it imposes no diniculty on the carrier, lie know^ liis own business, and the laws relative to it. Matiy persons who have occasion to send their goods by carriers, are entirely ignorant of what they otight to do to insure their ;;oods. Justice and policy require tha): the carriers should be obliged to tell them what they .^hnuld do. Although a carrier may prove that the owner of goods knew that thq carrier had liniitcd his responsibility by a siiflicient notice, yet, if a losj be occasioned by gross iiei;ligonce, the notice will not protect him. Every man that undertakes for a reward to do any service, obliges him- self to use due diligence in the pf^rformance of that sorvic'e. Independ- ently of his responsibility as an insurer, a carrier is liable for gross negli- gence. This point is settled by Sh(il v, Fogg, 5 B. &. A. 342; IVright VOL. XV. 54 426 Riley v. Hornb. M. T. 1828. V. Sneii, Id. 350; Eirkett v. JVillan, 2 B. & A. 356; Beck r. Evans, 16 East, 244; and Bodenham v. Bennett, 4 Price, 31. The jury are to decide what is gross negligence. We may, however, observe, that the most anxiously-attentive person may slip into inadver- tence or want of caution. Such a slip would be negligence, but not such a degree of negligence as would deprive a carrier of the protection of his notice. The notice will protect him, unless the jury think that no prudent person, having the care of an important concern of his own, would have conducted himself with so much inattention or want of pru- dence as the carrier has been guilty of. If a notice touching the responsibility of the carrier be given, it mat- ters not by whom it is given, or in what form, if it tells the owner of the goods that the carrier by whom he proposes to send them will not undertake for their safe conveyance, unless paid a premium proportioned to their value. We have established these points, — that a carrier is an insurer of the goods which he carries; that he is obliged for a reasonable reward to car- ry any goods to the place to which he professes to carry goods that are offered him, if his carriage will hold them, and he is informed of their quality and value; that he is not obliged to take a package, the owner of which will not inform him what are its contents, and of what value they are; that if he does not ask this information, or if, when he asks and is not answered, he takes the goods, he is answerable for their amount, whatever that may be; that he may limit his responsibility as an insurer, by notice; but that a notice will not protect him against the consequen- ces of a loss by gross negligence. Let us see how these principles bear on the two cases now under our consideration. In Macklin v. Waterhouse, the notice was in these words: "Take notice, that the proprietor of this office will not be answerable for any parcels or packages above the value of 5/., unless entered as such and paid for accordingly." A Mr. Weeks was the keeper of this office, at which parcels were received and booked for several coaches, belonging to different proprietors. No evidence was given that Weeks, the pro- prietor of the office, was the same Weeks who was one of the defendants, or that the plaintiff or his agent knew that the office-keeper had any in- terest in this coach. No one can collect from the notice that the proprietor of the office has any thing to do with any of the coaches that take parcels from that office. If he had by his notice told those who had occasion to go to his office, that none of the proprietors of coaches who took parcels from it would be responsible, such a notice would have been sufficient. The persons who carry parcels to coach-offices are generally servants, and other per- sons who cannot have much knowledge of matters of this sort. The notice should be plain and easily understood by such persons. They are not to be required to determine whether a notice given by the keeper of a coach-office must apply to the risks undertaken by all the coach- proprietors whose coaches arc loaded from that office. This is a case without a sufficient notice, and the defendants are subject to the unlimi- ted responsibility of common carriers. It is not necessary to decide in this case whether, if it had been known tha't Weeks was a proprietor of the cor.ch, a notice given as a proprietor of tlie office, could form a special condition of hi.s contract as a coach-proprietor. 5 Bingham, 217. 427 This is an answer to the point made at the trial, that the notice in this case should have been stated in the declaration, for as there was no suf- ficient notice, it is the same as if there was no notice. But it was said, that the declaration stated, that the loss was through the negligence of the defendant, and that there was no proof of any negligence. Probably not sufficient proof of gross negligence. But, as there was no notice, the allegation of loss by negligence is not a mate- rial allegation, and no proof of it was necessary. If, however, any proof of such allegation was necessary, a loss, the cause of which is not shewn, is sufficient evidence of simple negligence, although not of gross negli- gence. But the book-keeper deposed to a conversation with the servant who brought the parcel, which this servant did not contradict; but merely said, that she did not recollect it. It was not considered at the trial that what passed in this conversation limited the responsibility of the defend- ant I did not, therefore, put it to the jury to say whether they be- lieved that a conversation to the effect deposed to had passed. The book-keeper swore, that the woman who brought the parcel said, '< that it was a parcel of consequence." That he asked her if it was a parcel of value: she said that it was, but that she did not know what its value was. The book-keeper told her it "ought to be insured." These were the words used by the witness. To talk of insurance to a country servant was not the way to inform her what it vvas proper for her to do. This agent of the defendants' should have told her, when she said she did not know the value of the parcel, to go back to her master and ask him what the value of his parcel was, that the agent might know what to charge him for the carriage of it; and that, until he knew the risk which his employers were to be answerable for, he would not take charge of the parcel. Instead of this, he takes it and it is lost, and it was the only parcel that was lost. That I might conform to the opinion of the ma- jority of the Court in Balson v. Donovan, I asked the jury wiiether the agent of the plaintiff had been guilty of any negligence, or failed in her duty to the carriers. They answered in the negative, and I think their answer was the proper one, A» the carrier took the parcel \\\{\\- out requiring to know ils value, and without insisting that it should be entered and paid for according to its value, he took it without any limita' tion of his common-law responsibility, and must be answerable for its loss. It is unnecessary for us to decide whether the entrusting valuable property to a servant, of whom the carrier chose to give no account at the trial, was sufficient to authorize the jury to find that the carrier had been guilty of tliat degree of negligence which woultl (lcpri\c him of the protection of a proper notice. In Riley v. Home I was of opinion, at the trial, that the notice did not apply to the journey to London, 'i'hc Court of King's lionrh has determined lliat such a notice applies to the journey back as well as to the journey out. A carriage that returns to a place must have gone from it, and, there- fore; a notice from the proprietors of coaches goitig from a place ma}' be ap[)lied to their n^turn journey. Hut to give eflect to such a noticr in iho present instance it must he proved that the person who sent goods on that same- jnurm y knew that the coaofc came from the George and Ulnc Hoar in London. In this 423 Langston v. Pole. M. T. 1828, case, thr> piaiiitifTs had establishments in the country and in Londdh, and were constantly in tlie habit of sending parcels from London to the country, and from the country to London, by this coach. It is most ]>robabIe, therefore, that the jury would have found that the plaintiffs knew that the carriage came from the George and Blue Boar, and that this notice applied to its journey out and home. As I thought that the notice was not so plain and direct as it ought to have been, I did not, therefore, leave it to the jury to say, whether the plaintiffs knew that the coach was one that started from the George and Blue Boar. There ought to be a new trial in this case, that this question may be put to the jury. In MackN/i v. JVaterhouse, the rule must be discharged, and in Riley V. Home there must be a new trial. LANGSTON v. POLE and Others.— p. 228. Devise to J. H. L. (devisor's eldest son) for life; remainder to trustees to preserve, &c. ; remainder to J. H. L.'s second, third, fourth, fifth, and all and every other the son and sons of the body of J. H. L. severally and successively in seniority of age in tail male; remainder to devisor's second and other sons successively in tail male; remainder to first and other daughters of the body of J. H. L. suc- cessively in tail general; remainder to devisor's eldest daughter, M. S. L., for life; remainder to trustees to preserve, &c.; remainder to her first and other sons successively in tail male; remainder to her first and other daughters suc- cessively in tail general; like remainders for life (with remainders to trustees to preserve, &c.) to devisor's other daughters successively, with like remain- ders in tail to their respective children; remainder to devisor's sister in fee; various terms to trustees to raise money; and a power to the party in pos- session of the premises devised, to charge them for the portions and main- tenance of younger children, male and female, accompanied with a provision, that in case of any younger child's obtaining a portion, and afterwards becoming entitled to the premises devised, the portion of such younger child should go over to the other younger children: Held, that the eldest son of J. H. L. took an estate tail in the premises expectant on the death of J. H. L. The following case was sent from the Court of Chancery for the opin- ion of this Court: John Langston, Esq. was at the time of making his will hereinafter men- tioned, and at the time of his death, seised in fee-simple of divers manors, messuages, lands, tenements, and hereditaments situated in the counties of Oxford and Middlesex; and duly made and published his last will and testament in writing, bearing date the 2Sth day of July 1801, which waS executed and attested in manner by law required to pass freehold estates by devise, and he thereby gave and devised all his manors, messuages, farms, lands, tenements, and hereditaments situated and being in the sie- vcral counties of Oxford and Middlesex or elsewhere in England (ex- cept his sliares in the New River Company), unto John PoUexfen Bas- tarJ, Esq., John William Hope, Esq., and Charles Morice Pole, Esq. (now Sir Charles Morice Pole, Bart.), their heirs and assigns, to the uses after mentioned; (that is to say,) to the use of the said testator's son, the said pliiintiff, James Houghton Langston, for and during the term of his natural life, without impeachment of waste; — and from and after the de- termination of that estate by forfeiture or otherwise in his lifetime, to the use of certain trustees therein named, and their heirs during the life of the said plaintiff, in trust, by the usual ways and means to preserve the 5 Bingham, 228. 429 contingent uses and estates thereinafter limited; — with remainder to the use of the second, third, fourth, fifth, and all and every other the son and sons of the hody of the said plaintiff \a.\v[\i\\y to be begotten, severally, successively, and in remainder one after another as they and every of them should be in seniority of age or priority of birth, and the several and respective heirs male of the body and bodies of all and every such son and sons lawfully issuing, the elder of such sons, and the heirs male of his body to be always preferred, and to take before the younger of such son and sons and the heirs male of his and their body and bodies issuing; — with remainder to the use of the said iestator^s second and other sons successively in tail male; — with remainder to the use of certain other trustees therein named, their executors, administrators, and assigns, for the term of 500 years upon the trusts and for the interests and pur- poses thereinafter mentioned; — with remainder to the use of the first, second, third, fourth, fifth, and all and every other the c?a?/^/t/er and daughters of the body of the said plaintiff lawfully to be begotten, severally, successively, and in remainder one after another as they and every of them should be in seniority of age and priority of birth, and the several and respective heirs of the body and bodies of all and every such daughter and daughters lawfully issuing, the elder of such daughters, and the heirs of her body to Ue always preferred and to take before the younger of such daughter and daughters, and the heirs of her and their body and bodies issuing; — and for default of such issue, to the use of other trustees therein named, their executors, administrators, and as- signs for and during the term of ninety-nine years, upon the trusts and for the intents and purposes thereinafter mentioned; — with remainder to the use of the said testator^s eldest daughter Maria Sarah Langston, and her assigns for and during the term of her natural life, without impeach- ment of waste; — and from and after the determination of that estate by forfeiture in her lifetime, to the use of the trustees thereinafter named for preserving contingent remainders and their heirs during the life of her the said testator's said daughter, in trust by the usual ways and means to preserve the contingent uses and estates thereinafter limited; — with re- mainder to the use of the first, second, third, fourth, fifth, and all and every other the son and sons of the body of her the said testator's said daughter lawfully to be begotten, severally, successively, and in remain- der one after another as they and every of them should be in seniority of age and priority of birth, and the several and respective heirs male of the body and bodies of all and every such son and sons lawfully issuing, the elder of such sons and the heirs male of his body to be always preferred and to take before the younger of such son and sons and the heirs male of his and their body and bodi(;s issuing; — and for default of such issue, to the use of other trustees therein named, their execu- tors, administrators, and assigns for the term of six hundred years, upon the trusts and for the intents and purposes thereinafter mentioned; — with remainder to the use of the first, second, third, fi)urth, fifih, and ail and every other the daughter and dniiglilers of the body of her the said testator's said daughter Maria-Sarah lawfully to be begotten, several- ly, successively, and in remainrlcr one after another as they and every of them should be in seniority of age and priority of birth, anfl the several and respective heirs of the body and bodies of all and every such daugh- ter and daughters lawfully issuing, the elder of such daughters and the heirs of her body to be always preferred, and to lake before the younger 130 Langston v. Pole. M. T. 1828. of such daughter aiul daughters and the heirs of her and their body and hodics is.suing;--and for default of sucii issue, like remainders with like attendant terms to testator's daughters Elizabeth-Catharine, Caroline, Agatlia-Maria-Sophia, Henrietta-Maria, and their issue respectively; — remainder to s'xth and other daughters thereafter to be born, successive- ly in tail general; — remainder to trustees for term of 1500 years on trusts thereinafter mentioned; — remainder to the use of testator's sister, Sarah, the wife of Peter Cazalet, her heirs and assigns for ever: And the said testator by his said will did declare that as for and con- cerning the said term of 500 years by his said will limited as aforesaid, the same term was limited unto the said trustees thereof, their executors, administrators, and assigns, upon trust that in case there should be no son of the body of the said plaintiff, James Houghton Langston, nor any future son of his the said testator's own body, or there being any such son or sons if he and they should all die without issue male before any of them should attain the age of twenty-one years, and there should be two or more daugliters of the body of his (the said testator's) said son, the said plaintiff', James Houghton Langston, then they the same trus- tees and the survivor of them, and the executors, administrators, and as- signs of such survivor should, after the decease of his (the said testator's) said son, the said plaintiff", James TIoughJ;on Langston, and such failure of issue male of his body, and of his the said testator's own body as afore- said, by mortgage or sale or other disposition of all or any part of the premises comprised in the said term of 500 years, or by the rents and profits thereof, or by any other wa3's or means whatsoever, levy and raise such sum and sums of money for the portion and portions of all and every such daughter and daughters (other than and besides an eldest or only daughter), as thereinafter mentioned; (that is to say,) in case there should be but one such daughter, not being an eldest or only daughter, the full sum of 20,000/. for the portion of such one daughter to be paid to such one daughter at the age of twenty-one years or day of marriage, which should first happen after the commencement of the said term of 500 years in possession; but if such only daughter should have attained such age or be married before such commencement, then to be paid to her immediately after such commencement: And if there should be two or more such younger daughters, then the sum of 40,000/. for the portions of such two or more of them, and to be paid and divided unto or between and among them, or any one or more of them, and to be payable at such days or times and in such parts, shares, and proportions, and subject to such provisos, conditions, and limitations over (such limitations over to be for the benefit of some or one of them), as he the said plaintiff, James Houghton Langston, at any time or times during his life, by any writing or writings with or without power of re- vocation and new appointment, sealed and delivered by him in the pre- sence of and attested by two or more credible witnesses, or by his last will and testament in writing, or any codicil thereto, signed in the pre- sence of and attested by three or more credible witnesses, should direct or appoint; and for want of such direction or appointment, to be paid to such two or more younger daughters, and to be shared and divided be- tween and among them, and in equal parts, shares, and proportions, Bhare and share alike: Then, after specifying the times and mode of payment, it was pro- vided always, that if any such younger daughter should depart this life. 5 Bingham, 228. 431 or become an eldest daughter, and as such become entitled in possession to the said manors, and other hereditaments therein-before devised, be- fore she should attain her age of twenty-one years, or be iharried, or before such other time or times as should or might be appointed for the payment of her or their portion or portions as aforesaid, the portion or sum of money provided for each such daughter or daughters so dying or becoming an eldest daughter, should from time to time go and accrue to the survivors or survivor, and others or other of the said younger daughters, and should be equally divided between such survivors or others of them (if more than one) share and share alike, and the same should be paid and payable at such respective days and times, and should go in the same manner to such surviving and other daughter and daugh- ters as thereby provided and declared, touching their original portion or portions: and in case of the death of any other or others of the said daughters, or if uny other or others of them should become an eldest daughter, and entitled as aforesaid, before she or they should have attained such ages or times as aforesaid, then all and every such accruing or surviving share and shares should, from time to time, again be subject and liable to such further right, chance, contingency, or condition of accruer or survivorship to the survivors and survivor, and others and other of the said younger daughters as therein-before declared, touching her or their original portion or portions ; provided, nevertheless, that if the said younger daughters should be reduced to one, there should not be raised for the portion of such one younger daughter, by reason of any such survivorship, any sum or sums that would in the whole exceed the prin- cipal sum of 20,000/. Then followed provisions for the maintenance and education of the younger daughters out of the interest of the money to be raised: And as to, for, and concerning the said term of ninety-nine years therein-before limited to trustees, he, the said testator, thereby declared that the same term was limited unto them, their executors, administra- tors, and assigns, upon trust that in case there should he no son or daughter of the body of him the said plaintiff, James Houghton Langs- ton, nor any future son of the said testator's body, or there being any such son or sons, daughter or daughters, if all and every such son and sons should depart this life without issue male, and all and every such daughter and daughters should depart this life without issue, before any of them should attain his, her, or their ago or ages of twenty-one years, then they the same trustees, and the survivor of them, and the execu- tors, administrators, and assigns of such survivor, siiould, after the de- cease of the said plaintiff, James Houghton Langstoii, and such failure of issue as aforesaid, by mortgage or sale, or otlicr disposition of all or any part of the hereditaments comprised in the said term of ninety-nine years, or by the rents and profits thereof, or by any other ways and means levy and raise for the use and benefit of each of the said testator's young- est daughters, Kli/.abcth-Catharine, Caroline, Agatha-Maria-Sophia, and Henrietta-Maria respectively, or such of them as should not from time to time be in the actual possession of, or entitled to, the said heredita- ments, under and by virtue of the limitations contained in the said will, for and during the term of their mspcctive natural lives, an annuity or yearly sum of 500/. , clear of all deductions, and should pay the same unto them, the said testator's said youngest daughters respectively, or their respective assigns, by equal half yearly payments, on the 25lh day of 432 Langston v. Pole. M. T. 1828. March, anil 29th day of Spptcmhor in every year, and shouKl make the first payment thereof on such of the said days as sliould next liappen af- ter the commencement of the said term of ninety-nine years in posses- sion: provided further, tliat in case there should be no son or daughter of the body of her, the said testator's said dauf^hier, Maria-Sarah, or there being any such son or sons, daup;hter or daughters, if all and every of such son or sons, should depart this life without issue male, and all and every such daughter and daughters should depart this life without issue, before any of them should attain the age of twenty-one years, and if the said testator's said youngest daughters, Caroline, Agatha-Maria-Sophia, and Henrietta-Maria, or any of them, should be then living, then upon trust that they, the same trustees, and the survivor of them, and the ex- ecutors, administrators, and assigns of such survivor, should after the se- veral deceases of the said plaintiff, James Houghton Langston, and the said testator's daughter, JNIaria-Sarah, and failure of all such issue as aforesaid, by the ways and means aforesaid, levy and raise for the use and benefit of each of them the said testator's said three youngest daugh- ters, Caroline, Agalha-Maria-Sophia, and Henrietta-Maria, respectively, or such of them as should not from time to time be in the actual posses- sion of or entitled to the said manors and other hereditaments, under and by virtue of the limitations contained in the said will, for and during the term of their respective natural lives, a yearly sum of 300/., clear of all taxes and deductions whatsoever, over and above the said annuity or clear yearly sum of 500/. therein-before provided for each of them, the said testator's youngest daughters, and should pay the same unto them, the said testator's said three youngest daughters respectively, or their respective assigns, by equal half-yearly payments on such days and times and together with the said annuities or clear yearly sums of 500/., there- in-before provided for each such youngest daughter, and in manner there- in-before directed touching the said respective annuities of 500/.; pro- vided further, that in case any of them, his said youngest daughters, for whom annuities were therein-before provided, should become entitled in possession to the said manors and other hereditaments therein-before de- vised, by virtue of the limitations contained in the said will, then and in such case, and from thenceforth, the said annuities or clear yearly sums therein-before provided for such daughter or daughters respectively, so becoming entitled as aforesaid, should cease, determine, and be no longer paid or payable: provided further, that after payment of the se- veral annuities therein-before provided for his said youngest daughters, and all arrears thereof respectively, the residue and overplus of the rents and profits (if any) should be had and received by the person and per- sons respectively, who, for the time being, should be next entitled to the reversion or the remainder of the said premises immediately expectant on the determination of the said term of ninety-nine years, to and for her and their own use and benefit. There were declarations of trusts similar to those of the term fur 500 years, upon five other terms, one for each of the testator's five daugh- ters, in case there should be no son or daughter of the body of the plaintiff, nor any future son of the testator's body, or there being any such son or sons, daughter or daughters, if all and every such son and sons should die vvithout issue male, and all and every such daughter and daughters should die vvithout issue before any of them should attain twenty-onej and in case there should be no son of the body of the daugh- 5 Bingham, 228. 433 ter to whom the term related; or there being any such son or sons, if he and they should die without issue male before twenty-one, and there should be two or more daughters of the body of the daughter to whom the term related. Under a sixth term, trustees were to raise 80,000A for the testator's sister Mary-Ann, wife of George Arnold, and his nephew Houghton Okeover, in case there should be no son or daughter of all the testator's children, nor any future son or daughter of the testator's body, or, there being such, all should die without issue before they attained the age of twenty-one. The plaintiff was empowered to jointure. And the said testator thereby also provided and directed, that it should be lawful for the said plaintiff, from time to time, during his natural life, in case there should be any child or children of his body lawfully begotten, other than and besides an eldest or only son, by any deed or deeds, instrument or instruments in writing, to be by him sealed and delivered in the presence of, and attested by, two or more credible witnesses, with or without power of revocation, or by his last will and testament in writing, to be by him signed, sealed, and published in the presence of, and attested by, three or more credible witnesses, to charge all or any part of the said manors, messuages, farms, lands, tene- ments, tithes, and hereditaments therein-before devised with and for the raising and payment of any principal sum or sums of money, not exceeding in the whole the gross sum of 25,000/., for the portion or portions of any one, two, or more of the younger son or sons, or daugh- ter or daughters of the body of him the said plaintiff, lawfully to be or begotten, born in his lifetime, or within due time after his decease, to be paid and payable unto, and to vest in such younger son or sons, daugh- ter or daughters respectively, at such time or times, and in such shares and proportions, with such clauses of survivorship, and in such manner as he the said plaintiff should by such deed or deeds, instrument or instruments in writing, or last will and testament, and to be executed and attested as aforesaid, direct, limit, and appoint: and also to charge the same pre- mises, or any part thereof, with or for the payment of any sum or sums of money yearly or otherwise, as he should think fit, for the maintenance of such younger son or sons, or daughter or daughters from the time of his death until such j)ortion or portions respectively should become payable, not exceeding the interest of such portions after the rate of 4/, per cent, per annum. And the said testator thereby further willed and directed, that in like manner it should be lawful for each of them his said daughters therein- before named, to whom estates for life in his said devised estates were thercin-bcforc limited, when and as they should respectively be in the actual possession of his said devised estates, in rase there sliould he any child or chihiren of their respective bodies lawfully begotten, other than and besides an eldest or only son, by any sucii or the like deed or deeds, instrument or instruments in writing, to be executed and attested as aforesaid, or by their respective last wills and testaments, or any writing or writings of appointment in the nature thereof, to be signed, sealed, and published as aforesaid, to charge all or any part of the said devised estates, with and for the raising and payment of any sum or sums of mon- ey, not exceeding in the whole the gross sum of 2.'),00()/. , for the portion or portions of any one, two, or more of their respective younger children: VOL. XV. 55 434 Langston v. Pole. M. T. 1828. with tlie like power of providing maintenance, and limiting a term ol' years for raising the said portion or portions and maintenance, and in such and the like manner, to all intents and purposes, as therein-before directed with respect to the portion or portions of the younger son and sons, and daughter and daughters of the said plaintiff, James Houghton Langston. And the said testator, by his said will, gave all the residue of his personal estate to the said plaintiff if and when he should attain the age of twenty-one years; but if he should die under that age, leaving a child or children, then to such child, or, if more than one, to such chil- dren equally: but if the said plaintiff should die under the age of twenty- one years, and there should be no son or daughter of his body living at the time of his death, then to the said testator's said daughters equally. The said John Langston, the testator, departed this life in February 1812, leaving the said plaintifl, James Houghton Langston, his only son and heir at-law (then a minor and a bachelor), and the said testator's said several daughters him surviving, having previously made three codicils to his said will, but none of them in any manner affecting the above-mentioned limitations of his estate. The said plaintiff, James Houghton Langston, attained the age of twenty-one years in May 1817, and has since that time intermarried and has issue by his wife two sons, viz. Henry Langston, his eldest son, and Edward Langston, his second son. The testator had no son other than the said plaintiff at or after the date of the said will. The question for the opinion of the Court was. Whether the said Henry Langston, the first son of the said testator's son, the said James Houghton Langston, takes any and what estate under the said will ? Taddy Serjt. The plaintiff's elder son Henry takes an estate tail, and that, either under the literal construction of this will, or according to the intention of the devisor, manifestly expressed in its various provisions. Chments v. Paske, cited in Doe v. Hallett, 1 M. & S. 130; Duke v. Doidge, 2 Ves. 203. n. ; Beale v. Deale, 1 P. Wms. 245. Wilde Serjt. contra. The plaintifPs elder son takes no estate, or if any, takes it after the fifth son. ^^^^ ^^^ ^^^^ The following certificate was afterwards given: We have heard this case argued by counsel, and have considered the same, and are of opinion that the said Henry Langston, the first son of the testator's son the said James Houghton Langston, takes an estate in tail-male under the said will, expectant on the death of his father the said James Hougliton Langston. W. D. Best. J. A. Park. J. BURROUGH. S. Gaselee. 28th November 1828. RAGGETT v. BEATY.—p. 243. Devise, that J. B., a trustee for devisor, shall grant the premises to J. B.'s son G. B., to enter on after the.dcath of J. B., and that J. B. and G. B. shall within one month after devisor's decease pay 100/, to W. T. and T. B. to discharge 5 Bingham, 243. 435 legacies, and if they omit to do so, that W. T. and T. B. shall let the premises and raise the 100/. 'out of the rent, they keeping the deeds of the premises, and not allowing J. B. and G. B. to sell or mortgage till the legacies be paid and G. B. be twentv-one years of age; and that if G. B. die and leave no child law- fully begotten of his own body, W. T. and T. B, shall sell the premises and divide the proceeds among brothers. Sec: Held, an estate tail in G. B. This was a case directed by the Master of the Rolls for the opinion of the Court of Common Pleas on the hearing of a cause instituted by the assignees of George Blair, a bankrupt, to compel the specific per- formance of an agreement entered into by the defendant for the pur- chase of an estate sold under the commission. The property was devised to the bankrupt by the will of his great- uncle George Blair deceased, which was as follows: — "I, George Blair, of Milholm, in the parish of Stapleton, in the county of Cumberland, do make this my last will and testament in man- ner and form following: (that is to say,) Whereas in and by declaration of trust made between my nephew John Blair, of Greensburn, and me, bearing date the first day of March 1766, touching and concerning all my messuage and tenement, situate, lying, and being at Soutcr Moor other- wise ^lilholm, in the said parish of Stapleton, in the county aforesaid, it is, amongst other things, declared in trust, that he the said J. Blair or his heirs do and shall convey, assign, and surrender the said messuage and tenement, with all and every the appurtenances, unto such person and persons, and for such estate, uses, intents, and purposes, and in such parts, manner, and form, with or without power of revocation as I, the said George Blair, shall from time to time, by any writing or writings, or by my last will and testament in writing, or any writing purporting to be my last will and testament, to be by me made and published in the presence of three or more credible witnesses, direct, limit, or appoint, give, devise, or assign the same; now it is my will, and I do hereby order, that he, my said nephew, John Blair give, grant, and assign the said premises to his second son George Blair, to enter upon and possess the same after the decease of his father the said J. Blair. And I do fur- ther order and direct, that the said J. Blair and George Blair shall and will pay or cause to be paid, within one year next after my decease, 100/. of lawful money into the hands of my trusty and well-belovcd friends William Taylor, of Ilethcrsiile, in the parish of Kirklinton and county of Cliimberland, yeoman, and Thomas Blair, of liarclo.so, in the |)arish of Scalcby and county aforesaid, yeoman, for them to discharge and pay the legacies hereinafter bequeathed. But if, and in case the said John Blair and George Blair do not j)ay the said sum of 100/. witliiii the time limited, it is my will, and I do hereby order, that the sai«i W. 'I'aylor and Thomas Blair do let the said messuage and tene- ment, and receive the rents arising from the same until the said 100/. be paid, they keeping possession of all the (U^eds of the estate, and not al- lowing the saifl J. Blair and G. Blair cither to sell or morfgagc any part of the premises until the legacies be all jiaid, and G. Blair be twenty- one years of age; or if, and in case the .s;iid G. Blair die and leave no child lawfidly begotten of his own body, it is my will that the said W. 'i'aylor and T. Blair, their heirs and assij^ns, do sell the said messuage and tenement, and dislribule llie nioin'y :irisiiig from surh sale amongst his brothers and sisters and Junalhnn Bl.ni md llann.ih Todd, or tlieir lieirs, in such share oi shales as ihry Ihr- said trusters shall think proper." 436 DuvEuoiER V. Fellows. M. T. 1828. The question for the opinion of the Court of Common Pleas was, Wliat estate and interest, under this will, George Blair, the bankrupt, the son of John Blair, had in the said premises upon the death of his father John Blair? Il'ildc Scrjt. The bankrupt took an estate-tail under the will of the testator; with a contingent remainder over to the trustees named in the will, upon failure of issue by G. Blair. Purefoy v. Rogers^ 2 Saund. 380; Walter v. Drew, 1 Com. 372; Goodtitle v. Billington, Dougl. 758; Dansey v. Griffith, 4 M. &S. 61; Forth v. Chapman, 1 P. W. 663; Tcnny v. ^gar, 12 East, 253; Button v. Engram, Cro. Jac. 427; Denn v. Slater, 5 T. R. 335; Goodtitle v. Maddern, 4 East, 499. Cross Serjt., contra. George Blair took an estate in fee with an exe- cutory devise over, in fee, to William Taylor and Thomas Blair. Col- lier^ s case, 6 Rep. 16 «.; Wellock v. Hammond, Cro. Eliz. 204 ; Hawker v. Buckland, 2 Vern. 105; Doe d. IVilley v. Holmes, 8 T. R. 1; Doe d. Palmer and others v. Richards, 3 T. R. 356. Cur. adv. vult. The following certificate was afterwards sent: — We have heard this case argued by counsel, and have considered the same, and are of opinion that the said George Blair, the son of John Blair, under the circumstances aforesaid, had an estate-tail in the said premises upon the death of his father the said John Blair. W. D. Best. » J. A. Park, J. BuRROUGH. 28lh November 1828. S. Gaselee. DUVERGIER v. FELLOWS.— p. 248. Debt on bond, conditioned for paying plaintiff 10,000/., upon his forming a com- pany, and procuring purchasers for 9000 shares therein; such company to carry on a distillery according to a process for which a patent had been granted. Plea, that the patent contained a proviso, rendering it void if transferred to more than five ; that it was intended the said company should consist of more than five, and be formed for the purpose of enjoying the benefit of the letters-pa- tent, of acting as a corporate body, and dividing the benefit of the patent into 10,000 shares, transferrable and assignable without charter from the king ; and that it was corruptly and illegally agreed between the parties, that the plain- tiff should form the company for such puiposcs, and should sell the 9000 shares in order to raise a larger sum of money, under pretence of carrying on the privilege granted by the patent : Held, a bar to the action. Debt on the joint and several bond of the defendant, Jean Jacques Saint JNIare and others, the condition of which, as set out on oyer, ap- peared to be as follows: — " Whereas the said Jean Jacques Saint Mare, some time since, obtained three several letters-patent for the distillation of potatoes ; and whereas the said Jean Jacques Saint Mare, Stamp Brooksbank, and William Dorset Fellows are now engaged in co-part- nership together in carrying on a certain distillery to a very large ex- tent at Vauxhall, called the Belmont Distillery, according to the system and method of distilling, for the use and exercise of which the said several letters-patent were granted to the said Jean Jacques Saint Mare, 5 Bingham, 248. 437 and which said distillery has been erected, set up, and established on certain leasehold premises belonging to them the said Jean Jacques Saint Mare, Stamp Brooksbank, and William Dorset Fellows; and whereas the said Jean Jacques Saint Mare, Stamp Brooksbank, and Wil- liam Dorset Fellows have it in contemplation to dispose of their shares and interest of, in, and to the said several patents, and of, in, and to the dis- tillery, premises, plant, and stock in trade in and upon the same, and to part with the same to a company to be formed for that purpose; and whereas the said Jean Jacques Saint Mare, Stamp Brooksbank, and William Dorset Fellows have applied to and requested Aime Duver- gier to exert his influence amonst his numerous connexions and friends, so as to form such company, intended to be called ''The Patent Dis- tillery Company," who shall appoint directors and trustees for the con- duct and management of the said concern, which directors shall issue, under their hands and seals, 10,000 shares of the value of 50/. each share; and whereas the said Aime Duvergier, in consequence of his con- nexion with different merchants, brokers, traders, and others in the city of London, hath consented and agreed to form the said company, to be called "The Patent Distillery Company," among his own immediate connexions and friends, and to bring such persons together for the pur- pose of appointing directors and trustees for the government and ma- nagement of such distillery concern, and to procure purchasers for 9000 shares, of the value of 50/. each share; and whereas the said Jean Jacques Saint Mare, Stamp Brooksbank, and William Dorset Fellows, in order to induce the said Aime Duvergier to take the trouble of form- ing such company, and to use his influence amongst his connexion and friends, and to indemnify him from the charges and expenses that he may be put to in and about the same, have proposed and agreed, as soon as he or his executors or administrators shall have effected such object, and procured purchasers for 9000 of such 50/. shares, and obtained for such company the first call upon such shares of 5/. each, that they the said Jean Jacques Saint Mare, Stamp Brooksbank, and William Dorset Fellows, their heirs, executors, or administrators, or some or one of them, shall and will pay to the said Aime Duvergier, his executors, ad- ministrators, or assigns, the full sum of 10,000/. sterling, by three equal payments or instalments of 3333/. Gs. 8(/., viz. the sum of 3333/. 6*. 8d. 80 soon as the first instalment on such 9000 shares shall have been paid, the sum of 3333/. 6.9. 8d. so soon as the second instalment on the same shares shall have been paid, and the remaining sum of 3333/. Gs. 8d. so soon as the third instalment of the same shares siiall have been paid; now, therefore, the condition of the above-written bond or obligation is huch, that if thcabovc-bounden Jean Jacfjues Saint Mare, Stam|) Brooks- bank, and William Dorset l''(;llovvs, their executors or administrators, or any or either of tlicm, do and shall well and truly pay or cause to be paid unto the above-named Aime Duvergier, his executors, admiinstra- tors, or assi^jiis, the full sum of 10,000/. of lawful money of (Ireat Britain, in manner following, tliat is to s.iy, the sum of 3333/. fi.v. Hd., part thereof, on the said Aime Duvergier, his executors or administrators, forming the said before-mentioned company, and procuring purchaser."! for such 9000 shams, and paymftit of the first inslalnient or call thereon; the further sum of 3.'J3.'J/. (is. 8d. on the .second instalment on siirh shares having brcn paid; an EUCiiEK V. Fellows. M. T. 1828. ten obligation to be void and of no cfl'cct, or else to be and remain in Inll force and virtue. The defendant, after sundry pleas, on which issue in fact was taken, pleaded, fifthly, actio non. Because certain of the said several letters patent in the said condition of the said supposed writing obligatory mentioned, were letters patent of our sovereign lord the King, under the great seal of the United Kingdom of Great Britain and Ireland, bearing date at Westminster on a certain day, to wit, on the twentieth day of March, in the fifth year of the reign of our lord the King, where- by, after reciting, amongst other things, that the said Jean Jacques Saint Mare had, by his petition, humbly represented unto our said lord the King, that he was in possession of an invention of improvements in the process of an apparatus for distilling, our said lord the King gave and granted unto the said Jean Jacques Saint Mare, his executors, ad- ministrators, and assigns, his especial license, full power, sole privilege and authority, that he the said Jean Jacques Saint Mare, his executors, administrators, and assigns, and every of them, by himself and them- selves, or by his and their deputy or deputies, servants or agents, or such others as he the said Jean Jacques Saint Mare, his executors, ad- ministrators, or assigns, should at any time agree with, and no other, from time to time, and at all times thereafter, during the term of years therein expressed, should, and lawfully might, make, use, exercise, and vend the said invention within that part of the United Kingdom of Great Britain and Ireland called England, our said lord the King's do- minion of Wales, and town of Berwick-upon-Tweed, in such manner as to him the said Jean Jacques Saint Mare, his executors, administra- tors, and assigns, or any of them, should in his or their discretion seem meet, and that he the said Jean Jacques Saint Mare, his executors, ad- ministrators, and assigns, should, and lawfully might, have and enjoy the whole profit, benefit, commodity, and advantage from time to time coming, growing, accruing, and arising by reason of the said invention, for and during the term of years therein mentioned; to have, hold, ex- ercise, and enjoy the said license, powers, privileges, and advantages therein-before granted or mentioned to be granted unto the said Jean Jacques Saint Mare, for and during and unto the full end and term of fourteen years from the date of the said last mentioned letters patent next and immediately ensuing, and fully to be complete and ended ac- cording to the statute in such case made and provided: and it was by the said letters patent provided, and the same were declared to be upon the express condition that if the said Jean Jacques Saint Mare, his ex- ecutors or administrators, or any person or persons who should or might, at any time or times tliercafter during the continuance of that grant, have or claim any right, title, or interest in law or equity of, in, or to the power, privilege, and authority of the sole use and benefit of the said invention thereby granted, should make any transferor assignment, or any pretended transfer or assignment of the said liberty and privilege, or any share or shares of the benefit or profit thereof, or should declare any trust thereof to or for any number of persons exceeding the num- ber of five, or should open, or cause to be opened, any book or books for public sul)Scriplion lo bo made by any number of persons exceeding the number of five, in order lo the raising any sum or sums of money under pretence of carrying on the said liberty or [jrivilcgc thereby granted, or should by him or ihcmselvc?, or his or their agents or ser- 5 Bingham, 248. 439 vants, receive any sum or sums of money whatsoever, of any number of persons exceeding in the whole the number of five, for sucli or the like intents and purposes, or should presume to act as a corporate body, or should divide the benefit of the said last-mentioned letters patent or the liberties and privileges thereby granted, unto any number of shares exceeding the number of five, or should commit or do, or procure to be committed or done any act, matter, or thing whatsoever, during such time as such person or persons should have any right or title, either in law or equity, in or to the same premises, which would be contrary to the' true intent and meaning of a certain act of parliament made in the sixth year of the reign of the late King George the First, intituled ** An act for better securing certain powers and privileges intended to be granted by his Majesty by two charters for assurance of ships and merchandizes at sea, and for lending money upon bottomry, and for re- straining several extravagant and unwarrantable practices therein men- tioned," or in case the said power, privilege, or authority should at any time thereafter become vested in, or in trust for more than the number of five persons or their representatives at a'ny one time, reckoning exe- cutors or administrators as and for the single person whom they repre- sent as to such interest as they were or should be entitled to in right of such their testator or intestate, that then and in any of the said cases those letters patent, and all liberties and advantages whatsoever thereby granted, should utterly cease and become void, any thing therein be- fore contained to the contrary thereof in anywise notwithstanding; as by the said letters patent, which said letters patent the defendant brought into Court, might more fully appear: and the said defendant further said, that others of the said letters patent, in the said condition of the said writing obligatory mentioned, were and are certain letters patent of our said lord the King, under the seal of our said lord the King appointed by the treaty of union to be used instead of the grand seal of Scotland, bearing date on a certain day, to wit, the 2Gth day of February, in the 5lh year aforesaid; by which last-mentioned letters patent our said lord the King gave and granted to the said Jean Jacques Saint Mare, his ex- ecutors, administrators, and assigns, by themselves or such otiicr person as he or they might appoint or agree with, and no others, from time to time and at all times thereafter, during the term of years in the said last-mentioned letters patent expressed, that tlu^y might lawfully make, use, exercise, and vend an invention therein mentioned, of improve- ments in the process of, and apparatus for, distilling, wilhiii that part of the United Kingdom of Great Jiritnin and Ireland called Scotland, in such manner as to the said .lean Jacques Saint Marc, his executors, administrators, and assigns, or any of them, should in his discretion seem meet : Then followed the extent and conditions of the Scotch i)atent, which were the same as in the patent for England. And the said defendant further said, that the said several terms of fourter;n years each in the said letters [jalent mentioned, at the tini(! of the making of the; said ,siip|)osed writing ol)iigatory, were, and yet are, unexpired, and that the said company, in the said condition of the said supposed writing obligatory mentioned, was meant and intended l)y the said Jean Jarrpies Saint Marc, the said plaintifl", ami defendant, at the time of making of the said supposed writing obligatory, to consist of more than five persons, to wit, 10,000 persons, and to be formed for the 440 f DuvERGiER V. Fellows. M. T. 1828. purposes, amongst other things, of using, exercising, and enjoying the said exclusive liberties and privileges in the said two several letters patent in the said condition, and in this plea mentioned, for the use and benefit of the said persons so exceeding the number of five, in that part of the said United Kingdom called England, and in that part thereof called Scotland respectively, under colour of the said letters patent re- spectively, to wit, at, &.C. and so the defendant said, that the said suppos- ed writing obligatory was and is void in law, and this the said defendant was ready to verify; wherefore, &c. The defendant pleaded, sixthly, actio non, because certain of the Said several letters patent in the said condition of the said supposed writing obligatory mentioned were letters patent of our sovereign lord the now King, under the great seal of the United Kingdom of Great Britain and Ireland, bearing date at Westminster, on a certain day, to wit, the 20th day of March, in the fifth year of the reign of our sovereign lord the King, containing the like matters and things, and the like proviso and to the same effect as the said letters patent in the said fifth plea first men- tioned, as by the said letters patent which the said defendant produced to the court might more fully appear; and the defendant further said, that the said term of fourteen years in the said last mentioned letters pa- tent mentioned, at the time of the making of the said supposed writing obligatory, was, and yet is, unexpired, and that the said company in the said condition of the said supposed writing ^obligatory mentioned was at the time of the making thereof intended by the said plaintiff and de- fendant to consist of more than five persons, to wit, 10,000 persons, and ■ to be formed for the purpose, amongst other things, of using, exercising, and enjoying the said exclusive liberties and privileges in the said last mentioned letters patent mentioned, for the use and benefit of the said persons so exceeding the number of five, in that part of the United Kingdom called England, under colour of the said last mentioned letters patent: by means of which premises in this plea mentioned the said sup- posed writing obligatory was and is wholly void, and this the said de- fendant was ready to verify, wherefore, &c. The defendant pleaded, seventhly, and lastly, that certain of the said letters patent in the said condition of the said supposed writing obligato- ry mentioned were letters patent of our sovereign lord the now King, under the great seal of the United Kingdom of Great Britain and Ire- land, bearing date at Westminster, on a certain day, to wit, the 20th day of March, in the fifth year of the reign of our said lord the King, containing therein the like matters and things, and the like proviso, and to the same effect, as the said letters patent in the said fifth plea first mentioned, as by the said last mentioned letters patent, which the said defendant produced to the court, might more fully appear; and the de- fendant further said, that the said term of fourteen years in the said last mentioned letters patent mentioned at the time of the making of the said supposed writing obligatory, was, and yet is, unexpired, and that the said company in the said condition of the said supposed writing obligato- ry mentioned was by the said Jean Jacques Saint Mare, the said Stamp Brooksbank, the said defendant, and the said plaintiff intended at the time of the making the said supposed writing obligatory to consist of more than five persons, and to be formed for the purpose, amongst other things, of using, exercising, and enjoying the said exclusive liberties and privileges in the said last mentioned letters patent mentioned, for the 5 Bingham, 248. 4dl use and benefit of the said persons so exceeding tlie number of five, in that part of the United Kingdom called England, under colour of the said letters patent, and of the acting as a corporate body, and dividing the benefit of the said last mentioned letters patent, and the liberties and privileges thereby granted, into divers shares, exceeding the number of five, to wit, 10,000 shares, to be transferable and assignable, without any charter from our lord the King, and that, before the time of the making of the said supposed writing obligatory, to wit, on, &c,,at, &c., it was corruptly and illegally agreed, by and between the said plaintiff and the said Jean Jacques Saint Mare, the said Stamp Brooksbank and the said defendant, that the said plaintiff should form such company, as in this plea mentioned, for the purpose in this plea mentioned, and should sell and dispose of divers, to wit, 9000 of such shares as in this plea men- tioned, being the shares in the said condition of the said supposed writ- ing obligatory mentioned, and should cause divers large sums of money to be subscribed by public subscription by numbers of persons exceeding five, to wit, 9000 persons, in order to the raising a large sum of money, to wit, 450,000/., under pretence of carrying on the said liberty or pri- vilege (amongst other things) by the said last mentioned letters patent granted; such money to be in part received by the said Jean Jacques Saint Mare, Stamp Brooksbank, and the said defendant, for the purpose of carrying on the said liberty and privilege for the benefit of the said last mentioned persons, so exceeding five; and that the said Jean Jacques Saint Mare, the said Stamp Brooksbank, and the said defendant, should, in consideration thereof, pay to the said plaintiff the sum of 10,000/. of lawful money of Great I3ritain, in the manner in the said condition of the said supposed writing obligatory mentioned; and that for securing the payment of the sum of 10,000/. the said defendant should make and seal, and as his act and deed deliver to the said plain- tiff a writing obligatory, in the penal sum of 10,200/., conditioned for the payment of the said sum of 10,000/. in manner aforesaid: and the defendant further said, that in pursuance of the said corrupt and unlaw- ful agreement, tlie said defendant afterwards', to wit, on, &c., at, &.c., madtf^nd sealed, and as his act and deed delivered the said supposed writing obligatory in the said declaration mentioned, and the said plain- tiff then and there accepted and received the same of and from tlie said defendant, upon the said corrupt and unlawful agreement: by means of which premises in this plea mentioned the said suppo.sed writing obliga- tory was and is wholly void, and this tiie said defendant was ready to verify, wherefore, &.c. Demurrer inde, and joinder. IVildc Serjt. in support of the demurrer. The substance of the seventh ploa (which coniprelionds also the matters contained in the fifth and sixth) i.s, that it was inlended by the parties to do certain acts, and, among them, to form a company which shoulil act as a corporate body, and should transfer and assign shares without rharter from the crown. But a mere allegation of intention is not suflicicnt to show that the bond was void, for the intention to commit an illegal act is not neces- sarily followed by commission. If such an allegation be sufficient,' every existing corporation is open to the same objection, for there is none of which it may not bo predicated that before becoming a corpora- tion it intended to becomf! a corj)oration. 'I'he intentioii, however, might be perfectly legal, for the parties might intend to become a cor- VOL. XV. V) 442 DuNEKuiEK V. Fellows. M. T. 1828. poralion by procuring an act of j)arl lament for the purpose; a mode of becoming so, which is recognized in 6 G. 2. c. 18.; and when the de- fendant might Iiave obtained such an act himself, it is not for him to ob- ject that the plaintiff did not obtain it: therefore in Haines v. JBusk, 5 Taunt. 521, where, in an action for brokerage, the defence was, that the voyage undertaken was illegal for want of a licence, the Court held, that as the defendant ought to have procured the licence, he should not take advantage of the want of it. Nor is it sufficiently shewn that the acts intended were illegal. The defendant should have specified what the acts were, in order that the Court miglit judge whether* they were acts peculiar to a corporate body or not. The defendant might have been in error in supposing that certain acts which he had in view were exclu- sively acts of a corporate body. Acting as a corporate body, for instance, in private matters, would not render the parties liable to a quo warranto; as, in the matter of a ivarren; Rex v. Cann, Andr. 15. At all events, by making the alle- gation in this general way, the defendant offers matters of law to be tried by a jury. He ought to have afforded the plaintiff an opportunity of taking issue on the acts impugned, and on the means by which it might be proposed to justify them. The only act specified is, that it was intended the proposed company should transfer and assign shares without charter from the King, But there is nothing illegal in that. It might have been intended to transfer them under an act of parliament to be procured for the purpose; and even without that, the mere trans- fer would not be in itself illegal, but only a symptom that the body trans- ferring was an illegal combination: Rex v. JVebb and others, 14 East, 406. The transfer would-be legal, if the assignee took it subject to the original covenants: Pratt v. Hutchinson., 15 East, 511. A share in a partnership may be sold under an execution, and the assignees of a bankrupt may carry on his trade. At all events a partner may assign the whole of his interest, although it may depend on the terms of the partnership whether the assignee shall carry on business with the others or not. In Josephs v. Pebrer, 3 B. &: C. 639, where a contract for sharts in a joint stock company was held void, the company was formed; and the case was argued on the provisions of 6 G. 1. c. 18., which has since been repealed. Taddy Serjt. contra. The demurrer admits that it was intended the company should act as a corporate body, and should transfer shares without a charter from the crown; and that it was corruptly and illegally agreed between the plaintiff and the defendant that the plaintiff should form the company for those purposes. With such an admission, it would have been superfluous to have specified what particular acts of a corporate body the company was to perform; for if it was corruptly and illegally agreed, it could not have been intended that the company should act legally as a corporation. But the allegation that it was intended the company should act as a corporate body is sufficiently explicit, without specifying particular acts. The Courts take judicial notice of the functions and privileges of cor- porate bodies as enumerated in Com. Dig. Franch. F. 1. 9 Rep. 25 b. 10 Rep. 33 b. Connecting the seventh plea with the condition in the bond and the patent, it is clear the transaction was illegal, even at common law. 5 BiXGHAM, 248. 443 The patent is declared on the face of it to be void, if, by any contri- vance, assigned for the benefit of more than five persons: by the condi- tion of the bond the plaintiff was to procure purchasers for 10,000 shares in the projected company, who were to conduct the process described in, the patent: by that one act the patent would have become void, and the purchasers would have paid their money for nothing: upon the face of the plea the agreement appears to have been a manifest fraud on the public, and the agreement is therefore void, as being inconvenient and contrary to public policy, as the patent would also be, if attended with ill effects: 3 Inst. 1S4. But the extensive transfer of shares is of itself inconvenient and illegal. A chose in action cannot be transferred. That rule was originally established to prevent maintenance; Co. Lit. 214 a. 266 a. ; and though maintenance be less dreaded in modern times, suitors who have to contend against the joint stock purse of an opulent company are exposed to the effects of disparity of means not experienced in contests between individuals. Notwithstanding the Stat. 6 G. 1. c. IS. has been repealed, an agreement such as that described in this plea is illegal at common law, as tending to the prejudice and grievance of the King's subjects. " The necessary effect of such a practice (the transfer of shares) is to introduce gaming and rash speculation to a ruinous extent: in such transactions one cannot gain unless another loses; whereas in fair mercantile transactions each party, in the ordinary course of things, reaps a profit in his turn. In this case the association appears to be one of which the effect cannot but be mischievous." 'Pet Abbott, C.J. in Josephs v. Pebrer. In Kinder v. Taylor (a) hord Eldo)i threw some doubt upon Hex v. Webb; that case, he said, '< was scanty in argument, and the common law was not considered in it, because it was an indictment upon the statute. He spoke with all respect of Lord Ellenborough, who had decided the case, and whose memory he venerated as a lawyer; but he should have been glad if his Lordship had taken the trouble to state what was assuming to act as a corporation. For many considerations, it would have been very fortunate, if the Court had then looked at this as a distinct question, and had been good enougli to declare, ' this is not acting as a corporation, because to act as a corporation you must act so and so.' It now, how- ever, became necessary to declare, cither by legal judgment or by a declaratory act of parliament, what was the meaning of presuming to act as a corporation; and by whomsoever it was declared, not only what was doing, but what had been done, must be attentively regarded. It was for this reason, he thought, that the Ki)ii^ v. ITebb called for further explanation." '< His opinion might bo of use to nobody, but it was as well that the world should know it:" "That opinion was, and he had taken some Iroubli; to consider the question, that if it could satisfactorily be made out to a jury that a party was opening books, raising a j)remium upon the shares, and then took care to get himself out of the scrape, that was an indictable offence." Such a company is illogal, even when formed lor useful purposes; as, for carrying on a private brewery; Buck V. Buck, 1 Camp. 547. And it cannot be argued that the plaintiff was ignorant of the j)roviso limiting the assignment of the patent to five, for the patent is referred to in the condition of tli-j bond on which he sues. (n) Cieor^c on Joint Stock Companies, p. 46. (called tticrc, p. Ai, the case of tlic Real Dfl Monte Mining Company). Sweet, Clianc eiv Lane, 1825. Ill DuvKiuiiEU V. FiiLLOWs. M. T. 1828. 11 tlie transaction l)ct\vccn him and the defendant had gone but a little lurther, it had been an indictable oflence: Rex v. Stratton and OtherSy 1 Camp. 549. IVilde. The clear intention of the parties was to find purchasers for the premises where the distillery was carried on, and for the business. The transfer of tiie patent was not the object of the transaction, but the transfer of the business, which could not be transferred without com- municating a knowledge of the process by which it was carried on; and it was necessary that the assignees should by some means be protected against any charge of infringing the patent-right of the assignor. There is nothing illegal in transferring shares in a business, subject to the original liabilities, and there was nothing in this business prejudicial to the pub- lic interests. But the transfer of shares, and the raising a capital by subscriptions, are in effect the onl}^ objections made by this plea against the intended company; and with regard to the latter, even under 6 G. 1. c. IS., Lord Elknhorough says, in Rex v. Webb and Others, "We think it impossible to say that it makes a substantive offence to raise a large capital by small subscriptions, without any regard to the nature and quality of the objects for which the capital is raised." It nowhere appears in the pleadings that the plaintiff was aware of the proviso which rendered the patent void upon transfer to more than five, and there is no law which requires that such a proviso shall be in- serted in a patent. ^ , ,, * Cur. adv. vult. Best C. J. now delivered the judgment of the Court; and after read- ing the pleadings, and particularly adverting to the condition of the bond, and the terms of the patent, as set forth ante, p. 438, proceeded as follows: — It appears from the condition of the bond that the plaintiff was not entitled to any part of the 10,000/., which the obligors had bound them- selves to pay him, until he had formed a company, and procured pur- chasers for 9000 shares, and payment of the first instalments or calls on those shares. The forming the company, the selling 9000 shares of what was to be called the stock of such company, and the prevailing on the pur- chasers to pay one third of their subscriptions, or 150,000/., is a condi- tion precedent to the plaintiff's right of action. The proviso contained in the patent shews that the plaintiff cannot perform this condition without committing a fraud on a vast number of persons, and that if he could obtain any subscriptions, the subscribers would be entitled to recover back the money paid on them, as being ob- tained by fraud, or as money paid without consideration. The moment the company was formed, and the patents were transferred to them, they would cease to exist as legal patents, for they would be destroyed by any assignment to more than five persons, or to any persons in trust for more than five persons. The condition of the bond shews, that the pat- ents were to be assigned to a company to be formed by subscription, and the shares in which were to be transferable. Any one of these cir- cumstances would render the patents void. This diificulty was felt by the counsel for the plaintiff, and he attempted to extricate his client from it by insisting that it was not intended to convey the exclusive right of distilling spirits from potatoes, secured by the patent, but only to free the intended company from being liable to the patentee for using his in- vention. But it is clear from the terms of the bond that the object of 5 Bingham, 248. 445 the parties was not to destroy the patents, but that they professed to assign the privilege granted by them to the company which the plaintiff was to form. The words of the condition of the bond are, "have it in contempla- tion to dispose of their interest of, in, and to'the several patents, and of, in, and to the premises and stock in trade, and to part witli the same to a company." These terms indicate an intention not to destroy, but to transfer unimpaired the monopoly secured by the patents. But it has been said it does not appear from the pleadings that the plaintiff knew of this proviso in the patents, and that the insertion of such a proviso in patents is not required by any law. But we must presume that he knew the contents of the patents referred to by the bond on which he brings his action; of the patents which, it appears by the same bond, he under- takes the sale in the manner stated in that bond. Every man who un- dertakes to do a thing must be presumed to know what he undertakes, unless he can shew that he has been deceived by the other part3\ How could he undertake to negotiate for tUe sale of the patents, unless he had seen them and knew their contents ? If the plaintiff knew the terms on which the patents were granted, he must know that what he undertook to do could not be done. As he cannot legally perform his part of the contract, he never can be in a condition to recover the compensation stipulated to be paid on its full and complete performance. There are some old authorities which say, that if a man binds himself by the condition of his bond to do what at the time he'executed the bond it was impossible for him to do, the bond shall be considered as without condition, and the obligee may recover the penalty. These authorities are rather opposed to the plaintiff's claim; they apply only to cases where there is nothing to be done by the obligee; here the plaintiff must do something before the bond can be enforced. If what he is to do can never be legally done, the instrument must be inoperative. The plaintiff not having performed the first con- dition, can never have a right of action on it. The situation of the plaintiff in this case, is like that of the defendants in the cases alluded to. It is his fault that he has undertaken what he cannot perform. In Pul~ lerton \.Agnew^ 1 Salk. 172, Holt C. J. said, " Where the condition is underwritten or indorsed, there that only is void, and the obligation is single, but where the condition is part of the lien itself, and incorpora- ted therewith, if the condition be impossible, the obligation is void.'* In the case before us, the service of the plaintiff, and payment for it by the defendant, are incorporated together, and if the service cannot be performed, the whole instrument is a nullity. But it is apparent from the facts disclosed by the condition of this bond and the patents that the scheme in which the parties to this action were engaged was one of those bubbles by which, to the disgrace of the present age, a few projectors have obtained the money of a great number of ignorant and credulous persons, to the ruin of those dupes and their families, and by which a passion for gambling has been excited, that has been most injurious to commerce and to the morals of the people. What any one must discover from reading the instruments, the parties to them must hi; fully informed of It cannot be too well known, that there is no place f(jr persons eng.iged in such transactions in courts aj)- pointed for the decision of civil causes. Although the statute of G G. I. be repealed, the common law relating to such schemes is expressly 446 DuvERtiiEK V. Fkli.ows. M. T. 1828. reserved by the repealing statute, and no one doubts, if it can be shewn, as it easily may, that such schemes are fraud-traps, and injurious to the public welftire, that the forming of them is an indictable offence at the common law. The seventh plea states, ahd the demurrer admits, that the plaintifl and the defendant intended that the company which the plaintiff undertook to form should act as a corporate body without any charter from the King, and that the benefit of the letters patent were to be enjoyed by this pretended corporate body, and that the capital of this body was to be divided into 10,000 shares, which were to be transferable and as- signable. It has been said at the bar, that the parties might intend to obtain an act of parliament to give this body a legal existence. Nothing of this intention appears on the record. It has been further said, that the defendant should have shewn how the parties intended to act as a corporation. If this is not correctly pleaded, advantage should have been taken of the technical defect by spe- cial demurrer. If what they intended to do would not have been acting as a corporation, they should have traversed the plea. By demurring, the plaintiff has confessed himself guilty of intending to form a company that was to act as a corporation. But the shares were to be transferable. There can be no transferable shares of any stock except the stock of corporations, or of joint-stock companies created by acts of parliament. When it is said the shares were to be transferable, that must mean, that the assignee was to be placed in the precise situation that the assignor stood in before the as- signment; that the assignee was to have all the rights of the assignor, and to take upon him all his liability. Now the assignee can join in no action for a cause of action that accrued before the assignment. Such rights of action must still remain in the assignor, who, notwithstanding he has retired from the company, will still remain liable for every debt contracted by the company before he ceased to be a member. Indeed, the members of corporations cannot assign their interest, and force their assignees into the corporation, without the authority of an act of parlia- ment. Such authority is expressly given by the bank acts, the South- Sea acts, and by other statutes creating companies that possessed stock, which it was deemed proper to be rendered transferable. The pretending to be possessed of transferable stock is pretending to act as a corporation, and pretending to possess a privilege which does not belong to many corporations. But this is put only as one of the proofs of the intention of the projectors of this company that it should act as a corporation. It is not necessary on these pleadings to decide whether the forming a company with such shares is of itself, without other circumstances, pretending to act as a corporation; because, it is by the pleadings distinctly admitted, that the plaintiff and defendant inten- ded that the company should act as a corporation. Persons who, with- out the sanction of the legislature, presume to act as a corporation, are guilty of a contempt of the King, by usurping on his prerogative. By the yth of Anne, c. 20, the Court may not only give judgment of ouster, but may fine a defendant convicted on a quo warranto. This shews that the usurpation is considered as a criminal act. But it has been insisted, that the usiM|)alion is only criminal where a party, without authority, acts in a public otrico, and that the pretended corporation which these 5 BiXGHAM, 248. 447 parties were to set up did not aflect the public, but was a sclieiiie with which certain individuals only were connected. Most of the statutes relative to quo warrantos, from the statute of Gloucester down to the 9th of Anne inclusive, have the words offices and franchises. Franchises are privileges for the advantage of individuals. In Com. Dig. title Quo Warranto, many things are mentioned as matters for which quo warran- to will lie, which are valuable only to the individuals who claim them against the crown, and are not connected with any public duty. But it concerns the public that bodies, composed of a great number of persons with large disposable capitals, should not be formed without the au- thority of the crown, and subject to such regulations as the King in his wisdom may deem necessary for the public security. The acting as such a corporation, without charter from the crown, is contrary to law, and no man can maintain an action on a bond given to secure payment of a compensation to the obligee for the formation of any such pretended corporations. For these reasons, judgment must be for thejdefendant. Judgment for defendant accordingly. SYJVIES V. ROSE.— p. 269. Money paid into court under 7 & 8 G. 4. c. 71., to abide the event of a cause, is not paid out under a rule absolute in the first instance. CARRUTHERS v. PAYNE, Assignee of THOMPSON, a Bankrupt. p. 270. A chariot was built to plaintiff's order, and paid for by him: when finished in other respects, plaintiff ordered a front seat to be added; but the builder being slow in making this addition, plaintiff sent for the chariot repeatedly, and the builder promised to deliver it. IMaintiff being afterwards dissatisfied, ordered the chariot to be sold, and while it was, according to the custom of the trade, standing in the builder's warehouse for that purpose, the front scat not having been added, the builder became a bankrupt, and his assignee seized tlic chariot: more than three months afterwards the plaintiff commenced his action : Held, first, that the plaintiff had sufficient property to maintain trover; secondly, that the chariot did not pass to the assignee as being in the order and disposi- tion of the bankrupt witli the consent of tlic owner; and, tliirdlv, that the as- signee was not witliin tlie j)rott(tion of the forty-fourth section o^ 6 G. 4, c. 16., which limits actions to three months after the fact committed. Die AS v. JAY.— p. 281. 1. The ol)jections against an award ought to \yv specified in a rule nisi ol)tain for the purpose of setting it aside; l)Ut an omission in That respect is not cc o ed pect IS noi con- clusive to preclude tlie Court from entertaining the oljjcctions. Upon a declaration of eleven special counts for negligence, and common counts for money paid, &c., an arl)itrator, under an order of Nisi Prius, found that the plaintiff had " gootl cause of action for 2.1/. 14«. lOr/.," and directed a verdict to be entered up fortliat sum; Held, sufficiently certain. Assumpsit against the dcfcndanl, an attorney, fur negligence in the 448 DicAS V. Jay. M. T. 1828. comUicl of a suit. Tlicrc were eleven special counts on the negligence, and common counts lor money paid, &.c. Money was paid into court sullicicntto cover the demand on the common counts. The cause iiaving been referred to arbitration, under an order of Nisi Prius, the arbitrator found that the plaintiff had "good cause of action for 23/. lis. 10^.," and directed a verdict to be entered for the plaintiff for that sum. By consent, judgment was to be entered up as of last term. Cross Serjt. moved for a rule nisi to set aside this award; alleging, that as the question of negligence had been submitted to the arbitrator, and he had found that the plaintiff had good cause (not cause*) of action, he ought to have shewn whether the negligence or the money paid was the cause of action, and to have ordered the verdict to be en- tered for the plaintiff on the count to which the finding applied; other- wise it did not appear whether he had enquired into all the matters sub- mitted to him; and if the plaintiff had no cause of action in respect of the negligence, the cause of action on the money counts was covered by the money paid into court, and the award was bad for uncertainty. A rule nisi was granted; but the grounds on which it was sought to set aside the award not being specified in it, Wilde Serjt. , who shewed cause, objected, that by the practice of the Court the rule nisi ought to state the objections to the award, which could not otherwise be entered on; but he insisted that the award was sufficiently certain, amounting in effect to a general verdict on all the counts. Cross and Russell Serjts. in support of the rule. There is no written rule of practice requiring in this Court the statement in the rule nisi of the specific grounds on which it is proposed to set aside an award; and if any such practice exists — fthe prothonotary here stated that it did) — it is not conclusive against the Courts having the objections argued: the rule in the King's Bench, although it requires the objections to be spe- cified, does not preclude the Court from hearing them, if they be not specified. Best C. J. The practice as to stating in the rule nisi the grounds of objection to an award is not so conclusive as to prevent us in this Court from hearing the objections, although not specified. But this award is so clearly made upon the whole matter that I see no reason for setting it aside. In effect, a verdict has been found on all the counts. The judg- ment, too, being entered up as of last term, can we now set it aside? Park J. I come to the same conclusion, with considerable reluctance, under the circumstances of this case.(a) I am also of opinion, after ' sending to the Court of K'ng's Bench, that the practice which "requires the objections to an award to be specified in the rule nisi for setting it aside is not conclusive to prevent the Court from entering into the ob- jections although not so specified. But passing by any formal errors, I think the finding of the arbitrator is on all the causes of action referred to him, and that, the/efore, this rule must be discharged. BuRROUGH J. said, that it was without doubt the practice of this Court to specify the objections to an award in a rule nisi for setting it aside, but concurred in thinking this award sufficiently certain. (a) It appeared from affidavits to other points to be a case of much hardsliip on the defendant. 5 Bingham, 281. 449 Gaselee J. The practice is not inflexible; but, at all events, here the objection would have been stated without success. The arbitrator finds that the plaintiff had good cause (not a good cause) of action for 23/. 145. lOd. That is the same thing as if he had said, good cause of action to the extent of 23/. 14^. lOd. On the face of the award, there- fore, the judgment applies to the whole of the declaration, and this rule must be Discharged, BEDINGTON v. BEDINGTON.— p. 284. l"he Court discourages the practice of ordering nihil to be returned to a scire facias. The plaintiff left a writ of scire facias with the sheriff, lo be returned nihil. The sheriff having omitted to return the writ, because the plaintiff re- fused to pay a sum of 6s. Sd. more than what he considered the regu- lar fee, Wilde Serjt. obtained a rule calling on the sheriff to shew cause why he should not return the writ, and pay the costs of the motion. The sheriff thereupon returned the writ, but Russell Serjt. shewed cause against that part of the rule which called for the costs of the motion; and read affidavits, in which the sheriff at- tempted to shew he had demanded no more than was usual. Best C. J. thought that the demand had been improperly made; but adverting to the circumstance that the plaintiff had ordered the writ to be returned nihil, and animadverting on the mischief and injustice of pro- ceeding on writs, of which the defendant never received any notice, considered that both parties were to blame. With a view, therefore, to discourage the practice of ordering returns of nihil, the Court dis- charged the rule witiiout costs. Rule discharged accordingly. WEBB, Demandant; LANE, Tenant.— p. 285. Judgment signed in a writ of riglit, because a hlank was left for the word csfdce* in the count, set aside. Lord FALMOUTH v. GEORGE.— p. i.'8(i. 1. Keeping up a capstcni and rope in a cove to assist boats in landiiip;, and witii- out wliiclj they could not safi-ly land in bad weatluT, Held, a good cousidrra- tion for a rcasonal)lc toll on all boats frcfjui uting the cove, wluthcr tliry used the capstcni or iiol; and tli«- custom to exai t the toll held good, although the party claiming it was neither owner of the cove nor lortl of the manor, nor were his predecessors shewn to have been such; but he and they had always been owners of the spot on which the capstcni stood, and of an estate in the neigh- bourhood. '1. Held, that a fisherman frcrjucnting ilie cove was not a competent witness for a party resisting the toll, vojL. XV. 57 450 Elwouthy v. Maundeu. M. T. 1828. EL WORTHY and Others v. THOMAS MAUNDER.— p. 295. Affidavit, that the defendant had undertaken to be answerable to the creditors of J. and W. M. for the amount of the debts of such creditors, on their, the credi- tors, undertaking not to issue a commission of bankrupt against J. and W. M. before tlie 16th of August; tliat J. and W. M. owed i)laintiffs 1000/.; that nei- ther i)hiintifls, nor, as they were informed and believed, any other of the credi- tors of J. and VV. M. sued out a commission of bankrupt against J. and VV. M. before the 16tli of Augnst; that neither J. and W. M. nor defendant paid plain- tiffs the 1000/. due to them from J. and W. M.; and that defendant owed plain- tiff's 1000/. upon his said undertaking; Meld, insufficient to hold defendant to bail. The defendant was arrested and holden to bail on the following affida- vit: — "William Elworthy of Wellington, in the county of Somerset, woollen manufacturer, niaketh oath and saith, that by a memorandum in writing, bearing date the 1 1th day of August 1828, and signed by Thomas Maunder ofCrcditon, in the county of Devon, farmer, the said Thomas Maunder did undertake and agree to be answerable to the credi- tors of certain persons using the style and firm of William Maunder and James Maunder, for the amount of the debts of such creditors on their (the said creditors) undertaking not to issue a commission of bank- rupt, or sue out process against them the said W. Maunder and J. IMaunder, on or before Saturday, the 16th day of August, then instant; and this deponent further saith, that he and one Thomas Elworthy the elder, and one Thomas Elwortliy the younger, trading together as co- ])artners,and using the style and firm of IMessrs.Thom.as Elworthy and Co., were and now are creditors of the said W. JNIaunder and J. Maunder; and that they, tiie said W. JNIaunder and J. Maunder, were on the 11th day of August, instant, and still are, indebted to this deponent and the said Thomas Elworthy the elder, and Tiiomas Elworthy the younger, in a certain large sum of money, to wit, the sum of 1000/. and upwards, tliat is to say, the sum of 300/., on a bill of exchange, drawn by the said W. Maunder and J. Maunder upon one Joseph Lambert and payable to the order of the said Messrs. Thomas Elworthy and Co., at a certain day now past, and in the further sum of 700/. and upwards, for goods sold and delivered b}^ this deponent and tlie said Tiiomas Elworthy the elder, and Thomas -Elworthy the younger, to the said William Maunder and James jNLaunder, and at their request; and this deponent further saith, that he, confiding in the said undertaking and agreement of the said 'i'honias Maunder, did not, nor hath the said Thomas Elworthy the elder, and the said Thomas Elworthy the younger, or either of them, nor have nor hath (as this deponent is informed and believes) any or either of the other creditors of the said W. Maunder and J. Maunder caused a commission of bankrupt to be issued, or sued out any writ or other pro- cess against them the said W. Maunder and J. Maunder, or either of them, on or before the said IGth day of August; yet that the said Thomas Maunder (although often requested so to do) hath not, nor have the said W. Maunder and J. Maunder, or either of them, as yet paid the said sum of 1000/., or upwards, or any part thereof, to this deponent, or to the said Thomas Elworthy the elder, or Thomas Elworthy the younger, or either of them, but that the same still remains wholly due and un- paid; and this deponent further saith, that the said Thomas Maunder is justly and truly indebted to this deponent, and the said Thomas Elwor- 5 Bingham, 295. 451 thy the elder and Thomas Elworthy the younger, in the said sum of 1000/. and upwards, upon and by virtue of the said memorandum, and tlie undertaking; and agreement of the said Thomas Maunder therein mentioned; and this deponent lastly saith, that no ofler hath been made to this deponent, or to the said Thomas Elworthy the elder, and Thomas Elworthy the younger, or either of them, by the said Thomas Maunder, or by the said William Maunder, or either of them, to pay the said sum of 1000/. and upwards, or any part thereof, in any note or notes of the Governor and Company of the Bank of England expressed to be paya- ble on demand." A rule nisi was obtained for delivering up the bail-bond to be cancel- led, on the ground that the defendant's liability to the plaintills, if he was liable at all, depended on the performance of a condition precedent, namely, an undertaking by all the creditors of James and William Maunder not to sue out a commission of bankrupt against them before the 16th of August, and the affidavit contained no averment that any such an undertaking had been given, nor even (except upon information of others) that all the creditors had actually abstained from suing out a commission during that period. It was also objected that it did not ap- pear that the plaintiffs were so much as parties to the agreement. Jones and Stephen Serjts., who shewed cause, endeavoured to answer these objections; but fVilde Serjt. , in support of the rule, having referred to PhiUipps v. Bateman, IG East, 35G, where a general undertaking, "to be accountable for the payment of the notes issued by the Milford hank, as far as the sum of 30,000/. will extend to pay," was holden not to confer a right of action to an individual holder of such notes; and to M^Pherson v. Lovic, 1 B. & C. 108, where the Court set aside a bail-bond taken on an alhdavit ''that the defendant had promised to pay the plaintiff 1000/. if he did not marry her in March or April next; that she was ready to be married to him, but that he neither married her in March or April nor paid the 1000/:," he- cause, no similar promise by the plaintid being averred, it did not ap- pear that tlierc was any consideration for the defendant's promise, The Court held, tliat in any view of the case an undertaking by all the creditors of .lames and \ViIliam Maunder not to sue out a commis • sion against them was a condition precedent lo any liability to be incur- red by the defendant; and that the performance of such condition not having been alleged in the aflidavit («), the nde must be made Absolute. {a^ No such undfvtakint; was fvcr given Ijy all the rrcditorR, as appeared by other aflidavits filed in support of tjie ni!«-. ME.MOUANDX. In the course of this term James Ptir/tc, lOstpiirc, was called to tho degree of the coif, and gave rin^s with the following motto: — '■'■Tcnax jiistiti^,^^ and on the same day look his seat as one ol' Hit! jjoisue Judges, in the Court of King's Bench. Thomas Dcnman, Esquire, received a patent of precedence. F.NI) OF MlICH.\r,T.MAS ^^,I{^f. CASES ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS, AND OTHER COURTS, IN HILARY TERM, In the Ninth and Tenth Years of the Reign of George IV.— 1829. ABBEY V. LILL.— p. 299. 1. Semble, that a postmark may be proved by any one in the habit of receiving letters by the post. 2. An action to recover the balance of an account is not within the Boston Court of Conscience Act, if the account originally exceeded 5/., although the sum sought to be recovered is less than 51. Action to recover 3/. 65., remaining due upon a bill of exchange for S/. 6*., with interest, which bill had been given to secure the balance of an account between the plaintiff and defendant, originally amounting to 400/. The declaration contained also a count upon an account sta- ted. The business to which the account related had been transacted in London. At the trial before Best C. J., London sittings after Hilary term, the only evidence in support of the plaintiff's demand was a letter from the defendant, which, provided it were written in 1825, contained a suffi- cient acknowledgment to entitle the plaintiff to a verdict. The letter, however, was dated by the writer January 1824. To shew that it was written in 1825, and that the figure 4 had been put for 5, by a mistake common at the commencement of ever}'- new year, the plaintiff relied on the postmark. To this it was objected, on the part of the defendant, that the mark itself was not clear; and that, at all events, the genuineness of a postmark could only be established by call- ing a person from the post-ofiice. The learned Chief Justice said, that if there were any doubt about the genuineness of tlie mark, he would send for a clerk from the post-office. The jury, however, entertained no doubt about the genuineness of the mark, or the date intended, and gave their verdict for the plaintiff. fVilde Serjt. obtained a rule nisi to set aside this verdict, upon the 5 Bingham, 299. 453 ground that tlie postmark had been improperly taken as evidence; or to enter a suggestion under the Boston Court of Conscience Act, 47 G. 3. sess. 2, c. 1. s. IS. (a), to deprive the plamtift' of his costs, upon an affidavit that the defendant lived within the jurisdiction of that court. Jones Serjt. shewed cause, and referred to Hex v. fVatson, 1 Campb. 214; Arcangelo v. Thompson^ 2 Camph. G20; Fletcher v. Braddyl, Stark. Ev. Appx. 4 to 853. Wilde, contra. Best C. J. The jury were satisfied that the mark on this letter was the post-office mark; but the question Is, Whether it was necessary that that fact should have been proved? and by whom? Certainly not by the postmaster of another office; for he would know no more of the mark than any other individual; so that in Fletcher v. Braddyl the proof was car- ried no farther than in the present case. If there be any doubt as to the genuineness of the mark, the person who made it is the best witness to be called; the knowledge of all other persons on the subject is equal; but I should be slow to say, that a witness should be called to a distance, from London, or Cumberland, perhaps, to prove the postmark of every letter, the date of which may be disputed. However, in the present case, I do not decide the point: I decide on the ground that I offered to send to the post-office for the person vvho made the mark, but such strictness of proof was then no longer insisted on. Then, is this a case within the ISoston act? If that act had been confined to cases where the plaintiff and defendant both lived in Boston, I should have been disposed to give it the fullest effect; but I am un- willing to make Boston a place of refuge for debtors, where the debt has been incurred in London. Such an act ought to receive a strict con- struction; but this case is taken out of it by the provision in the fifteenth section, the action having been brought to recover the balance of an ac- count originally exceeding five pounds, Gaselee J. (Z>) Under the circumstances of this case I think the rule (a) By the Boston Court of Conscience Act, 47 G. 3. c. 1. s. 18, it is enacted, "That it shall and may be lawful to and for any person or persons (whether such person or persons shall reside witiiin the jurisdiction of the said Court or not) having any debt or debts, on the balance of account or otherwise howsoever, not exceeding the value of five pounds, due or owing or belonging to him, her, or them, by or from any other jjcrson or persons whatsoever iiiliabiting, residing, or being within the sai(l borough or parish of Boston, or keeping or using any house, warehouse, wharf, quay, lodging, shop, shed, stall, stand, or using or fretpienting the markets there, or seeking a liveliliood, or in any way trading or dealing with- in the same, to ajjply to the clerk of the court for tiie time being, or his de|)uty, who shall immediately make out and deliver to one of the Serjeants of tlu' said court for the time being a summons in writing," &c. And, By section 41, it is also enacted, "That if any action or suit for any debt reco- verable by virtue of this act in the said court of retjuests shall be commenced in any other court whatsoever, or elsewhere tlian in tiie said court of recjnests, then and in every such case tlieplaintifVor jjluititills in such action or suit shall not by reason of a verdict for him, her, or them, or otherwise have or be entitled to any costs whatsoever; and if the verdict shall be given for the defendant or dcfin- dants in such action or suit, and the judge or judges before whom the same sliall be tried or heard siiall think fit to certify that such debt ought to have I)een re- covered in the said court of requests, then and in >\ •vucccbu in wliicli depended on • he validity of the deed. 468 II( DSON f. RiiVEiT. H. T. 1829. At all events, ill s>n h an isstu', tlic ckfcnduiit was litlil not entitled to a new tnul, on account of the aJniibsion of the testimony of such witness, justice having been done. This was an issue dircctctl by the Court of Common Pleas, to try whether certain clcctls of lease and release, and an accompanying deed of trust, were the deeds of the defendant, and if so, whether they had been obtained by fraud, covin, or misrepresentation. The lease and release bore date the 25th and 2Gth of November 1825 respectively; the deed of trust the latter day; and the object of the deeds was to elVect a conveyance of Revett's jjroperty to Hudson, in trust to raise money by sale of it for the payment of Revett's debts, with a trust, as to any residue, in favour of Revett; and " in the first place, for the trustee to pay and defray the costs, charges, and expenses of all parties thereto attending the preparing, settling, completing, and executing those presents, and the several indentures of lease and release therein referred to." At the trial before Holroyd J. last Suffolk Summer assizes, Mr. Hrown, the attorney who prepared the deeds, and was also a party to the deed of trust, stated, that on Monday the 2Sth November 1825, the defendant being then a prisoner in the King's Bench prison, he. Brown, on the part of tlie plaintiff and other creditors, and acting, as he con- ceived, for all parties, went, accompanied by Columbine, the attesting witness, to the defendant in the prison, for the purpose of procuring the execution of the deeds. That they corresponded exactly with drafts which had before been assented to and signed by the defendant; that blanks were left lor the amounts of tlie debts of various creditors, which were then filled up, with the exception of the blank for the debt of one Mills, a creditor; that Mills, who was present, claimed 1G,000/. odd: but that the defendant shewed an account, reducing Mills's debt to 1 J,S5S/. 85. Sd., and said he had vouchers by which he could confirm the account. The account was admitted, subject to the production of these vouchers; and it was agreed that the blank for Mills's debt should be filled up when they were produced. The defendant and Mills then executed the deed, leaving the blank to be filled up as above mentioned. This statement was confirmed by the attesting witness, the only other person present. The next day Brown and Mills attended the defendant again; but Columbine was not present. The defendant produced the vouchers in question; the balance was struck; Brown filled up the blanks with the sum of 14,858/. 85. Sd. and then went away, taking with him the deeds for the purpose of procuring their execution by other parties. 'I'he instrument at that time bad a deed-stamp (not ad valorem), and no new stamp was added. 'J'lie defendant left the prison shortly afterwards, and the deeds were executed in his presence by his wife, (who also joined in a fine to enure to the uses of the trust-deed,) under his sanction, wiicn he was at liberty. The plaintiff, the trustee, did not execute the tru.st-decd till the end of the ensuing December. Many letters were subsequently written by the defendant, in which he not only treated the deeds as valid instru- ments, but ordered the occupiers of the properly to pay their rents to the jjlainliff, and the steward of the manor to deliver up his books and the rolls of the manor to I'rown. It appeared, further, that he had told one Chapman that he had executed the deeds, and had gained lime; — nlso, tini 1. !!..:l rinird into rffcrt ihc fine that was to pass his wife's Jiilciesl. 5 Bingham, 368. 469 Brown was objected to as a witness, as having an interest to support the deed in order to recover his own charges, and as being defendant in an action of trespass, in which his defence rested on a claim to property under this deed. See Revctt v. Brown, Ante, page 345. But it was answered, that though by an express clause in the deed the trustee was authorized to defray those charges out of the property, he was per- sonally liable to Brown under his retainer: that Brown could recover against him only by virtue of that retainer, and that the deed would be no evidence in support of Brown's claim. The learned Judge overruled the objection. No evidence was offered on the part of the defendant; but the follow- ing passage in Bull. N. P. p. 267. was relied on: " If there be blanks left in an obligation in places material, and filled up afterwards by the assent of parties, yet is the obligation void, for it is not the same con- tract that was sealed and delivered: — as if a bond were made to C. with a blank left after for his Christian name and for his addition, which is afterwards filled up." Holroyd J. told the jury it did not appear in the passage cited that the alteration was made in the presence of the party, but that, if in such a case there was that which amounted to a redelivery, and shewed that the party meant the deed should be acted on in its altered state, the al- teration being made in his presence would amount to a redelivery, and the deed would be his in its altered state; he referred to Goodriglit d. Carter v. Struphan, Cowp. 201, where the redelivery by a feme after baron's death, of a deed delivered by her whilst covert, was held a suf- ficient confirmation of the deed to bind her without re-execution or re- attestation, — and said, that circumstances alone might be equivalent to a redelivery. Then, observing on the fact tliat the blank in the jjrcscnt case had, according to a previous arrangement, been filled up in the de- fendant's presence, and with his consent, that he had afterwards assisted at and sanctioned the execution of the deed by his wife, and had acted upon it as a valid instrument, he said, that unless tlie jury disbelieved the evidence, tliere was abundant ground for their considering this deed as the deed of the defendant: — of fraud or covin no evidence had been offered. The jury found that the needs were the deeds of the defendant, and that the execution of them had not been obtained by any fraud, covin, or misrepresentation. IVildc Serjt. moved for a new trial, on the ground that 15rown ought not to have been admitted as a witness, and that the deed was void, having been altered in a material particuhir after its execution, without any redelivery. There was nlsD an obj-rtion (n tiio stamp. A redelivery, he contended, could only be implied wheie there was no evidence to rebut the presumption; here, the circumstance that the deed was always out of Revett's possession was evidence sufficient to re- but any such presumption. In (inndri':;hl v. Slraphan the deed had never been executed .it all before the death of the hu.sban(l, for an execu- tion by a feme covert was altogether void: here the deed was once well executed, and there could be no new execution actual or implied with- out a new st.unp. A rule nisi having been granted, Sinr/n and A'j/.v.SY//Serits. .'ihcwed r;iusr;. They riled Bull. N. V. 2fi7; 2 K'oll. Ah. 2'.). (Faits; Intei liner); f'o. II; Pii;i>rs cat^c, 27; Markhavi V. iionuilnn, Vax). Kli/.-(iv'7, Mar/Jiumv. (Jonaslon, Moore, 5%! i 470 Hudson v. RiiVETT. H. T. 1829. Paget V. Paget, 2 Chan. Rep. 410. cited in Vin. Abr. YdXis{\5);Zouch V. Clay, 2 Lev. 35; Texira v. Evans, 1 Anstr. 228; Doe d. Lewis v. Bingham, 4 B. & A. 672; Matson v. i?oo//i, 5 M. & S. 223; Shep- herd^ s Touchstone, 50, and ffO; Coke and t^nother. Executors, v. Brum- tnell, 2 B. Moore, 495; Perkins, s. 154; Butter and Baker^s case, 3 Rep. 35 b. ; Jennings v. Bragge, 37 Eliz. ; Lord CoA-e, in his commentary on ZiV. s. 36; 2 iloll. Abr. 26. pi. 2; Goodright v. Gregory, Lloft, 339; Z)oe (/e;;z. Garnons v. Kniglit, 5 B. & C. 671; ZJoe de7n. Odiarne v. Whiteliead, 2 Burr. 704. The Court relieved the learned Serjeants from arguing the point about the stamp, or the admissibility of Brown's testimony. /FiVJe, contra, referred to Perkins, s. 154; Com. Dig. Fait. (A. 3.); Shep. Touch. 58; 4 Cruise, 36; Lord CromwelVs case, 2 Rep. 69; 55 G. 3. c. 184. sched. part 1. tit. Mortgage. Best C. J. This was an issue which the Court thought it right to di- rect, for the purpose of ascertaining whether these deeds had been pro- perly executed, or were obtained by fraud. The jury have found that all the deeds were properly executed, and they have negatived the fraud. An application has been since made to grant a new trial on several grounds. First, that a witness was admitted who ought not to have been received. Secondly, an objection has been taken to the stamp, that the lease and release ought to have had an ad valorem stamp, and not a mere stamp upon a deed conveying property to be sold for the benefit of credi- tors. The third objection is, that the trust deed was a complete deed at the time the witness attested its execution in the King's Bench prison, and that the learned Judge ought not to have left it to the jury to pre- sume another delivery; that if it was a perfectly executed deed, the altera- tions made subsequently to its execution, though with the assent of all the parties, render that deed a nullity ; and that if the trust deed be a nullity, all the other deeds are useless, because they refer to this, and cannot stand as a complete conveyance without it. I am disposed to agree, though it is not necessary to decide that point, that if the trust deed is to fall, all the deeds will fall. . But I am of opinion that all the deeds must stand. And that will dispose of the ob- jection to the stamp act, because it is admitted, that if the trust deed is to be incorporated in the assurance, it shews the intentof the parties was to convey for the benefit of creditors more than five, and comes within the exception of the stamp act. As to tlie admissibility of the witness, \ do not think it necessary to decide that Brown could not in a court of law be considered as a competent witness, when the learned Judge, for whose opinion I entertain the highest respect, thought it right to receive him. But let us take it he was not; ought we in this case, who have sent this issue for the purpose of ascertaining facts which are to satisfy our minds, when we see that justice will be done, and has been done, whether that witness spoke the truth or not, — ought we to send this cause down again? It is not like the trial of an action, where a party perhaps has a right, if a witness deposes to facts that are material, and he is not a competent witness, to call on the Court and say, ' I am entitled to have that verdict set aside, for it was found on evidence which ought not to have been given.' That is not our situation with respect to this cause, because this is the creature of our discretion, and, therefore, we are now to decide whether, under all the circumstances, it would be fit to send it down again. Now, when we recollect that Chapman proved all that was neccs- 5 Bingham, 368. 471 sary to be proved to sustain this verdict; that Chapman is uncontradict- ed; — I allude to the conversation with the defendant, when he acknow- ledged that he had executed the deed, and that these sums were engraft- ed into it; — when we recollect that the defendant after this wrote letters to the different tenants, and in those letters acknowledged the execution of the deed; can we say it is fit in such a case, merely because some evi- dence was received which ought not to have been received, to send this question again to the consideration of a jury? This brings us, therefore, to the great questions in this case. They have been divided into two. It has been first insisted that there was no perfect execution of the deed until the sum of 14,858/. was written in it; and if there was not a perfect execution of the deed up to that time, then it was competent for my Brother Holroyd to refer it to the jury, to con- sider whether they would not presume an execution of the deed after all the sums were written in and it was rendered a perfect deed. I am of opinion that this is a correct view of the case ; and if it is, it comes pre- cisely within the principle of the case to which my Brother HoIroyd\\d.s referred, of Doe d. Carter v. Straphan. In that case a deed had been executed by a married woman, and, as such, was undoubtedly void. After the death of her husband, she, by various acts, confirmed this deed. The Court of King's Bench decided, that by the confirmation of the deed the jury were warranted in presuming a re-execution of it. Un- doubtedly, in that case, Lord Mansfield refers to a passage in Perkins, where he says, '* It is to be known that a deed cannot have and take ef- fect at every delivery as a deed; for if the first delivery takes effect the second delivery is void; and in case an infant or a man in prison makes a deed and delivers the same as his deed, and afterwards when the infant comes to his full age, or the man in prison when at large delivers the same again as his deed which he delivered before as his deed, this se- cond delivery is void." That brings us to the question. Was there any perfect delivery of this deed antecedent to the period when these sums were written in? If one looks at the deed, and particularly at that part of the deed which my learned brother has referred us to, it is quite im- possible that the deed could be considered as having any operation till these sums were actually written in, because, what was the object of the deed? The object of all the deed was to convey the estates to trustees, that those estates might be sold, and that the proceeds of those estates might be ap])licd to pay certam creditors' debts which were to be ascer- tained. In the preparation of the draft of this doed blanks were left for the insertion of the sums when those sums should be ascertained. When these parties met in the King's Bench prison, can it be said that that was a perfect execution of the deeds, when the sums that were due to these creditors remained unascertained? The operative part of the deed refers to the payment of particular sums, which, as then, were unascertained. It is f|uite clear, if nothing had passed at this time, that the deed could not bean operative deed until those sums were introduced, because tlie great object of the deed was the pnymeiit of those sums. I think, there- fore, taking it in this point of view, that this was not to be considered as an execution of the deed, — thatthis was not a complete deed, — and that therefore the case falls within the authority of the case in Cowper, and not within the law which is extracted from Perkins. This deed, as I have stated, undoubtedly w-isnot to be considered as complete until the sums were introduced. But it has been said, if it 472 Hudson r. RiiVETT. H.T. 1829. was tlelircrcjl to (he party it could not he ilclivercci as an escrow, unless So (Iclivcrcil, in Icrms. I'eiiiaps, technically speaking, this is so; he-, cause a deed delivered to a party is not an escrow: a deed delivered to a stranger is an escrow till somcthina; is done: hut though it is deliver- ed to a parly, there are cases, and in the same page, to which my learned hrother referred, to shew that it is not a perfect and complete deed; Com. Dig. tit. Faits (A 3.): '*So if it he oncQ delivered as his deed, it is suflirient, though he afterwards explained his intent other- wise, as if an obligation he made to A. and delivered to A. himself as an escrow, to be his deed on the performance of a condition, this is an absolute delivery, and the subsequent words are void and repugnant." Ti»c authorities referred to in the text, in support of this ])Osition, are at least conflicting; hut in the next division (A 4.) it appears that this position about delivery as an escrow is merely a technical subtlety; for the learned writer saj's, << If it be delivered to the party as an escrow, to be his deed on the performance of a condition, it is not his deed till the condition is performed, though the party happens to have it before the condition is performed." This he lays down on his own authority, without referring to any case; and I am warranted in saying we cannot have a better authority than that learned writer. I^et us see how that doctrine applies to the present case. The par- ties meet; something is to be done before a complete deed can be made; the sums are to be ascertained which the different creditors are to be paid. That cannot be ascertained that day, it is ascertained at a subse- quent da)', and they are written in. Take it, if you please, that this is a delivery of the deed as a deed, is it not a delivery of the deed in the language of Lord Coke, upon condition; that is, upon condition that something is to be done, which at that time was not done? That something is afterwards done: then, and not till then, it becomes a perfect deed. It seems to me, therefore, without touching any of the cases that have been decided on the 0])eration of deeds, we may say that this deed was not a complete deed, executed so as to have effect in the hands of the parties until these sums were written in. I shall not, after what I have said, travel through the different cases that have been cited with respect to the alteration of deeds; but I beg not to be taken as deciding, that if a deed be altered with the consent of all the parties, after it is executed, it is not to be considered as a good deed. I think, if we were driven to examine that question, it would be found that, in these times, whatever might have been thought for- merly, if all the parties assent to the alteration of a deed, it will, in its altered shape, be a good deed; but I do not decide this case on that ground. I decide it on this, that it either was no deed at all, until the sums were written in, and that then the jury were warranted in presuming a delivery to make it a deed; or, if it were a deed, it was delivered only to have operation from the time that those sums were written in, which were to give it all its effect. I think we must take it, from what passed at the time of the execution, it was not to be considered as hav- ing effect, till it could have its full effect, by all the sums being written in, that were to be written in. On these grounds I am of opinion that the rule should be discharged. My Brother Ihirrovgh (a), who heard the argument, desired I should slate he concurred in tliis^opinion. (o) He was at cliambcrs. Par^- J. was absent from ill health. 5 Bingham, 368. 473 Gaselee J. This case has been extremely well argued, and a great many authorities have been referred to which it is not necessary to go through at length. The authority that struck me the most as against the opinion of my Lord Chief Justice as now delivered, was the passage cited from Buller: — '' If there be blanks left in an obligation in places material, and filled up afterwards by the assent of the parties, yet is the obligation void, for it is not the same contract that was sealed and delivered." That is certainly borne out by the authority in Roll's Abr. But I think the instance which he specifies is not borne out by the au- thority to which he refers. He goes on; — "as if a bond be made to C, with a blank left for his Christian name, and for his addition, which is afterwards filled up." I should certainly have thought that the leaving the blank for the Christian name and the addition, imported of itself it was to be afterwards filled uj): and I think that Mr. Justice Buller's po- sition is not warranted by the autliority to which he refers. Certainly this case does not range itself within the first part of this sentence, be- cause, notwithstanding the degree of industry with which my Brother Wilde has cited cases, and the confidence with which he argued that the contract was altered, I cannot agree with him on that; it appears to me, from what was done in this case, that the contract was not altered. What was the object of the contract? The contract was to pay all that Revett was indebted to Mills and other creditors; that which was un- certain when the deed was first executed, or, rather, when the deed was originally scaled, was afterwards reduced to a certainty. And the way in which I consider that this deed is good is this, — that it was an imper- fect execution, with an agreement at the time that it should take effect when the blanks were filled up. There was a meeting for that purpose, the sums at that time were agreed to, and it was filled up by Brown, who was adopted as the agent of both parties; and he took away the deed for the purpose of carrying it to otlicr parties, by whom it was also to be executed. It is said that the defendant Revett never had liimself the possession of this deed. No; but a deed may be delivered cither by taking hold of the deed itself, or by words, or by acts. The permitting this person to take the deed away for the purpose of the other parties executing it, is of itself fit to be left to the jury, as a ques- tion whether or not that was not (if a redelivery should b(; held to be necessary) a redelivery on the mere insertion of the sums. On that ground I am of opinion this trust deed is to be considered as good. Willi respect to llic witness IJrown, I should have gioat difficulty oa the suijject, taking it in the usual course, in saying that Hrown would be a witness. He is a party to the deed, and he had, at the time of the trial, incurred expenses, and the expenses were to be paid according to the terms of the deed. liut, considering it in the point of view ia which my Lord Chief Justice has considered it, and in which I have known issues, directed by the Court of Chancery, treated, where the object was to satisfy the conscience of the Court; if, upon the whole, we see that justice has been done, there is no occasion to send it down to a new trial. Now, has justice been done here; and does it depend really and singly on the testimony of Jirown? l-'irst of all, What is the probability? The probnhilily of the case is, that it was left for future consideration. 'I'licre arc a threat mnny blanks when the deed is carried to bcexecutofl the first day in the Kin^j's Bench; all the blanks are filled up, except Mills's debt; the probjibility is, that at ihat time VOL. XV. ^f> 171 l)i. Cm M'K.XY 1'. ^^'lil.Ll:sLL:y. H.T. 1829. iVltlls's (lobl was- not ascertained: we have it from Brown it was done the next clay. Docs it rest on his evidence only? Mr. Chapman says, **I saw Rcvctt afterwards, with the draft of the deed hefore him; he was reading: he told mc he had executed it, and that he had got time:" therefore, the cvii'.cnce of Chapman shews that what was done the se- cond day of meeting was done with Revett's assent. But it does not rest there; it appears that Revett was cognizant of all he had done, and he expressly acts upon and confirms the deed; for he says, in a letter to Moss, a tenant, " Having this day executed to Mr. Thomas Hudson, of the firm of JNIessrs, Harveys and Hudsons, bankers at Norwich, a conveyance of all my estate and hereditaments, in trust, for the pur- pose of satisfying various charges and incumbrances, on the above pro- perty, I write to desire that you will in future pay your rents to the saiti Thomas Hudson, or his appointed receiver, whose receipt will be a suflicient discharge." That letter, therefore, shews the confirmation i)f the contract: it shews he was aware of what had been done, and I think satisfies the Court that the jury upon this occasion have done justice. Rule discharged. Sir VV. DE CRESPIGNY v. WELLESLEY.— p. 392. In an action for a libel, it is no plea, that the defendant had the libellous state- ment from another, and upon publication disclosed the author's name. To the ninth count of a declaration for libel, the defendant, after pleading the general issue, pleaded, secondly. As to the publishing, and causing and procuring to be published, the following parts of the said supposed libel of and concerning the said plaintiff, in the said ninth count of the said declaration mentioned, with the intent and mean- ing therein mentioned; to wit, "Mr. De Crespigny told Mr. Welles- Icy he was wrong in supposing he had spoken to his father, Sir W. De Crespigny (meaning the said plaintiff): he had written a letter to him, and he had his (meaning the said plaintiff's) answer, in which he admitted the fact; and that his wife, Mrs. De Crespigny and himself had the letter; that all the family knew of the circum- vstancc (intimacy), that his poor brother William, who is dead, was extremely jealous of his father, (meaning the said plaintiff), and had been turned out of his house; that his mother had told him that a child had been born, and that it had been her conclusion that his brother Herbert had spoken to his father (meaning to the said plaintiff) upon the subject, who replied that he (meaning the said plaintiff) entreated that so distressing a subject might not be again mentioned to him (mean- ing to the said plaintiff): the Rev. Mr. De Crespigny told Mr. Welles- ley he thought he was quite right not to allow his children to re- main with people so infamously connected: Mr. De Crespigny in- formed Mr. Wellesley he had seen the Miss Longs yesterday at their house in Berkshire, and that he had directly accused Miss Emma Long with her intrigue, upon which she got so confused that she left the room in the greatest embarrassment; that he then stated to Miss Dora Long, that Miss Emma Long had intrigued with his father (meaning with the said plaintiff), and that Mr. Wellesley (^meaning the said defendant) intended to publish the whole story, unless they immediately gnvc up his r-hiklrcn: Miss Long replied, that 5 Bingham, 302. 475 she had nothing to do with her sister's intrigue, and she must be re- sponsible for her own conduct; but that no one would believe what Mr VVellesleysaid: Mr. De Crespigny assured Mr. Wellesley that she nevei' denied her sister's having committed the lault: Mr. De Crespigny told her his father had confessed it; (not denied it); to which she made no reply, but put herself into a violent passion, and said she did not wish to see any of Mr. Wellesley's friends within her house: — noiwithstand- ing such declaration, she invited Mr. De Crespigny to dine with them, and to sleep at Binfield House: the above minutes were shewn to Capt. De Brooke, and on the part of the Rev. H. C. De Crespigny he admit- ted them twice to be correct, with the exception of one word, viz. that for con/essed it, the words jwt denied it ought to be substituted:" the said defendant, by leave of the Court here for this purpose first had and obtained, according to the form of the statute in such case made and provided, says, that the said plaintiff ought not to have and maintain his aforesaid action thereof against him, because he says, that before the publishing of the said parts of the said supposed libel in the said ninth count of the said declaration mentioned, to wit, on the 5th day of De- cember, in the year of our Lord 182 7, at, &.c. the said Rev. H. C. Do Crespigny told the said defendant that he was wrong in supposing that he the said H. C. De Crespigny had spoken to his father, Sir W. De Crespigny: he had written a letter to him, and that he had his (mean- ing the said plaintiflf'sj answer, in whicli he (meaning the said plaintifl) admitted the fact; and that his (the said II. C. De Crcspigny's) wife and himself had the letter; that all the family knew of the intimacy; that his poor brother William, who was dead, was extremely jealous of his father (meaning the said plaintiff), and had been turned out of his house; that his brother Herbert had spoken to his father (meaning the said plaintiff) upon the sul)ject, who had replied, tliat he (meaning the said plaintiff; entreated that so distressing a subject might not he again men- tioned to him (meaning to the said plainlilV): and the said II. C. De Cresi)igny then and there further told the said defendant, he thought ho was quite right not to allow his children to remain with people so in- famously connected: And the said II. C. De Crespigny afterwards and before publishing the said libel in the introiluctory part of this plea mentioned, to wit, on, &c. at, &.c. further told the said dofendant that he had seen the Misses l^ong yesterday at their house in I^crkshiro, onti that he the said II. ('. I)(i Crespigny had directly accused Miss Emma Long with her intrigue, upon which she got so confused that she left the room in the greatest embarrassment; that he then slated to Miss Dora Long, that INIiss Emma Lfjiig had intrigued with iiis fallu>r (monn- ing the said plaintiff), and that Mr. Wellesley ('meaning the said defend- ant intended to ptd)iish the whole story unless tiicy immediately gavo up his children. That Miss Long rejilierl, she had nothing to do with her sister's intrigue, and that she must be responsible lor her own con- duct, but that no one would believe what Mr. Wellesley said; and the said II. C. De Crespigny assured the said defens to plaintiff for ten years, at a rent of 382/. a year. A part of them was copyhold. He flied in ISll, when the property descended to Mrs. Brandt, who died in PVbrM.-iry ISM, and (lcvis08 Doe d. Southouse v. Jenkins. E. T. 1829. On the same 29lh September 1790, by indenture of the same date, between Henry Southouse, another of the said grandsons of the testator, and Kdmund Edward Southouse, eldest son lawfully begotten of the s licl last-mentioned Henry, (and described as his eldest son and heir in ihe said last-mcnlioned indenture,) of the one part, and the said Edwa d, lessee in the first-mentioned indenture, of the other part, the said par.ies of the first part, did demise unto the said party of the second part, one undivided third part or share of the said fi-echold part of the Sun Tavern, then in the occu])ation of the said lessee or his undertenants, to hold the same unto the said lessee, from the day of the date of the said last-men- tioneil indenture, for the term of ninety-nine years, thence next, yield- ing and paying unto the said lessor Henry, and his assigns, during his natural life, and after his decease to the said lessor Edmund Edward, his heirs or assigns, the yearly rent of 6/. 13,5. ^d. Counterparts of the said leases were also duly executed and delivered to the res[)eclive lessors, and produced in evidence at the trial on the part of the lessor of the plaintiff. In 1793, the said Henr}^ Southouse, grandson of the testator and lessor in the said indenture secondly mentioned, died, and was survived by the said Edmunil Edward, his co-lessor and only issue male. In 1794, the said Charles Southouse, lessor in the first-mentioned in- denture, died without issue. In 1799, the said Edward Southouse, lessee in the said indentures, and his said brother John Carr, were both deceased without issue. In September IS 10, the said Edward Southouse, grandson of the testa- tor and lessor in the said first-mentioned indenture, died, and was surviv- ed by Edward, the lessor of the ])laintiff, his son and heir at law. In February 1812, the said Edmund Edward, lessor in the said in- denture secondly mentioned, died without issue. The defendant Jenkins, claimed possession of the said demised pre- mises as assignee of the estate and interest of the said Edward Southouse, lessee under the said leases of 1790, and the defendant Woodhouse claimed possession of the same as assignee of a lease granted by the said last-mentioned Edward in March 1795, purporting to be a demise of the freehold part of the Sun Tavern for sixty- years, from Christmas 1794. On the 31st May 1817, the lessor of the plaintiflT, wrote and sent a letter demanding rent, to Thomas Roe, then acting as attorney for the defendant, and received for answer a letter from Roc, in which he stated fully the nature of the title of the lessor of the plaintifl', and suggested a particular form of receipt. The lessor of the plaintiff, from tlie date of Mr. Roc's letter till the giving of the notices tliereinaftcr mentioned, received from time to time from the defendant Jenkins the several rents reserved by the said several indentures of 1790; and after receiving the said letter from the said Thomas Roe, gave receipts for the said rents according to the form en- closed in that letter, the first of these receipts being for the whole rent that had become due since the title of the lessor of the plaintiff accrued. On the 23d March 1827, the lessor of the plaintiff gave the defendant Jenkins notices in due form, to quit the several premises demised by the said two several indentures of 1790 respectively. And the defendant Jenkins having refused to comply with such no- tices, the lessor of the plaintiff, after the expiration of the periods in such 5 Bingham, 469. 509 notices limited, served the declaration in this action in April 1828, containing a demise by the lessor of the plaintiff on the 2d of April 1828, with notices for the tenants to appear in Easter term following. And in that term, the defendants having obtained leave to defend as landlords, entered into the usual rule to confess lease, entry, and ouster. The jury found that the lessor of the plaintiff had established his title, but that he had by his acts confirmed the said leases of 1790. The question for the opinion of the Court was, whether the lessor of the plaintiff Wiis entitled to maintain this ejectment for the said two un- divided third parts of the premises in question, or for either of them? If the Court should be of opinion that he was entitled to maintain the same for both or for either of them, the verdict was to stand for the lessor of the plaintiff accordingly. But if the Court should be of opinion that he was not entitled to maintain the same for either, then a nonsuit was to be entered. Stephen Serjt. for the lessor of the plaintiff, contended that under the foregoing demise, he took one undivided third as issue in tail of the de- visor's grandson Edward, and one undivided third as remainder-man in tail, under the will of Henry Southouse, the manifest object of the devi- sor being to make his four grandsons tenants in tail, with cross remain- ders between them. Doe v. Webb, 1 Taunt. 234; Watson v. Foxon, 2 East, 36; Dyer, 303. b.; Cooper v. Jo7ies, 3 B. & A. 425; Holmes v. Meynel, Sir T. Raymond, 452; Wright v. Holford, Cowp. 31; Jither- ton V. Pye, 4 T. R. 710; 1 Wms. Saund. 135. n. b.; Jenkins v. Church, Cowp. 482; Doe v. Butcher, Dougl. 51. Wilde and Adams Serjts. insisted that the finding of the jury was con- clusive as to the confirmation, and warranted by the facts, as a party could not be supposed to have received rent ten years in ignorance of Ills title. With respect to the cross remainder, admitting that it was a question of intention, they argued, that no intention to create cross remainders could be collected from this will, but rather the contrary, since the tes- tator had expressly devised to his grandsons << that p;ut that belonged to their father," thereby impliedly excluding the part that belonged to an uncle. Stephen was stopped in reply. Best C. J, In this case the father and the uncle of the lessor of the plaintiff being seised in tail, each granted a lease for ninety-nine years of one-third of the premises soughl to be recovered. That granted by the father is only voidable by his issue in tail, and mt absolutely void. It might, therefore, be confirmed by the lessor of the plaintiff. Whether he confirmed was a question of fact, and thejury have found he did. It is said, indeed, this was in ignorance of his title; but he ought to have informed himself, and if he omitted to do so, can take no advantage of his own neglect. With respect to the other third, the lease was altogether void, as agninst the lessor of (he plaintiff, supi)Osing there were cross remainders between him and the other devisors. Enough iM.iy be collected from this will to show, that the testator did not intend tli;it any part of his property should go over till all the issue of his grandsons had failed; and the question has been properly put on the simple ground of intention. In the midst of all the darkness of this illiterate will, wc can grope 310 Garnbu v. Shellky. E. T. 1829. our way, and tliough what is meant by " to the last liver," is not very intelligible, there are the words '' for want of issue male of any grand- son." Therefore, nothing could go over till all that issue was extinct. Park J. It is almost absurd to say that the lessor of the plaintiff was ignorant of his title. If the property was valuable, as it perhaps is, he would of course enquire into the title. This applies only to one third. As to the other, the question is, Whether an intention can be collected to create cross-remainders? The language of the devise over is the ma- terial thing, and from that such an intention may sufficiently be collected. BuRROuGH J. and Gaselee J. concurred. Judgment for the lessor of the plaintiff as to one third. GARNER V. SHELLEY and Others.— p. 477. By the rules of a friendly society, a medical attendant was entitled to 3s. per annum from every member; and a committee of the society were authorized to settle all disputes, grievances, &c. relative to the affairs of the society, sub- ject to an appeal to two magistrates. The plaintiff, who had been duly appointed medical attendant, was dismissed by the committee without any meeting of the members of the society at large, and another appointed. Upon an application to magistrates, they recommended a public meeting; which being convened accordingly, a large majority of the members voted for the plaintiff, who thereupon sued the defendant, the trea- surer, for the 3s. received to the use of the medical attendant: Held, that the plaintiff was entitled to recover, and that the defendant was not exonerated by an order of the committee not to pay. This was an action of assumpsit, in which the declaration contained counts for money had and received by the defendants to and for the use of the plaintiff, and for money due upon an account stated between them. The cause came on for trial at the last Stafford assizes, when the jury found a verdict for the plaintiff, with 15/. 9s. damages, subject to the opinion of the Court upon the following case: — The plaintiff was a surgeon and apothecary. In the year 1821, a friendly society was established at Yoxall, subject to certain rules, orders, and regulations, which were in due manner allowed, confirmed, and ap- proved by justices of the peace assembled at a general quarter sessions of the peace; and the said rules, orders, and regulations, as well as the tables of the said society, were deposited with the clerk of the peace, and enrolled at the same sessions. Among the said rules, orders, and regulations, were the following; viz. ist. That the society was established for the purpose of raising by sub- scription from the several members thereof, and by voluntary contribu- tions, a stock or fund for their mutual relief and maintenance in old age, sickness, and infirmity, and for the benefit of the widows and representa- tives of deceased members in certain cases, and for no other purposes whatsoever. 2d. That twelve discreet and intelligent persons, members of that society, should be annually chosen as a committee, which committee, or any five of them, including the stewards or their proxies, should have the power to enquire into, settle, and determine all grievances, differences, and disputes whatsoever, which might or should arise rela- 5 Bingham, 477. 511 tive to the affairs of the society, save and except that the parties aggriev- ed might appeal to any two magistrates, as empowered by the acts re- lating to friendly societies. The committee, under the controul of the high and deputy stewards, should have power to lend and dispose of the society's money at interest, in such way and manner, and in such sums as they believed to be most advantageous to the society, taking good and proper security for the same. The old committee should nominate and appoint the persons composing the new one, and six of them at least should be annually changed by ballot immediately after the new committee was chosen and formed. They the said committee should agree upon and appoint three sufl&cient, discreet, and intelligent persons among the twelve composing such committee to act as stewards, the one as high steward, the other two as deputy-stewards, to assist and help him the said high steward in the execution of his office. The high steward, in all matters of dispute or disagreement, either in the com- mittee or society at large, should always have the power and privilege of the casting voice; and if he should find it requisite to consider further the subject under discussion or in dispute, should for that purpose, be at liberty to withhold his determination for the space of one month or twenty-eight days, provided the subject would admit of such delay. The three stewards should give their joint bond to the society for the stock entrusted to their care and disposal; they should make up their ac- counts, and deliver up every thing belonging to the society to the suc- ceeding stewards the next club-night after their being appointed, or forfeit 10/.; and no action or suit whatsoever should be commenced with- out the approbation and consent of the committee, or the major part of them, the high steward having in that case, as in all other cases, the privilege of the casting vote. 16th. That each member should pay 3*. annually to the society's doctor, in consideration of which, in case of sickness or lameness, he should be entitled to the necessary medicines and attendance his situation might require: every member to pay the doctor whether in or out of his limits, provided he resided not more than five statute-miles from Yoxall, and the first payment should become due on the 19th March 1S22. By the 23d, three stewards, whose names Were therein mentioned, were appointed. When the society was established in 1^21, the plaintifTwns duly ap- pointed the doctor to the society, and continued to fill that situation without any interruption till the month of August 1826; but, before that time, complaints of his negligence and misconduct as such doctor had been made by different members of the society to the high steward, and to some of the members of the committee. On the 14th August 182G, a meeting of the committee was held, at which cloven members attended. No notice of that meeting was given to the plaintiff. After the commiftoe had assembled, the plaintiff was sent for, but was not at home, and did not attend. A Mr. Fernyliough was also sent for. At this meeting the complaints against the plaintiff were discussed, hut no evidence was given of the facts, and a vote of his dismissal, and the appointment of Mr. Fernyhough, was carried. Eight persons voted for Fernyhough, and two for the plaintiff. The following was a copy of the resolution of the committee: — "Resolved, that Mr. John Oarner, the surgeon and apothecary of the society, be henceforth dismissed from that office, and that Mr. 513 Gauneh v. Shelley. E. T. 1829. Joseph Ferny hoiigli, surgeon and apotliccary, !)e appointed to succeed him, ami a proper jiroporlion only of the inenihers' subscription to the eurgeon and apothecary be paid to the said John Garner for the pe- riod he has acted as such during the present year to this time, and that flic rem, inder of such subscription be [)aid to the said Joseph Ferny- liougli. Also ordered, that a copy of the following notice be delivered to Mr. Garner forthwith." "Sir, — You are hereby informed, that the committee of the Yoxall New Friendly Society having met this day to consider the propriety of continuii g you as surgeon to the society, it is agreed, that your services fihall cease from this day. I remain, for the deputy-stewards and com- mittee, " Yours, &c. "John Jackson." A copy of such notice was delivered to the plaintiff on the same or on the following day. The proportion of the members' subscription up to that time was paid to the said plaintiff, who did not, however, acquiesce in the dismissal, but did continually from thence attend as many of the members of the society as would permit him to do so, amounting to more than the majority; and seventy-five of them, the whole number being from 100 to 110, signed a paper approving of him as the doctor. The Judge left it to the Jury to say, whether the proceedings of the committee were bona fide for the investigation of the complaints, or merely for the purpose of getting rid of the plaintiff, and appointing another medical man. The jury found the latter, and said the plaintiff was an injured man. The plaintitriiad been and was then a member of the society. The defendants, on the 19th March 1827, were elected stewards of the society, and continued to act as such till the month of May 182S; and in the early part of tiiat year received from each of the several members of the society, according to the usual course, the sum of 3*. for their re- spective payments to the society's doctor, under the sixteenth rule, for one year, ending 19th March 1828, which sums amounted to 15/. 9s. Upon the 11th March 1S2S, the following order was made by the com- mittee, and entered upon the books of the society: — "At a meeting of the stewards and committee of the Yoxall New Friendly Society, held at the Golden Cup Inn, in Yoxall, this 11th day of March 1828, ordered, that the sum of 15/. 12.s. be paid to Mr. Joseph Fernyhough, surgeon and apothecary to the said society, that sum being the amount due to him for medicines and attendance for and on the sick and lame members thereof, we, the undersigned stewards and committceof the society afore- said, considering the said Mr. Joseph Fernyhough the legally-appointed surgeon and apothecary to such society; and we also further ratify and confirm his appointment to the said office. As witness our hands." This was signed by the high steward and ten others, members of the society. Disputes having arisen respecting the aforesaid vote of dismissal of the plaintiff, the committee (including the present defendants), and many members of the society, attended before two of the justices of the peace of the county of Stafford. It was denied on the part of the defendants, that the magistrates had authority, under the statute?, to settle the matter themselves or make any order respecting it; but, upon their recommendation, a public meet- 5 BixcjiiAM, 477. 513 ing of the said society was held on the 17lh Decemher 1527, of which the following notice was given: — " Yoxall New Friendly Society, December 6, 1827. "It having been agreed, in pursuance of the recommendation of the magistrates at their meeting at Whichnor Bridges on Saturday last, that the votes of the members should be taken at the next club meeting to be held on the 17th December instant, for a surgeon to the club, you are requested to attend to give your vote on that occasion." The meeting was attended by the present defendants, who were stew- ards, the rest of the committee, and by a very large majority of the members of the society; and at such meeting, fifty-three voted for Gar- ner, eleven were neuter, and three voted for the rival surgeon. The plaintiff, before the action was brought, demanded the money of the defendants, who refused to pay him, alleging that the committee considered Mr. Fernyhough to be the legal doctor. The question for the opinion of the Court was. Whether the plaintiff was entitled to recover from the said defendants the said sum of 15/. 9s. above demanded, or any and what part thereof? If the Court should be of opinion that the plaintiff was so entitled, the verdict was to stand for such sum as they should think fit; if not, a nonsuit was to be entered. Spankie Serjt, for the plaintiff, was stopped by the Court. Russell Serjt. for the defendants, contended, first, that under the second rule for settling all disputes, &c. the committee had the power to dismiss the doctor without the concurrence of the rest of the society, and that, if so, the plaintifi, having been duly dismissed, was incom- petent to maintain the present action; And secondly, that at all events, tiie defendants, having acted under the orders of the committee in refusing to pay the plaintifij were not liable to be thus sued. The 59 G. 3. c. 128. s. 9. made the rules of the society binding, subject to an appeal under 33 G. 3. c. 54. s. 15; and, after Fernyhough had been duly appointed, the defendants would have no answer to an action by him for the very sum now claimed Ijy the plaintiff. Best C. J. I am opinion that this action is maintainable. It does not appear that the matter in wliich the committee have taken upon themselves to decide, is a dispute or grievance which it was within I heir province to determine on; and the jury have found in effect, that they were not acting so much with a view to remedy a grievance, as to pro- mote a jolj for bringing in as medical attendant a friLMid of some of tlic influential members, 'i'hen the |)artics go before a magistrate, a meeting is convened pursuant to his recommendation, and it is agreed, by a great majority of lh(; society, that the plaintiff shall I)('. restored. AfliT that, what had been done i)efore, was undone. As to any claim of Ferny- hough, if the defendants pay him, tiiey will do so in their own wrong; but, at all events, paying the wrong person will not exonerate them from paying the right. Pauiv J. concurred. HimuoiTGH J. To have given any colour to the dismissal of the plain- tiff, there should have beeti a summons, evidence, and hearing. There is no proof that the dismissal was authorized, nnd our judgment nuisl ho for the plaint ill". Gaskukk ,1. conrurrctl. Judgment for the plaintiff, vol,. XV. 65 514 Evans v. Wiiyle. E. T. 1829. J. EVANS V. WHYLE p. 4S5. Defendant guaranteed the payment of gold with which plaintiff should supply a goldsmith for the purposes of his trade. Plaintiff discounted bills for the goldsmith, and gave him for them partly gold and partly money; the gold was ap- plied to the goldsmith's trade, but the goldsmith did not indorse the bills : Held, that the defendant was not liable under his guarantee for the gold so fur- nished. The defendant guaranteed the plaintiff, to the extent of 50/., pay- ment for any gold he might supply to Evan Evans, a working gold- smith, for the purpose of carrying on his business. After supplying Evan Evans for some tin\e, the plaintiff, upon the ap- plication of E. E. discounted certain bills of exchange for him, and fur- nished the amount of the bills, partly in money, and partly in gold, de- ducting from the gold the usual charge for credit for the length of time the bills had to run, and from the money, interest at the same rate. Evan Evans did not indorse the bills, but the gold was applied by him in the purposes of his business. The bills having been dishonoured, the plaintiff sue'd the defendant on his guarantee. At the trial before Besl C. J. London sittings after Hilary term, it was objected, on the part of the defendant, that the plain- tiff's gold, although applied by E. E. to the purposes of his business, •was not sold by the plaintiff to him for the carrying on of that business within the meaning of the guarantee, but was in effect part of the pur- chase-money paid by the plaintiff for bills he had discounted, and which, having so purchased without E. E.'s indorsement, he had taken at his own risk. " The learned Chief Justice, however, thinking the transaction a supply of gold within the terms of the guarantee, a verdict was found for the plaintiff; which Wilde Serjt., upon the grounds urged at the trial, obtained a rule nisi to set aside- Taddy Serjt. shewed cause. Wilde, contra, cited Enily v. I-ye, 15 East, 7; Exparte Isbester, 1 Rose, 21. Best C. J. The opinion which I entertained at the trial has been changed, and I think this rule ought to be made absolute. This is an action on a guarantee, touching the sale of gold from the plaintiff to Evan Evans; and it was understood between the parties, that the gold furnished to Evan Evans was to be used in his trade. The question which has arisen is. Whether gold advanced by the plaintiff, together with money, in discounting bills for Evan Evans, is gold supplied with- in the meaning of the guarantee? I think it is not. The defendant only meant to pay for such gold as was sold to the original debtor: this was not sold by the plaintiff, but paid on the purchase of bills of ex- change, and the cases cited clearly establish the distinction between payment for goods by bills, and transferring bills when they are dis- counted. This, therefore, was not a transaction within the meaning of the guarantee, by which the defendant was proposed to be responsible for gold sold to Evan Evans in the way of his trade. Guarantees ought 5 Bingham, 485. 515 to receive a strict construction; and they should be so drawn up as to embrace in terms the dealing intended to be guaranteed. Park J. The distinction is to be collected from the cases which have been cited. If a party sells goods, and takes for them a bill of exchange which is not honoured, he is remitted to his original consider- ation; but if he discount bills for money to one who does not even in- dorse them, it is a purchase of the bills at his own risk. The rest of the Court concurred, and the rule for a new trial was made Absolute. TERRINGTOxX, Assignee of PULLAN, a Bankrupt, v. HAR- G REAVES and Others.— p. 489. The bankrupt act, 6 G. 4. c. 16. s. 82., is retrospective. Therefore, where the bankruptcy took place June 26, 1822, and the bankrupt paid the defendant, who knew of his insolvency, a sum of money August 4, 1822, and a commission was sued out against the bankrupt in May 1823 : Held, that the assignees could not, subsequently to the time when the 6 G. 4. c. 16. came into operation, sue the defendant for money had and received. HOVILLv. STEPHENSON.— p. 493. Where the plaintiff, in an action on a charter-party, had communicated to the attesting witness an interest in the adventure subsequently to the execution of the instrument : Held, that evidence of his handwriting was inadmissible. This was an action upon a charter-party At the trial before Park J., London sittings after Hilary term, it appeared that, after the execu- tion of the instrument, the attesting witness was, by agreement with the plaintiff, admitted to a share of the profits which the plaintiff ex- pected to arise from his bargain. An objection was taken to the com- petency of the witness, and his evidence was rejected, he having re- fused to release his interest. It was then proposed to prove his hand- writing. This proof was objected to, and the objection allowed by Parki., who tried the cause. The plaintiff, not being able to prove the charter-party, was nonsuited. Taddy Serjt. obtained a rule nisi to set aside tliis nonsuit, on the ground that the evidence offered by the plaintiff had been improj)erly rejected. Hllde Serjt. shewed cause, citing Gosf: v. Traccy, I V. Wms. 287; J lonryvmod \ . Peacock, .3 Campb. 19G; Swire v. Hell, 5 T. K. 371; Forrester v. Pit^^oii, 1 M. & S. 9. 7\iddi/ rcfvrrcd to Godfrey \. Nurris, 1 Str. 31; Buckley s. Smith, 2 Esp. 697. Lnr. adv. vult. Rest C. .1. This is an action iipoii a charter-party. After the ex- ecution of the iiislriiment, tho attesting witness was, by agreement with tho pliiintiff, admittfid to a yfhare of the [jrofits which the plaintiff rx[)cclcd to derive from his bargiiii. An ohjcctiori w.ts t;ikct> to the couipcteiif-y of the witness, and his cvidf^ncc was irjciMiNl, lie having /Jig Ho V ill t'. Stephenson. E. T. 1829. rc-fiiscJ to n^lease his interest. It was then proposed to prove his liantlwritini;;: this proof was objected to, and the objection allowed by my brother Park, who tried the cause. The plaintilf, not being ablo to prove the charter-party, was nonsuited. A motion has been made to set aside this nonsuit. My brother Bur- rousj/i was absent when this case was argued, but the rest of the Court are of opinion that this evidence was properly rejected. There are many cases where a subscribing witness has acquired an interest after the execution of the instrument attested by him, in which it has been decided that proof of his handwriting may be received to establish such instrument. The handwriting of a subscribing witness who has been appointed an executor or administrator, or has married the person to whom the in- strument was given, has been allowed to be proved. We do not dis- pute the authority of any of those decisions; on the contrary, we should be disposed to extend the principle established by them to the case of a man entering into a partnership, and becoming interested in instru- ments by acquiring a share in the credits, and taking upon himself the responsibilities of the firm of which he becomes a member. Necessity requires that, in all these cases, such evidence should be received, as otherwise parties must lose the rights secured by the in- struments attested, or forego accepting of situations most important to their welfare. It would be a hard thing, if the law were to say that a man should not become an executor or administrator, or accept a beneficial partner- ship, without giving up debts due to the estates in which he hasacquir- ed an interest. But, in the present case, the witness has only obtained an interest in the contract which he was to prove, and that interest he derived immediately from the plaintiff, who proposed to call him. The plaintiff cannot complain that his witness is disqualified, when he him- self has been the cause of his disqualification. That the interest was considered by the witness to be so valuable as to be likely to affect his testimony, is proved by the circumstance, that he refused to release it. It would be improper to allow a plaintiff to give such an interest to a person, in the particular transaction in which he is obliged to call him as a witness, as is likely to bias his testimony. A learned writer (who has devoted too much of his time to the theo- ry of jurisprudence, to know much of the practical consequences of the doctrines he has published to the world,) has said, that interest should only operate against the credit, and not be an objection to the compe- tency of a witness. This doctrine is, however, contrary to our law; for, according to that law, a direct interest to the smallest amount in any person, will prevent such ])erson from being examined as a witness. This rule does not stand upon the principle that Mr. Starkie supposes, viz. that the law can make no distinction between the degrees of inte- rest; but upon this, that if the party declines releasing his interest, whatever may be its amount, it seems that he feels it of importance to him, and therefore cannot be trusted as a witness in a suit instituted for the recovery of it. A feeling of interest will, in spite of the utmost efforts of the most conscientious man, often so warp his memory, as to prevent him giving an accurate account of any transaction in which he is concerned. Considering the interest of parlies, and that which is of still more 5 Bingham, 493. 517 importance — the interests of tiie public and of religion, which require that every possible means should be used to prevent false evidence, the law cannot be too strict in excluding the testimony of interested wit- nesses. It is true that prejudices will often influence the mind of a witness as much as interest; but this is an evil that cannot be remedied. If we want the testimony of witnesses, we must be content to take it with all the defects that the infirmities of those who give it may occa- sion. We may require a witness to release his interest, but we cannot compel him to release himself from his prejudices. Because we cannot do all we wish, we should not fail to do all we can to get at truth. The case of Forrester v. Pigou is stronger than the present. The plain- tiff in that case gave the witness an interest after the cause of action accrued, without the privity of the defendant, and yei; the Court would not allow the defendant to call him. If a plaintiff in such a case as this had a right to say, you must either allow me to call a witness whom I have rendered interested to support my claim, or allow me to prove his handwriting, you put a defendant under the necessity of having a case proved against him by an interested witness, or giving up the op- portunity of obtaining a knowledge of any circumstances that occurred at the time of the execution of the instrument by the cross-examination of the attesting witness. Let the rule for setting aside the nonsuit be discharged. Rule discharged accordingly. KNOWLES V. BLAKE and THOMAS.— p. 499. Plaintiff distrained defendant's cattle damage feasant, and went to apprize de- fendant : during his absence the cattle escaped for half an hour into defendant's ground, whence plaintiff, on his return, drove them to his own yard : defend- ant having taken them thence. Held, no rescue. Rescue. At the trial before Garrow B,, last Sussex assizes, it ap-. peared that the plaintiff's son, having seen the defendant Blake's horses trespassing in his father's field, was in tlie act of driving them to the pound, when he left them for the purpose of apprizing tlie defendant Blake of what had happened. While he was out of sight on this errniid,* the horses strayed from the plaintiff's field into the defendant lilake's shruhl)ery, where they re- mained nearly half an hour; at the expiration of wliich time, the j)lain- tiff's son, having failed to obtain redress from Blake, drove the horses out of the stirui)bery into the plaintifPs yard, whence they were short- ly afterwards rescued by tlie defendants. Thomas suffered judgment by default. It was objected that here was no rescue, because the distress had been abandnnerl by the plaintifl's son aUowiiig llin cattle to es(;apo into and remain in tlie slirubliery, whence he had no right to remove tliem. A verdict was found for the plaintifi", subject to a motion to set it aside. Cross Scrjt. arrordingly moved to set aside the verdict, and enter a verdict for the dr-fcnd.int iiisteaii. lie cited Co. Lit. 1^1 a. 518 Everett v. Desborougii. E. T. 1829. ^^ndrcws Scrjt. contra. No precise form of words is necessary for a distress. It is suflicient if the intent to distrain be manifest. Clement V. AJi/ncr, 3 Esp. N. P. C. 95. [Best C. J. That point was decided in I f 'ood V. Ntinn, suing. 10.] Co. Lit. 161 a. r rf // Best C. J. Two questions have been raised in this cause. Upon the first, we all think that the distress was sufficiently made, for no precise act or form of words is essential to a distress. But distress is a matter of strict right; and if he who distrains, damage-feasant, permits the cattle to escape, he must look for some other remedy. A mere escape for an instant, indeed, if the distrainor followed, would not be an abandonment of the distress; for Lord Coke says, " When a man hath taken a distresse,'and the cattle distreyned as he is driving of them to the pownd go into the house of the owner, if he that took the distresse demand them of the owner, and he deliver them not, this is a rescous in law." Co. Lit, 161 a. But here the plaintilT's son permitted the horses to stay in the defendant's shrubbery for half an hour: they were not demanded during that time; and that was an abandonment of the right of freshly following. Lord Coke says, "If the cattle of them- selves after the view go out of the fee, then cannot the lord distreyne them." Ibid. And in P'asper v. Eddows, Holt, 257, Lord Holt says, "If a distress for damage-feasant dies in pound, or escapes, the party shall not distrain de novo; but if it were for rent, in either case, he may distrain de novo." The present is a stronger case than that, for the cattle taken had never been in the pound. Therefore, our judgment must be for the defendant Blake. Judgment accordingly. ARMITAGE v. BERRY and Another.— p. 501. A note for 100/., payable to A. B. or order on demand, is subject only to a stamp of 3s. 6d, EVERETT V. DESBOROUGH.— p. 503. 1. In an insurance upon the life' of another, the life insured, if applied to for in- formation, is, in giving such information, impliedly the agent of the party in- suring, who is bound by his statements, and must suffer if they are false, although he is unacquainted with the life insured, and the servant of the in- surance office undertakes to do all that is required by his office. 2. Plaintiff effecting an insurance on the life of H., with whom he was unacquaint- ed, desired the agent of the insurance office to do all that was requisite. The agent knew H. well, and made tlie usual enquiries. One of the terms of the contract was, a reference to the usual medical attendant of the life insured. H. having given a false reference : Held, that the plaintiff could not recover. Assumpsit on a policy of insurance, eflfectcd for the plaintiff on the life of James House with the Atlas Insurance Company, of which the defendant was the secretary. By the policy, certain conditions on the back of it were declared to be a part of the policy as much as if they had been repeated in the body of it. 5 Bingham, 503. 519 These conditions were as follow, in two columns: — Column the first; — ''Conditions of Life Assurance. " Persons proposing to effect Life Assurance, will be required to state the following particulars; viz. " 1. Name and residence of the party by whom the proposal is made. " 2. Name, residence, and profession of the person whose life is to be assured; and, in case of an assurance upon survivorship, the name, residence, and profession of each party. " 3. Place and date of birth; and age next birth-day. *' 4. Sum to be assured, and the term. ** 5. Whether afflicted with gout, asthma, fits, spitting of blood, or any other disorder which tends to shorten life. " 6. Whether the party has had either the small-pox or cow-pox, " 7. Whether the party will attend personally, either at the office in London, or before one of the company's agents. "8. Whether employed in the military or naval service. " 9. Names and residences of two gentlemen to be referred to, re- specting the present and general state of health of the life to be assured. One to be the usual medical attendant of the party. "A declaration as to all the above points will be considered as the basis of the contract between the assured and the company. If such a declaration be not in all respects true, the policy will become void, and the premium that may have been paid will be forfeited." Column the second; — "10. No assurance to be in force until the premium has been paid; nor will any policy be considered valid for more than fifteen days after the expiration of the period limited therein, unless the premium, con- ditioned for the renewal of such policy, shall have been paid within that period, and the printed form of office-receipt given. But such as- surances may be revived at any period, not exceeding three months after their expiration, on satisfactory proof being given to the directors of the unimpaired state of the health of the life assured, and on pay- ment of the premium, with an addition of 5s. for every 100/. assured. " 11. Policies will become void if the parties, whose lives have been assured, shall go beyond the limits of Europe, or shall die on the high seas, (except in passing, during peace, in king's ships or packet or passage vessels from any one part of the United Kingdom of Great Britain and Ireland to any other part thereof; or in passing direct, by a similar conveyance, from and to any port in Oreat Britain, to and from any port between Rotterdam and lirest, botli inclusive, or to and from Ouernsey, Jersey, Alderney, or Sark,) unless special permission shall have been granted by the directors, which may be obtained on the par- ties attending personally at the oflice, to give every rcquiHilc explana- tion, and paying such extra premium as the directors may deem ade- quate to the risk incurred. " 12. Policies will also be void if the parties whose lives have been assured, shall be actually employed in any military or naval service whatever. " 13. Assurances, made by persons on their own lives, will be void if they die by the hands of justice, by duelling, or by suicide. But 520 EvEnETT V. Dkshohough. E. T. 1829. should the families of such persons be left in distress and poverty, the directors, in their discretion, will make such allowance in respect of the policies of the deceased as tliey may deem just and reasonable. ** 14. Assignments of life policies may be made without giving notice to the company. "15. Persons effecting assurances on other lives than their own, will be required to state the nature of the interest they possess in such lives. *' 16. All claims upon the company will be paid within three months after satisfactory prooi shall have been produced of the death of the per- sons upon whose lives assurances have been effected. *• 17. In cases of assurances in Ireland, the company undertake to appear in the courts of law there to any action commenced against them. "London, 27th December, 1825. " By order of the Directors, *' Henry Desborough, Jun. " .Secretary." The declaration in the cause stated, that the plaintiff caused to be made a certain policy of assurance, whereby the Atlas Company, " relying on the truth of a certain declaration made by the plaintiff" in compliance with the conditions on the policy indorsed, (vvherein it was declared that the age of House did not exceed forty-four years; that he had had the small-pox; had not had the gout; had not suffered a spitting of blood; and was not and had never been afflicted with asthma or fits, or with any disorder which tended to shorten life,) agreed, in considera- tion of a premium of 37/. 175. Gel., to pay him 1000/. in case James House should die within a year; provided that the policy should be subject to the printed conditions indorsed thereon, in the same manner as if the same were there actually repeated, and adapted to that present case."(«) And by those conditions it was expressed and declared, that persons proposing to effect life-insurance would be required to state the following particulars, &c. : (inter alia) the names and residences of two gentlemen to be referred to, respecting the present and general state of health of the life to be assured; one, to be the usual medical attendant of the party: — a declaration as to all the above points would be consi- dered as the basis of the contract between the assured and the company. And the plaintiff" averred, that he did make a declaration according to the requisitions of the said printed conditions, and that the declaration so by him made, and referred to in the policy, was in all respects true. He then averred the death of House, and the defendant's refusal to pay. The defendant pleaded the general issue; and paid the amount of the premium into Court, upon a count for money had and received. At the trial before Gaselee J., the following were the circumstances proved on the part of the plaintiff": The plaintiff" being known to possess some leasehold property, deter- minable on the life of House, was applied to by Lye, agent of the Atlas Company at Warminster (near which place the plaintiff and House resi- ded), to effect an insurance witli the Atlas Company. The plaintiff" agreed to insure 1000/.; but as he had never seen House, and knew nothing of him, he told Lye to make the requisite inquiries, and to do all that was proper in the business. (a) The passage between inverted commas is the exact language of the body of the policy set out in the past tense. 5 Bingham, 503. 521 House, who at this time, and for six months preceding, had been re- siding with his mother, managing a farm of hers near Warminster, was a remarkably handsome athletic man, bearing all the external indications of rude health; and was believed by Lye, who had known him since ' his birth, and by all the inhabitants of Warminster, to be the healthiest and stoutest man of that healthy district. He bore a good character, and was, while residing there, of remarkably temperate and regular habits. Lye called on him at his mother's, and at a house in Bath (sixteen miles off), where, previously to the last six months, he had resided for some years. In answer to the inq^uiry "who was his usual medical attendant?" House said, " I have never had occasion for a doctor: somet:mes I have taken Harvey's quack pillsj but Mr. Vicary, of Warminster, knows as much of me as any man." Mr. Vicary, a respectable and intelligent medical man, had never attended House professionally, but had known him from his birth, and had attended the rest of his family. In a written communication made by him to the Atlas office, and in his testimony on the trial, he stated that he had never seen a stronger or healthier man. Lye transmitted to the office a statement made by himself, in which, among other things, it was declared, that House referred to JNIr. Vicary as his usual medical attendant. This statement occupied half the sheet of a letter and was signed by Lye: Lye shewed this to the plaintiflT, and was beginning to read it over, when the plaintiff said, " I dare say it is all correct;" and on the other half sheet the plaintiff signed a separate declaration, that House had had ihe small-pox; had not had the gout, &.C. ; was not affiictcd with any disorder tending to shorten life; and that his age, residence, and occupation were as tlierein described. On the part of the office it was proved, that House, when he resided at IJath, had been wont occasionally to indulge in extraordinary fits or bouts of intoxication. At these times he would be drunk day and nigbt incessantly for ten days, a fortnight, or even three weeks, swallowing any thing and every thing that came in his way. He was always attended after these bouts by his neighbour Harvey, a f|u;u'k doctor, who bled and pinged him copiously. He went over to Bath, from his mo- ther's, shortly before the insurance was effected, had one of these bouts, — recovered, — and died suddenly at his mother's, a few days afterwards. These facts, however, and Harvey's attendanco, were unknown to the plaintifl', to Lye, and to the inhabitants of NN'arminsler generally^ and Mr. Vir.ary, the surgeon who examined House when the insurance was effected, asserted at the trial, that whatever his habits might have been, llu-y bad at the time of the insurance jiroduccd no pr iToj)tible effect upon iiis appearance or constitution. On the part of the office it was contended, that these bouts of intoxi- cation were a material circumstance, the non-disclosure of which avuid- ••(1 the policy; and that at all events, it was a condition precedent to any liability on the part of the office that tliey should have been informed of the name of House's usual medical attendant; and that this condition had been neglected, Harvey having been his usual medical attendant, and not Virnry. To this it was answered, first, llint the jilnintiff's wnrrnnlv was only VOL. XV. <>'> 522 EvKRKTT V. Dkskorough. E. T. 1829. against any disorder tending to shorten life: that he had not warranted against pernicious habits; tliat he could not be expected to disclose what he never knew; and that at all events it was sufBcient if House was an insurable life at the time the insurance was effected. Secondly, tJiat House was not the agent of the plaintiff, who, there- fore, ought not to be affected by misrepresentations, if any, made by him; and that though in ordinary cases the assured might be bound to furnish all the information required by the office, yet here, the defend- ant's agent having solicited the insurance, and the plaintiff having left it to him to make all the necessary inquiries, the office had taken the task of inquiry upon themselves, and had absolved the plaintiff from the duties usually imposed upon the assured. Gaselee J. left it to the jury to say, first. Whether at the time of effecting the insurance House was an insurable life; secondly, Whether there had been a concealment of any circumstance which it was material for the office to know; and, thirdly. Whether Lye had acted as the agent of the plaintiff, or of the office, or of both. The jury jfound. That House was an insurable life; That there was no concealment of any material circumstance; and That Lye was solely the agent of the office; and gave their verdict for the plaintiff. Merewether Serjt. obtained a rule nisi to set aside this verdict and enter a nonsuit instead, upon the grounds urged at the trial. He relied on Lindenau v. Desboroiigh, 8 B. & C. 586; Maynard V. Rhodes, 5 D. & R. 266; Morrison \. Muspratt, 4 Bing. 60. JVilde Serjt. shewed cause. Mereivether contra. Best C. J. No longer ago than when the case of Morrison v. Mus- pratt was decided, this Court held, that if there was reference to a man who had been the medical attendant, and no reference to the person who was the medical attendant of the life insured at the time the policy was effected, such an omission to refer to the proper person would vacate the policy. This Court granted a new trial in that cause, in consequence of a supposed misdirection of Lord Tenterden. Lord Tenterden after- wards, in Lindenau v, Desboroiigh, spoke in terms of approbation of the decision of this Court, and in effect said, that he considered the decision of this Court as the rule which ought to guide him in giv- ing his direction to the jury in that particular case. How is that case of Morrison v. Mnspratt to be distinguished from the present? In that case, undoubtedly, the reference, as my brother Wilde has stated, was made by the assured; in this case, the reference made is not by the as- sured, but by the person whose life was insured. Then, is the assured affected by any misrepresentation of the person whose life is insured? In the case of Maynard v. Rhodes, that very point was decided by the Court of King's Bench. Colonel Lyon, the life insured by the plaintiff, in conformity with the regulations of the insurance office, attended to give the usual information as to the state of his health, and in the result the policy was effected. Colonel Lyon concealed or misrepresented a material circumstance touching his health. The learned Judge told the jury, if they were satisfied that the representation made by Colonel Lyon was not substantially true at the time the policy was effected, the plaintiff would be bound by the consequences of such misrepresentation, although he himself was not privy to the falsehood. A motion was- 5 Bingham, 303. 523 made for a new trial. The judgment is given by Mr. Justice BayUy^ Mr. Justice Holroyd, and JNIr. Justice Littledale. Tiie first says, '' I am of opinion that the direction of the Lord Chief Justice to the jury- was correct in point of law." Mr. Justice Holroyd says, '' If the jury were satisfied that the representations made by Colonel Lyon himself were untrue, it can make no difference in the legal result whether the policy was effected for his benefit or not; it was a conditional policy, and the party for whose benefit it was effected must stand to the conse- quences." Mr. Justice Littledale expresses him.self as agreeing with the other two Judges. This is a very recent decision at the Court of King's Bench expressly on this point; but if we look at the circumstances of the present case, I think we may decide this point on the general rule of law, that the prin- cipal is responsible for any representations made by his agent relating to the business in hand. For, has not the plaintiff, the assured, made ^Ir. House his agent for the purpose of this insurance? When Mr. Lye applies to the plaintiff, the plaintiff says, I can give no account, you must go and enquire who was INIr. House's medical attendant. And who could give him the best account? to whom should he go? who could give him direct and satisfactory information on the subject but Mr. House? Then, the assured must have known of the statement signed by Lye, because Lye swears that he shewed him the paper, and that the other said, I dare say it is all correct. He either did know it or might have known it, which, as far as regards his responsibility, is the same thing as if he did know it. He knew that Mr. House had been asked the question — "to what medical practitioner do you refer the directors of the office as most competent to give evidence respecting your present and general state of health and constitution, and your habits of life," — and that he had answered, "I refer to ]\Ir. Vicary of War- minster." By suQering that paper to be handed in, he adopts that refer- ence, and makes Mr. House his agent for the purpose of making the reference. Is that a true and proper reference ? Mr. Vicary of Warminster had never been House's medical attendant. But a medical man at Bath had attended him for some years, and could tell not only whether there was any incipient disease, but whether there were any habits which have a tendency to produce disease. Without discussing the question whether habits of inveterate drunken- ness have a tendency lo produce disease or not, we may stop short here, and say, you have not referred to the medical attendant as you were re(juired to do. The first count in the d-jclaratioii stales the policy of iusurance: it then states the conditions, according to a chiuse by which it is ''provided that this policy and insurance hereby cffecteil shall at all times and under all circumstances be subject to such conditions and stipulations as are contained in the printed conditions of life-assurance inflorsed hereon, in the same manner as if the same were actually re- peated in the body of the policy, and adapted to this present case." One of those conditions is, that the names and residences of two gcnllcmeii are to be referred to respeoting the present and general state of the life of the insured — one to he the usual medical attendant of the party. The declaration in tlio cause then goes on to slate, that all the condi- tions of the [)olicy had been complied with, and, rMnser|nently, that there had been a reference (o the proper medical man. W'lllioul proof 524 Everett v. Di:siiOROufiii. E. T. 1829. of that, the plaiiitifl'coiikl not recover in this action; and it is not an un- necessary allegation, because the declaration, in my opinion, would have been bail without it, foi' it would not truly have represented tlie contract between the parties. That contract is not confined to what is contained in the body of the policy, but embraces the conditions indorsed on it, and embraces the representations required by those conditions. It was aljsolutely necessary to set out in tlie declaration that tiiese conditions had been complied with. So far from that being proved, undoubtedly it was disproved. I am of opinion, on this short ground, that a nonsuit ought to be entered. 1'ark J. In all actions on life-assurance, I am quite clear that every regard ought to be paid to the assured, because, in general, it is a pro- vision for a family, or it is a provision for a bona fide debt, as I have no doubt it was in this case; for there is not the least imputation on the plaintiQ" in the cause; but, while one wishes to give every latitude and every indulgence to plaintiffs under such circumstances, it is absolutely necessary that in every case of this description, there should be the purest good faith between the parties, and the most accurate representa- tion of all material circumstances. Looking at this case in that point of view, I think there is nothing at all in the point that has been made. The case is merely this, that Mr. House's life being the subject of in- surance, the plaintiff", who was to be benefited by that insurance, refers the agent of \\\c office to make such enquiries as he can; the agent neces- sarily goes to the party who was to be the life insured. Was it not, then, of course, that the plaintiff, who made the reference to this very man, because he was the person who could give the best information, should be bound by the representations House made concerning himself? And what does he say of himself? He is asked, to refer to his usual medical attendant. He says, my usual medical attendant is Mr. Vicary of War- minster. But was there a word of truth in Mr. Vicary being his usual attendant? IVIr. Vicary was examined, and it appeared he had never been his medical attendant. No matter, then, whether Dr. Harvey were a good medical attendant or not — he whs the person actually at- tending him, and his name was never mentioned. Then, is the plain- lilf, who effects the insurance, to be bound by this? It seems to me ih^i Maynard w. Rhodes is exactly in point. There is no distinction whatever between that case and the present, ijccause there, the assured was as ignorant of any thing like fraud, and as Uqh from suspicion, as the plaintiff here; yet, it was held, he was bound by the representations of the life insured. But it is said, this misstatement is not material, or not so material as the misstatement in the case of Muynard and Rhodes. I do not agree in that. It is most material that the surgeon who has been in attendance on the life insured, if such a one there be, should be referred to. If he never had had a surgeon attending him, he might have said so; but if he had one, it was material that he should be referred to, and the plauitiff knew it was material, otherwise he would not have declared in the man- ner he has done in this case, for he avers in his declaration the exact performance of this condition. Instead of alleging that the defendant had dispensed with that information, as, perhaps, he might have alleged, (if he could have proved it,) according to the principle recognized in Jones v. Barkley, Dougl. 6S4, he says, I have performed all the con- ditions hereinbefore recited. But he had not done so, for he had not referred to the usual medical attendant of the life insured. 5 Bingham, 503. 525 BuRROUGH J. Here there is beyond all question a misrepresentation of a very material fact: of the name of the person who attended the life insured. There was another person who had been used to attend him. Beyond all doubt, that is a misrepresentation. At the bottom of the policy there is this phrase: " A declaration as to all the above points will be considered as the basis of the contract between the assured and the company. If such declaration be not in all respects true, the policy will become void." One declaration is of "the name and place of residence of two gentlemen to be referred to respecting the present and general state of health of the life to be insured — one to be the usual medical attendant of the party." Has the plaintiff complied with that? so far from it, there has been a misrepresentation of the fact by the life insured. Vicary was not his medical attendant. Tiiere was another person who had attended, and who would have disclosed habitual intoxication. This is not complying with the terms of the policy, and 1 think there ought to be a nonsuit. - GaseleeJ. According to the terms of this policy, it is requisite that the names and residences of two gentlemen should be referred to respecting the state of the life assured — one the usual medical attendant of the party. Now, who is the person who can best disclose the name of such attendant ? and does it not ex vi termini, almost import that the life assured himself shall be applied to 1o know who is his medical atten- dant ? Mr. House, the life insured, was the person applied to here, and he has given a misrepresentation of that fact. But it has been said, he was not the agent of the plaintiff. The plaintiff said to Lye, Do you make the necessary enquiries, and I will sign the paper. Now, it appears to me when that is coupled with what passed afterwards, viz. Lye's coming and beginning to read over the de- claration, and to state what was in it, when the plaintiff cut him short, and said, he took it for granted it was right, that it does constitute House the agent of the plaintiff, and that he is bound by the misrepresentation of such agent. That, therefore, appears to mc to be a sufficient ground on which a nonsuit ought to be entered in this case. 1 agree with my brother fVildCy that it was competent to the parties to have dispensed with this, or with any other of the conditions they thought fit. liut suppose they had, should it not then, on the; jiriiicipic laid down in the case of Jones v. Jjurklcy, referring to K'ni^sUm v. Pcjir.son, have been said, '' My de- claration consisted of such and such particulars, which were required by the conditions, and I was ready to have declared and to have made it conformnble to the policy, but the ollicc did not iiisist on it, they dis- pensed with it, and they discharged me altogether from making it;" that is the allegation in Jones v. Barklcy, wliere the party said he had made and executed some, and was ready and offered to do the rest, but the other party dispensed with the whole. Then tlu' question would have been, have they or not ilischarged them; I do notlliink my brollier lVildc\'i point arises upon the record, or that it would have been compe- tent to give in evidence, tb.it they had disiiensed with this condition, re- quiring the name of the iisti.d incidical altciulant. On lliis ground, 1 am of opinion there should be a nonsuit. Rule absolute. 526 Ellis v. Schmkeck. E. T. 1829. ELLIS V. SCHMCECK and THOMAS.— p. 52L The defendants had purchased the scrip of a mining company originated in fraud, and hiid attended one meeting of the company; but they never signed the part- nership deed, were innocent of the fraud, and transferred their scrip before the plaintiff commenced an action for goods furnished to the company after defen- dants had purchased their scrip : Held, they were liable. Action for goods sold and delivered. At the trial before Best C. J. London sittings after Trinity term 1S27, it appeared that the goods were furnished for tlie Cornwall and Devonshire mining company. The defendants had received from the secretary of the company, certificates of their having paid a deposit upon the amount of their purchase money for certain shares in the company, and had received papers called the scrip of the company, but they had not signed the partnership deed, and had transferred their scrip before the action was commenced. Both defendants were present at a meeting of the company in August 1825, but the defendant Thomas had not purchased his scrip until after a portion of the goods, for the price of which this action was brought, had been delivered. It was urged, that as the defendants had parted witli their scrip, and had never sigaed the partnership deed, this action did not lie against them. However, a verdict was given for the plain- tiflf, and the jury found specially, that the company originated in fraud, but that neither the plaintiffnor the defendants were parties to the fraud. JVilde Serjt. moved to set aside this verdict, and enter a nonsuit in- stead, on the grounds urged at the trial, or to reduce the damages to the amount of the goods furnished subsequently to Thomas's purchasing scrip, A rule nisi was granted, and Taddy and Spankie Serjts. shewed cause, and cited Perring v. Hone, 4 Bingh. 28; Vice v. Lady Anson, 7 B. & C. 409. JVilde and Merewether Serjts. contra, referred to Nockels v. Crosby^ 3 B. &. C. S14; Harrington v. Fry, 2 Bingh. 179. Cur. adv. vult. As several cases of a similar kind were depending in the court of King's Bench, the decision of the court here was postponed; and now, none of those -cases having proceeded to judgment, Park .1. said, — We have looked into this case, which was argued be- fore my brothers Burroughs Gaselee, and myself, and are satisfied that the plaintiff must have hisjudgment. We had thought that a case which is depending in the Court of the King's Bencli might have thrown light on the subject, but we are of opinion now that there is no case which immediately touches this. I shall not go into it at any length. We think the jury have by their verdict gone very far to conclude the ques- tion; because they find that the defendants form part of a company which was founded indeed in fraud, but they acquit both the defendants and the plaintiff of any cognizance of that fraud. The action was for goods sold and delivered to a very considerable amount, for furnishing the building in which the business of this company was to be carried on. We think that, under all the circumstances of this case, it approaches very nearly, if not quite, to the case of Sir J. Perring and Others v. Hone. In that case Sir John Perring had entered his name in a book with several 5 Bingham, 521. 527 others, for a projected joint stock company, he received scrip receipts, but he sold them before the deed was executed for the formation of the company; and he never did execute that deed; but notwithstanding that, inasmuch as he had attended meetings, and had received monies, and so forth, the Court was of opinion, upon consideration, that he was still liable. The case of Viscount and Lady Anson, we think, does not touch that, because in the case of that lady she had certainly received the scrip receipts, and she had perhaps in loose conversations in her own family talked of being a subscriber to the company, though it did not appear that she held herself out to the world in any respect as a partner; and, therefore, that case does not seem to us to apply to the present. In the present case the defendants attended all the meetings, and though they did not in fact sign the deed, that was no more than was urged in the case of Sir John Perring. Under all the circumstances of the case, we think the plaintiff is entitled to keep the verdict. Judgment for the plaintiff for 234/. the value of the goods furnished after the defendants vvere concerned with the company. (IN THE EXCHEQUER CHAMBER.) LLOYD and Others v. SIGOURNEY— p. 525. A bill of exchange, drawn in America on a house in London, payable to order, •was indorsed by the payee generally to A. ; and by him in these words, " Pay to B. or his order for my use, " B. applied to his bankers to discount the bill, and they, without making any enquiry, did so, and applied the proceeds to the use of B.: Held, that the indorsement was restrictive; that the property in the bill remained in A.; and that he was entitled to recover the amouncfrom the bank- ers. Error from the court of King's Bench, in an action of assumpsit for money had and received, in which judgment had been given for Sigour- ney the plaintiff below, on the following special verdict: — In the month of July, Captain Attwood, who commanded a vessel be- longing to the plaintiff below, took in payment of a cargo of flour, the property of the plaintiff, which he sold at RioJanicro, a bill of cxcliange for 31fJ4/. Ms. Sd.y drawn in a set of tiircc, by March, Sealy, Walker, and Co., of that place, on March, Sealy, and Co. of London. Thi.sbill was payable to the order of Messrs. Hendricks, Wierss, and Co., who indorsed it to Captain Attwood. The following is a copy of the third part of the bill: — <'Rio de Janiero, 12th July 1825. "For 31G4A lis. 8d. " At sixty days sight, pay this third of oxcbango, first and second not paid, to the order of Messrs. Hendricks, Wierss, ami (^o., tiirec thousand one hundred and sixty four pounds, eleven sliiilings, and eight pence, value of the bame, which place to account, as per advice from «' March, Sealy, Walker, and Co." This was indorsed by the payee.** to A. Attwood: by Attwood to the plaintiff below: by the latter in the following words: — 528 Lloyd v. Sigouunly. E. T. 1829. " Pay to Samuel Williams, Esq. of London, or his order, for my usej" And l>v S. Williams to the dcl'cndants below. Attwood sent the lirst of the set to the correspondent of the plaintiff below, Mr. Samuel Williams of London, who was an American agent, and factor for merchants and planters, carrying on such business to a great extent, enclosed in the following letter : — "Sir, — I herewith have the honour to enclose you the first of exchange for 3161/. 11.9. Sd. sterling, at sixty days sight, on Messrs. March, Scaly, and Co., in London, in favour of myself, it being the proceeds of a cargo of flour, in brig Swift- sure, belonging to Henry Sigourne}'^, Esq., Boston, America, which you will please to present for acceptance, and keep at the disposal of he se- cond or third." But he did not indorse the bill, Williams received the letter and bill on the 26th September 1S25, and procured the acceptance of the bill in due course. The thii-d of the set was remitted to the plain- tiff below; and he, having indorsed it as aforesaid, " Pay to Mr. Samuel W^illiams or order, for my use," remitted it to Williams in the following letter of the 17th September 1S25: — "Captain Amaziah Attwood, of my brig Swiftsure, arrived here yesterday from Rio Janiero. He informs me, that he left a letter directed to you, to be forwarded to )'ou by the next English mail, containing the first of March, Sealy, Walker, and Co.'s draft on March, Sealy, and Co., London, dated 12th July, at sixty days sight, for 3164/. 11^. Sd. sterling, in favour of Messrs. Hendricks, Wierss, and Co., and by them indorsed to said A. Attwood. He thinks he did not indorse the draft; and if received, it can only be accepted. Enclosed you have third bill of the set, indorsed to me by Captain Att- wood, and to yourself by me. 1 presume that if the other should have been previously received and accepted, a receipt on the one now trans- mitted would be accepted at maturity. Have the goodness, when you advise the receipt, which I trust will be as soon as possible, of the present, to inform me the standing of the acceptors. Henry Sigourney." The letter and bill were received by Williams on the 26th October 1825. The defendants below had no notice of the before-mentioned letters of Captain Attwood and of the plaintiff below. Williams stopped payment on the 24th October 1S25, and a docket was struck against him on the 25th of the same month, upon which a commission, dated the 27th of the same month, was issued, and he was declared a bankrupt immediately afterwards. At the time Williams received the bill in question, as well as at the time of his bankruptcy, the balance of account was in favour of the plaintiff below to the amount of upwards of 3000/., exclusive of the before-stated bill. On the morning of the 22d October, when the dis- count hereinafter mentioned was made, the balance in favour of Wil- liams with the defendants below was 37S4/. 10s. lOd. About eleven o'clock on that day Williams indorsed the bill in question, with others, amounting in the whole to 7081/. 17s. 9d., to the defendants below, who were his bankers, and in the habit of discounting for him very largely, and the said bills were bona fide discounted for him, and credit given to him for the amount, less the discount ; and subsequently, viz., at the clearing house about five o'clock in the evening of that day, the defendants below paid Williams's acceptances due that day to the num- ber of thirty-two, and three drafts, amounting to 10,GS3/. ISs. Gd. The bill in question was honoured at maturity, and the amount received by the defendants below on the 28th November 1825. Palteson for the defendants below, referred to More v. Manning, 5 Bingham, 525. 529 Com. Sll; Acheson v. Fountain, 1 Str. 557; Ediex. East India Corn- panyy 2 Burr. 1216; Snec v. Frescott, 1 Atk. 247; Evans v. Cravi- linglon, Carth. 5. 2 Vent. 307. Skin. 264. 1 Show. 4; Shower, p. 4.; Ventris, p. SOS; Treuttel \. Barandon, S Taunt. 100; Robarts \. Kensington, 4 Taunt. 30. F. Pollock for the plaintiff below, cited Edie v. The East India Cofn- pany, 2 Burr. 1227. Best C. J. We are all of opinion, that the judgment of the Court of King's Bench must be affirmed. Whoever reads the indorsement on this bill of exchange must perceive that its operation is limited, and that the object of the indorser was to prevent the money received in respect of the bill from being applied to the use of any other person than him- self: to whomsoever the money might be paid, it would be paid in trust for the indorser; and into whose hands soever the bill travelled, it car- ried that trust on the face of it. And we see no inconvenience to com- mercial interests from such a limitation of the effect of the indorsement so expressed; the only result will be, to make parties open their eyes and read before they discount. It is impossible to read this indorsement without seeing that some en- quiry is necessary; for if such be not the use of the words introduced, they are of no use. But if a use can be found for them, the Courts must apply them in tlie way in which they were intended to operate. The indorser has added tlic words or order, to the name of the in- dorsee, because, if he had not done so, the indorsee must have attended in person to obtain payment of the bill, and the short way to obviate that inconvenience was to introduce the words or order. But he still intended that the person ordered by the indorsee to receive the amount should receive it to the use of him, the indorser. But the defendants below, instead of paying the amount of the bill for the use of Sigourney, the indorser, liave discounted it for the use of Williams, the indorsee. We are all, therefore, of opinion that the judg- ment of the Court of King's Bench must be Affirmed. JONES V. BRIGHT and Others.— p. 533. The plaintifT purchased from the warcliousc of the defendant, the manufacturer, <;oppcr for sheathing asliip. The defendant, who knew tlic object for which the copper was wanted, said, "I will supply you well." '"lie copper, in consequence of some intrinsic defect, the cause of which was not proved, havine; lasted only four months, instead of four years, the average du- ration of such an article, Held, in an action on the case in the nature of deceit, that the plaintiff was entitled to damages. , . The tenth count of the declaration stated, that the plaintiff on, &c., at, &c., at the special instance and request of the defendants, bargained \vith the defendants to buy of them, and the (k-fcndaiits then and there agreed to soil to tlio plaintilf divers, to wit 1000, sheets of copper, for the purpose of sheathing the bottom of a certain bnnpic or vessel called the Isabella; and the defendants by then and there falsely and fraudulent- ly warranting the said last-mentioned sheets of copper, which had been made and manufactured by the defendants, to be reasonably fit and pro- VOL. XV. 67 530 Jones v. Bright. E. T, 1829. per for the purpose last aforesaid, then and there sold the last-mentioned sheets of copper to the plaintiilat and for a large sum of money, to wit, tire sum of 313/. 3s., which was afterwards paid by the plaintiff to the defendants for the same: whereas, in truth and in fact, the last-mention- ed sliects of copper were not, at the said time of the said warranty and sale thereof as aforesaid, reasonably fit or proper for the purpose last aforesaid; but, on the contrary thereof, the said last-mentioned sheets of copper were at that time of an inferior quality, and wholly unfit and improper for the purpose last aforesaid; whereby the said last-mentioned sheets of copper, afterwards, to wit, on, &c., at, &c., became and were greatly corroded, injured, and destroyed, and of little or no use or value to the plaintiff; and so the defendants, by means of the said last-men- tioned premises, on, &:c., at, &c., falsely and fraudulently deceived the plaintiff on the sale of the said last-mentioned sheets of copper as afore- said. Then followed an allegation of special damage. The eleventh count differed from the preceding only in omitting the name of the vessel, and the allegation that the copper had been made and manufactured by the defendants. At the trial before Best C. J., London sittings after Michaelmas term, the case proved was as follows: — The plaintiff was a ship-owner; the defendants manufacturers and venders of copper for various purposes. Fisher, a mutual acquaintance of the parties, introduced them to each other, saying to the defendants, "Mr. Jones is in want of copper for sheathing a vessel, and I have pleasure in recommending him to you, knowing you will sell him a good article;"oneof the defendants answer- ed, "Your friend may depend on it, we will supply him well." Copper was lying in the defendants' warehouse, in sheets of various size, thickness, and weight: the plaintiff's shipwright selected what he thought fit, and afterwards applied it to the plaintiff's ship, observing nothing amiss. The invoice described the article sold as "Copper for the ship Isabella." The plaintiff paid the market-price" as for copper of the best quality; and his ship proceeded on a voyage to Sierra Leone. The copper, however, instead of lasting four or five years, the usual du- ration of copper employed in sheathing vessels, was, at the end of four or five months, greatly corroded in patches of holes, and unfit for fur- ther service. Scientific men, called on the part of the plaintiff, ascribed the failure to an oversight or casualty in the manufacture, whereby the copper might have imbibed more oxygen than it ought to contain; but all im- putation of fraud on the defendants was disclaimed by the plaintiff. The defendants' witnesses accounted for the corrosion from the singular in- veteracy of the barnacles in the river at Sierra Leone, where the ship ' lay for some time. They stated that the quality of copper might always be known by its appearance and malleability; and that if there had been any defect in that sold to the plaintiff, his shij)wright must have discov- ered it while in the act of sheathing the vessel. The Chief Justice left it to the jury to determine whether the decay in the copper was occasioned by intrinsic defect or external accident; and if it arose from intrinsic defect, whether such defect were occasioned in the process of manufacture. The jury found that the decay was occasioned by some intrinsic defect in the quality of the copper; but that there was no satisfactory evidence 5 Bingham, 533. 531 to shew what was the cause of that defect. A verdict was thereupon entered for the plaintiff, subject to an enquiry by an arbitrator as to the amount of damages, Ludlow Serjt. obtained a rule nisi to set aside the verdict and enter a nonsuit, on the ground, that without an express warranty or proof of fraud, the defendants were not responsible for the quality of the article they sold. Wilde and Russell Serjts. shewed cause, and cited 3 Bl. Com. 161; Laing V. Fidgeon, 6 Taunt, lOS; Fisher v. Samuda, 1 Campb, 190; Gardiner v^ Gray, 4 Campb, 144; Okellw Smith, 1 Stark. 108; Bluett V. Osborne^ 1 Stark. 384; Pasleij v. Freeman, 3 T. R, 57; Teats v. Pirn, 2 Marsh, 141; Bridge v. IVairi, 1 Stark. 504; Prosser v. Hooper, 1 B. M, 106; Chandelorv. Lopxis, Cro. Jac. 4; Parkinsonx. Lee, 2 East, 314; Gray v. Cox, 4 B, & C. lOS. Ludlow Serjt. contra, referred to Co. Lit. 102 a.; Williamson v. Alliso7iy 2 East, 446; 1 Fitz. N. B. 9 ; Statham's Abr.; Noy's Maxims; Wood's Instit.; Roll. Abr. Act, on Case, p. 90, pi, 1, 2, 3, 4; Weallv. King, 12 ' * Cur. adv. vult. Best C. J. It is the duty of the Court, in administering the law, to " lay down rules calculated to prevent fraud; to protect persons who aro necessarily ignorant of the qualities of a commodity they purchase; and. to make it the interest of manufacturers and those who sell, to furnish the best article that can be supplied. The Court must decide with a view to such rules, although, upon the present occasion, no fraud has been practised by the parties calling for decision. This is an action, against the defendants, to recover damages for the insufficiency of cer- tain copper which they furnished for a particular purpose. It has been asserted that the invoice is the only evidence of such a contract, and that the defendants ought not to be bound by a loose conversation at the time of the sale. An invoice, however, is frequently not sent till long after the contract is completed, and is altogether unlike a broker's note which docs contain the contract between the parties; but if we look at the invoice alone, we sec in the present case that the copper was ex- pressly for the ship Isabella, However, I do not narrow my judgment to that, but think on the authority of a case not cited at the bar, Kain v. Old, 2 B. & C, 03 1, that " where (he whole matter passes in parol, all that passes may sometimes be taken together as forming parcel of the contract, thougli not always, because matter talked of at the com- mencement of a bargain may be excluded by the language used at its termination." In that doctrine I entirely concur. Whatever, then, was not previous discussion, but formed part of the contract, may be taken into consideration. In a contract of this kind, it is not necessary that the seller should say, ** I warrant;" it is enough if he says th.it the article which ho sells is fit for a pnrti.Milar purpose. Here, when Fisher, a mutual nrcpiaintance of the j)artics, introduced them to each other, he said, " Mr. Jones is in want of copper for sheathing a vessel;" and one of the defendants answered, "We will supply him wril." As there was no subsefpicnt communication, that constituted a contract, and amounted to a warranty- Hut I wish to put flic case on a broad principle: — If a man sells an article, he thereby warrants that it is merchantable, — that it is fit for some purpose. This was cslabli?;heil in l.aing v. Fiifgron. If he sells r>32 J0NL8 V. Bright. E. T. 1829. it for a particular purpose, he tlicreby warrants it fit for that purpose; and no case has decided otherwise, although there are, doubtless, some dicta to the contrary. Reference has been made to cases on warranties of horses: but there is a great difference between contracts for horses and a warranty of a manufactured article. No prudence can guard against latent defects in a horse; but by providing proper materials, a merchant may guard against defects in manufactured articles; as he who manufactures copper may, by due care, prevent the introduction of too much oxygen: and this distinction explains the case of jS/we// v. Osborriy in whicli Lord EUenhorough held, that the defendant, who had sold a bowsprit, was not responsible for a failure arising out of a latent defect in the timber. The decisions, however, touching the sale of horses turn on the same principle. If a man sells a horse generally, he warrants no more thaa that it is a horse; the buyer puts no question, and perhaps gets the ani- mal the cheaper. But if he asks for a carriage horse, or a horse to carry a female, or a timid and infirm rider, he who knows the qualities of tho animal, and sells, undertakes, on every principle of honesty, that it is fit for the purpose indicated. The selling, upon a demand for a horse with particular qualities, is an affirmation that he possesses those quali- ties. So it has been decided, if beer be sold to be consumed at Gibral- tar, the sale is an affirmation that it is fit to go so far. Whether or not an article has been sold for a particular purpose, is indeed, a question of fact; but if sold for such purpose, the sale is an undertaking that it is fit. As to the puffs to which allusion has been made, the Court has no wish to encourage them: they are mere traps for buyers; and if a case were to arise out of a contract made under such circumstances, and it were shown that the article puffed was of inferior quality, when asserted to be of the best materials and workmanship, the seller would be bound to take it back, or make compensation in damages. These principles decide the present case in favour of the plaintiff. After what Lord Tenterden had said in Gray v. Cox^ I declined expres- sing an opinion at Nisi Prius; but I expected the jury would have found tiiat the article was not properly manufactured, for the testimony of the scientific witnesses was very clear; and though the conduct of the defen- dants was most upright, the article they sold had certainly suffered in the manufacture. At all events, the warranty given by them is not satisfied, because the jury find that there is an intrinsic, defect in an article manu- factured by them. Old cases have been cited; and Chandeloitr v. Lopus at the head of them: but that does not bear on the question, because all that the Court decided is, that to render tiie defendants liable, there must be a warranty or a false representation. But the case does not decide there must be an express warranty; an implied warranty would satisfy the terms of the de- cision. Here there hos been, in my opinion, an express warranty. The most material case is ParJeinson v. Lee: but the point was not decided there: the Court only decided, that a warranty, that hops sold should be equal to sample, was satisfied by shewing that they were equal to sample, although not perfectly good and merchantable. Then the defect com- plained of was in a product of nature, not of human art, and was un- known to the sellers. That case too, was decided in 1802, and Gibbs C. J. cannot be supposed to have been unacquainted with it, when he decided Laing v. Fidgeon, in 1815; yet he there decided the point 5 Bingham, 533. 533 now in dispute, that in every contract to furnish manufactured goods, however low the price, it is an implied term, that the goods should be merchantable. The law, then, resolves itself into this; — that if a man sells generally, he undertakes that the article sold is fit for some purpose; if he sells it for a particular purpose, he undertakes that it shall be fit for that particular purpose. In the present case the copper was sold for the purpose of sheathing a ship, and was not fit for that purpose : the verdict for the plaintiff, therefore, must stand : the case is of great importance ; because it will teach manufacturers that they must not aim at underselling each other by producing goods of inferior quality, and that the law will protect purchasers who are necessarily ignorant of the commodity sold. Park J. I entertain no opinion adverse to the character of the de- fendants, because the mischief may have happened by the oversight of those whom they employ ; but on the case itself I have no doubt, distin- guishing, as I do, between the manufacturer of an article and the mere seller. The count on which the jury have found for the plaintiff states, that the defendants, by falsely and fraudulently warranting that copper which had been manufactured by them was reasonably fit and proper for the purposes of sheathing the bottom of a vessel, sold the copper to the plaintiff for a large sum of money, whereas the copper was wholly unfit for the purpose, and of little or no use to the plaintiff. Now, inde- pendently of the evidence of Fisher, which goes to shew an express warranty, is there not, where the purchaser cannot judge of the interior of the article, and buys for a particular purpose, an implied warranty, that the article is fit and proper for the purpose for which it is pur- chased? And it is surely improper that copper, which usually lasts four or five years, should corrode in a single voyage. It has been ar- gued, that in all cases there must be a warranty, or a scienter and fraud. Perhaps so ; but till the cause comes to proof, it cannot appear whether the warranty be implied or express ; and it will be enough to show that there is an implied warranty, from the nature of the dealing between the parties. In the cases referred to, the point has been decided, to the full extent that the plaintiff requires in this case. The principal object of attack has been the case of Gray v. Cox, where Lord rcntcrden said, ''that if a person sold a commodity for a particular purpose, ho must be understood to warrant it reasonably fit and proper for such purpose." And this is not to bo esteemed an obiter dictum, because the other judges differ from him. It is bis judgment formally given, and goes to support the argument for the plaintiff in this cause. The other judges, indeed, only doubted whether tlie warranty given in evi- dence supported the warranty laid in the declaration, which was very extensive : a doubt in which Lord Tcnterdcn concurred. But if the declaration had been framed in the lanp;uage of the jirescnt, it is proba- ble the evidence in siippoit of it would have been deemed suflicicnt. In Fis/ier v. Sarmida, the plaintiff had paid for the goods after an action had been brought against him for the price, in which he did not, either in bar or reduction of (himag(!S, object to the quality of the goods ; so that he may be said to have acquiesced in the defect, and the case has no bearing on the present. In Laini^ v. Fiilffcon the rule is laid down in the strongest terms; and no man had more knowledge of commercial law than C. J. Gibbs. In Gardiner v. Gvaij, Lord Kllcnboro^igh 534 Jones v. Bright. E. T. 1829. lays down the samo rule, and says, that llic principle of caveat emptor does not a]iply where the buyer has no op])ortunity of inspection. It has been argued that the plaintiff had insj)ection here ; but it was mere- ly of the exterior of the commodity, and he had no means of knowing its intrinsic qualities. In Okcll v. Smith, it was laid down that the sel- ler is bound to furnish a commodity that will answer the purpose for which it is sold ; and Lord Elleiiboroiigh said, in Bluett v. Osborne^ that by selling an article the vendor impliedly warrants it fit for the purpose for which it is sold, and that it is important for the interests of commerce that it should be so, 1 am therefore, clearly of opinion, that the verdict for the plaintiif should stand. BuRROUGH J. I consider this as more a question of fact than of law. The question is, whether the contract was proved as laid. It was so proved ; and, after Fisher had introduced the parties, and stated the purpose for which the plaintiff wanted the copper, the defendants war- ranted the article by undertaking to serve the plaintiff well. The alle- gation in the declaration, that the copper was manufactured by the de- fendants, is sufficiently distinct ; it is of the very essence of the case, and the plaintiff must have been nonsuited if he had failed to prove it. The declaration states, that the defendants sold, for the sheathing of a ship, copper which had been manufactured by themselves, and falsely and fraudulently warranted it fit for the purpose. Now, in the case of the King v. Boyall, 2 Burr. 832, objection was taken to an indictment against a parishioner for not sending out carts to highway labour, that the allegation touching the order of the surveyors only mentioned them as being surveyors, without adding when and how they were appointed ; but Lord Mansfield held that being was a sufficient reason. The defendants knew what the copper was wanted for, and made it; and the whole of the tenth count is proved, except the wov(\ fraudu- lent, which is not material where it is also expressly stated and proved that the defendants falsely warranted. The copper, instead of lasting four or five years, lasted only one voyage, and this was proved to have been occasioned by a defect in the manufacture. I cannot comprehend why the action should not He. I put it on the ground of an express warranty and the finding of the jury that the copper was insufficient, and am of opinion that the verdict for the plain- tiff must stand. Gaselee J. The case has been so fully gone into, that I shall make only one or two observations. Without enquiring whether the war- ranty here be express or implied, it is clear that where goods are or- dered for a particular purpose, the law implies a warranty that they are fit for that purpose. That was taken for granted in Fisher v.Samuda; and though the plaintiff, who complained of the insufficiency of goods sold him, did not recover in that case, that was because he had never objected to the quality of them in an action which had been brought for the price, and had been conducted to judgment against him. It has been argued, that the counts on which the plaintiff has recovered in this case do not state a sufficient contract of warranty. If so, that may be urged in error; but the counts could not easily have been framed otherwise, as it is never clear, on the face of a declaration, whether the warranty to be proved is express or implied. How far the case might have been altered if the defendants had not manufactured the copper. I do not sayj but as to the warranty, the de- 5 Bingham, 533. 535 claration could scarcely have been other than it is. Tlic rule which has been obtained on the part of the defendants must be discharged. Rule discharged. HUNT V. DE BLAQUIERE.— p. 550. A husband separated from his wife by a divorce a niensa et thoro, for adultery on his part, with a decree of aliuiony, is liable for necessaries supplied to the ■wife, if he omit to pay the alimony. 2. Furniture of a house held to be necessaries for a female, to whom the Court had decreed 380/. a year alimony. This was an action to recover the value of furniture for a house sup- plied by the plaintiff to the defendant's wife; who had for some years been living separately from her husband under a sentence of divorce a mensa et thoro pronounced on the ground of adultery proved against the husband. As she was the daughter of a marquis, and had brought him a fortune of 6000/., he was ordered by a decree for alimony to al- low her 380/. a year for her maintenance. At the trial before Best C. J., Middlesex sittings after INIichaclmas term, it appeared that pre- viously to the separation the lady had been treated with cruelty and turned out of doors. And there was no evidence that more than G95/. of the alimony had been paid since the date of the decree, 1S20. From that time the defendant had resided in France. The furniture in re- spect of which the plaintiff sought to recover had been supplied in 1S27. The Chief Justice, after stating that a man who turned his wife out of doors gave her an implied credit for necessaries, directed the jury to consider whether tlic goods furnished by the plaintiff to defendant's wife were necessary according to her station, and for a style of living not exceeding 3S0/. a year. The jury found that the defendant had struck his wife and turned her out of doors, and gave a verdict for the whole of tlie plaintiff's de- mand, 230/. Spankie Serjt. obtained a rule nisi to set aside this verdict and enter a nonsuit instead, upon the ground that, after the decree for alimony in the spiritual court, the husbanil was not liable to be sueil at common law; and that furniture for a house was not necessary for a divorced wife with an income of 380/. a year, who ought rather to live in ready- furnished lodgings. IVildc and A'awc// Serjts. shewed cause, and cited Marshall v. A'ld- ton, 8 T. R. 515; Ella^^'li v. Lei^^h, 5 T. R. G79; Lervis v. Lecy 3 B. &C. 291; Thom/j.son v. Ilarvcy, 4 Burr. 2177; Manbif v. Scott^ 1 Lev. i. 1 Mod. 121. 1 Sid. 109; Barrett v. Booti/, S Taunt. 343; Nurse v. Craiif,2 N. R. 153; Ozard v. Darnfordy Sc'hv. N. P. 2(iO. Spankie and Stephen Serjls. contra, referred to Pr. in Ch. Ill; C humherlaine v. IJcwson., 5 Mod. 70; Motlerani v. Molterarriy 3 Bulstr. 2fi4; 1 Mod. 127, 128, 138; Nursew. Crtiiii; Keei^mny. Smith, 5B.&C. 375; Smith v. The Shcrijf nf Middlesex, 15 East, fiO!>. Best C J. This was an action to recover the price of household fur- niture provided l)y the plaintiff for lindy Iliirrict do BI.Kiuiero, the wife of the defendant. A verdict wn5 found for the pUiintiff, upon whicli a 536 Hunt v. De Blaquiere. E. T. 1829. motion has been made to set it aside and enter a nonsuit instead on two grounds: First, that a decree of the ecclesiastical court, assigning alimo- ny to Lady Harriet, is an answer to the action; and, secondly, that the articles supplied were not necessary for a person in her situation. The jury found that the defendant had stricken his wife, and turned her out of doors. If a man turns his wife out of doors, it has been said by judge after judge, that he sends her forth with an implied credit for necessaries. This is the general law, and the defendant is liable under it, unless the obligation cast on him by turning his wife out be discharged by something subsequent. It has been asserted that the decree for alimony is a dis- charge; but no decision has been cited which can be said to establish that proposition. In Manhy v. Scott, though some of the opinions of some of the judges seem favourable to such a position, the point decided was far different. That was a case in which necessaries had been furnished to a woman who had eloped from her husband — I infer criminally, be- cause the word eloped is never used in any other sense: — her husband refused to receive her again, and the judges held he was not liable for ne- cessaries. That case has been recognised in subsequent decisions; and it was again laid down in Govier v. Hancock, 6 T. R. 603, that the hus- band is not liable where the wife deserts him criminally. Undoubtedly in Manhy v. Scott, some of the judges say that the wife should apply to the ecclesiastical court; but that such is her only resource is contradicted by all the practice of Westminster Hall, for if it were so, none of the actions which have been brought by tradesmen for necessaries furnished to the wife could have been sustained. Although we entertain great respect for the opinions of Chief Justice Hale, the answer given by Mr. Justice Twisdcn is conclusive — '* Is the wife to starve?" and it is not necessary in such a case to imply agency on the part of the wife: the husband is at all events liable: this we might lay down on principle, even if there were no decision on the point. But Nurse V. Craig is an express authority: and the opinion of the three judges in that case is confirmed by Gibbs C. J. and the rest of the Court in Barrett v. Booty. But it has been argued that by taking the decree in the ecclesiastical court, the wife makes her election: and so she docs where she accepts a provision for a separate maintenance, as in Nurse v. Craig. But it is not the decree or the deed that discharges the husband, but the observance of it. There never was a case in which such an ar- gument could be adduced with less plausibility than in the present. It has been said, indeed, the husband is only liable when shewn to be con- tumacious; but if he be ordered to pay alimony on a particular day, he is contumacious as soon as he omits to pay at the appointed time. The ec- clesiastical court orders the defendant in 1820 to pay his wife 380/. a year (only 80/. a year beyond her own fortune), and in 1829 he had paid altogether no more than 695/. As to the writ de estoveriis haben- dis, the wife's being entitled to that does not carry the matter further than her right to sue in the ecclesiastical court. The tradesman has still his action, for he cannot compel her to sue. I am therefore of opinion, that the defendant is not discharged from his liability. Whether the ar- ticles furnished by the plaintiff were necessaries, was a question for the jury. I put it to them whether, with an income of 380/. a year, it was fit that the defendant's wife, the daughter of a marquis, should hire a house, or whether she was bound to live in furnished lodgings. They thought 5 Bingham, 550. 537 it not proper that a person in her station should be compelled to live in lodgings, and I am satisfied with their verdict. Park J. I concur in the opinion which has been given. The ques- tion is, Whether a deed of separate maintenance, or a decree for alimo- ny, will discharge a husband from liability, when the sum secured by the deed or decree is not paid? and I am of opinion it will not. The defen- dant forced his wife from his house, with circumstances of cruelty; he was divorced from her for adultery committed by himself; and he has complied very little with the decree for alimony. But he is bound to provide for his wife; and all the cases shew that the alimony must not only be secured but paid. In this the text writers all concur. Bacon's j3 bridgment, 4SS, contains the whole of the judgment of flale C. J. in Manby v. Scott, and the summary which the learned compiler extracts from it is as follows: — " It is clear that a husband is obliged to maintain his wife, and may by law be compelled to find her necessaries, as meat, drink, clothes, physic, &c. suitable to the husband's degree, estate, or circumstances. It seems also settled, that the wife is not to be her own carver, and that she hath not an absolute power of binding the husband by any contract of hers, though for necessaries, without his assent precedent or subse- quent. The law, therefore, in these cases, as it seems established by usage and practice, is to leave it to the jury to find whether the husband consented or not; and though no express consent or agreement of his be proved, yet if it appears that she cohabited with her husband, and bought necessaries for herself, children or family, the husband shall be chargeable, and the jury may find, on their oaths, that they came to the husband's use, he being by law obliged to provide for them: also, if she cohabits with her husband, and is ever so lewd, he shall be liable for her necessaries, for he took her for better for worse: so if he runs away from her, or turns her away, or forces her by cruelty or ill usage to go away from him: but if he allows her a separate maintenance, or pro- hibits particular persons from trusting her, he shall not be liable during the time that he pays such separate maintenance, nor for necessaries taken up of those persons particularly prohibited; for in these cases no consent, but rather the contrary appears: i)uta general warning or notice in the Gazette, or other newspaper, not to trust her, is not a suflicient prohibition; also the jury are to determine as to the wife's necessity, the husb.ind's degree and circumstances, and the value of the things sold and delivered, and give a verdict and assess damages accordingly." I do not feel it necessary to difl'er from the decision in M., .\TT(IIl.\r.r. ATlOFtNKY. 1. The Court will not compel an attorney to p.ay a sum of money he ha.") received in his character of attorney; he having after the receipt of the money become bankrupt and obtained his certificate. Ex parte Culliford v. Warren, Gent., one, &c. 203 2. Where a judge's order for taxing an at- torney's bill is not obtained until after he has commenced an action for the amount, tlie defendant is not entitled to the costs of taxation, although more than one-sixth is taken off by the Master. Jay, Gent., one, SJc. v. Couks. 323 AWARD. See Phactice. 1. The objections against an award ought to be specified in a rule nisi obtained for the purpose of setting it aside; but an omission In that respect is not conclusive to preclude the Court from entertaining the objections. 2. Upon a declaration of eleven special counts for negligence, and common counts for money paid, &c., an arbitrator, under an order of Nisi Prlus, found that the pLalntifF had " good cause of action for 23/. 14.S. lOd," and directed a ver- dict to 1)6 entered up for that sum: Held, sufficiently certain. Bicas v. Jay. 447 BAIL. Bail at the request of the defendant's at- torney, admissible. If not indemnified by him. Hunt v. Blaquiere. 83 BAIL BOND. See Pleading, Practice. BANKER'S BOOK. See Evidence. BANKRUPT. .See Annlitt, Evidence, ArToiiNEr. 1. A bankrupt obtained his certificate on the 13th of November; the same ilay a fieri faci.as w.as executed on his goods: the Court refused relief on motion, Hanson v. Ihthrrt and Samuel nialay. 54, 2. A. kept cash with .M. and Co. bankers, and accepted a bill drawn by one of the partners in the house of M. .'111,1 Co., and indorsed by that partner to M. and Co., who discounted it, ;md :d"lerwards in- dorsed it for value to .S. Before the bill became due, M. and Co. became bank- rupts, having funds In the li:uuls of S, more than siiffu ieiit to jiay the bill, and having in tin ir Innds money belonging to .\. When the hill became due S. "pre- sented it for p.tymentto A., who having refused payment, H. paid himself the ainomit out of the funds of M. and Co. rcinaiiiinfT in his hands, and delivered the bill to their assignees: Held. In an action brought by the assignees against 344 INDEX. A., as acceptor of the bill, tliat tliere had been before the bankruptcy a mutual creilit between the bankrupts and A., and that the latter was entitled to set ofi' agiiinst the sum due to the bankrupts on the bill, the debt due to him from M. and Co. at the timeof their bankruptcy. Bol- land and Others, Assignees of IV. Mar.sh and Others, Bankrupts, and also of II. Fauntleroy, a Bankrupt, v. J. Nash. 157 3. Where a creditor obtained judgment by nil dicit ag-ainst atradcr and thereup- on issued a fi. fa., under which the sheriff seized the goods of the trader, who af- terwards, and before the goods were sold, committed an act of bankruptcy, upon which a commission issued, and he was didy declared a bankrupt, of which the sherift" had notice, but nevertheless sold the goods, and paid over the pro- ceeds to the execution-creditor: Meld, that he was not justified in paying over the money, and was liable to be sued for it by the assignees, in an action for mo- ney had and received. Quaere, Whether the sheriff was jus- tified in selling the goods after notice of tile bankruptcy i* Notley and Others, .Assignees ofth e Estate and Effects of Elias Jarrnan, Bankrupt, v. Buck, Esquire. 178 4. Where a party, committed by commis- sioners of bankrupt for not answering to their satisfaction, wishes to be again brought before them, he must bear the expense of that proceeding. Ex parte Baxter. 234 5. In August 1821, A., a trader, being in- debted to B. and C, then in partnership, but about to separate, gave a warrant of attorney to secure payment by instal- ments to B. alone, who knew that A. was then insolvent. In October, A. committ- ed an act of bankruptcy; and in Novem- ber, at B.'s desire, he sent goods to tiie warehouse of B. &, C. as a further se- curity for the debt. In December, B. and C. dissolved partnersliip, and the former afterwards received from A. se- veral sums of money on account of the warrant of attorney, and also sold the goods, towards satisfaction of the debt. A commission of bankruptissued against A. in January 182.3, and in November of that year B. died; Held, that A.'s assign- ees migiit recover from C. the money paid by A. on the warrant of attorney by an action for money had and received, and the value of tlie goods by an action of trover. Biu^gs and Others, Jlssignees of Collier, a Bankrupt, v. Fellows, sur- viving Partner tf Tullnrk. 248 6. A creditor had obtained judgment by- default against his debtor, since the stat- ute 6 G. 4. c. 16. s. 108., and the goods having been seized by the sheriff before, but not sold until after an act of bank- ruptcy was committed by the debtor, the Court refused to compel the sheriff to pay over the proceeds of the sale to the assignees of the bankrupt. In re iVashbourn, 261 7. A. and Co., as brokers for B., sold goods, then in their possession, to C, which were paid for by a bill drawn by C. and accepted by D. C. ordered A. and Co. to keep the goods in their hands, and sell them if they could make a certain profit. Before the bill became due D. failed, and A. and Co. applied to C. for security for the bill; whereupon he gave them an order to sell the goods and ap- ply the proceeds in payment of the bill. C. afterwards, and before the goods were sold, became bankrupt. A. and Co. handed over the goods to B. at his request, but he afterwards returned them, and after they were returned, C.'s assignees, having made a demand of the goods, brought trover: Held, that they could not maintain it; for that after the order given by C. to A. and Co. to sell the goods and apply the proceeds in payment of the bill, they remained in their hands subject to that charge, be- cause A. and Co. must be presumed to have asked security as agents for B., w hose ratification of their act for his be- nefit might also be inferred. Bailey, surviving Assignee of VV, Ilalliwell, a Bankrupt, v. Culverwell, Brooks, and Carroll. 261 8. A., B., and C, together with others, were part-owners of a ship engaged in the whale fishery. The usual mode of managing the cargo was, that on the ar- rival of the vessel at her homeward port, the whalebone was taken into the pos- session of B., and sold by him, and the proceeds were applied towards the dis- charge of the expenses of the ship. The blubber was deposited in a ware- house rented of C. by the owners of the ship, and the oil produced from it was then put into casks, each owner's share being weighed out, and placed separate- ly in tlie warehouse, in casks marked with his initials. After the division, the practice was for the warehouseman to deliver to the order of each part-owner his share of the oil, unless notice was given by the ship's husband that the part-owner's share of the disbursemefits liad not been paid. In that case, the warehouseman used to detain the oil till the ship's husband's demand had been satisfied. The ship having arrived from her voyage in 1825, the ai)ove course was followed. The share weighed out and set apart for A. was twenty-nine tons, which was stowed in the warehouse in casks, wliich had A.'s initials put on them. In .January 1826, A. became bank- rupt. Twenty tons of the oil had been INDEX. 545 delivered to A. before his bankruptcy; the remaining nine tons remained in the warehouse at the time of his bankrupt- cy. In January 1826, the warehouse- man had orders from C., the ship's hus- band, not to dehver to A. the remaining- oil, as his share of the disbursements of the ship had not been paid: Held, in an action of trover brought by the assign- ees of A. against C, for the residue of A.'s oil, that the other part-owners, had originally a lien on it for his share of the disbursements of the ship, and that this right was not divested by the separation of A.'s share from tlie residue, and plac- ing it in casks marked with his name. Holdemess undAiwther, Asdgnees of Fox- ton^ V. Shackeb. 315 9. Where the assig-nees of a bankrupt en- ter the premises of a third person to seize goods, which were the property of the bankrupt, it is not necessary that an action against them should be brought within tiirce months after the fact com- mitted; tlie act of the assignees not be- ing done "in pursuance of the statute," within the meaning of the 6 G. 4. c. 16. s. 44. TJanul Er1<:n v. Parker. 328 10. Judgment was entered up on a war- rant of attorney given by two joint trad- ers, and a fi. fa. issued, returnable on the 2d of May. On the 1st of that month the sherlfPs officer received from tlie defendants the money directed to be le- vied. On tile 2d of May one of them committed an act of bankruptcy, and the other on the 5th. On the 11th a commission of bankrupt issued, and on the 19th tlic siierilf jiaid over the mo- ney to the execution-creditor. Iti an ac- tion liy the assignees; Held, that he was entitled to retain it, not Ijcing creditor having a security at the time of the bank- ruptcy. Miirhmd and Jlnutht r, .flsxliritics of Dirkhu and ft'uririrk, liunkrupts, v. Peiiati. ;:.rj 11. Tiie Court of C. 1'. lias not autliority under tiie 6 <;.4. c. 16. s. 96. to compel parties to enrol the prnrcedings undcM* a connnission of Ijankrnpt. 'I'lie ajiph- cation must be mnde to tlie Court of Chancery. Johumn v. (illhtl. 344 12. Bankruptcy and ccrtidcatc arc no l)ar to nn action in tort against a broker for selling out plaintitl's stock contrary to , orrlcrM. Piirhrr v. ('role .)71 13. By charter-party H. hired a ship to convey a cargo to )[ayti, and engaged to find a cargo for the homeward voy- age. On the ship's arrival at llayti, 15. assigned the cargo to C. as a .Hcciuily for advances made by him. The hire of the ship not having been p.aiil, dc- fendant.s, the owners, under the judg- mi.iit of a court ab llayti, att.achctl tiie cargo in the iiands of C. to diiicliargc defendants' claim for the hire. B. hav- VOI.. XV. ing declined to find a cargo for the homeward voyage, the captain procured one for defendants, \\\\o received the freiglit on its arrival in London. 13. having- subsequently to the said as- signment, become bankrupt: Held, that his assignees could not recover from de- fendants tlie proceeds of the cargo at- tached at Hayti, or of the homeward freight. Kymer and Others, Jlssignees of J. O'Brien, v. Larkin and Aiwther. 371 14. A payment made in June 1825 by a debtor, bona fide without intention of fraudulent preference, eight dajs before a commission of bankrupt was issued against him, Held to be protected under the eighty-second section of 6 G. 4. c. 16. The debtor, a prisoner, went, eight days before a commission of bankrupt was sued out against him, to a fire-office, to receive money, payable to him in respect of a loss by fire; a creditor, for labour done, who knew the time when tlie money was to be paid, without any intimation from the debtor, met him at the office, and obtained out of the sum so received, payment of his own debt, not knowing that his debtor was a pri- soner or insolvent, a jury having nega- tived fraud. Held, tliat this was not a fraudulent preference by the debtor. Churchill and Jlnot Iter, Atssignees ofCado- gun, a Bankrupt, v. Crease. 409 15. A cliariot was built to plaintiff's order, and paid for by him: wiien finisiied in otlier respects, plaintifi" ordered a front scat to be added; but tiie builder being slow in making tiiis addition, jdainliff sent for tlie chariot repeatedly, and the builder promised to deliver it. I'hiiiitid" being afterwards dissatisfied, ordered the chariot to be sold, and while it was, ac- cording to the custom of llie trade, stand- ing in the builder's w.irehouse fi)r that ])iii-p()se, the front scat not h:iviiig been added, the builder became a bankrupt, and his assignee seized tlie chariot: more than three months afterwards the plain- tiirc()iiinienc(-d his action: Hihl, fii-sl, that tiir iiiaintin' had suffi- cient j)roperty to m:iintain trover; se- condly, that the chariot did not pass to the assignc-c as being in the orai(l or secured to the satisfaction of the owner on the arrival of the ship at Lon- don, and previous to commencing the discharge of her homeward cargo. (Certain other stipulations for imymcnt of freight, if the ship were (Ictaincd in India, were then made.) And it was further agreed, th.it (.. |{. should remit all freight-bills for the homeward cargo tu B. B. and Cu. in London, who should hold them as joint trustees for the own- er and G. B.; tiiat they should first be applied to payment of the balance of freight due from G. B., and the surplus, if any, be handed over to him. It was then provided, that the owner should have an agent on board, who was to have the sole managenient of tiie ship's stores, and power to displace G. B. for breach of any covenant in the charter- party, and appoint another commander. C. and Co. in Calcutta, having know- ledge of this instrument, shipped goods on board the vessel for London, which were never delivered there : Held, that they might recover against the owner, notwithstanding the agreement between him and G. B., for that it was in the nature of a special appointment of the latter to the command, and was not a charter of the vessel to him. Colvin and Others v. j\''e~Mberry and Benson. 179 CHOSE IN ACTION. The general rule of law is, that a debt cannot be assigned. The exception to that rule is, that where there is a defined and ascertained debt due from A. to B, and a debt to tlie same or a larger amount due from C. to A., and the three agree that C. shall be B.'s debtorinstead of A., and C. promises to pay B., the lat- ter may maintain an action against C. But in such action, it is incumbent on the plaintiff to show, that at the time when C. promised to pay. B. there was an ascertained debt due from A. to B. Faiilic V. Denton and Barker. 246 CHURCH. See BuniAL. CHURCH-WARDEN. See Mandamus. COLLECTOR. See DisTiiKss. A local act for enlarging, cleansing, pav- ing, and lighting the streets, &c. in the ciiy of L'jiiilon, authori/ed the comnfis- sioncrs to order a rate in the several warils of the city of London to i)e made by ti>e aldermen and the major part of the common councilmcn, upon all jicr- sons who inhabited, held, occupied, pos- sessed, or enjoyed any land, house, shop, warehouse, fee. or other tenement or iKTCclIlainent within the said several wards, and who by llie laws then in be- ing should ijc liable lo be rated lo the re- lief of the i)oor. By another clause it was made lawful for the alderman and the major |)arl of the common councilmen of each ward, at a court of war specific notice of a meeting to be holden for the purpose of such election; but that a reasonable and usu- al notice requiring them to attend at a meeting oftliecor|)oration at a time .spe- cified, without staling for what purpose the meeting was called, was sufficient. The King v. J'uhford. 235 4. Information for usurping the office of jurat of the borough of Q. Pk-a, that the borough of (i. was a free borough, and that the burgesses of the borough were a body corporate, consistingof the mayor, bailiffs, and burgesses of the bor- ough, and that by charter it was grant- ed that the mayor, hailiUs, and burgess- cs, by whatever name they had before been incorporated, should thereafter be a body corporate by the name of "may- or, jurats, bailiff's, and burgesses;" that there should be one of the more honest and discreet burgesses or iidiabitaiUs adlcd "mayor," to be elerled ns therein mcnlioncd; and four lifmest and tliscreet burgesses or inhabitants to be called "ju- rats;" and two other honest and discreet burgesses or inhabitants railed "bailiff's." that the jurats and bailiff'H should hold their officps for life, unless removed for reasonable cause; and whenever it 552 INDEX. sliouUl happen that citlier or nnyof the jurats or bailill'a tor ll)c time being- shoulil tlie, or be removed or withdraw ii tVoni his or tlieir ottice or oflices, it shoidd be lawful for the surviving and remaining' jurats and baiiiiVs for the time beings, or the greater part of tiiem (of vhom the" mayor sliould be one), within convenient time, to nominate another or others of the burgesses or inhabitants of the borough for the time being to be a jurat or jurats, bailirt' or bailitt's, of the borough. The plea then stated a vacan- cy in the office of jurat, and that the de- fendant, being an uihabitant of tiie bor- ough, was duly elected to lie a jurat. Replication, first, putting in issue the due election of the defendant; and sec- ondly, that from the time of granting the charter, hitherto it had been used and accustomed within the borough, that every inhabitant of the borougii elected to be a jurat, before he took upon himself tiie office of jurat, should be sworn and admitted a free burgess of the borough, and that the defendant, before he took upon himself the office of jurat, liad not been admitted and sworn a burgess. Demurrer. Upon the trial of the issues, in fact, it appeared that, at the election of the defendant, there were present the mayor, two bail- iffs, and two jurats: Held, tiiatthe elec- tion was valid, for the general rule, that a majority of each definite part of the elective body should be present at the election, could not apply to this corpo- ration, because in the event of the death or removal of one of the bailiffs, it would be impossible that at an election of a new bailiff there should be present a majority of the bailiffs. f[eld, upon demurrer to the replica- cation, t'.jat according to the true con- struction of the charter, it was compe- tent to the corporation to elect the ju- rats from the inhabitants of the borough or from tlie burgesses, and, therefore, that the plea was good, inasmuch as it shewed that the defendant was an in- liabitant of the borough at tlie time he was elected to the office of jurat. 'JVie A'ing V. Greet. 240 COSTS. See IxniCTMEST. Phactice. Mohtgage. 1. Plaintifl's, an Irish company, whose con- cerns were ail carried on in Ireland, were compelled to give security for costs, notwithstanding an affidavit that they had money in a banker's iiands in l.onilon, and that many of tlie members resided m England. Limerick- and II a- terforil Railway Company v. i'raser. 14 2. Plaintiff having succeeded in setting aside a nonsuit, defendant gave a cog- novit fbr Isf. damages, and such costs as ( the prothonofary should think fit. Pro- thonotary having refused to allow plain- tiff the costs of the trial, the Court de- clined interfering. Elvin v. Drumm'ond. 24 3. A defendant, who has been holden to bail in an excessive sum, can only re- cover his costs under 43 G. 3. c. 46. s. 8, in the court in which the action is brought; where, therefore, the action was brought in the Palace Court, and removed into the Common Pleas, the Common Pleas refused to order his costs to be taxed.. Costello v. Corlett. 47 4. Costs of taxing an attorney's bill not allowed to a party who succeeds in stri- king off a sixth, where the order for tax- ing is not obtained till after the action on the bill has been commenced. Jien- ton V. Billiard. 72 5. Arrest for 100^. Verdict for plaintiff, subject to an award; costs to abide the event; 39/. 18s. found to be due, and the transactions between the parties, com- plicated. The Court refused to allow the defendant his costs under 43 G. 3. Turner and Another v. Prince. 413 6. Trespass qu. cl. fr.; pleas, not guilt3', and justifications under a right of way. Issue joined on not guilty: right of way traversed, and issue joined thereon. New assignment and judgment by de- fault thereon. Verdict for plaintiff Is. on issue of not guilty; 40s. damages on the new assignment; verdict for defend- ant on one of the justifications: Held, that the plaintiff was entitled to the general costs in the cause. Vicken v. Gallimore. 415 COVENANT. 1. T. C, in consideration of covenants by n. R. C, covenanted not to interfere in a certain branch of the Scotch fish busi- ness, and to assign to H. Ji. C. a certain Scotch fishery; H. II. C. in consideration of the assignment, and of T. C.'s cove- nent, covenanted to pay T. C. an annui- ty: Held, that the covenant not to in- terfere in tlie business was only a part of the consideration for the annuity, and was, therefore, not a condition prece- dent or dependent covenant. Carpenter, Jissignee of Thomas Cresswell, a Bank- rupt, V. //. R. Cresswcll. 22 2. Covenant against the assignee of the lessee for non-payment of rent. Plea, that before the rent became due, the defendants assigned all their estate and interest in the demised premises to A. B. Keplication, that in and by the in- denture, the lessee for himself, his ex- ecutors, administrators, and assigns, co- venanted that lie, his executors, or ad- ministrators should not assign the premi- ses thereby demised without the consent of the lessf)r, and that no consent was given : Held, upon demurrer, first, that INDEX. 553 the replication was bad, inasmucli as the covenant of the lessee not to assign did not estop the assignee from setting up the assignment; and, secondly, that the action being founded on privity of es- tate, the liability of the defendant ceas- ed as soon as the privity of estate was destroyed. Paul and Other* v. Elizabeth J\'urse and Edmund jVurse. 275 CROSS-REMAINDER. 1. Devise, that J. B., a trustee for devisor, shall grant the premises to J. B.'s son G. B., to enter on after the death of J. 13., and that J. B. and G. B. shall within one month after devisor's decease pay 100/. to W. T. and T. B. to discharge legacies, and if they omit to do so, that W. T. and T. B. shall let the premises and raise the 100/. out of the rent, they keeping the deeds of the premises, and not allowing J. B. and G. B. to sell or mortgage till the legacies be paid and G. B. be twenty-one years of age ; and that if G. B. die and leave no child law- fully begotten of his own body, VV. T. and T. B. shall sell the premises and di- vide the proceeds among brothers, &c.: Held, an estate tail in G. B. Jiaggelt v. Beaty. 434 2. Devise to J. H. L. (devisor's eldest son) for life ; remainder to trustees to pre- serve, &c.; remainder to J. H. L.'s sec- ond, third, fourth, fifth, and all and every other ihe son and sons of the body of J. H. L. severally and successively in se- niority of age in tail male; remainder to devisor's second and other sons succes- flively in tail male; remainder to first and other daughters of the body of .1. II. L. successively in tail general; remainder to devisor's eldest daughter, M. S. L., for life ; remainder to trustees to pre- serve, &c.; remainder to her fi'st and othi-r sons successivclyin tail male; re- mainder to her first and other daugiiters successively in tail general; like remain- ders for life (with remainders to trustees to preserve, 8tc.)todevisor's othcrdaiigh- ters successively, with like remainders in tail to their respective children; re- mainder to devinor's sislcr in fee; vari- ous terms to trustees to raise money; and a power to the party in possesHion of the premises devised, to charge them for the portions and maintenance of younger children, male anrl fem;ilc, ac- companied with a [)r()vision, that in rase of any younger cliild's obtaining n por- tion, and afterwards becoming rntitlcd to the premises devised, the |)orlion of such younger chitrl should go over to tlie other younger rhildren : Held, that the fidest son ot .). M. ].. took an estate tail in liip ))remi8crified, at a certain rent per acre. Ami it was slinulited, that no buildings sliould be included or leased by virtue of the agreement ; and it was further agreed and stipulated, that .\. should take, at the rent afore- said, certain other parcels, as the same might fall in; and, lastly, it was stijju- lated anil condnioned that A. shoiiUl not assign, transfer, or underlet, any paitot the said lands and premises otiieruisc thin to his wife, child, or children : Held, that by the last chuse a condition was createENCE. INDEX. 557 DUCHY OF LANCASTER. ! Although the Duchy of Lancaster is held bv tlie king sepurately from his crown, a giant of duchy property is subject to the same incidents as a grant from the crown. 'Iherefore, an immediate grant to A. in fee, under the duchy seal, of proper- ty which was in the possession ot B. un- der an unexpired lease from the duchy for years, (such lease not being recited in the grant) was held void, notwith- standing there had been a user under the grant from the date of it (163.) to 1760. Akock\. Cook and. Inolher. 462 EASEMENT. See DisTBESs. EJECTMENT. See Elegit. Eviuesce. MonTOACE. 1 . Defendant, who held under a tenant for life, received, on her death, a letter from the lessor of the plaintiff, claiming as heir, and demanding rent. Defendant answered, tliat he held the premises as tenant to S.; that he had never considered lessor of plaintilJ' as his landlord; that he should be ready to pay the rent t ) i>ny one who should be pro- ved to be entitled to it, but that without disputing the lessor of the plaintiff 's pedigree, he must decline taking upon himself to decide upon his claim, with- out more satisfactory proof, in a legal manner. Held, that this was a disclaimer of lessorof plaintiff's title. Doe cicm. Cal- vert T. Fruaid, t^ 2. Where a party was presented to a rec- tory in consideration of his having given a bond to resign in favour of a particu- lar person, at tlie request of the patron, and was instituted and inducted, and such bond was held to be void, on the ground that It was smifiniacal, and the king then presented A. H., and he was instituted itiid inducted: Held, that he iniKlit main- tain ejectment for the rectory against the person who had been simoniacall) piescnted. Due on the dcmite of ilic J/nnourubte Henry h'alMon, Clerk, v. K. H'.FleUher, CU-r'k. 1^1 .". Kjectmcnt for a messuage and Icnc Mtent. Judgment entered up gc-ner.illy for the plaintifi': Held, no ground for rcvtrsal on c^rror. J)oe dem. iMwric and jiiiollirr \. I);ieball. li'l' 4. A fine was levied by A. in Hilary term, \H2\. A. and B. claimed to be heir at law of C. There being several actions dcpt-nding to try, whether A. or H. wan heir at law, it wa» agreed that the rent should be paid into a bankcr'n, to abide the event of "no of those causes. I lie cause was decided in favour of A. in 1823, and the rent paid into the bank- er's was then paid over to him. It in- cluded half a year's rent due from the tenant on the 25ih of March 1821: Held, in an ejectment brought subsequently on the demise of B., in which he suc- ceeded in shewing that he was heir at law of C, that A. hud no seisin in Hilary term 1821. when the fine was levied, and consequently that the fine did not operate as a bar to the ejectment. Doe on the demise of Lidgbird V, La-.oson and Another. 312 . A cottage standing in the corner of a meadow (belonging to tlTe lord of a ma- nor), but separated from it and from a high road by a hedge, had been occupi- ed for above twenty years without any payment of rent. The lord then de- manded possession, which was reluct- antly given, and the occupier was told that if he was allowed to resume posses- sion it would only be during pleasure. He did resume and keep possession for fifteen years more, and never paid any rent : Held, that the possession was not necessarily adverse, but might be pre- sumed to have commenced by permis- sion of the lord. Doe on the demise of Thompson and Others v. Clark. 331 5. In ejectment by mortgagee against mortgagor, it is not necessary to demand possession before action brought. Where the mortgagee suffers tlie mortgagor to remain in possession of the mortgaged premises, the latter is not tenant at will to the former, but at most tenant by suf- ferance only; and may be treated either as tenant or trespasser at the election of the mortgagee. Doe on the demise of Roby V. Maisey. 335 ELEGIT. 1. Where two elegits are issued the same day upon judgments signed in the same term, the sheriff may extend on each an entire moiety of the defendant's land, although the judgments are at the suit of different plaintiffs, and the inquisition on the second elegit recites, that a moi- etv has been extended on the first. 2. Where a party defends an ejectment as landlord, and the occupiers of the premises have suffered judgment by de- fault, he cannot objeel'lhai the occupi- ers have not received notice to quit from the lessor of the plaintiff'. Doe dem. Duvirt v. Creed. Doe dem. Davie* and Cheeae V. Creed. 459 ERUOK. Hail in error not dispcnscfl with where Iha crr«ir, though real, is only of form. It nd;worlhy. Gthton. 76 ESCAPE. See KviDBicE. 558 INDEX. EVIDENCE. See DuKn. Convictiow. Limitatioks. I'LKAiiiMd. DucHT or Lamcastku. 1. Defeiulant agreed to pay plainlifT, in consideration of her becoming his ten- ant, 20/. to repair the house, and also to make certain alterations. Plaintifl' became tenant under a lease, in which this agreement was not stated, and did the repairs ; when defendant promised to paj for them : Held, that he was liable, at all events, on the account stated, although the agreement had not been introduced in- to the lease. Seaffo v. Dearie. 39 2. In an action on a charter-party against a charterer, the Court refused to compel the plaintiff to allow the defendant an inspection of the ship's log-book. Jiuti- dle V. Beaumont. 66 3. Plaintiffs, ship-owners, sued defendant, their broker. Tiie Court refused to compel him to give a copy of a letter whicii he had received, touching an ad- venture in which the ship was to have been employed. Ho~.ue and Others v. Howden. 69 4. A kept mistress is not incompetent to give evidence for her protector, al- though she has passed by liis name, and has appeared in the world as his wife. Jiuttht-ws V. Calindo. 88 5. Affidavit that a party is indebted to de- ponent in the sum of 100/. and upwards, and is become bankrupt, is, as against deponent, conclusive evidence of the bankruptcy. Ledbetter, Assignee of Hul ■ lis, V. Suit. 91 6. B , called as a witness for the defend- ant in an action brought by the plaintiff' for a barge which W. had placed in the hands of defendant, and whicii, it was alleged, B. had sold to the plaintiff" first, and then to W., was holden a compe- tent witness for the defendant, having been released by W. Itadbwn v. J\Ior- ris and Bottomlfy. 98 7. Where a defendant pleaded, by way of set-off", a bond given to him by the plain- tiff", conditioned for payment of an an- nuity to a third person, which had been previously granted by the defendant, and tiiat a certain sum was in arrear: Held, that he was not bound to prove that he had paid the money in order to set it oir, but that on the production of the bond the plaintiff" was bound to prove payment. Penny and Another, Assignees of It. Buncombe, a Bankru/it, V. Foy. 146 8. A witness called to prove the receipt of a sum of money, was shewn an ac- knowledgment of the receipt of such money signed by himself; and on see- ing it said that he'liad no doubt he had received it, althouijli he had no recol- lection of the fact; Held, that this was St fficient parol evidence of the payment of the money, and that the written ac- knowledgment having been used to re- fresh the memory of the witness, and not as evidence of the payment, did not require any stamp. Maugham v. Hubbard and Robinson, Assignees of Lancaster, a Bankrupt. 147 9. A will more than thirty years old may be read in evidence, without proof of its execution, although the testator has died within thirty years, and some of the subscribing witnesses are proved to be still living. After the lapse of a period of more than 100 years : Held, also, that in the absence of evidence to the contrary, the death of a party with- out issue might be presumed. JJoe on the demise of Oldham and JVife v. Wol- ley. 150 10. The mother of a pauper stated, that about twenty-four years ago she receiv- ed money from the parish officers at S. to put her son out apprentice, and that she accordingly put him out; that the indenture was signed by her, the pau- per, the master, and by a witness; that she gave it to the wife of a market- gardener who attended the market of S., to take to the overseers of the parish of S.; that the market-gardener and his wife were both dead, the latter having survived her husband ; that she did not know wiiL-ther the market-gardener's w ife had left any will, but had heard that she had. Evidence was then given that search had been made in the pansh- chest of S. for the indenture, and that it could not be found : Held, that as it was the duty of the overseers, if the in- denture had come into their possession, to deposit it in the parish-chest, the presumption was, that it was lost or de- stroyed, and, therefore, that secondary evidence of the execution and contents of the indenture was admissible, llie King v. The Inhub. of Stourbridge. 155 11. In an action against the Marshal for an escape, the declaration alleged, that plaintiff" and W. B. having divers dis- putes, by mutual bonds of submission, referred them to the arbitration of C. and D. That an award was made, or- dering W. B. to pay the plaintiff' a cer- tain sum of money on,&c.; and because tiie award was not performed, the plain- tiff' sued and prosecuted out of the court of C. F. a writ commanding the defend- ant to attach W. B. (then being in his custody), so that he might have his bo- dy before the Justices of C. P. on, 8cc., to answer, hc; and W. B. being and re- maining in the custody of defendant as such marshal, by virtue of the attach- ment, on, fkc. was brought before Sir S. C, a judge of C. P., at liis chambers, by writ ol habeas corpus, and by him commillcJ to the tubiody of the War- INDEX. 559 den of the Fleet, and afterwards was broiiglil before Sir J. L., a judge of K. B., at chambers, and by him committed to the custody of the defendant charged with the attachment, and that defend- ant afterwards suftered him to escape : Held, tliat plaintift' was bound to prove the execution of the bond of sub- mission by himself as well as by W, B. Semble, That he need not have done so had he alleged and proved a rule of C. P. ordering the issuing of the attach- ment, although proof of such rule, with- out a statement of it in the declaration, would not be sufficient. Quaere, Whether the commitment by a judge at chambers was legal ? 12. 'Ihe common user of a wall separat- ing adjoining lands belonging to differ- ent owners, ispnma facie evidence that the wall, and the land on which it stands, belong to the owners of those adjoining lands in equal moieties as te- nants in common. Ciibitt V. Porter. 211 13. In trover for a chattel claimed by the plaintiff, as vendee of an executor, the will is not evidence of the title of the executor. The probate must be pro- duced. Barnard Finney v. Joel Finney. 230 14. By the Welch judicature act, 5 G. 4. c. 106. s. 21., it is enacted that in all transitoiy actions which shall be brought torney (without producing the writ) that the action was commenced after tiio 1st of Februar}', when the bill became due. Ijcster V. Ji-ukin.s. 232 IG. Where an indictment for a conspiracy alleged, that "at the court of quarter sessions holden, &.c. an indictment against A. B. was preferred to, and found by the grand jury;" field, that this allegation must be proved by a caption regularly drawn up of record, and that the minute-book kept by the deputy clerk of the peace could not be received as evidence of the finding of the bill, although no record had been in fact drawn up. The King v. Smith and two others. 232 17. An indictment had been preferred against a county for not repairing a bridge at the instance of the iniiabitunts of a parish, and the question inteniled to be tried was, whether the inhabitants of the parish or county were liable to re- pair it ? Tiie Court refused to compel the inhabitants of the parish to allow the parties indicted to inspect the pa- rish books and documents relating to the repair of the bridge. The h'in^ v. The Justices of the County of Buckingham. 240 18. Where the speaker of the House of Commons certified that a certain sum was due to A. U., "a witness summoned in any court of record out of the pnnci- ^y j,„,i „„ behalf of C. I)., one of the pality, and the debt or damages recov- sitting members for Dublin, to give evi- ered shall not amount to 50^, and it shall - - - . .. appear on the evidence given on the trial that the cause of action arose in the principality, and that the defendant was resident in" Wales at the time of the ser- vice of any writ or other mesne process served on liim in such action, and it shall be so testified under the hand of the J udge who tried the cause, a judgment of nonsuit shall be entered: Held, that it is iliscrttionary in the Judge who tries the cause to grant or refuse the certilicatt- mentioned in the act; and that where the Judge has refused to certify, this Court has no power to order a judgment t)f nonsuit to be entered. Held, by Lord Tmiirrhn C.J. at Nisi Prius, that it lies upon the defendant to shew that he wan residing in Wahs at the time when the writ or mesne pro- cess w:u» served on him in the action, and that geiicnd evidence that his usual place of residence both before and sub- sequent to the commencement of the ac- tion, waH in Wales, is not sullicient. Jnnat v. h'enricJc. 23 1 15. Declaration upon a bill of exchange, drawn on the 2yih November, 1H27, payable two months after date, was enti- tled generally of Hilary tcnn 1K2K; Held, that it wn.^ competent to the plaintin to prove by the parol evidence of the al- dence before an election committee," the Court ordered judgment to be en- tered up against C. D. for that sum as upon a warrant of attorney, the certifi- cate being held c-onclusivc as to the fact of the witness having been sum- moned, and the stat. 53 G. 3. c. 71. be- ing held applicable to witnesses sum- moned by a sitting member, as well as to those summoned by a petitioner. JMugrave v. ll'hitc. 252 19. An order of justices requiring the stewards of a benefit society to re-admit A. B , who had been expelled, recitee minister of the parish of the baptism of a child, which had taken place before he became minister, or had any connec- tion with the parish, and of which lie received information from the parish clerk, is not admissible in evidence, nor is the private memorandum of the fact made by the clerk, who was present at the baptism. Doe dem, Warren v. Aaron Bray. 339 27. In an action between A. and II., the Court refused a rule to compel B. to produce, for the purpose of stamping, an agreement between B. and C, al- though by an affidavit of C.'s it appear- ed that the act complained of by A. arose out of this agreement. Lawrence V. Hooker. 345 28. Defendants' agents abroad, by order of defendants, received money on defen- dants' account, and stated the fact in a letter to the defendants. Defendants replied, acknowledging the receipt of the agents' letter, and giving them di- rections as to the disposition of the money : Held, that the agents' letter was, cou- pled with the defendants', admissible in evidence to charge the defendants with the receipt of the money. Coates and another, As$iffnees of Flaskett, a bank- rupt, V. Btunbridge and others. 368 29. A banker's ledger is receivable in evi- ence to show that a customer had no funds in the banker's hands. Fiirneaa V. Co/ie. 387 30. Quxre, Whether in an action for an in- jury to llie reversion, proof that the pre- mises were devised to pLintiH', and lh:it an occupier holds as tenant to the jjlain- tiff, the laiter fact being establiblied by oral evidence, jdlhough the ()ccti|jier liolds under a written agreement, be sufficient to shew a reversion in the plaintifl'. Jiett C.J. and Uurrovgh .\. ncg. Park J. and Gaielce .1 . all'. Slrothei and Anoth- er y. Harr (i:id Another. .'^'.'1 31. Where a binliop lius omitted to present to a living la|)Hrd to l>ini tor want of prescht»li(jii wilhin six montlis, a party who m»y present, if the bishop oniiis to do so, is not a competent witness for one svhu claims in the same right as such party. A conveyance of a fourth part of an ae deemed vol- untary, because the only pecuniary con- sideration expressed III the deed is twenty shillings. An answer in Chancery, touching an VOL. XV. advowson, filed by one who had been seised of tlie advowson, twenty years after he had conveyed it away. Held, not admissible in evidence against a party who claimed the advowson through him. Gnlly and Others v. Bishop of Exeter arid Dowling. 408 32. Where a party sues on an instrument which, on the face of it, appears to have been altered, it is for him to shew that the alteration has not been improperly made. Jlenmanv. JJickinson. 409 33. Semble, tiiat a postmark may be proved by any one in the habit of re- ceiving letters by the post. An action to recover the balance of an account is not within the Boston Court of Conscience Act, if the account origi- nally exceeded 51. although the sum sought to be recovered is less than 51. Abbey v. /////. 452 34. A bishop's register is evidence of the facts stated in it. An allegation of a custom in parishion- ers to elect a curate is not supported by proof of such a custom in parishioners paying church rates. Semble, an ecclesiastical custom (which is not immemorial) will not, though acted on for a long time, deprive a rector of his common law right to ap- point his curate. Arnold, Clerk, and Oth- ers, v. The Bishop of Bath and fVells, Leeves, and Davies. 459 35. Where defendant surreptitiously ob- tained possession of an unstamped agreement executed by himself and the plaintiff (thereby preventing the plain- tiff^ from affixing a stamp as he ha. 1 in- tended, in twenty-one days after execu- tion), and then swore that he had lost the agreement, the Court ordered that he slKHild profluce a copy in his posses- sion to the plaintiff, and tliat if the plain- tiff [jroiluced that copy stamped at the trial, the defeiulaiit should lie preclu- ded from producing the original. BouS' field and Another v. Godfrey. 485 36. Where one of the attesting witnesses to a will is dead, w itnesses may be caU led to his rliaracter. Declarations of the testator in subver- sion of a will are not admissible in evi- dence, though i)oth parlies claim under him, and tliougli they arc offered with a view t(j shew ilie manner in which the will Was cxeculeil. y'roiu» and liotvc v. Herd. 490 37. Wlicrc the plaintiff in an action on a charler-|)arly, li«d rommunicated to tlio attesting witness an interest in the ad- venture siibHi-ipienily to the exi'cution of the iiistninu lit: Held tliat evidence of his li:tii(l writing wjm iiiadiiiissiblc. //o- 1'/// V. Sicphenion. 51.5 EXCK.SSIVK n.MI.. Sec I'l.r.t i>iNo. 562 IXDEX. KXKCUTION. See Elegit. Practick. Suerifi. Bankrupt. 1. Where ailministration had been taken out, the Court refused, without the au- thority of the administratrix, to dis- charge defendant out of execution after the death of the plaintiff, although his administratrix and his assignees (he having been a bankrupt), disclaimed all interest in the action. Fothergill v. IValton and Itondeau. 123 2. Plaintiff, a ship-owner, agreed by char- ter-party with T. to take any goods on board which T. should ship, and convey them from Van Diemen's Land to Lon- don. T. covenanted to pay freight at the rate of 15*. per ton per month, ten days after the delivery of the cargo, and then consigned a cargo to defendant by a bill of lading, under which they or their assigns were to pay freight as per charter. T. being indebted to defendants, they, on the arrival of the ship in London, sued out a writ of fi. fa. and took the cargo forcibly from the ship, exhibiting the sheriff's warrant to the captain : they did not sell under the fi, fa. but afterwards made affidavit at the custom- house that they landed the cargo as the importers. Phiintiff having sued them in trespass for entering his ship and taking the cargo, and to a justification under the writ, having replied de injuria absque residuo causae, and having new-assigned that the defendants took the goods for other purposes than those mentioned in the pleas. Held, that it was competent to tlie Jaire when she liad l)een then" in safely twenty-four hourri ; and as tlie vessel remained at those moorings on account of the ice, and not waiting for the order, the underwriters were not dischargcfl by the delay. Samtir.l v. 'I'hr lint/al Exrhfin^r .Qssuranrr f'niii ptnn/. 160 5. It is the duty of a party effecting an insurance on life or property, to coin- nnmirate tf) the iniderwriter all material f.uls within bin knowlcdg'' fourhing thf subject matter of the injunmcc ; and it is a question for the jury whether any purticulfr fact was or was not material. Lindcnau v. Desboruitgh. • 306 6. Where a vessel insured in a valued pohcy at 2000/. received damage by perils of the sea which could have been repaired for 1450/., but the jury found tliat the vessel was not worth repaii-ing: Held, that this was a total loss, and the assured were entitled to recover the sum at which the vessel was valued in the policy. Jlkn and another. Assignees of Scott, a Bankrupt, v. Sugrue. 297 7, In an insurance upon the life of anoth- er, the life insured, if applied to for in- formation, is, in giving such information, impliedly the agent of the party insur- ing, who is bound by his statements, and must suffer if they are false, al- though he is unacquainted with the life insured, and the servant of the insiu*- ance olHce undertakes to do all that is- required by his ofiice. Plaintiff effecting an insurance on the life of H., witli whom he was unac- quainted, desired the agent of the in- surance office to do all that was requis- ite. The agent knew H. well, and made the usual en(iuiiies. One of the terms of the contract was, a reference to the usual medical attendant of the life in- sured. H. having given a false reference : Held, that the plainlill' could not re- cover. Everett v. Dcsboi-ough. 518 JOINT STOCK COMPANY. 1. Debt on bond, conditioned for paying plaintiff 10,000/., upon his forming a company, and ])rocuring purchasers for 9000 shares therein ; stich company to carry on a distillery acconliiig to a pro- cess for which a patent had been granteil. Flea, that the patent contained a pro- viso, rendering it void if transferreil to more than five ; that it was intendcil the s;iid comjjany siioiild consist of more than five, and be formed for the pur- |)ose of enjoying the beni lit ol' the let- ters-patent, of acting as a corporate bo- dy, and (Uviding the i)cnefil of tlie pa- tent into 10,000 shares, transferral)lc and assignable without charter from the king ; and that it was corruptly and il- legally .agreed between the parties, that the plaintiff slnndd form the company for such purposes, and Hhcnild sell ihtf 9000 sharcH ui order to raise a larger sum of nionc-y, luider pretence of car- r) ing on the privilege granted by the patent. Il( Id, a bar to the action. Dnvrrfricr V. Ft /hum. 436 2. The defendants had |>urrhased the scrip of a mining company originated ^66 INDEX. in fraud, anil luul attciuleil one meeting' of the company; but they never sig'ned the jiartncrship deed, were innocent of the fraud, and transferred their scrip hefore the phiintiff commenced an ac- tion for goods furnislied to the company after defendants had purchased their scrip: Held, they were liable. Ellis v. SchmoEck and Thomas. 526 JOINT TENANT. See Replbvin. JUROR. Alienage is a ground of challenge to a ju- ror; and if the party has an opportunity of making liis challenge, and neglects it, he cannot afterwards make the objec- tion. Semble, That since the 7 G. 4. c. 60. s. 27. alienage is not a ground even of challenge to a special juror. The King V. Sutton and others. 252 JUSTICES. An order of justices made under the 5 G. 4. c. 71. stated, " that the justices, after due examination had on oath, having ad- judged the legal place of settlement of a pauper lunati", confined in a lunatic asylum, to be in M., didtliereby require the churchwardens and overseers of M. to pay to the treasurer of the lunatic asylum 10/. 16s. due for twenty-four weeks' maintenance, &c., being at the rate of 9.v. per week, and to pay the same weekly sum during so long a time as the pauper should remain therein." The parish of .VI. appealed against this order, and in their notice of appeal described it as an order of settlement and mainte- nance: Held, that as the parish of M. had treated this as the order of settle- ment, it must be presumed that there was no other order, and that, therefore, the words, " having adjudged," must be un- derstood as words of present adjudica- tion, and that the order was good in this respect: Held, secondly, that so much of the order as was retrospective was bad, but that it was good for the residue. TTie King v. T/ie Inhabitants of Maul- den. 155 LANDLORD AND TENANT. See Distress. 1. Where a tenant entered under an agree- ment for a lease for seven years, whicli was never executed: Held, that he was not entitled to notice to quit at the end of the seven years. Uoe dern. Tilt v. Straiton. 36 2. A. demised to B. the first and second floor of a house for a year, at a rent payable quarterly. During a current quarter, some dispute arising between the parties, R. told A. that she would quit immediately. Tlie latter answered that she might go when slie pleased. B. quitted, and A. accepted possession of the apartments: Held, tliat A. could nei- ther recover the rent, which, by virtue of the original contract, would have be- come due at tiie expiration of the cur- rent quarter; nor rent pro rata, for the actu;d occupation of the premises for any period short of the quarter. Grim- man V. Legge. 229 3. Plaintiff, wlio had entered on premises under an agreement for a lease, admitted a charge of half a year's rent in an ac- count between him and his landlord: Held, that this constituted him a tenant from year to year, and liable to distress. Cox V. Bent and others. 410 4. A payment of ground-rent by the occu- pier, in default of the mesne tenant, is not the less a compulsory payment be- cause the ground-landlord on demanding it allows the occupier time to pay. Growing rent may be discharged by such payments as well as rent actually due. Where growing rent has been reduced by payments of land-tax, &c. if the land- lord distrains for the whole sum reserv- ed, the tenant may properly sue in case. Charles Carter v. Robert Carter and others. 479 5. A landlord having treated an occupier of his land as a trespasier, by serving him with an ejectment, cannot after- wards distrain on him for rent, although the ejectment is directed against the claim of a third person, who comes in and defends in lieu of the occupier, and the occupier is aware of that circum- stance, and is never turned out of pos- session. Bridges v. Smyth. 481 LAND TAX. See Distress. LEASE. See Ejectment. He who lets, agrees to give possession, and if he fails to do so, the lessee may recover damages against him, and is not driven to bring an ejectment. Coe v. Clay. 492 LIBEL. 1. A jury, directed to find whether a libel submitted to their consideration were a privileged communication, and if so, wiiether it were attended with express malice, found for the plaintiff 50/. da- mages, and that the defendant was not actuated by express malice: Held, that the plaintiff was entitled to retain his damages. Samuel Blacklmm v. John Blacklrurn. 14 2. The plaintiff having advertised for sale INDEX. 567 a bond, executed to him by the defend- ant, the payment of which had been re- sisted in a long course of litigation in which the validity of tlie bond had been disputed, tlie defendant published, among the persons assembled to bid for the bond at an auction, a statement of all the circumstances under which the bond was given, and alluding to the plaintiff, concluded — " His object is either to extract money from the pocket of an unwary purchaser, or, what is more likely, by this threat of publica- tion, to extort money from me:" Held, that tliis exceeded tlie latitude allowed for privileged communications, or observations on titles by a party in- terested; and that it was a libel, al- though no express malice was proved. Robertson v. M'Dougall. 106 3. A. having discharged his ser\'ant, and hearing that he was about to be engaged by B., wrote a letter to B., and informed him that he had discharged him for mis- conduct. B., in answer, desired further information. A. then wrote a second letter to B., stating the grounds on which he had discharged the servant. In an action by the servant against A. for a libel contained in this letter, it was held, that assuming the letter to be a privileged communication, it was pro- perly left to the jury to consider, whe- ther the second letter was written by A. bona fide, or with an intention to injure the servant. Pattison v. Jones. 303 4. It is a libel to publish of a Protestant Archbishop, that he attempts to convert Catholic priests by offers of money and preferment. Jlrchbixhop of Tuam v. Hobtmm and Jlnotktr. 350 5. In an action for a libel, it is no plea, that the defendant had the libellous state- ment from another, and upon publica- tion disclosed the author's name. .V(> W. De Crupifpiy v. IVdUahy. 474 LIEN. A party, who having a lien on gruKls, cauaes them to be taken in execution at his own suit, loses his lien thereby, al- though the gocxls are sold to him inider the execution, and are never removed off his premises. Quxre, Whether a trainer of rice- horses has a lien on the horses for his •crvices in tmining. Jiirnhn, JJMHi^nei- of iMw/on, a liankrupl, v. /xiiour anil MtMier. 388 r.FMITATIONS. 1. To a declaration in trover by an admin- btrator, alleging^tlic grant of Icttei-s of administration to the plaintiff, and that the NTHri:TION OK. Defendant, as fenreeve, having the care of certain lands, over which tlic plaintifF was making a road, a-sknl hin) hy what •iilhority he acted; the plaintiff said, l)y authority of tlie magistrates, but did not exhibit any warrant, whereupon the de- fendant apprehended and took him be- fore a magistrate: Hcl.l, that defendant was entitled to notirc of action under 7 8. 8 (;. 4. c. 30, although the phiinliff 508 INDEX. was not roinmitting a niiilicious injmv. l/V/Vr///v. ll'a/rs. 4(32 MANDAMUS. 1. Mimdamiis graiUcil to compel a liisliop to allow iiispi'clion ofliis reg'istcr of pri'- seiitations anil institutions to a living' in liis tliocose, by a person clainiin.y,' tlic riifht of patronage, allhoug-h the i)isho|) also claimed that right. I'/te Kim^ v. T/w Bf.shop of FJi/. ' 158 2. To a mandannis to admit A. R. into the office of churchwarden, reciting that he had been duly elected, a return that A. B. was not thdy elected, is good. 7V/e King V. JVilliums. 327 MARllIAGE. >Vhcre a marriage was solemnized by li- cense between a man and woman, the former being a minor, whose fatlier was living, and who did not consent to the marriage: Held that it was nevertheless valid, the 4 CI. 4. c. 75 s. 16., whicli re- quires such consent, being directory only. Where a marriage of a female pauper is brought about by the fraud of parish officers, that does not prevent her from acquiring a settlement by the marriage in the husband's parish. The King v. TJic Inhabitants of Birmingham. 151 MASTER AND SERVANT. See Libel. MONEY HAD AND RECEIVED. ills, &c. and parcel of tlie land, to T., who devised them to S., wife of R. D. C, who levied a fine to the te- nant. , . , -r. The plea concluded with a verihca- tion, and a prayer of the messuages, &.C., and land, in tlie count. The fine set out in the plea described the premises as four messuages, one cloth mill, 84C.,andthe statement of the fine ended with 2.prout paid per recor- dum. Held, that the plea was not double : That the prayer for judgment of the messuages and land in the count did not vitiate the plea, notwithstanding the commencement of the plea appUed only to the messuages and parcel of the land: , That it was not necessary for the plea to conclude with a prout patct, tliat al- legation being introduced before the conclusion: and That the premises in the fine were sufficiently identified with those in tlie introductory part of tlie plea. Rowles V. Lusty. " 2. Assumpsit: Held, that a plea that the defendant's vmdcrtaking was for the dc- fault of another, without writing, and without consideration, might be plead- ed, altiiougli the facts might have been given in evidence under the general issue. So, a pica that the pci-son fin- whom tlie d'efendant's undertaking w:is given, \v:is :i feme covert. M(Il:i:s, Jhsif^mcc oj T. Howell and J. Howell, Bankrupts, v. .3. Libel. The declaration :dlcgcd, that whereas clivers persons had been asso- ciat.d together, uiuU r the name ot "The Society of tunirdians for the Pro- tection of Trade ag:" the plainiiir. in his trade and business, I the fi'lhi wing lit»cl — 7;; 570 INDEX. *' Sociity of (iu;irili;ins for the Pro- tectit i\ of Tnule at^'uinst SwiiKllcrs unci Sluirpors. 1, Vj. F., am directed to in- form you, tluit the persons iisinjj tlie firm of Goldstein (meaning the phiintiH') are reported to the society as intproper to be proposed to be balloted for as members thereof;" thereby meaning' that tlie plaintirt" was a swindler and a sharper, and an improper person to be a meml)ev of the said society: Held, that tlie innuendo could not be supported without a ])revious averment, that it was the custom of the society to designate swindlers and sharpers by the terms, improper persons to be memliers of that socUfi/, and that it did not appear that the society descriljed in the lit)el was the society described in the intro- ductor}' i)art of the declaration. Gold- stein V. /'(ws and Another . 53 4. In an action against the sheriff for an escape, it is suthcient to allege, that the writ for the caption of the escaper was duly indorsed for bail for /., without adding, " by virtue of an affidavit made and filed of i-ecord." Wilcoxon v. Nightingale. 57 5. Where defendant pleaded delivery of a pipe of wine in satisfaction of the plain- tiff's demand, the Court refused to per- mit plaintiff to sign judgment as for want of a plea, upon affidavit that the ]ilea was false. Smith and Others v. Backwell. 62 6. The assignee of the reversion suing de- fendant in covenant, alleged that the lessor was seised (without stating of what estate), and being so seised, devi- sed to plaintifF in fee. After verdict: Held, a sufficient alle- gation of title. Harris and Another v. Beavan. 96 7. Where, to an action on a bill of ex- change, the defendant pleaded a ramb- ling demurrable jilea, which appeared to be a trick on the face of it, the (-ourt ordered it to be struck out on an affida- vit of its falsehood, giving the defend- ant leave to plead de novo, and requiring him to try at the next sittings. Jones and Another v. Si add. 103 8. Plaintiff alleged tiiat defendant, having agreed to convey her safely by his coacli from London to I'dackheath, neglected his duty, l)y liu-owiiig her down, kc. Defendant's coacii ran from C;li:u-ing Cross to IJlackheath, and plaintiff got up at the Elephant and Castle; but de- fendant had inscribed on his coach "London to HIackheath;" Held, no \ariance. l)itehuni\. Chivis. 121 9 I'he plaintill' in fjuare impedit having (raced his title through a period of two centuries, and the defciiclant ha^ing, in forty-three pleas, taken issue on everj' allegaUun in the dtclaration, tliough the ]d:iintin"'s claim rested solely on the va- lidity of a deed of 1672, and the de- feiuhuit could h:ive no writ to the bishop, uidess he succeeded in setting aside that deed, the Court, after the declaration h:id been amended twice, and after trial had, rescinded the rule to ])lead several matters. (tuIIij and Others v. Bishop of Exeter and Jhuding. 68 10. A suit commenced in K. B. by latitat, may be well continued by a bill of Mid- dlesex, sued out by the plaintiff, with intent to implead the defendant for the same causes of action. Fage v. Nnc- man. 274 11. Trespass for mesne profits. Plea, a judgment recovered by defendant in 1822 against A.; an elegit sued out thereon; an inquisition held, whereby it was found that A., at the time when the judgment was recovered, was seised for fife of (inter alia) the premises men- tioned in the declaration, and that the sheriff delivered those premises to the defendant. Replication, that in 1820, A., by indenture, bargained and sold, inter alia, the premises mentioned in the declaration to tlie plaintiff: that he en- tered and continued in possession imtil the committing of the trespasses. The defendant craved oyer of the indenture; and it thereby appeared, that for the purpose of securing an annuity to B., A. in 1819 had conveyed the premises in the declaration mentioned to B. for 100 years, and that subject thereto he conveyed them to the plaintiff for bet- ter securing a second annuity granted by the deed. Upon demurrer, the re- plication was held to be good, inasmuch as it shewed that the plaintiff was in possession at the time when the trespass was committed; that A. had no interest in tlie premises at the time when the judgment was obtained against him; that the defendant, consequently, could derive no title from him, and was a wrongdoer. Chuljlcld v. Parker arid Voiterell. _ 290 12. Debt lies against an executrix upon a cause of action accruing after the death of the tesbdor. Where an executrix referred to arbi- tration to he finally determined on, cer- tain disputes and differeuces respecting certain unsettled accounts, and the arbi- trators, without finding assets, awarded her to pay a certain sum: Held, that plene administravit was no bar to an ac- tion on the awai'd. liiddcll v. Suttot2, Executrix of Sutton. 416 13. In an action against the assignees of a bankrupt, the Court refused to permit the defendants to plead non est factum, and that the premises did not come to them by assignment. fVhale v. Lenny and Others, Aisi^necs, 347 INDEX. 571 14. If it appears on the whole, that tlie condition of" a bail-bond is to appear in the Common Fleas, it may be described as such in the declaration, although the expression on the bond is, " to appear before our lord the King at AVestmin- ster," instead of, " before the justices of our lord the King." Crofts v. Stockley and Another. 356 15. Variance. Evidence that according to the custom of the trade the plaintifTs de- livered coals to N. H. daily, and that at the end of every month he gave a bill, payable in two months. Held, not sufiicient to charge defend- ant upon a guarantee for the payment of coals lo be delivered to N. H. at a credit of two months from the delivery. Holl and Anotlier v. Caroline JMarvHadlcy. 367 16. In a declaration on a bail-bond, it is not necessary to aver that the writ on which defendant was arrested was issued on an aftidavit of debt, and indorsed with the sum sworn to. S/iarpe, Assignee of the Shenff of Middlesex, v. Jibbey and Others. ' 413 17. Where the plaintifT's title to an ad- vowson was traced in quare impedit through a period of two centuries, and the detcndanl's claim arose on the alle- ged invalidity of a deed of 1672, the Court would not allow him to traverse all the allegations in the declaratidn, or to pleiid more pleas than were necessary to contest the deed of 1672. Gully and Others v. The Bishop of Exeter and J)oiu- ling. 360 18. Declaration amended by allowing plain- titt's to declare, on the same cause of ac- tion, as surviving partners instead of ad- ministratrixes. Taylor and Others, Jld- miniKtrutrixea of Folder, v. Lyon. 461 19. A plea false on the face of it may be treat! (I as a nullity. Vere und Others v. Ciirdi'n. 4H3 20. A defendant may plead matter puis darrt'in continuance, notwithstanding an order to rejoin i:,suably. Jtrynut v. Sir John J'erring, 4^1 POOR \l\TV.. Sec Ari'KAi.. The 7 fl. 3. c. 37. which enacts, liiat cer- tain lands to h<- c-mhankcd frum the riv- er 'I'hanics sliidl be "tree from all taxes atwl asscssmcnlH whatsoever,'" exempts the occupiers of premises built (jn those lands from the payment of poor-rates in respect of such occupation. Thr h'int; V. The London (ian-Hj^ht and Cnkr Com. puny. 1 '' ^ POWKIl OF ATTORN r.Y. Dcfcnilants entered into an agreement with C to carry on for them certain mi- ning speculations in America, — furnish- rd him with inslrurlions, — a letter au- thorising him to draw on them for 10.000/., and a power of attorney of the most extensive description, "to take and work mines, to purchase tools and materials, and erect the necessary build- ings, and to execute any deeds or in- struments he might deem necessary for the purpose." C. afier he had raised 10,000/. under the letter of authority, obtained of plain- tiff in America 1500/. which he applied to the defendants' use, and for the amount, drew bills on defendants, which he indorsed to plaintiiF. He did not shew the letterofauthority to the plaintiff; but there were no indorsements on it of sums previously raised, and it did not appear that the plaintiff knew that any money had been raised before by C: the de- fendants refused to accept the bills. Held, that plaintiff was entitled to re- cover 1500/. from defendants, as money had and received to his use. IVithington V. Herring and Others. 492 PRACTICE. iS^je AnnusT. Trial at Bar. Bail. Costs. Evidence. Execution. Insolvent. Pleading. Trover. v 1. Where a cause is made a remanet at the assizes a new notice of trial is ne- cessary. Gains v. Bilson. 24 2. An application to set aside an attach- ment for not bringing in the body,shouId be grounded on an affidavit that it is made at the expense of the bail. The Xinff v. Sheriff of London, in Wilson v. Goldstein and .'hiother. 27 3. The Court refused to set aside a bail- bond on the ground that tlie defendant had been arrested in the 'J'ower Ham- lets by virtue of a writ which had no non omittus clause. Jicll v. Jacobs. 68 4. An atlidavit of the caption of a fine ta- ken before a consul abroad, is insuf- ficient. /■.'.'■ parte Lady Hutchinson, Con- usee. ^7 5. Affidavit, that defendant w.is indebted to pluinlifV in 20/., for money lent on a bill of exchange, drawn by S., accepted by defendant, and overdue and unpaid : Held, sudicicnt, without saying "lent to defendant." Bennett v. Dmcson. 88 6. Where, upon an appeal against an order of removal, the justices at sessions were equally divided, and made an order, that the hearing of (he appeal slioidil lie ad- journed; oner of the justices, who voted ni favour of the resi)ondent parish, be- ing a rate<1 inhabitant of that parish. An api)liciition for a certiorari to remove the order of sessions, in order (hat it and the original order of removal might be quasiied, was refused, on (he ground that, even if the order of sessicms were erroneous, this Court had no jurisdiction lo review it. 'J'he Kinj v. 'Thr Jnnlicrn of Jilonmoulhthirr. 167 G. Tile Court will, upon motion, set aside 572 INDEX. a warrantor attorney, judgment, and ex- ecution, on the ground that they are fraudulent against creditors, provided tlie facts upon which the alleged fraud depends are clearly made out by the affidavits ; but where those facts are disputed, they will direct an issue to try the question of fraud. Ilarrod v. FMah Wiseman Jienton. 202 7. Where a defendant obtains a maniamus under 13 G. 3. c. 63. s. 44, for examin- ing witnesses in India, the plaintifi", gain- ing the cause, is entitled to the costs of cross-examining those witnesses. Wliytt V, M'Inlosh and Others. 228 8. When a cause has been sent back by procedendo to an inferior court, this Court will not quash the writ on the ground that the cause is important, and fit to be tried in the superior court. Hat/ward and Others V. Wright, 242 9. The Stat. 8 H. 6, c. 9. s. 6., which gives treble damages to the party grieved, by a forcible entry and expulsion, ap- plies only to persons having the free- hold ; for the remedy is given against the disseisor. Cole et Ux. v. Robert Eagle and Others. 251 10. After a verdict for a defendant, the Court made a rule absolute for a new trial, and ordered that the costs of the former trial should abide the event of such new trial. The record was car- ried down to the Spring assizes follow- ing, when it was made a remanet. It was tried a second time at the Summer assizes, when a verdict was again found for the defendant. The Court after- wards ordered that that verdict should be set aside, and a new trial had be- tween the parties upon the payment of the costs of the last trial, and that the costs of the first trial should abide the event of such new trial. Upon the third trial a verdict was found for the plaintiff: Held, that the plaintiff was entitled to the costs occasioned by the cause having been made a remanet at the assizes next following the term when the first rule was made absolute for a new trial. Gibbins and JlnotJier, as- signees, v. Phillips. 260 11. A defendant having been arrested, paid into court the sum indorsed on the writ, together with 20/., as a security for costs, pursuant to the statute 7 & 8 G.4. c. 71. s. 2. The Court, on the ap- plication of the defendant, allowed the plaintiff to take out of court a given portion of the sum paid into court, and unless he consented to accept thereof, with costs, in full discharge of the ac- tion, ordered it to be struck out of the declaration, and that the plaintiffshould not give any evidence at the trial as to that sum. Hubbard v. Wilkinson. 276 12. An affidavit of debt, stating that de- fendant was indebted to the plaintiff as liquidator (duly appointed by the law of France) of an estate, is irregular, unlesu it shew that by the law of France a liquidator is entitled to sue. Tenon v. Mars. 324 13. The defendant is not entitled to costs of a judgment of non pros, obtained by reason of the plaintiff having omitted to enter the issue on record, after issue joined on a demurrer to a plea in abate- ment. Michlam v. Bate. 324 14. An affidavit of debt for money paid for the use and benefit of the defendant is irregular, if it omit to state that it was paid at his request. Pitt v. JSTe-w. 325 15. In actions by original, the judgment relates to the essoign day of the term in which it is signed. Whittaker v. Whit- taker. 336 16. Where a cognovit was given on the 8th of February in Hilary term, with a condition that judgment should not be entered, unless default should be made in payment on the ensuing 1st of April, and the defendant died in Hilary vaca- tion, before the 1st of April, judg- ment entered up on the 10th April in Hilary vacation, after defendant's death, was held regular, as relating to the first day of Hilary term, as also execution tested of a day in that term anterior to the defendant's death. Calvert v. T»m- lin. 343 17. An affidavit of debt sworn before a commissioner in the country is insuffi- cient, if it do not state the party before whom it is sworn to be a commissioner. Howard v. Brown. 13 18. Where a cognovit was given on tha 8th of February in Hilary term, with a condition that judgment should not be entered, unless default should be made in payment on the ensuing 1st of April, and the defendant died in Hilary vaca- tion, before the 1st of April, judgment entered up on the 10th April in Hilary vacation, after the defendant's death, was held regular, as relating to the first day of Hilary term, as also execution tested of a day in that term anterior to the defendant's death. Culvert v. Tom- lin. 343 19. The Court will not discharge a de- fendant from custody under a ca. sa. on the ground that he has been before ir- regularly taken and discharged under criminal process at the instance of the plaintiff. Mackie v. Warren, 408 20. Where defendant, after an application by plaintiff's attorney, paid plaintiff the debt demanded, without notice that a writ had been sued out, about which the plaintiff' said nothing, and the attorney afterwards aiTCsted defendant for the costs on a writ which had been sued out before the payment of the debt, the Court stayed the proceedings without costs. Ilooke V. Wasp. 412 INDEX. 573 21 . In moving to set aside an award made under a rule of court, the rule nisi ought to be drawn up on reading the rule under which the matter was refer- red, and the objections to the award ought to be specified. Christie v. Ham- let. 414. 22. The Court discharged a rule for chang- ing the venue, on an affidavit that the defendant's attorney had said he should change the venue to postpone the trial, and (which was the fact), that in the in- terim, an act would come into operation vhich would defeat the plaintift's claim. Gaselee J. dissentiente. Amner and Another v. Cattdl. 419 23. Money paid into court under 7 & 8 G 4. c. 71., to abide the event of a cause, is not paid out under a rule absolute in the first instance. Symes v. Rose. 447 24. The Court discourages the practice of ordering nihil to be returned to a scire facias. Bedington v. Sedinglon. 449 25. Judgment signed in a writ of right, be- cause a blank was left for the word cyj- kes in the count, set aside. J-Febb, de- mandant ; Lane, tenant. 449 26. Affidavit, that the defendant had un- dertaken to be answerable to the credi- tors of J. and W. M. for the amount of the debts of such creditors, on their, the creditors, undertaking not to issue a commission of bankrupt a.gainst J. and \V. M. before the 16th of August ; that J. and W. M. owed plaintiffs 1000/ ; that neither plaintiffs, nor, as they were informed and believed, any other of the creditors of J. and W. M. sued out a commission of bankrupt against J. and W. M. before the 16th of August ; that neither J. and W. M. nor defendant paid plaintiffs the 1000/. due to them from .1. and W. M.; and that defendant owed plaintiffs 1000/. upon his said un- dertaking. Held, insufficient to hold defendant to bail. Elworihy and others v. Thoiiian Afimndcr. 450 27. Where a party to an arbitration under a rule of court revoked tlic arl)itrat(jr's authority upon discovering improper •onduct, and then having sued for, and re- covered by action, damages for the mat- ter in dispute, went to reside in Scot- l.'ind, the ronrt refused to st.'iy execu- tion upon the application of tlie .adverse party, wiio proposed thereby to com- pel him to appear to an action on the arbitration-bond, the arbilmtf)r having awarded against him, notwithstanding the revocation of authority. Stm-anl v. JViUiamJu/n. 4b4 PHESENTATKlN. flee Simon I. PRINCIPAL AND AGENT. See Trover. PROBATE. See EvirENCE. PROMISSORY NOTE. See Bill of Excbaxge. Stamp. QUO WARRANTO. See Corporation. RATE. See Justices. A rate in the nature of a county rate may be levied in Berwick-upon-Tweed, that being a place not subject to the com- mission of the peace of any county in England, and never having contributed to a rate made for any county, although it does not lie within the body of an English county, and although no rate had ever been levied there before, the cor- poration having defrayed out of their own funds the charges to which the sums raised by a county rate are appli- cable. The King v. The Justices of Ber- wick-upo7i-Tweed. 230 RECOVERY. See Fixe asd Recovery. Where one of the vouchees became insane between the time of executing the war- rant of attorney and tlie passing of the recovery, the Court refused to let it pass as to him, but permitted it as to the other parties. Vak and others, I'ouchtcs. 408 REPLEVIN. 1. One joint-tenant may, without the as- sent of his fellows, appoint a bailiff to distrain for rent due to all the joint-te- nants. lUiliinson v. Jlofinnn. 73 2. Allowing two years to elapse without jiroceetlinqs. Held, to be a breach of the condition in a replevin-bond to pro- secute the replevin without delay, and that the ol)ligie might recover on such breach, although judgment of non-pros was nt-ver signed in the county-court. A.rfor(l V. J'rrrrtt. 82 3. The plaiiitilV anil tUfondanl in a reple- vin suit referred the cause to an arbitra- tor, and agreed, without the privity of the sureties, that the re|)livin-l)f)nd should stand as a serurity for the per- formance of the award: Held, that the sureties were discharged. Archer v. Hale. 42 RESCOUS. Plaintiff distrained defendant's cattle da- 574 INDEX. m:iu;c feasant, niul xv'cnt tat, ander the circumstan- ces, tlie degree of coercion resorted to by the defendant, was not excessive. JJavii V. Nussell and Others. 463 TROVER. See BiHKncPT. Actios oif the Case. Evidence. Pleading. 1. In trover for a packet of letters, the de- fendant was allowed to stay proceedings as to one of them, upon delivering it up and paying costs. Earle v.IIolderness. 41 2. E. being indebted to plaintiffs, agreed to deposit with plaintiffs, as agent to P., a bill of exchange, as security for a sum advanced by P.; and having deposited the bill with plaintiffs, wrote to them as follows ; — " The bill you will hold, sub- ject to P.'s advance ; and also for any advances or expenses you have against me." The bill having been,, at the in- stance of the acceptor, surreptitiously taken by the defendant, Held, that the plaintiffs might sue, and recover against him in trover, although P. had pre- viously sued him, and had recovered by the award of an arbitrator the amount of bis advance. Knight and Another v. Legh. 83 3. A sheriff, who takes in execution the goods of a bankrupt, is liable in trover to his assignees, although he has no no- tice of the bankruptcy, and a commis- Bion has not been sued out at the time of the execution. Price and Another, Atsignees of Latham, a Bankrvpt, v. Helyar. 87 VENDOR AND VENDEE. 1. Defendant having offered to purchase a house, and to give plaintiff six weeks for a definitive answer, Held, that before the offer was accepted, the defendant might retract it at any time during the six weeks. Averment, that plaintiff was entitled to a term of thirty-two years in the pre- mises, under a contract with A., and that plaintiff having agreed to take the premises, defendant was ready to grant him a lease of thirty-one years: Plaintiff having only a twelve years' term in the premises, and shewing no written contract with H. for a term of thirty-two years, Held, a material vari- ance. Defendant offered to purchase a house upon certain terms, " possession to be given on or before 25th July;" plaintiff agreed to the terms, and said he would give possession on the first of August, Held, no acceptance of defendant's ■ offer, Rontledge v. Grant. 99 2. A. agreed to sell to B. his interest in a public-house, and his furniture, 8ic. at an appraisement to be made by two ap- praisers, the same to be paid for on B.'s taking possession, which was to be on or before the 25th of March then next ; and 30/. was paid by B. as a deposit; and he agreed that if he should not com- plete his part of the agreement, the sum so paid should be forfeited. The buyer and seller appointed appraisers respec- tively. On the 25th of March the two ap- praisers met, and the seller's appraiser was then informed that the appraiser of the buyer could not conveniently on that day complete the valuation, but would finish the business the next day ; no ob- jection was then made to the proposed delay. The appraiser of the buyer ■went to the seller's premises the fol- lowing day to make the valuation, but the seller refused to allow him so to do, and said he would not complete the contract : Held, that, under the circum- stances, it was incumbent on the seller, if he intended to insist that the contract should be completed on the day men- tioned in the agreement, to have noti- fied such intention to the buyer ; and not having so done, that the latter was entitled to recover back the deposit. Carpenter v. Blandford. 201 WARRANT OF ATTORNEY. See BANKHuyT. Fbacticb, END OF VOLUME XV, .A^k ^ ^ UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles Til is book is DUE on the last date stamped below. Form L9 — 15m-10,'48(B1039)444 LAW LIBRARY UNIVERSITY OP QAUFORNIA LOS ANGELES ^^ 000 658 898 K37 G79r V.15 m