(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "Reports of cases argued and determined in the English courts of common law. With tables of the cases and principal matters"

p 




^^ 




.i 



THE LIBRARY 

OF 

THE UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



» 



r 



K3-T 

REPORTS 



OP 



CASES 

ARGUED AKD DETERMINED 



IN THE 



€n0lii^|) Courts of Common Itato* 



WITH TABLES OF THE CASES AND PRINCIPAL MATTERS. 



EDITED BY 

THOMAS SERGEANT and JOHN C. LOWBER, Esqrs. 

or TBB PHItAn£LPHIA BAR. 



VOL. XV. 

CONTAINING CASES 
Ju (he King't Bench and Common Pleax, in 18?7-9. 



PHILADELPHIA : 

p. H. NICKLIN AND T. .JOHNSON, LAW BOOKSELLERS. 

No. 175, Chestnut Street. 

1830. 



K3-I ■ 



JUDGES 

DURING THE PERIOD COMPRISED IN THIS VOLUME. 

— -dC-- — 

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 James Allan Park, Knt. 
Hon. Sir James Burrough, K>it. 
Hon. Sir Stephen Gaselee, Knt. 



Attorneys General. 

Sir Charles Wetherall, Knt. 
Sir James Scarlett, Knt. 

Solicitors Genei'al. 

Sir Nicholas Conyngiiam Tindal, Knt. 
Edward Burtenshaw Sugdex, Ktit. 



Vol. XV. 



A TABLE 



OF THE 



NAMES OF THE CASES 



REPORTED IN THIS VOLUME. 



A. 

Abbey V. Sill 452 

, Sharp V. 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 

Archbisbop of Canterbury v. Tappen 174 

350 
42 
518 
459 
151 
216 
82 



• of Tuam v. Robeson 



Archer v. Hale 

Armitage v. Berry 

Arnold v. iVishop of llath and Wells 

Ashley Hay, Inhabitants of, Hex v. 

Atkinson v. Hell 

Axford V. I'errit 

n. 

Backwell, Smith v. 
Bailey v. Cidverwcll 
Bainbridge, Coates v. 
Barham, Iniiabitants of, Rrx v. 
Barr, Sti-otbcr v. 
Barham v. Farclnother 
Bate, Micldam v. 
Baxter, Ex parte, 
Batthews v. (ialindo 
Beaty, Itiggett v. 
Beavan v. Harris 
Beaumont, Unndle v. 
Boddington v. Hcddinglon 
Bclrlicr V. Sikes 
Bell, Atkinson v^ 

V. Bilton 

V. Jacobs 

V. Mnrpliy 

Sparkes v. 

Benedict, Scaton v. 
Brnnet, Bourne v. 
V. Kdsvardi, 



62 

261 

368 

157 

391 

79 

324 

234 

88 

4,54 

96 

68 

4-19 

]H6 

216 

90 

68 

74 

143 

3.i4 

27 

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 

Bilson, Gains v. 24 

Bilton, Bell v. 90 

Birmingham, Inhai)itants of, Rex v. 151 
Bird V.' Holbrook, 91 

Bishop of Bath and Wells, Arnold v. 459 

of Exeter, Gully v. 68, 360, 408 

14 



]?lackburn v. Blackburn, 

Blake, Knowlcs v. 

Blakey, Hanson v. 

Blandford, Carpenter v. 

Bluciuicre, Hunt v. 

Bolland v. Nash, 

Bourne v. Bennet, 

Bousfleid V. Godfrey, 

Bray, Doe v. 

Brazier v. Jones, 

Brcnton, Rowe v. 

Briunt, iMiilpot v. 

Bria\ells, Hnudrcd of, Elsmore v 

Bridges v. Smytli, 

Briglit, Jones v, 

Britten v. Hughes, 

British Museum v. Payne, 

Bromyard, Rex v. 

Brooke v. Noakes, 

Brooks, Kex v. 

Brown, Howanl v. 

Revctt V. 



Bryan v. W hislh r, 
Bryant v. Sir J. I'ening, 
Buck, Nott V. 
Burden v. Halton, 
Buckingham. Justices of, Rrx v. 
Burgess, Freeman v. 
Burleigh v. Stoti, 
Burn!. V. Carter, 



5ir 

54 
301 

83 
157 

27 
485 
339 
162 
"335 
126 
266 
481 
529 
502 

69 
210 
289 
229 

13 
345 
21# 
483 
403 

37 
240 

25 
151 
488 



TABLE OF CASES. 



Bushnell v. Levi, A59 

Buszard v. Capcl, 169 



Calvert V. Froud, 70 

V. Tomlin, 343 

Capcl, Buszard v. 169 

Garden, Vera v. 483 

Cai'pcntcr v. Blandford, 301 

V. Cresswell, 22 

Carr, Field V. 348 

Carter v. Carter, 479 

V. Sanderson 37 J 

, Burns v. 488 

Carrutliers v. Payne, 447 

Case, South Carolina Bank v. 256 

Cattel, Anmcr v. 419 

Chatfield v. Parker, 290 

Cholmely v. Paxton 364 

Chives, Ditcliam v. 121 

Cliristie V. Hamlet 414 
Cluistchurch, London, Inhabitants of, 

Rex V. 326 
Churchill v. Crease, 409 
Clark, Doe dem. Thompson and oth- 
ers V. 33 1 
Clay, Coe v. 492 
Coaks, Jay v. 323 
Coats V. Bainbrldg'e, 368 
Coe V. Clay, 492 
Cole V. Eagle, 251 
Coles V. Hulme, 299 
Collins V. Wilson, 70 

V. Price, 389 

Colvin V. Newberry, 179 
Commissioners of Sewers for, 8cc. 

Rex V. 237 

Cook, Thomas v. 333 

Cooke, Alcock v. 462 

Combe, Rex v. 155 

Cooper, Groocock V. 198 

Thorpe v. 387 

Cope, Furness v. 3b7 

Corlett, Costello v. 47 

Cornish v. Searell, 267 

Cori'ie, Preece v. 353 

Costello V. Corlett, 47 

Cox V.Bent, 410 

Crease, Churchill v. 409 

Creed, Doe dem. Daviesv. 459 

Cristal, Ferguson v. 454 

Crofts v. Stocklcy, 356 

Crole, Parker v. 371 

Crowdcr v. Long, 3(J9 

, Lovick v. 165 

Crowland, Inliabitants of, Rex v. 330 

Cubitt v. Porter, 211 

Culliford, ex parte, v. Warren, 203 

Culvcrwell, Bailey v. 261 

D. 

Dally, Andrews v. 74 

Davis V. Russell, 463 

V. Wilkinson, 77 

Dawson, Bennett v. 88 

Dawling, dem.; SeJby, vouchee, 27 

Deane, Seago v. 39 



De lUaquiere, Hunt v. 
l)c Crespigny v. Wellesley, 
Denton, Fairlic v. 
Desborougli, Everett v. 

Lindenau v. 



Dickinson, Henman v. 
Dicas v. Jay 
Ditcham v. Chivis 
Dixon v. Ilovill 
Doe v. Bray 

v. Clark 

V. Dycball 

v. Lawson 

v. Fletcher 

v. Maisey 

V. Martyn 

V. Prigg 

V. Robinson 

v. Watt 

V. Woliey 

Doe dem. Davies v. Creed 

Dixon V. Willis 

Fisher 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. 251 

Earle v. Ilolderness 41 

Edge v. Parker 328 

Edmonds v. Lowe 250 

Edwards, Bennet v. 329 
Edwinstow, Inhabitants of. Rex v. 327 

Elliott, Willes v. 13 

Ellis, Macbeath v. 79 

v. Schmneck 526 

Elsmore v. l"he Hundred of Briavells 266 
Filvin v. Drummond 24 
Elwortliy v. Maunder 450 
Ely, Bisliop of. Rex v. 158 
Evans v. Wiiylfi 514 
Everett v. Desborough 518 
, Rex v. 158 



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 



Fairlie v. Denton 
Falmouth Earl of, Swann v. 

Lord, V. George 

Farebrotlier, Bartram v. 
Fellows, Duvergier V. 

Biggs V. ' 

Ferguson v. Cristall, 

Field v. Carr, 

Firtli V. Thrush, 

Fletcher, Doe dem. Watson v. 

Forrest, Douglas v. 

Foss, Goldstein v. 

Fothergill v. Walton, 

Fov, Penny v. 



246 
264 
449 

79 
436 
248 
454 
348 
242 
151 
113 

53 
123 
146 



TABLE OF CASES. 



Frazer, Limerick and Waterford Rail- 
way Co. V. 14 
Freeman v. Burgess, 25 
Froud, Calvert v. 70 
Furnell 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, 53 

Grant, Routledge v. 99 
Great Bolton, Inhabitants of, Rex v. 154 
Great Driffield, Inliabitants of, Rex v. 528 
Great Sheepy, Inhabitants of, Hex 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 

Gurney, Wells v. 336 

H. 

Hadley, Holl v. 367 

Hale, Archer V. 42 

Hall, Siordet v. 87 

Halton, Burden v. 37 

Hamlet, Christie v. 414 

Handley v. Levy, 323 

Hanson v. Blukey, 54 

Hargreavcs, Tcrrington V. 515 

Harris V. Ikavan, 96 

Hanison, Mount v. 11 

Harrod V. Mcnton, 202 

Hart, Stephenson v. 47 

Ha^stclow V. Jackson, 204 

Hawks V. Salter, 125 

Haydon, Allison v. 90 

Hayward v. M'riglit, 212 

Helps V. Glenister, 295 

Heijar, Price v. 87 

Hcnhy V. Sojjcr, 147 
Henly v. Mayor and Burgesses of 

Lyme, 376 

Hcnman V. Dickinson, 409 

Herring, Witiiington v. 492 

Hcywoofl V. Watson, 55 

Hills V. Street, 358 

Hippius, Benson v. 38 

Hi])sw(l!, Inhaliitants of. Rex v. 267 

Holman, Robinson v. 73 

Holdcmcss V. Sharkrjs, 315 

Holhrach, l.oukfs v. 26 

Holdcrncss, F,arlo v. 41 

Holbrook, Bird v. 91 



Holl 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. 
Humphrej^ 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 



Keates v. Whieldon, 144 

Kcnrick, Jones v. 231 

Kent, Justices of, Rex v. 324 

The King v. The Sheriff of London, 27 
Kingston-upon-Hull Dock Company, 

V. I^a Marche, 153 

Knight V. Lee, 83 

V. Hunt, 488 

Knowlcs v. Blake, 517 

Kynur v. Larkin, 371 



La Marche, Kingston-upon-Hull 

Dock (Company V. 153 

Lancashire, Justices of, Rex v. 309 

Langston v. Polo, 428 

Larkin, Kymer v. 371 

Latour, Jac(>bs v. 388 

Law ford. Inhabitants of. Rex v. 216 

Lawrence v. Hooker, 345 

Lawson, Doe dem. Lidgbird v. 312 

Le(li)etter v. Salt, 91 

Lees V. WhUcomb, 357 

Legge, (irimman v. 229 

Legli, Kniglil v. ^83 

Lenny, Wliali- v. 347 

Lester V. .knkinn, 232 

Levi, Buslinell v. 4.59 

Levy, Handle} v. 323 

Lew, Inhal)it.ints of, Rei v. 326 

Lill, Abbey v. 452 



TABI.i: OF CASES. 



Llmeriok and AVaterford Railway Co. 

V. Frsjser, 14 

Ijndcnau v. Dtsboroiigh, 306 

Lloyd V. Sij;ouriify, 527 

, Sit-'ounu'v V. 319 

l.oakos, llolbcacli v. 26 
London (.ias Liglii aiul Coke Co., 

Rcxv. 153 

Loutli, Inhabitants of, Kex v. 210 

Long^, Crowdcr v. 309 

Lovick V. Crowdcr, 165 

Lowe, Edmonds V. 260 

Lucas V. Nockclls 132 

Lusty, Howies v. 28 
Lyme, Mayor and Burg'csses of, llcn- 

ly V. 376 

Lyon, Taylor v. 461 



AL 

Macbeath v. Ellis, 

Mackie v. Warren, 

Maclean v. Uunn, 

Macklin v. M'atcrhouse, 

M'Dougal V. Robertson, 

Magg's V. Ames, 

Magrave v. White, 

Maisey, Doe dem. Roby v. 

Mars, Tenon v. 

Martyn, Doe dem. Brune v. 

Martyr, Donne v. 

Martin, dem.; Crubb, vouchee, 

Mayhew, Seely v. 

Mattishall, Inhabitants of, Rex v. 

Maugham v. Hubbard, 

Maulden, Inhabitants of, Rex v. 

Maunder, Elworthy v. 

Michlam v. Bate, 

Monmouthshire, Justices of. Rex 

Morland v. Pellat, 

Morris, Radbourn v. 

Morrison, Allen v. 

Moses V. Richardson, 

Mount V. Harrison, 

Murphy v. Bell, 

MuiTay V. Reeve.s, 

N. 

Nash, Bolland v. 
New, Pitt V. 
Ncwbcny, Colvin v. 
Newman, Page v. 
Nightingale, Wilcoxon v. 
Noakes, Brooke v. 
Norton V. Pickering, 
Notley V. Buck, 
Nockells, Lucas v. 
Nott V. Buck, 
Nunn, in the matter of, 

, Wood V. 

Nurse, Paul v. 



79 

408 

129 

4:21 

31, 106 

45 
252 
335 
324 
276 
154 
403 

72 
334 
M7 
155 
450 
324 
'. 167 
332 

98 
298 
254 

11 

74 
254 



157 

325 
179 
274 
57 
289 
314 
178 
132 
403 
325 
346 
273 



I'attison v. .lones, 
Paul V. Nurse, 
Paxton, Cholmcly v. 
Payne, Carruthersv. 

-, British Museum v. 



P. 



Page V. Newman, 
Parker, Chatfield v. 

, Edgar v. 

V. Crole, 



274 
290 
338 
371 



Pellat, Morland v. 
Penny v. Foy, 
Perring, Sir J., Bryant v. 
Perrett, Axford v. 
Phillips V. Allen, 
-, Gibbons v. 



Philpot V. Briant, 
Pickering, Norton v. 

, Scales V. 

Piimey v, Pinney, 
Pitt V. New, 
Pole, Langston v. 
Porter, Cubitt v. 
Pratt V. Swain, 
Precce v. Corrle, 
Price, Collins v. 
V. Ilelvar, 



303 
273 
364 
447 

69 
332 
146 
483 

82 
269 
260 
126 
314 

37 
230 
325 
428 
211 
(219 
353 
389 

87 
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, Provis v. 490 

Reeves, Murray v. 254 

Revctt, 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. Pydwinston, Iniiabitantsof, 327 

V. Ely, Bishop of, 158 

V. Everett, 158 

V. Ciilkes, 261 

V. Creat Bolton, Inhabitants of, 154 

V. Great Driffield, Inhabitants of, 328 

V. Great Sheepy, 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. Maiilden, Inhabitants of, 155 

V. Monmouthshire, Justices of, 167 

V. Pulsford, 235 

V. Kawden, Inhabitants of, 329 

V. Richards, 253 

• V. Rosliston, Inhabitants of, 326 

V. Saint Andrews, Cambridge, 326 

V. Pcrshore, 327 

V. Martin, Leicester, 327 

V. Shipton, Inhabitants of, 155 

V. Shipton, Robert, 337 

T. Smith, 232 

V. Stourbridge, Inhabitants of, 155 

V. Sutton, 252 

V. Walnfleet, All Saints, Inhabi- 
tants of, 206 

V. Wilhams, 327 

V. Wilts, Justices of, 242 

V. Winter, 338 

V. Worcestershire, Justices of, 210 

Riddcll V. Sutton, 416 

Richards, Rex v. 253 

Richardson, Moses v. 254 

Richmond v. Smith, 144 

Riley v. Home, 422 

Robertson, M'Dougal v. 31, 106 

Robinson, Doc dem. Jeff" v. 222 

V. Ilofman, 73 

Robeson, Archbishop of Tuam v. 350 

Rooke V. Wasp, 412 

Rose, Symcs v. 447 

RosUston, Inhabitants of, Rex v. 326 

Rowc V. Hrenton, 335 

V. Howdcn, 69 

Rowlcs V. Lusty, 28 
Royal Exchange Assurance Company, 

Samuel v. 160 

Rundcl V. Beaumont, 68 

Russell, Davis v. • 453 

Rutlcdgc V. Grant, 99 

S. 

Saint Andrew, Cambridg-c, Rex v. 

I'crshore, Rex v. 

Martin, Leicester, Rex v. 

Salt, Ledbcttcr v. 
Salter, Hawks v. 
Samuel v. Royal Lxcliangc Assurance 

Company, 
Saundcrson, Carter v. 
Scales V. I'ickcring, 
Schma-ck, Ellis v. 
ScOtt, Doc dem. Stevens v. 
Scago v. Dcane, 
Scare II, Cornish v. 
Seaton v. Benedict, 
Sccley V. Mayhcw, 
Sclby, voucher; Dawling, dcin. 
Shackcis, IlolderncsH v. 
Sharpc v. Al)b(;y, 
Shelby, (iarncr v. 
Sheriff of London, Thf> Kinff v. 
Shipton, Inhabitants of, Rex v. 
Hobcrt, l{o\ V. 



Sidford. Wiltshire v. 

^igourncy v. Mo\H, 

, Lloyd V. 



326 
327 
327 
91 
125 

160 
371 
37 
526 
59 
39 
267 
354 
72 
27 
315 
41.> 
510 
29 
15,S 
337 
212 
319 
527 



Sikes, Belcher t. 
Siordet v. Hal), 
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 v. 
Tcague v. Hubbard, 
Tenon v. Mars, 
Terrington v. Hargreavcs, 
Thomas, Furnell v. 
, V. Cook, 



Thorpe v. Cooper, 
Thrush, Firth v. 
Tomlin, Calvert v. 
Tucker v. Humphrey, 
Turner v. Prince, 



^'ale and Otiicrs, vouchees, 
Vcrc V. (harden, 
Vickcrs v. (iallimorc, 

W. 

Wadsworlh v. Gibson, 
Wainflcct, All Saints, Rex v. 
Wales, \>' right v. 
Walton, rothcrgill v. 
Warren, Doc.dcni. v. Br."«y, 
, Culliford V. 



— , Mackic v. 



>\'asl)l)urn, in re. 
Wasp, Rook v. 
Watt, D<)<^ dcin. Hcnnikfr v. 
W alsoii, Hey wood v. 
Watcrhouse, Marklin v. 
Wct)l), dcni.; I.anP, ten. 
^\■f■lls V. (iiunry, 
Wcllrsley, He Crespijny v. 
Whal'- V. I.cnny, 
Whicldon Keats v. 



186 

87 

62 
232 
144 
481 
147 
256 
143 
288 
515 
484 

27 
151 
356 

60 
155 

36 
358 
391 
105 
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 
347 
141 



8 



TABLE OF CASES. 



M'histler, Bryan v. 
AN'hitcoiiib, Leos v. 
White, Maijravc v. 
>Vliittak.cr v. Wliittakcr, 
Whitnash v. George, 
A>liyle, Evans V, 
Wilcoxon V. Nii^lit'mgale, 
Willes V. Elliott, 
AViklbor v. Kaiiiforth, 
Wilkinson v. Hubbard, 

, Davies v. 

Williams v. Trotheroc, 

, Rex V. 

Williamson, Steward v. 



2iy 

357 

252 

oo6 

295 

514 

57 

13 

144 

276 

77 

456 

327 

484 



W'illis, Doe dem. Uiion y. 

Wilson, Collins v. 

Wilts, Justices of, Rex t. 

Wiltshire v. Sidford, 

Winter, Hex v. 

Withington v. Hemng, 

Wolley, 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 
3'?8 
492 
150 
346 
210 
242 
462 



403 



REPORTS OF CASES 



ARGUED AND DETERMINED 



IN THE 



COURT OF COMMON PLEAS 



OTHER COURTS. 



13r PEREGRINE BINGHAM, 

OF THE MIDDJ.E TEMPLE, ESQ., BAUUISTER AT LAW. 



VOL. IV.— Parts III. & IV. 



\n}.. w 



CASES 

ARGUED AXD DETERMIXED 

IN THK 

COURT OF COMMON PLEAS, 

AND 

OTHER COURTS, 

IN 

MICHAELMAS TERM, 

In tlie Eighth Year of the Reign of George IV. — 1827, 



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 3., 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 oa 
board antl the rest engaged, was sent to England by another vessel ; 
that surveys were made, and experienced persons being of opinion 
that tiic ship could not be got off except at a ruinous expencc, she wa.s 
sold by the captain a week or ten days after tlie stranding; that the 
purchasers got lier off in about three months, after several unsuccessful 
attempts; and that being then repaired, she afterwards performed many 
voyages. The captain effected the sale boufr /idc, as the best course at 
the time, for the interest of all parties. 

On the part of the defendant it was objected, first, (hat there ought 
to have been an abandonment of the freight ; and, secondly, that as the 
vessel was repaired by the purchasers, and despntchpil on new voyages, 
there could not have been an extreme necessity for (lie sale effected by 
the captain, in which case only would it have been justifiable. 

The learned Judge on the authority of /r/Zc v. lioyal ICrrhmiget/la- 
surnnre ('nnipuvy, S Taunt. Tj'i, and (irmn v. Rni/fil l-].rch(t)igc. Jl-i- 



1^ HuuBARD V. Jackson. M. T. 1827. 

surance Cotnpany, G Taunt. 6S., directed the jury, tjnat, .under the cir- 
cumstances of this case, an abandonment of freight \yas not necessary, 
and left it for tlieni to determiiic whellier the 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 the freight, 
without the expence of conveying the cargo, and his policy is, in effect, 
a wagering policy. Therefore in Parmeler \. Todhunfer, \ Q^niYth. 
541., Lord Elleiihoroiigh held, that in the case of an insurance on 
freight, the insured could not recover as for a total loss without an 
abandonment, if the goods were in existence, although both ship and 
cargo were sold. In Idle v. Royal Exchange Jlssurance Company^ 
and Green v. Royal Exchange Assurance Company, it was only 
determined that an abandonment was not necessary and that a sale of 
the iShip 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 Jlssuran.ce 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. 

BuRUOUGH 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 Jlssrirance 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 tlie drawer having been dishonoured by the ac- 
ceptor and paid by the drawer when due, Held, that the drawer niiii,ht indorse 
it over a year and a half afterwards, and that his indorsee might recover against 
the acceptor. 

Assumpsit on a bill of exchange, drawn December 25, 1S20, by 
Melville 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 MelvUle^ 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. ftioved to set aside the verdict, and enter a nonsuit, or 
to have a new trial, on the ground that INIelville 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. liobley, 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. 95, it was holden that 
an indorsee who pays a bill may indorse or negotiate it. 

The Court thought the colSco^ 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. 

\\ here an insolvent dies after petition and assignment to liis provisional assignee^ 
iMit before examination and assignment to his assignees in chief, Held, that the 
assignees in chief take, nevertheless, all the property assigned by the provi- 
sional assignee. 



HOWARD V. BROWN.— p. 393. 

An affidavit of delit sworn Ixfore a commissioner in tlie country is insufficient, if 
it do not state the party before whom it is sworn to be a commissioner. 

Ri:ssEM. Scrjt. moved to cancel abail-ljond in Ihisoause on the ground 
that the jurat of the aflidavit to hold to bail (which had been sworn in 
the country) did not state the person before whom it was sworn to be a 
commissioner, as it ought to have done. Jicx v. Ifarc, 13 East, 1S9. 

H'ildc Scrit. The affidavit is enlilled in tliis Court, signed with tlm 
commissioner's name, anil the Court has tlie means of knowing who arc* 
its own commissioners. Hex v. Hare was a criminal j)rocee(ling, and 
the affidavit was not entitled of any court. Al all events, the Court will 
allow a snj)plemcntal aflidavit. lint 



14 Blackburn v. Blackburn. M. T. 1827. 

The Court refused a Bupplcmenlal afl'ulavit, and, on the authority of 
/i*f.r V. Hare, made the rule 

Absohite. 



LIMERICK and W/^TERFORD Railway Company v. FRASER.— 

p. 394. 

Plaintiffs, 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. 

JJllde 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. 

Action on the case for a libel, charging the plaintiff with having com- 
mitted a forgery, to whicli the defendant pleaded, ss 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 1827, 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 oI)ject for which the following statement is transmitted to you 
is obvious, and therefore requires no comment : it is sent in the hope 



4 Bingham, 395. 15 

that if the unfounded cahimnies 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. 

'< We remain, Dear Sir, 
*' Your affectionate friends and servants, 

" John Kello, 
Minister of Bethnal Green Meeting. 

^^ Robert Garrett, ? ta 

,, T J, -L^- f Deacons. 

'' John At?ig, ^ 

"The increasing infirmities of the Reverend John Kello having ren- 
dered it expedient that regular assistance in his public labours should 
be procured, occasional supplies were engaged for part of the Lord's 
day, who met with various degrees of acceptance ; and some painful 
differences of opinion having arisen respecting the right of procuring 
the assistance, which all admitted to be necessary, led to the resignation 
of the deaconship by Mr. Briscoe. In this state of things, and subse- 
quent to Mr. B.'s resignation, the Reverend Samuel Blackburn was in- 
vited in August last to preach a single sermon, which was so much ap- 
proved as to induce an immediate application to him by the Reverend 
J. Kello and the deacons for his future services, and thus he was enga- 
ged from Sabbath to Sabbath with increasing approbation, until, at the 
expiration of two months, a meeting of the church and congregation 
was publicly convened, to consider of the propriety of inviting him to 
supply the pulpit once on the Lord's day for a specific period. 

"At this meeting Mr. Briscoe and Mr. R. L. Sturtevant were pre- 
sent, and made several vague insinuations against the private character 
of Mr. Blackburn, which led to the postponement of the business for 
four days to give time for further enquiries. Having received the 
most unexceptionable and satisfacftory testimonies from those who had 
known Mr. Blackburn intimately for many years, added to the fact 
that he had lived in great respectabifity in the immediate neighbour- 
hood for the last nine years; and as the opposing parties absented them- 
selves from the second meeting, by which it might be inferred, they 
admitted their previous opinions to be unfounded, an unanimous invi- 
tation for three months was agreed to and transmitted to Mr. Black- 
burn, signed by the aged minister and deacons on behalf of the church 
and congregation. From the increasing number of hearers, and some 
pleasing indications of usefulness which had resulted from his ministry 
during these three months, towards the close of that period another 
public meeting was convened, which was more numerously attended 
than the former, and an invitation for an additional three months was 
unanimously agreed to. 

"The Reverend J. Kello, in conveying to Mr. Blackburn the re- 
quest of the meeting, added, * if the first invitation was unanimous, the 
second is enthusiastic.' It was r.ow that unpleasant rumours, which 
were traced to Mr. R. L. Sturtevant. began to ncatc uneasiness, and 
Mr. fiarrett, the senior deacon, wailed on him,, and enquired what 
grounds he had for the reports he had circulated respecting Mr. Black- 



16 lil,ACKBUu^ v. Blackuurn. M. T. 1827. 

\)uru ? The reply ol" Mr. Stiirtevaiit was, ' Mr. lilackburn lias put his 
uncle's name to a hill ol' exchange, which he was obliged to pay to pre- 
vent him from being prosecuted ;' and added some other circumstances, 
which, if true, involved the moral consistency of Mr. Blackburn. The 
result of this conference was communicated to the Reverend J. Kello, 
who informed Mr. Blackburn of the serious imputations cast upon him. 
" No sooner was the communication made to Mr. B. than he sought 
an interview with INIr. R. L. Sturtevant, and entreated him to accom- 
pany him instantly to his uncle, JNIr. J. Blackburn, No. 126, Minories, 
with whom he had held no sort of intercourse for the last twelve years. 
They went accordingly ; and the Reverend S. Blackburn, having as- 
certained that Mr. Sturtevant had really received from Mr. J. Black- 
burn some communications calculated to induce him to suppose that the 
imputation was well founded, a meeting was arranged for the following 
Thursday ; at which were present, Mr. Sturtevant, senior, Mr. R. L. 
Sturtevant, junior, Messrs. Garrett and King (the deacons of the church), 
and INIr. J. Jilackburn, from whom the injurious report had originated, 
and who was now requested to produce the bill on which he had rested 
his insinuations of fraud, or forgery, or both. 

" It is not for man to judge the motives of his fellow-men, they can 
onl}' be known to God. The following, however, are the facts, as 
clearly developed at this meeting :- — when Mr. John Blackburn was re- 
quested to produce the bill, he affected great reluctance, cautioned his 
nephew, the Rev. Mr. S. Blackburn, who appeared impatient for its 
production, that he would not be answerable for the consequences if it 
were produced, and, in fact, led every person present to the painful 
conclusion, that the document would confirm the charges, and justify 
those who had brought it forward. At length the bill was exhibited, 
and was found to be a simple bill of exchange drawn thirteen years ago, 
accepted by Mr. S. Blackburn, and made payable at No. 126, Minories, 
his uncle's residence, where he occasionally resided when in town, the 
necessary funds to meet the payment of the bill, except nine shillings, 
being also sent by him to his uncle before the bill became due, in a let- 
ter, which was also produced, statmg that such bill would be presented, 
and requesting that it might be taken care of till he came to town. In 
fact, the whole transaction was honourable and regular, and proved no- 
thing but the evil disposition of the individual who could attempt to ex- 
tract from it any other meaning. 

'*In consideration of Mr. R. L. Sturtevant having received the im- 
pression from Mr. J. Blackburn (though not expressed in language suffi- 
ciently explicit to make him legally responsible), and having consented 
to repair the injury as much as possible by publishing this refutation, 
and offering his apology, the Rev. S. Blackburn has consented to forego 
the legal proceedings he had commenced against him, he having had no 
object in taking such a course, but the complete vindication of his cha- 
racter from the aspersions cast upon it. 

*' Robert Garrett. 
'* John King. 
•- S. Sturtcfvant. 
' Witness, William Brown. 
^' Dated this 1,5th Fcbruarv. 1827. 



4 Bingham, 395. IT 

"I, Richard L. Sturtevant, hereby express my deep regret for hav- 
ing been so far imposed on by the representations of Mr. J. Blackburn, 
of No, 126 Minories, (the uncle of the Rev. S. Blackburn), as to make 
the injurious and unfounded imputations referred to in the foregoing 
statement, which I admit to be a correct representation of the facts and 
circumstances it professes to explain; and 1 sincerely hope it will have 
the intended effect of completely removing from the said Rev. S. Black- 
burn's character any suspicions which may have attached to it in conse- 
quence of such imputations, 

<'R. L. Sturtevant. 

'^Witness, William Brown. 
"Dated this 15th February 1827." 

Three months after the circulation of this paper, the defendant ad- 
dressed the following letter, which was the libel complained of, to Messrs. 
Garret and King, and caused it to be delivered to them; in consequence 
of which the plaintiff was removed from the ministry of the congregation 
to which he was attached, and the present action was commenced. 

*'To the Rev. John Kello, and IVIessrs. Garrett and King, the pastor 
and deacons of the independent church at Bethnal Green. 
"Gentlemen, 

"By a printed paper which you have circulated, bearing the date of 
the 15th February 1S27, you have published a statement respecting my 
conduct which is so untrue in point of fact, and so defamatory in its ten- 
dency, that I have the assurance of my legal adviser that I could success- 
fully prosecute you for a mischievous libel; I wish not, however, to re- 
sort to a mode of justification which, amongst believers, is forbidden by 
apostolical authority, especially as I anticipate that when you are in pos- 
session of the facts I have to communicate, that you will, as becometh 
Christians, confess your mistake, and retract the injurious statement you 
have circulated against me. And here permit me to premise, that how- 
ever it may be insinuated, that private and unworthy motives have excit- 
ed my opposition to the Rev. S. Blackburn, I rejoice that I can appeal 
to the searcher of hearts. My only consideration has been what may 
best promote the real interest of truth and holiness, and the real interest 
of the kingdom of Christ; indeed, to every considerate mind, it must ap- 
pear reasonable that I should not needlessly desire to involve one who 
bears my name and partakes of my blood, in a reproach which must ne- 
cessarily lessen the general respectability of my family in the opinion of 
all those who may be informed of the exposure. But dear as my name 
and reputation may be, yet I trust the cause of Christ is still more dear 
to me, and solicitude for its interest, in connection with yoin- church, has 
involved me in this most painful, though necessary vindication. 

"Let me, then, in the first place, remind you, that I did not seek for 
an opportunity to expose the conduct of the Rev. S. Blackburn, but that 
Mr, R. Sturtevant, as a member of the church about to choose that re- 
verend person their co-pastor, applied to me in all the confidence of old 
acquaintance, to inform him what were my views of that individual's 
character: now, as I consider it as one of the most fearful calamities that 
ran befall a church of Christ to receive as ils pastor a man of questionable 
character, I did, in the confiding frankness of Christian intercourse, and 
upon his promise to keep the niattrr sofrct, inform him of that transac- 

VOL. XV. .'{ 



18 Bl.ACKHUKN i;. Bl.ACKUUUN. M. T. 1827. 

tion to whicli j'our letter alludes, and whicli, associated in my mind 
with other facts, has produced impressions concerning the moral habits 
of the party concerned, which I will not now describe. 

<'I had, indeed, received statements from Canterbury and Luton, re- 
specting the character of the reverend gentleman whilst travelling in the 
Wcsleyan JNIelhodist connection, no way to his honour, but I could not 
prove them; statements from the counties of Nottingham and Derby 
(unsought for by me), upon the authority of some of the most respecta- 
ble ministers in those districts, that the conduct of the individual in 
question, when an independent minister in j,heir neighbourhood, was 
not irreproachable, but then I could not substantiate them. 

*'Yet these statements, supported by creditable testimony, together 
with the facts in my own possession, produced an amount of moral evi- 
dence, the force of which I shall feel as long as I live; and, therefore, I 
did think it a duty to my friend Sturtevant, and to the church at Beth- 
nal Green, to put him in possession of the facts of that bill transaction, 
which, in my own judgment, includes both falsehood and fraud. How 
my confidence was betrayed by Mr. R. L. Sturtevant you well know, 
and that I was compelled to maintain my own veracity by producing the 
bill in question at the meeting you describe, on which 1 attended, with- 
out even a friend to witness for me the statements which were made. 
The transactions of that evening you thus describe : — 

*' 'A meeting was arranged for the following Thursday, at which were 
present Mr. Sturtevant, senior, Mr. R. L. Sturtevant, Messsrs. Garrett 
and King, the deacons of Mr. Kello's church, and Mr. J. Blackburn, 
from whom the injurious report had originated, and who was now re- 
quested to produce the bill on which he had rested his insinuations of 
fraud or forgery, or both. It is not for man to judge the motives of his 
fellow-men; they can only be known to God. The following, however, 
are the facts, as clearly developed at this meeting: — When Mr. J. Black- 
burn was requested to produce the bill, he affected great reluctance, cau- 
tioned his nejihew, the Rev. S. Blackburn (who appeared impatient for 
its production), that he woidd not be answerable for the consequences if 
it were produced; and, in fact, he led every person present to the pain- 
ful conclusion, that the document would confirm the charge, and justify 
those who had brought it forward. At length the bill was exhibited, 
and was found to be a simple bill of exchange, drawn thirteen years ago, 
accepted b}' INIr. Samuel Blackburn^ and made payable at No. 126. Mi- 
nories, his uncle's residence, where he occasionally resided when in 
town; the necessary funds to meet the payment of the bill (except 9^.) 
being also sent by him to his uncle before the bill became due, in a let- 
ter, which was also produced, stating such a bill would be presented, 
and requesting it might be taken care of till he came to town. In fact, 
the whole transaction was honourable and regular, and proved nothing 
but the evil disposition of tlie individual who could attempt to extract 
from it any other meaning.' 

"I admit your statement in the general, but deny that the reverend 
gentleman ever resided in my house, or ever slept there more than one 
night. If you recollect, I cautioned your reverend friend respecting the 
consequences, because I believed it was fraudulent in its character, and 
might involve penal results of no desirable kind : how far my impressions 
were correct you will learn from the opinion of Thomas Denman. Esq., 



4 Bingham, 395. 19 

the Common Serjeant of London, who, as one of the metropolitan judges, 
may be supposed competent to decide that question. 

''Permit me, however, first to lay before you the case which has been 
submitted to that learned gentleman, the facts of which can be substan- 
tiated on oath. 

'Case. 

< Samuel Blackburn being indebted to Mr. Brackly of Canterbury, in 
the sum of 20/. 9,s. for goods sold, gave to him the following bill: — 

'London, July 2Sth, 1814. 
<Two months afterdate, pay to me or my order, the sum of twenty 
pounds nine shillings sterling. 

'^20 9 'Samuel Blackburn. 

'To Mr. Samuel Blackburn, 12G. Minories. 
'Accepted, Samuel Blackburn. 

•The bill and acceptance is in the hand-writing of the drawer, who at 
the time he gave the bill represented to Mr. Brackly that Mr. Samuel 
Blackburn, the pretended acceptor, was his uncle, and in the receipt of 
rents for him. This was in part false, for although his uncle did live at 
12G. Minories, at which place the bill was addressed, his name was not 
Samuel Blackburn, but John Blackburn, and he was not in the receipt 
of any rents for his nephew, or indebted to him in any sum; nor did he 
give him any authority to draw the bill upon him. By the day the bill 
became due, Samuel Blackburn sent to his uncle John Blackburn the 
amount of the bill (less nine shillingsl, which when presented was tak- 
en up by the uncle with the money sent him by the nephew for that 
purpose, and the bill is now in the possession of the uncle. It will be per- 
ceived that the transaction took place nearly thirteen years since; but 
circumstances have recently transpired which make it necessary for the 
uncle of the drawer and acceptor of the bill to take an opinion upon the 
following points.' 

"On this case Mr. Denman's opinion was requested on several points, 
but it is only necessary for me to state to you the first question proposed, 
viz. 

"Whether the acceptance was a forgery of Samuel Blackburn, he 
drawing and accepting the bill, and negotiating the same under the false 
representation belbrc inciiiioned? 

'Answer. — On tlie principle of Mead v. Younp;, 4 T. U. 2S., I think 
the acceptance written on the bill, under the circumstances stated, was a 
forgery.' 

"To this measure have I been driven in my own (h.fence by your in- 
discreet zeal, and with you must rest all llic consequences of this expo- 
sure. I presume, however, gentlemen, that this judicial opinion will 
cause you to feel, that the statement to which you have lent your sanc- 
tion, 'that the whole transaction was honourable and regular,' is some- 
what (Idubtful; and that your charges of 'inqiosition and evil disposition' 
arc as groundless as they arc injurious. I now then .sitlcmnly call upon 
you as the olficers of a Church of Christ, who ere long will be our Judge, 
to take those measures which Christian cfpiity demands, to remove from 
my character those aspersions, which, without provocation, you have 
cast upon it. I do not wish to publish these things to the world; it is 



20 Rlackhurn v. Blackburn. M. T. 1827. 

fearful enough that the Churcii slioultl hear tliose things which would 
make the enemies of gotUiness to triumph, but from you they could not 
be withheld. 

"Respecting your reverend friend, I wish only to add, that if he 
were only prepared with the ingenuousness of Christian repentance to 
confess his past indiscretions and sins, no one would rejoice more sin- 
cerely in the evidence of his penitence, and in the prospect of his useful- 
ness, than myself; but if he proudly denies facts which are notoriously 
true, I can only anticipate, that he will be found like *evil men and se- 
ducers, who wax worse and worse.' Waiting your reply, 

*' I am. Gentlemen, 

*']Minories, "Your faithful Servant, 

"May 19, 1827. <«John Blackburn." 

Brackly, who was called as a witness on the trial, said he recollected 
no more of the transaction than that he had never required of the plain- 
tiff to have a bill on any other person. But In a letter written in Brack- 
ly's name in 1S15 (and received in evidence after a contest touching its 
admissibility) it was stated, — in answer to enquiries addressed to Brack- 
ly by the defendant shortly after differences had first arisen between the 
defendant and the plaintiff, that the plaintiff, upon occasion of giving 
the bill, had said the acceptor was his uncle, and in the receipt of rents 
for him. The signatures of the drawer and acceptor of the bill were 
both in the same hand-writing, as well as the same name. 

Gaselee J. lelt it to the jury to determine whether the defendant's 
letter was a confidential communication, made bona fide in answer to 
the enquiries instituted, touching the plaintiff's conduct, and if so, whe- 
ther it was or was not accompanied with express malice, because in the 
event of the jury's finding express malice, the defendant would be re- 
sponsible, even though the court should be of opinion that the communi- 
cation was privileged. If the jury should be of opinion that the commu- 
nication was not called for, they would find for the plaintiff. 

The jury found for the plaintiff, damages 50/. They found also that 
he was not guilty of forgery, and that the defendant was not actuated by 
express malice; whereupon 

Cross Serjt. moved for a rule, calling on the plaintiff to show cause 
why the verdict should not be entered for the defendant on the general 
issue, and for the plaintiff on the special pleas, and the award of damages 
be set aside; or why the verdict should not be set aside and a new trial 
be had. The ground of the motion was as follows: — Malice is the gist 
of an action for libel, Bull. N. P. 8, 9 ; and though, when there is no 
finding to the contrary, malice may be implied from language calculated 
to do an injury, yet such implication can never be raised contrary to an 
express finding that no malice existed. No distinction can be raised 
between implied and express malice, or malice in law and malice in fact, 
except in the different degrees of evidence required to establish them, 
the latter being apparent, the former, as it were, latent; but the sufficien- 
cy of the evidence is plainly a question for the jury. The jury in the 
present case having found there was no express malice, have determined 
upon the evidence, and have, in effect, found for the defendant on the 
general issue; the award of damages being inconsistent with the finding 
of no malice, more especially as no special damage has been alleged. 



4 Bingham, 395. 21 

A rule nhl having been granted, 

fVilde Serjt. , on showing cause, contended, that the first and chief 
question left to the jury having been, whether the defendant's communi- 
cation was confidential and privileged? the verdict of the jury on the 
general issue, and the award of damages, had reference to that question, 
and was, in effect, a finding that the communication was not privileged; 
in which case the expressions employed were such as to entitle the 
plaintifi' to damages, even though they were not the result of express ma- 
lice. They were, indeed, such, that if accompanied with malice, the 
plaintiff would have been equally entitled to recover, even if the com- 
munication had been found a privileged one; and it was manifestly with 
a view to the possible determination of the Court on the subject of privi- 
leged communication, that the jury had considered the question of express 
malice. As there could be no pretence for calling the defendant's un- 
solicited letter a privileged communication, the plaintiff was entitled to 
recover for the injury unavoidably resulting from so mischievous a charge, 
even though the defendant were not actuated by malice. Brummage 
v. Prosser. 4 B. & C. 247. 

Cross Serjt., in support of his rule, maintained, that it was impossi- 
ble to ascertain with what view the jury had come to their finding on 
tiie subject of malice ; but that finding, being unequivocal, was incom- 
patible with a verdict for the plaintiff in an action for a libel, and he re- 
ferred again to the cases in Bui. N. P. 8, 9 ; to 3 Bl. Com. p. 125, 
and Christian's note thereon, to show that express malice must be 
proved to render a part}^ liable to an action. 

At the request of the Court Mr. Denman's opinion was produced : it 
contained several passages omitted in the defendant's letter, and, among , 
others, an intimation that no one would believe a forgery had been com- 
mitted under the circumstances stated, and that a prosecution would cer- 
tainly fail. 

Park J. I feel no difficulty in tiie decision of this case, and am of 
opinion that the rule must be discharged. The point to be determined 
has been most accurately left to the jury. Was this a privileged com- 
munication or not ? and if it was, was it attended with malice ? because, 
if so, the defendant is not excused, notwithstanding the privilege. Giv- 
ing an answer to enquiries touching the character of a servant, or of a 
tradesman, are privileged communications, but if express malice be 
shown, they arc not protected. In Kdmondson v. Stephenson, Bull. 
N. P.8., Lord ISIansficld said, "If, without ground, and purely to 
defame, a false character should he given, it would be a proper ground 
for an action." In the present case all that passed at the meeting of 
the parlies maybe considered to have been a privileged communication; 
but the libel in question makes new allegations which the defendant is 
not able to substantiate, and which ho publishes, unasked, three months 
after the enfjuiry at the meeting. It was not left to the jury to say 
generally, whether this publication was attended with express malice, 
but, only, whether, supposing it t^ be a privileged communication, it 
was, nevertheless, attended with malice. On that supposition the jury 
negative the existence of express malice, but by finding for the plain- 
tiff, notwithstanding, they find that the communication was not privi- 
leged ; and in that rase malice in law is implied from the doing a hurt- 
ful act for which there ia no excuse. (After animadverting severely on 



22 Caui'Entkk v. Ci{i:sswei,i,. M. T. 1827. 

'lie ilcfoiulaiit's cotuluct, the learned Judge proceeded :) This was a 
toil! and unjustiliable libel ; for even though the defendant's first state- 
ment at the meeting should be deemed privileged, lie had no excuse for 
going on slandering till he had ell'ected the ruin of his nephew. If I 
give a servant a bad character, and the jury find it a privileged commu- 
nication, I stand excused ; but if it be proved tliati proceed to say I will 
ruin him, and act accordingl}', I am justly liable for the consequences. 
The only objection to the present verdict is^ that the damages ought to 
have been much higher. 

BuRRouGH J. This is not a privileged communication, but a most 
foul libel, and the verdict is right in every thing but the quantum of da- 
mages. In cases of giving character malice is the gist of the action. 
But for defamation or libel which a defendant cannot justify by proving 
its truth, he is liable at all events, {a) 

Rule discharged. 

(a) Gaselee J. was at Chambers, but expressed his concurrence through Mr. 
J. ParL 



CARPENTER, Assignee of Thomas Cresswell, a Bankrupt, v. 
H. R. CRESSWELL.— p. 409. 

T. C, in consideration of covenants by H. R. C, covenanted not to interfere in 
a certain branch of the Scotch fish business, and to assign to H. R. C. a certain 
Scotch fishery ; H. R. C. in consideration of the assignment, and of T, C's 
covenant, covenanted to pay T. C. an annuity: Held, that the covenant not 
to interfere in the business was only a part of the consideration for the annui- 
ty, and was, therefore, not a condition precedent or dependent covenant. 

Covenant. Upon oyer it appeared, that, by a deed of 28th Octo- 
ber 1825, between Thomas Cresswell, fish-factor, of the one part, and 
H. R. Cresswell, fishmonger, of the other, Thomas Cresswell, in con- 
sideration of the covenants in the deed contained, assigned to H. R. 
Cresswell all that branch or portion of the trade of him T. C. carried on 
at Billingsgate, consisting of purchases and assignments from Scotland, 
and, also, his interest in certain salmon fisheries there, and covenanted 
not to interfere or act in the branch of the business so assigned. H. R. 
Cresswell, in consideration of the assignment and covenants therein- 
before entered into by Thomas Cresswell, covenanted on his part to pay 
Thomas Cresswell an annuity of £250, by quarterly payments every 
year ; to abstain from interfering in the branch of trade still carried on 
by Thomas Cresswell, and to refer differences to arbitration. 

Breach, non-payment of £62. 10*. for the quarter ending May 1, 
1827. 

Plea, that before the £62. lOs. became due, Thomas Cresswell in- 
terfered, acted in, and intermeddled with the branch of trade assigned 
by him to the defendant. 

Demurrer and joinder. * 

Taddy Serjt. in support of the demurrer, was stopped by the Court. 

Wilde Serjt. contrq. The covenant by Thomas Cresswell not to in- 
terfere with the branch of the business he had assigned was a condition 
precedent to the payment of the annuity by the defendant, and the con- 



4 Bingham, 409. 23 

dilion not having been observed, the plaintiff has no right of action. He 
cited Duke of St. ^^Ibans v. Shore, 1 H. Bl. 270; Campbell y. Jones, 
6 T. R. 570; Glazebrook v. JVoodrow, 8 T. R. 375; Boone v. Eyre, 1 
H. Bl. 273; FothergillY. IVallon, 2B. Moore, 630. 

Park J. In this case our judgment must be for the plaintiff. What- 
ever confusion may prevail among the earlier cases on the subject of 
dependent or independent covenants, the rule seems now to be well un- 
derstood, as ably and clearly laid down by Mr. Serjt. Williams in his 
note to Pordage v. Cole, 1 Wnis. Saund. 320 b, ; namely, " That 
where a covenant goes only to part of the consideration on both sides, 
and a breach of such covenant maybe paid for in damages, it is an inde- 
pendent covenant, and an action may be maintained for a breach of the 
covenant, without averring performance in the declaration." In the 
present case, the engagement not to interfere in the Scotch fish busi- 
ness formed only a part of the consideration for the defendant's cove- 
nant. Another and most material part was the assignment of the 
Scotch fishery, and the case falls directly within the principle estab- 
lished by Boone v. Eyre. There, the plaintiff having conveyed to the 
defendant the equity of redemption of a plantation in the West In- 
dies, together with the stock of negroes thereon, and having covenanted 
that he had a good title to the whole, and that the defendant should 
quietly enjoy, the defendant C9venanted to pay an annuity to the plain- 
tiff on his performing every thing on his part to be performed. In an 
action for non-payment of the annuity, the defendant pleaded that the 
plaintiff was not, at the time of the conveyance, legally possessed of the 
negroes, and so had not a good title to convey : but the plea was held 
ill on demurrer ; the Court of King's Bench observing, that if such a 
plea were allowed, want of title to any one negro would bar the action. 
So here, if T. Cresswell had sold only one barrel offish, it might with 
equal propriety be urged as a bar to the present action. In Campbell 
v. Jones, the plaintiff, in consideration of £250 paid, and £250 to be 
paid by the defendant to him, covenanted to teach the defendant to 
bleach certain materials, and to permit him to bleach them during the 
continuance of a patent belonging to the plaintiff. Upon an action for 
non-payment of the X'250 there was a special demurrer, assigning for 
cause that it was not averred in the declaration that the plaintiff had 
taught the defendant how to bleach. That the Court held, that the co- 
venants were independent; the covenant to teach forming but one part 
of the consideration for the defendant's covenant to pay; the other part 
of the consideration being the covenant to permit him to bleach. In 
Fothergill v. Jfiillon, the owner of a ship covenanted with the freigh- 
ters to take brandy on board at Havre, and proceed lliorewith (o Tci'- 
ceira, where he was to take on board a fruit or other cargo, as the 
freiglilcrs should load, anrl return therewith to London, the freighters 
covenanting to pay freight for the fruit and the brand}', and to insure a 
full cargo of fruit. In an action of covenant for not putting on board a 
full cargo of fruit, it was holden that the covenant to take brandy from 
Havre was distinct and independent; and that it was not necessary to 
aver performance specifically as of a condition precedent. Dallas C .1., 
in an elnborale juflgment, rrlicd «)n Boone v. Kyrc, as recognised l)\ 
Lord Kenyan, in Cavijihrll x. Janes, ^\'\i\ hv Lord Ellrnhcn'ough in 
ll'iVi-lork- y. (lc<lilcs. 10 lOnst, 5(11.; and I quoted what foil from Li: 



24 lii.MN V. Dhummond. M. 'W 1827. 

Blanc J. in Glazebrook v. Woodroiv, *' the aubstantial part of tho 
agreement being the conveyance of the property in respect of which 
the annuity was to be i)aid; the Court held it to be no answer to an 
action for the annuity, to say that the plaintifl' 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 ii* 
a most important authority, and expressly in point ; for 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. Cresswell'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 limber 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. 

^Vl,c^c a cause is. mndo a remayict at the assi/cs, a new notice of tri:il is nccessan,'. 

ELVIX V. DRUMMOND.— p. 41.^. 

Phiintiff having succeeded in setting aside a nonsuit, defendant gave a cognovit 
for Is. damages, and such costs as the prothonotary sliould think fit. Protho- 
notary having refused to allow plaintifT the costs of the trial, the Court de- 
clined intcifering. 



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. Jitherton, 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 1S2G, 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. lie likewise specified a debt of 22/. 
as due from him to plaintiff. 

Stewart, upon application to the commissioners, was allowed to prove 
for 497/. The plaintiff claimed a dividend from the defendant's assig- 
nee, as well upon the 500/. as the 22/., but received a dividend only on 
the 22/. 

In this term the 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. obtiiincd 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 Pa^e v. Jhisscll, 2 M. & 
S. 551, JVelshv. IVelsli, 4 M. & S. 333., and F/attagan v. Jra/kins, 
3 B. & A. 186. 1 Bing. 413., to show that the surety was lial)le for ar- 
rears accruing after the insolvent's dischaige ; and if so, urged that the 
Court would not interfere on motion in favour of the insolvent. If his 
discharge could avail him against the surety it might be pleaded. 

Cross contra. 

Park .1. It has been admitted on the part of the defendant (hat he 
is liable to be sued in respect of the payments made by his surety since 
his discharge, but ii is conteiuled that tliere is a bardsliij) in keeping 
him in custody, and the Court is asked to do lliat oii motion which, if 
it be right, tlie defendant might obtain by pleading. But the Couit 
thinks the defendant is not entitled to his dis'-barge ; at all events, not 

vol.. XV. 4 



2G Fkkeman /'. BuKtiESs. M. T. 1827. 

upon motion ; and there is no greater hardship in putting him to plead 
the proceedings under lus insolvency than in requiring from a feme co- 
vert a plea of coverture. In all the cases from Page v. Bussell down- 
wards, it has heen holden 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. IValkins, 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 
])rovcd under tiie 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 JVelsh v. fVelsh, 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 
inight 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 sufficiently 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 tliere 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 effiicts to be issued on the 
judgment confessed by ihe 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. HOLBEACH.— p. 419. 

A jjurty outlawed in K. B. in an action to recover the arrears of an arinuity can- 
not be lieard 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 Benctt £700 upon a cognovit, 
obtained a judgment against him and others, with £300 damages, in an 
action of trespass in wiiich 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. 

Wilde 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 ofl' 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 in 
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, Demandant; RAYMOND, Tenant; 
V. LAW, fust Vouchee; J. LAW, second.— p. 125. 

Recovery amended by abridging ihc returns. 



DAWLLNG, Demandant; SELBV, Vouchee.— p. 426. 
The Court refused to amend a i ccovery by altering Berks into Bucks. 



The KLNG v. Sheriff of LONDON, in WILSON v. GOLDSTELN 

and Another. — p. -127. 

An applicalif)!! to *ct ;isi«lc an attachment for not bringing in llie Ijody, sliould bf 
grr-uiKUd on an aflidavil that it \\ made al tlic expense of Hic bail. 



28 K.)\\i.i:s i\ I.i'sTY. M. T. 1827. 



1U)\VLES V. LUSTY.— p. 428. 

Writ of i-ntrv siir ahtUcim-nt of six messuages, six mills, 8cc. 

Plea, that K. S. devised the s^iid messuages, mills, Ixc. and parcel of the land, to 
T., \vho devised tliem to S., wife of R. D. C, who levied a fine to the tenant. 

The plea concluded with a verification, and a prayer of the messuages, &c., and 
land, in the count. 

The fine set out in the pica described the premises as four messuages, o?ie cloth 
mill, &:c., and the statement of the fine ended with a Jiruiit fiatet Jier 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 pica to conclude with a prout patct, 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. 

Wkit of entry sur abatement in the cui 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 thereon. 

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 eplale 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, /bt/r 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, 271; Rastal, 277; Vin. Abr. Double 
Pleas, A. 07; Com. Dig. Pleader, E. 2; Thomas \. Healhorn, 2 B. & 
C. 477; Com. Dig. Pleader, E. 29. 

Peake Serjt., contra, referred to Com. Dig., Pleader, E, 2; Plowd. 
140; Calfe y. Nevil, Poph. 1S.5; Plowd. 66; Brett v. Papillon^ 4 
East, .502; Rcx v. Shaksjiearj 10 East, 83; Atwood v. Davis, 1 13. & 

Cur. adv. vulL 



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. Cumyi^s, 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 j 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 plaintifi'on a 
suspicion of felony. He may set forth any circumstances of suspicion, 
f hough 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. lialcy, 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 thcmj are put in issue, whereas only one single matter ought 
to be so." 

J^ord 7l/«7i,v//i'.'/(/',9 judgment upon this point is : — 

" The substantial rules of pleading arc founded in strong sense, and 
in the soundest and closest logic ; and so appear when well understood 
;ind explained ; though by being misunderstood and misapplied they arc 
so often made use of as instruments of chicane. 

" As to tlio present case, it is true you must lake issue upon a single 

point, but it is not necessary that this single point should consist only 

*of a single l^act. Here the point is the cattle being entitled to common; 

this is the single point of the defence. Hut in fact, they must be both 



30 HowLES V. Lusi V. M. T. 1827. 

liis own rulllc, ;uul also levant anil couchant, wliicli arc two dillercnt 
essential circumstances of their being entitled to conunon, and l)oth oi" 
them absolutely reijuisitc." 

We are, therefore, 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 plaintifl'. 

The second objection in this case is, that the introduction to the plea 
selects a part, and yet concUides 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 EUenborough said, "In many cases judg- 
ment has been entered up according to the right appearing in favour of 
the plaintifl'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. 
Hardvv. 345, held expressly that they were not bound by the prayer of 
an improper judgment, and, therefore, pronounced the rule, that the 
plaintiff 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 Attivood 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, w-hcther this allegation be true. f 

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 remairi- 
ing in the said Court of the Bench more fully appears." 

JBut 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 a stipulation 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 beeii 
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. 

'I'hc second pica stated the deed of submission at large, 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 parties, but sliould notwithstanding such an event be proceeded 
in, and the matters at issue determined in the same manner as if sucli 
an event had not occurred." It then proceeded to state as to all excepi 
tiic final award, that Morrison, his heirs, cxeculors, administratois, and 
successors, did every thing which by the said deed of submission they 
were bound to do, and as to the residue not excepted, that no final de- 
cree was made. 

The third plea, as to all except what regarded the money directed lo 
be 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 cxrojjteil, that no sum anil no penalty was di- 
rected to be p.iid. 

The fourth |ilea began by excepting what was excepted in the iiilro- 
♦luction to tlic second plea, which related to a linal award, and then 
pleaded that Morrison, his heirs, &c. did perform every covenant in IUt; 



32 M*Dou(;ai. v. Robkutson. M. T. 1827. 

saiil deed or instrument of submission as to ;»11 interim orders ; and 
then as to wliat 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 tlie umpire or oversman gave forth, pronounced, or made any 
umpirage under or by virtue of the said deed or instrument of submis- 
sion, to wil^ on the 7th October, in the year 1823, the said iEneas Mor- 
rison died. 

The fifth plea alleged that iEneas 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 INIorrison 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. Tliis was the substance (so 
far as it is material to state them) of the pleadings. 

Brodrick, for the plaintiff in error, referred to Fynz'or's case, 8 Rep. 
82 a.; PoUs v. fVard, 1 Marsh, 3G6; Toussaint v. Hartop, 7 Taunt. 
571; Cooper v. Johnson, 2 ]i. & A. 394; Charnley v. Winstanley, 5 
P^ast, 266; Jlrlington 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); PVallace v. Cook, 5 Esp. 117; Ro- 
by V. Twelves, Styles, 423; Tyler v. Jones, 3 B. & C. 144; Clarke v. 
Crofts, 4 Bingh. 143; Dowse v. Coxc, 3 Bingh. 20, 6 B. & C. 255. 

Campbell, contra, relied on Tyler v. Jo7ies and Clarke v. Crofts. 

Cur. adv. vult. 

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 tiieir 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 parlies before the award. 

The consequence of which would necessarily be, that the award would 
l)C void by the general law, as being made after the death of one of the 
parties. 

If these premises were true, the conclusion would seem to follow. 
But are they true ? We think not. Admitting, that in ordinary cases 
you cannot transfer to one part of the record what is stated in anothci-, 
yet if that plea or part of the record which appears deficient docs itself 
refer to another which supplies that deficiency, then we may avail our- 
selves of such reference. 

Now bore there is such a reference. The second plea sets out the 
deed of submission at large, with the clause in question in it. 

The fourth and fifth picas now under discussion, do refer to the second 
plea and the deed of submission. The fourth plea begins by excepting 
what is excepted in the introduction to the second plea, (by mistake it 
is called the first, where there is nothing excepted,) then it proceeds to 
say, that Morrison in his lifetime, and his In-irs, &.c. did p('rfi)rni every 
covenant, c-lnuso, and agreement specified in the said deed or instrument 
of submission, wliiyh lie, his lu-irs, &,c. ought to have porforuied ;is (o 
any interim (h'cree, and as to the residue which is l)efi)re excepted, he 
says, that after making of the s.iid deed, or in';tnunriil of siibiiiissinn, 

\ 1)1.. XV. ') 



34 M*Dou(;al v. Houeutson. M. T. 1827. 

and belure any final awartl, Morrison died. Now here is an express 
reference to the introtliiction to the second plea, in which the suhmis- 
sion is fouiul, and an express reference to the deed or instrument of sub- 
mission, which is to he found no where else except in tlic second plea. 
AH 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 reler to the provision 
in the submission, as stated in the second plea, which provides that it 
shall not expire by the death of either of the parties. 

In this way we think, that we arc, 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 Tonssnint 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 
au'ard aside. But the Lord Chief Justice said, "This will be no gene- 
ral inconvenience, because in future rules a provision will be made for 
the case.'*' 

In Cooper v. Jo/mson, in 1819, which was a case of the same descrip- 
tion', the Court of King's Bench did the same thing, l^ut Lord Chief 
Justice %Bbbolt 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 Blunddl \. Brettdrg/i, 17 Ves, 232, in 1810, Lord ElJon says, 
*' If the means of settling terms of a purcliase are an award and umpir- 
age, 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 tlic means of preventing this inconvenience. Accordingl)'-, 
when these means are resorted to, they act upon it. 

Ty/er v. Jones (1824) is exactly in point; Clarke v; Crofts (1827) 
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 w:is reversed, but it is said, in 
Clarke v. Crnfls, upon other 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 anoUicr 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 all 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. 



ENJ) or MICHAELMAS TERM. 



CASES 

ARGUEU 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. 

DUE 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 defendant 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 iiave 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 tiiC plaintifl', whereupon the 
present action was commenced. 

At the trial before Best C 3., Middlesex sittings after Michaelmas 
term last, a verdict was taken for the lessor of the phiintiflQ with liberty 
for the defendant to move to enter a nonsuit, if the CoUrt 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 Haintrlon v. Stead, 3 B. & 
C. 4 7S, and Mann v. Luvejoy, 1 Ryan & Moody, 356. 

Best C. J. We should multiply notices to quit unnecessarily, if we 
l)cld that this action did not lie. Within the seven years the defendant 
could not have been turned out without 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 deni. Bloomficld v. Smith, G East, 520, and 
Doc dem. OldenJiaw v. Breach, G Esp. N. P. C. lOfi. 

Park J. concurred. 

BuRROuoii J. During the seven yenr.« notice would have been ne- 
cessary, but not at the end of that ])criod. 



4 Bingham, 454. 37 

Gaselee J. Notice was not necessary in this case, nor docs the agree- 
ment give one party any advantage over the other. 

Rule refused. 



SCALES V. PICKERING.— p. 448. 

By 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. HALTON.— 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 Avere 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 5wr- 
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 right to recover. 

Jones Scrjt. now moved for a rule nisi to enter a nonsuit or have a new 
trial on the above objection. He cited Kearslake v. Morgan, 5 T. R. 
.51.3, and Dangerfichl v. IVilhy, 4 Esp. 159. 

lii:sT C. .[. There is no evidence of these bills having been transferred 
to the indorsees for consideration, and they were sent back to the plain- 
tiff without 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 defendant might have been called on to 
pay 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 Rknson v. Hivi'ius. H. T. 1828. 



BENSON V. HIPPIUS.— p. 455. 

The charterer 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 which stated those facts, 
undertook to pay pluintifT, the owner of the ship, freight and demurrage, if any 
were duf, and in every reHi)ect to ])ut himself in place of the charterer. 

Fifty running days were allowed by the 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. 

Br charter-party of March 1825, between the plaintiff, owner of 
the ship Trusty, and B. T. Gillam, tlie ship was to proceed to Quebec 
to load a cargo of timber, &c. and proceed therewith to London. "Fifty 
running days were to he allowed for loading the ship at Quebec, and un- 
loading i^i London, and ten days on demurrage, over and above the said 
laying 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 plaintifl, who refused to deliver the cargo without 
the undertaking contained in the letter. 

London, Sept. 21. 1825. 
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 iii every 
respect to put myself in the place of Mr. Gillam, the charterer, so far as 
respects tiie agreement made with you for the Quebec voyage. 

C. J. Hippius. 

Ninety-five days having been occupied in loading and unloading in- 
istead 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 
licr 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 GaseleeJ., London sittings after Michaelmas term, 
the jury found a verdict for the plaintiflf 300/. damages beyond the 100/. 
paid into pourt, 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; ISaunders 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 plaintiff 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 ol^ected to the plaintifi's recovering in this 
case, that in the agreement which is the ground of the action there is no 
consideration moving from the plaintiff 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 Piric 
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 plaintiff, in or- 
der to obtain lliat consent undertakes to pay demurrage on tlie ship, if 
any be due. Theue is a sutVicient consideration moving from the plain- 
tiff. It has been argued, indeed, that demurrage only could be recov- 
ered under the charter-party, and that the defendant cannot be sued for 
tlie detainer of the ship, especially for that which occurred subsequently 
to the date of the defendant's letter. But the defendant undertakes not 
only to pay the freight and demurrage due from Piric anil Co., but in 
all respcTts to ])iit himself in the place of (iillam, the charterer, so far 
as res])ect3 the Quebec voyage. Now there can be no doubt that Gil- 
lam was bound for all dolention beyond the fifty running days allowed 
by the cliarlcr-parly. Detention and dennui-age mean the sainc thing. 

Rule refused. 



SEACO V. ]>KANE.— p. 1.5l>. 

Defendant aprccd to pay i>]aiini(T, in consulcrntinn (if lu-r hiTOiniiip, Uis Itiiaiil, 
20/. to repair llielinuse, ai\il aVs'i to nialcc certain alterations. 



40 Seago v. Deane. H. T. 1828. 

riaintiff became tenant under a lease, in which this agreement was not stated, 
and ditl the repairs; when defendant promised to pay for them: 

Held, that lie 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/,, 

PVilde 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. G27, Pickering v. Dowson, 4 Taunt. 779; nor could 
any consideration be shewn for the plaintiff's becoming tenant that was 
not theie specified. As to the count upon the account stated, the plain- 
tiff must first shew the contract and then tlic adn^ission applicable to it: 
but if llie contract on which the admission was made, were void, so was 
the admission. 

Best 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 tiiis agreement 
were pnrt of the consideration for the j)lainliff'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. Mad the plaintiff, 
therefore, been compelled to rely on the special count, she could not have 
rccovercil. 

])Ut the plaintiff (lid the thing in question, and after she had done it, 
the defendant, on being applied to, said, "1 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 w^ere 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 plaintiff was entitled to recover u])on 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 ha(i received from Demerara, among which was 
one addressed to •' Mr. Earle, (Mapham, Surrey," and all of which he 
believed to relate to the afl'airs of the deceased, -^under the advice of 
counsel, refused to deliver them to the plaintiff, but offered to open in 
his pre.sence, and in the presence of the brother of the deceased, and of 
Owen Kernan, the letter addressed to the plaintiff, the defcnrlant having 
no interest in any of the documents, and wishing only to secure himself. 

This was not agreed to, and tUii pluintilf commenced the present ac- 
tion; whereupon, 

The defendant, upon affidavit of the above fads, obtained a rule, call- 
ing on the plaintid to shew cause whv, upon delivering up to the plain- 
tiff the letter addressed to Mr. Earle, Clapham, Surrey, and upon pay- 
ment of the costs of the action uj) to that time, all fuither proceedings in 
the cause shouKI not be stayed. /'ic/ccring v. Trustc, 7 T. 11. 53, and 
liriinsdrn v. Austin^ Tidd's Pr. .571, were referred to. 

Tddih/ Serjl. who shewed cause, contended, that the defendant, not 
being executor of Mrs. Hewlings, nor hctting up any right to the letter, 
had no claim to the indulgence of the Court; thai he ought to ofler all 
the letters or none; and that he could not be permitted to stay the plain- 

VOL. XV. 6 



42 AucHEK v. Hale. H. T. 1828. 

titty's proceedings upon giving up only a portion of what the plaintiff 
sought to recover. It was impossible to say what damages the plaintiff 
might sustain by the detention of any of the papers. In Pickering; v. 
Tnisfe the value of the goods was admitted, and in Brunsden v. ^us/in 
there was no dispute on that point. 

IVilde Scrjt. was heard in supj)ort 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 plaintiff to be entitled to. Here the action 
is brought for a bundle of letters, and the defendant says " 1 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 
he 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 arl)itrator in tlie said rule named. 

This rule was drawn up upon reading the record of nisi priuSy 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 
application; and that the defendant should be at liberty to add other 



4 Bingham, 464. 43 

avowries; but if tlie 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 asecurity 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 the learned gentleman mentioned in 
the order of Mr. Justice Gaselee proceeded, and found the sum of 556/, 
sterling to be due from the tenant, the plaintiff, which plaintiff is now 
insolvent, as it is sworn, and as is probably the case; and the defendant 
lias paid to the plaintiff the costs taxed by the prothonotary, as one of the 
above-mentioned rules requires. 

It is positively sworn, not only by the 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 
jirivity 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 plaintiff, the tenant, shall appear at the next county court and prose- 
cute his suit with effect 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 return thereof shall be adjudged. This 
is all tlie surety undertakes to do or to see done. 

This is the only security which by virtue of the statute 11 G, 2. c. 
19. s. 23.. the person granting replevins is authorized to demand, and 
the onlv securivy into whicli these sui-eties have entered. 

Hut here the replevin b(jnd, it is said, is to stand as a sccuril)^; and 
that the .sureties, the principal being insolvent, are bound to pay the 
whole of this rent, viz. 53(')/. 

■ 'i'he surety says, jion hrrc in Jccdcra vcni; this is by no means the 
rngagement I entered into; I only undertook that the tenant should 
jirosecute his suit with effect and without delay; and that return should 
be made of the goods seiz.ed, if that return should be adjudged. 

Upon this motion it was urged, thatthe condition of the sureties wa.s 
not altered by acceding to an arbitral ion; .nnd the authority of Lord 
Chief .Instic.e (iihhs i\\n\ the (^ourt of Common PIe;is was pressed upon 
us as having decidf.d the point: first, in \.\niciiHCo^ Moinc v. Jioitundkcr, 
2 Marsh, 81, and H Taunt. 37J), where on a motion the (/ourt held, 
Lord Chief Justice (iihbs then presiding, that the sureties in a replevin 
were not discharged by time being given to the plnintid' in replevin by a 
I e fere nee. 

This case was so decided in IMJ.'), before any of the present .Iudgr\ sat 
III this Court. 



44 Archeu v. Halk. H. T. 1828. 

The same case afterwards came ou again before this Court upon a de- 
murrer to the pleas of thedefendant, 2 Marsh. 392, and 7 Taunt. 97, my 
Brother Burrouf^k and I being tlien Judges of this Court; but the case 
having been so recently decided by four most eminent persons, and no 
case having been quotedto the contrary, judgment went the same wiy, 
upon the principle that the sureties, in order to shew that theyoughtto 
be relieved, must convince the Court that their situation is in fact al- 
tered. 

Even upon the present motion, these cases were quoted, and our at- 
tention was drawn to no other by counsel on cither side, and accordingly 
we gave judgment against the sureties. But when I went home, upon 
reference to other cases with which my own private memorandums 
furnished me, 1 found that the very case of Moore v. Bowmaker had 
been overturned in another place; the decision of the Court of Common 
Pleas had been found to be wrong; I therefore stayed the judgment. 

Upon the above decision in tins Court, it appears that a bill was filed, 
and that an application was made for an injunction on the equity side of 
tlic Court of Exchequer, 3 Price, 214., to restrain the proceedings in 
this Court on the replevin bond; and after argument by counsel on both 
sides, that Court unanimously decided that the condition of the bond, 
being an undertaking on the part of the surety that the principal should 
prosecute his writ with effect and without delay, and make return of 
the goods seized, if so adjudged; and the landlord and tenant unknown 
to the surety, and without his concurrence, having entered into an agree- 
ment referring matters to arbitration [whereby the tenant was precluded 
from proceeding according to the condition, and under the agreement to 
stay all proceedings pending the arbitration was restrained by the act 
of the landlord from doing that which his surety had engaged he should 
Uo]; when the agreement of reference was executed, the bond, as against 
the surety, was functus ofdcio: and the Court, therefore, granted the in- 
junction. 

Recollecting, as those who sit here do, what a very eminent person 
presided in the Court of Exchequer at the time of the above decision, 
the depth and solidity of his learning upon all subjects, particularly upon 
those connected with a correct administration of his high office, the 
accuracy and correctness of his understanding, the anxiety with which 
he investigated every subject that came before him, and the extreme 
caution with which he arrived at his conclusions, they must agree with 
me that any decision' of Lord Chief Baron Thompson is entitled to the 
highest respect and consideration from every Judge who either now sits 
or hereafter shall sit in Westminster Hall. 

This case, however, came on again upon the merits before Lord Chief 
Baron Richards, was then fully argued by counsel, and it appears that 
he had then the two decisions of the Couit of Common Pleas fully before 
him; and after time taken to consider, his Lordship, after a most elaborate 
argument, granted a perpetual injunction against tiie proceedings in this 
Court; and the Lord Chief Bnron thought tiiat whether the surety was in 
fact placed in a different situation by vvliat had taken place on the 
arrangement between the landlord and tenantwas less the question, than 
whether by such change of situation he might have been prejudiced: not 
whether he did in fact actually sustain any injury in consequence: 
And Lord Cliancellor ^7</on, in pronouncing the judgment of the 



4 Bingham, 464. 45 

House of Lords, in the case of an appeal from Ii eland, The Governor 
and Company of the Banic of Ireland v. Bcresford, 6 Dow. ii33, 
seems to lay down the follovving position, as applicable to all cases of 
jjrincipal and surety with reference to the subject of bail only: 

His Lordship says, " With respect to princi]ial and surety in a bond, 
Avhere the creditor enters into an agreement or binding contract with 
the principal debtor to give him further time, without the concurrence 
of the surety, the surety is discharged, as the creditor by his new con- 
tract destroys the benefit which the surety had under the former con- 
tract; as he thus puts it out of his own power to make good his engage- 
ment to enforce immediate payment from the principal, which the surety 
would have had a right to require him to do." 

So here the surety would have had a right to require him, the tenant, 
to prosecute his suit speedily and without dela}^; but the landlord, by 
his agreement with the tenant and staying his proceedings, has restrain- 
ed the surely from compelling him so to proceed. 

I have said that the cases from the Exchequer were never mentioned to 
us in the last term. I presume the learned counsel were not on either 
side apprized that such decisions had taken place on the very point, 
otherwise, doubtless, our attention would have been called to them. But 
liaving now duly considered them and the reasons therein contained, 
we think them more agreeable to the condition of a replevin bond than 
the decisions of this Court; more consonant to the provisions of tlve 
statute of 11 G. 2. c. 19. s. 23, and to the general rules respecting prin- 
cipals and sureties, perhaps originally considered in courts of equity, 
but now adopted and acted upon in courts of law. We, therefore, think 
that this rule, as far as it affects the sureties, should be discharged, and 
though not of much use, it may be absolute against the tenant, who is 
stated to be insolvent. 



As against the sureties, 



Rule discharged. 



M.\r;r;S, Assignee of T. HOWELL and J. HOWELL, iiankrupt.", 
V. AMES. — p. 470. 

Assumpsit: Meld, that a pica that the defendant's undertaking was for the default 
of another, without writing, and without consideration, niiglit l)c ple.idcd, al- 
thougli the facts might have been given in evidence under tiie general issue. 

So, a plea th;it the person for whom the defendant's undcrlakinij was given, 
was a feme covert. 

AssijMi'siT. The first count of the declaration stated that Ann Prickelt 
was indebted to the Howclls before they became bankrupt, and was ar- 
rested at their suit; that thereupon, in consideration that tiie Howells 
(before their bankruptcy) wouhl procure the discharge of Ann l^ickett, 
and take her bill of exchange for the amount of the debt, the defendant 
undertook to pay the amount of the bill of exchange in case it should be 
dishonoured by Ann Prickett. Averment of disiionour by Ann, and 
nonpayment by defendant. 

The second count was upon an undertaking to pay the debt lor which 
Ann Prickett was arrested, in consideration of Howell.s procuring her 
dischari£'\ 



46 Ma(.(.s v. Ames. IJ. T. 1828. 

The clclciidanl plciulcd, fii-st, tlic general issue: the lourlli plea wa>, 
that the supposed ])roinises and undertakings in the first and seeonci 
counts res|)ectively mentioned were special promises, and each ol' theni 
was a special promise for the deht of another person, to wit, the said 
Ann Prickett; and that no agreement in respect of or relating to the said 
supposed causes of action in the said first and second counts of the said 
declaration, or citiier of them, nor any memorandum or note thereof, 
wherein tlie consideration or considerations for the said special promises 
or either of tlicni was or were stated or shewn, was oris in writing, or 
was or is signed hy the said defendant, or by any other person by him 
thereunto lawfully authorized. 

The last plea was, that long before and at the time when tlie said Ann 
Prickett was supposed in and by the first and second counts of the said 
tieclaration to have become indebted to the said Thomas Howell and 
John Howell, and from thence continually until the making of the said 
supposed promises and undertakings in those counts respectively stated, 
the said Ann Prickett was the wife of one William Prickett, which said 
William Prickett at the time of tlie accrual of the said supposed debt to 
the said Thomas Howell and John Howell, and during all the time 
aforesaid, was the husband of the said Atm Prickett and in full life. 

To these pleas there was a demurrer, on the ground that they amount- 
ed severally to tlie general issue, and tended to great and unnecessary 
prolixity of j)leading; and also that the defendant had not by those pleas 
or either of them traversed or denied, or attempted to put in issue, any 
jiiatter of fact alleged b}'^ the plaintifi' in his first and second counts, but 
had in each of the pleas respectively introduced and attempted to put in 
issue matters of fact not alleged nor necessary to be alleged. Joinder. 

inide SevjL in support of the demurrer, cited Longi'idge v. Dorville,. 
5 B. & A. 117; Bailey v. Croft, -1 Taunt. 611. 

Tatldt/ Serjt. contra, referred to Si/nndcrs v. JVakeJicld, 4 B. & A. 
596; Jenkins v. Reynolds, 3 Brod. & Bingh. 14; Ilussey v. Jacob, Bac. 
Abr. Pleas, G. 3. p. 372, 1 Ld. Kaym. 87. 

Ctir. adv. vult. 

Park J. It may be truly said, that looking through all the law books, 
there is not a greater variety of opinions upon any question than what 
j)leas do or do not amount to the general issue, nor any one upon which 
there is a greater mass of contradictory decisions. 

I shall not therefore attempt, though I have looked at many of them, 
to go through or endeavour to reconcile them; I satisfy myself in gen- 
eral with saying, that though perhaps the general issue might answer 
the purpose, it does not therefore necessarily follow that the demuner 
on this ground must be allowed, nor that the defendant was bound to 
give this matter in evidence under the general issue. 

There are many instances in which a defendant has the option of giv- 
ing his defence in evidence, or of putting it on the record. 

And though the facts alleged luidcr the defendant's special plea might 
have been given in evidence under tlie general issue^ the ([uestion i.s, 
whether the same facts stated on the record do or do not constitute a 
good plea. 

One species of cases in which this may be done is, where the plain- 
tifl's right of action (which is confessed) is avoided by matter ex post 
factn, as by payment; which m;iy be given in evidence under the gen- 



4 Bingham, 470. 47 

eral issue, or pleaded. The other case may be, where tlie plea does 
not deny the declaration, but answers it by matter of law. 

The plea in this case consists not in denying the plaintiff's right of. 
action; it is not a denial of the facts in the declaration, but it is matter 
of defence in law arising out of the statute of frauds. I think the whole 
of this doctrine, as to what pleas shall amount to the general issue, has 
been fully and admirably explained by the Judges Bayley, Holroydy 
and Littledale, in the case of Carrw. Hinchcliffe, 4 B. & C. 547, and 
which was not quoted to us in this case at the baron either side. 

In the present case it is true, that as it appears to us to be an action 
brought for the debt, default, or miscarriage of another, the proof must 
at the trial have been, that such promise was in writing, but still, on the 
face of the declaration, the promise was good. But though, on the 
general issue, the plaintiff must have proved the writing, the defendant 
avoids that by shewing in pleading that it was not in writing. 

The same observations apply to the fifth plea, the coverture of Ann 
Prickett. 

The question then is, taking the declaration and plea together, does 
this amount to an undertaking void by the statute of frauds ? If Ann 
Prickett had been discharged out of custody upon a primary and absolute 
undertaking that the defendant would pay the debt at all events or accept 
a bill for the amount, we are all of opinion that the discharge of Ann 
Prickett fiom imprisonment would be a sufficient consideration for such 
a promise, and that the defendant would be liable. 

But the undertaking is, merely, that if the plaintiffs would discharge 
Ann Prickett, they should take her acceptance for the amount, and 
that he, the defendant, (without indorsing or becoming in any way party 
to the said bill) would pay the same in case the same should be dishon- 
oured by the said Ann Prickett. This, though a new promise, was still 
only collateral on the part of defendant, and being by the demurrer to 
the plea admitted not to be in writing, the Court arc of opinion that the 
defendant is not liable. 

Judsrmcnt for the defendant. 



COSTELLO V. CORLETT.— p. 474. 

A defendant, who has been holden to bail in an excessive sum, can only recover 
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 Clommon Pleas, the Common Pleas refused to order his costs to hir 
taxed. 



STEPHENSON v. HART and WATERHOUSE.— p. 47fi. 

Plaintiff having been imposed upon by a swindler, consigned a box at Rirmingham 
by the defendants, as common carriers, to J. West, 27, Great Winchester 
Street, London. The defendants found that no sucli person resided there; but 
upon receiving a letter signed J. West, req\iesting that the box might be for- 
warded to a public house at St. Allian's, they delivered it there to a person call- 
ing himself West, who shewed that he had a knowledge of the contents of the 
box: that person having disappeared, and the box having been originally ob- 



48 Sir.iMKNSOx V. Haht. TI. 'J\ 1828. 

tained of ihe plaintiirby fraud, Htld, that the dcfemlaiitswere liable to him ii« 
an action of trover. Gaach-ci. diaaemiejile. 
Held, also, that it was ])ro])t.Tly k-t"t to the jury to say, whether the defen- 
dants had delix ered tiie box according to the due course of their business as 
carriers. 

Case ngninst the defendants r.s carriers. The first count of the de- 
claration alleged, that the defendants had received from the plaintiff' a 
box containing money, goods, and chattels, of the value of 50/., to be 
safely carried by the defendants from Birmingham to London, and there, 
"to be safely deliveredyb?* the plaintiff, for certain reasonable reward 
to the defendants in that behalf." Yet that the defendants, not regard- 
ing their duty in that beiialf, did not deliver the box and its contents for 
the plaintiff; but that the defendants so negligently conducted themselves 
in the premises, that through their negligence and default the box with 
its contents were lost to the plaintifT. 

The second count stated, that the defendants had received the box and 
its contents of the plaintiff at Birmingham, to be safely kept by the de- 
fendants, and upon demand to be redelivered to the plaintiff. Yet the 
defendants, not regarding their duty in that behalf, did not safely keep 
the box and its contents for the plaintiff, nor redeliver it upon his de- 
manding it, but so negligently conducted themselves in the premises, 
that through their negligence and default the box and its contents were 
lost to the plaintiff. 

The third count was in trover, with an allegation that the defendants 
had converted the box and its contents to their own use. Plea, not guilty. 

At the trial before Lord Tenterden C. J., at the last Summer assizes 
at Warwick, the facts were as follows: — 

On the 27th of September 1826, a person calling himself J. West ap- 
plied to the plaintiff, a comb manufacturer at Birmingham, for a parcel 
of combs, and after taking a certain quantity with him, ordered 30/. 
worth to he forwarded 9S early as possible, addressed to J. V/cst, Esq., 
27, Great Winchester Street, London. In payment he gave the plaintiff 
a bill of exchange which had two montlis to run, purporting to be drawn 
at Edin!)urgh for 50/. by Guerin, upon Le Cointe and Co., merchants, 
Devonshire Square, London, and accepted by them, payable at Smith, 
Payne, and Smith, bankers, London. There were several indorsements 
on the bill, and one purporting to be for the Royal Bank of Scotland. 
The plaintiff agreed to discount the bill; and on the 30th September 
j)acked up the combs, and the change supposed to be due to West (6/. 
105.), in a box, addressed it as directed by West, and booked it for Lon- 
don at the defendant's office in Birmingham. 

The box arrived the next day: the defendants, upon offering to deliv- 
er it at No. 27, Great Winchester Street, found, not only that no such 
person as West was known there, but that the house had not been tenant- 
ed for a twelvemonth. About a week or ten days afterwards, the de- 
fendants received a letter from St. Alban's signed J. West, informing 
them that a box for him had been addressed by mistake to Great Win- 
chester Street, and requesting them to forward it to the Pea Hen, a pub- 
lic house at St. Alban's. The defendants f&rwarded the box accordingly, 
when a person calling himself West, who had beensta3Mng two or three 
days at the Pea Hen, and who had told the mistre.ss of the house that be 
could not pny her bill till a box arrived in which he expected money, 



4 Bingham, 476. 49 

said on its c'inival, " That is the box I expected; it contains money ;■' and 
proceeding to open it, took out money and paid his bill. He shortly 
afterwards disappeared. 

The bill of exchange given by West to the plaintiff having been pre- 
sented for payment when it became due in December, it was found that 
there was no such firm as Le Cointe and Co. in Devonshire Square, and 
that no such persons had ever kept cash with Smith, Payne, and 
Smith. («) Application for the box]on behalf of the plaintiff was then made 
at the defendant's office in London. They first asserted that the box had 
been returned to Birmingham, but afterwards produced the letter sign- 
ed by West, and said, that on receiving it they had delivered the box at 
St. Alban's as before stated. 

Lord Tenterdoi, who in the course of the trial had observed, that it 
was for the jury to say from the whole transaction, whether it was not 
a mere act of swindling, upon summing up said, that the question for 
them to consider was, whether the defendants had delivered the box ac- 
cording to the due course of their business and duty as carriers ? 

The jury having found a verdict for the plaintiff, damages 37/. 17^. Gd.y 

Jldams Serjt. in the last term moved for a new trial, on the ground 
that the jury ought to have been directed to consioer whether or not the 
box had been delivered to the person to whom it was consigned. He 
also objected, that there was no evidence to support the allegation in 
the first count of the declaration, that the box was to be delivered ybr 
the plaintiff, and by the common law it was to be delivered for and to 
West, the consignee; that there was no evidence to support the allega- 
tion in the second count, that it was to be redelivered to the plaintiff; 
and that he could not support the count in trover, inasmuch as upon the 
delivery to the carriers the property in the box ceased to be in him, and 
was vested in the consignee. 

A rule iiisi having been granted, 

Z?05an<7«e/ Scijt. shewed cause, and cited Duff v. Budd, 3B. &B. 
177. 

Wilde and Adams Scrjis. contra, referred to Nohle v. Adams^ 7 
Taunt. 5.9. 

The Court desired to hear Boaavrpicl on the applicabilify of the count 
in trover, thinking tlie evidence did not support the two first counts of 
the declaration. He referred to Nuhle v. ./Jdcnns, Rex v. Jac/cson, 3 
Campl). 370; Earlnf Brislol v. H'ils7norc, 1 B. & C. 514; nud /Jitffv. 
Buddy to shew that where goofis arc obtained l)y fraud, the property 
in them does not pass out of the vendor, who may, therefore, mamtain 
trover; and 2 Salk. C>5r)- Perkins v. Smith, I Wils. S2S; Voul v. Har- 
holtlc, Peake, N. P. C. fiS; Devcrcux v. Barchiy, 2 B. & A. 702; and 
Stephens v. FAwall, 4 M. & S. 259, to shew that delivery i)y a bailee 
to a wrong person anioiinfcd (o a conversion; Boss v. Johnson, 5 Burr. 
2825, being distingnLsiialjIe as a case of mere omission on the part of 
the carrier. 

Pahk J. I rather incline to tliink that the special counts in this de- 
claration arc not borne out by the evidence in the cause; but I consider 
the action to be maintainable upon the count in trover. 

{(i) The iiulnrscment of the Rank of Scotland was also founrl to he a forgery; 
but no evidence was given of this at the trial, on account of the cxpcnce of prov- 
ing it by a witness from Scotland. 

VOL. XV. 7 



^0 Stephenson v. Hart. H. T. 1828. 

From the cases which have been cited it is clear that trover lies against 
a carrier for misfeasance in delivering a parcel to a wrong person. In 
Ifoss V. Johnson a distinction was taken between misfeasance and non- 
feasance, and it was liolden that trover would not lie where a carrier had 
lost goods by a robbery or theft. Lord Afansjieldnni] t,Qslo7iS . considering 
that a case of mere omission. But in Youl v. Harbottle, J^ord KenyoUy 
referring to lioss w. Johnson, said, that where the carrier was actor, and 
delivered the goods to a wrong person, he was liable in trover. Jlhbott 
C. J., in Devcreux v. Barclay, took the same distinction between omis- 
sion and commission, and held the defendant liable for having done an 
act which he ought not. Dayhy J. referred to Youl v. Harbottle. 

The question therefore, on the present occasion, is, whether the de- 
fendant has been guilty of a wrongful delivery for which trover lies? 
The plaintifl' had sold goods to a felon (for I will not call him a swind- 
ler), who tendered a mere fictitious bill in payment. Upon such a trans- 
action the question is, not what the seller means to do, but what are the 
intentions of the customer. Did he mean to buy in the present case? 
Never: he went with an intention to commit a felony. Aickhs's case, 
1 Leach, 294; 2 East, P, C. c. 16-. s. 106. p. 675, turned on that dis- 
tinction. But the point was under the consideration of all the Judges 
this term, in the case ol James Campbell, who went to the shop of one 
Berens and proposed to buy fancy articles: Berens agreed to sell, and 
was to deliver them at Lad Lane to Campbell the same evening. When 
lie came to Lad Lane, Campbell said he expected a friend with money 
who had not arrived, and, opening a twopenny post letter which he pre- 
tended to have just received, added, "My friend will give me 200/. at 
Tom's Coffee House: leave the box, and meet me at Tom's in an hour. " 
As soon as Berens was out of sight, Campbell went off with the box, and 
was heard of no more till his apprehension some days afterwards. The 
learned Common Serjeant left it to the jury to say, not what was the in- 
tention of Berens, but whether Campbell intended to buy the goods or 
to steal them. The jury having found him guilty of felony, the point 
was reserved for the judges, who held that the property in the goods ne- 
ver passed out of Berens. 

It is clear that in the present case the person calling himself West ne- 
ver meant to pay for the goods, and the question of fraud was sufficient- 
ly left to the jury by the Chief Justice's saying in the course of the trial 
that the whole appeared to be a swindling transaction. Then, on sum- 
ming up, he left it to tiic jury to say whether the defendants had deliv- 
ered the box according to the course of their business and duty. 

It is manifest that they had not. The property in the box was never out 
of the plaintiff; and it is plain the defendant thought so; for upon their 
failing to find any person in Great Winchester Street to whom it belong- 
ed, and upon enquiry being made what they had done with it, they af- 
firmed that they had sent it back; and when the falsehood of this 
was discovered, asserted that they had, at all events, delivered it 
to the right person. A felon could not be the right person. But were 
carriers, of their own authority, without consulting the consignor, to 
send to an inn at St. Alban's a box addressed to Great Winchester Street, 
London? If they had made enquiry at Birmingham, whence the box 
arrived, there could have been no difficulty in discovering who was the 



4 Bingham, 476. 51 

consignor. But without enquiry, and notwithstanding the warning that 
was given by the circumstance that West had never been heard of at the 
place to which the box was addressed, they forward it to an unknown 
person at an inn, upon the faith of a letter of which they did not know the 
writer. I cannot distinguish this case from Buff v. Budd. There the 
plaintiffs having received an order from a stranger to furnish goods for 
J. Parker, of High Street, Oxford, and finding upon enquiry that Mr. 
Parker of the High Street was a ti-adesman of respectability, forwarded 
the goods by a carrier, having directed them to J. Parker, High Street, 
Oxford. On the arrival of the parcel at Oxford, the carrier's porter there, 
who knew W. Parker of the High Street (and who was accustomed to 
deliver parcels at the houses of the consignees), told him of the arrival of 
the parcel, no other Parker residing in that street. W. P. said he ex- 
pected no parcel. A person to whom the porter had before delivered 
parcels under the name of Parker, called at the defendant's office shortly 
afterwards, and saying the parcel was his, was allowed to take it on pay- 
ing the carriage, there being many persons of that name in Oxford. The 
plaintiffs having lost their goods, desired the defendant, by letter, to ap- 
prehend the person wiio had taken them, if he again presented himself, 
and afterwards said that the}^ had done with the defendant if the man 
who had the parcel were produced. A notice was suspended in a con- 
spicuous part of defendant's office, limiting his responsibility to 5/., ex- 
cept where articles were entered according to their value; and the parcel 
in question had not been so entered, though worth 89/. 

The plaintiffs having sued the carrier, and the Judge having directed 
the jury that the carrier's negligence had been such as to render it unne- 
cessary to consider the question as to the notice touching the limited re- 
sponsibility, and a verdict having been found for the ])laintiffs, the Court 
refused to grant a new trial, which was moved for, on the ground that 
the question touching the notice ought to have been considered; that the 
Judge ought to have pointed the attention of the jury to the plaintiffs' 
letter, directing the carrier to apprehend the cheat, and the subsequent 
conversations thereon; and that the property of the goods had passed out 
of the plaintiffs. 

That was a much harder case against the carrier than the present, be- 
cause the person who came to the office had often been there before; but 
it was never doubted that the property in tiie parcel remained in the con- 
signor, and I rely particularly on the language of liic/uirdson J., who 
says, "There was clearly a property in the plaintiffs entitling them to sue, 
as they had been imposed upon by a gross fraud." 

The argument which has lieen raised for the defendants, by the asser- 
tion that the box has been delivered to the right person, is answered by 
saying, that a felon cannot be the right person, and as to the defendants' 
liability to an action at the suit of West, till it was ascertained that the 
hill he had given would not be honoured, such an action might have been 
well defended i)y shewing that the box was tendered at (ircat Winchester 
Street, and that no such person was known there. I am, therefore, clear- 
ly of opinion that the rule which has been obtained on the part of the de- 
fendants must be discharged. 

HiiKKOnf;ii J. I am of opinion that the verdict is rigiit, tlint there Is 
no ground for a new trial, and that the action is maintainable on the se- 
cond count uf this declaralioM, At the outset no doubt the contract was 



.''2 Stephenson v. Hart. H. T. 1828. 

bctwoon the rarrier ami the consi^fiico; but when it was discovered that 
no siu'h person as the consignee was to be found in Great Winchester 
Street, that contract was at an end, and the goods remaining in the hands 
of the carriers as the goods of the consignor, a new implied contract 
arose between the carrier and the consignor, to take care of the goods 
for the use of the consignor. It is clear that the properly in them never 
passed out of the (Jainlilf, the consignor. Tlie wiiole transaction was a 
gross fraud, — the goods procured by a bill with a false drawer and false 
acceptor, and no sucli person as the consignee over heard of at the place 
to wliich he had addrcssetl the goods. That circumstance ought to have 
awakened the suspicions of the defendants, and they were guilty of gross 
negligence in parting with them without further enquiry. In the result, 
they have the goods of the plaintiff in their possession, and they are 
liable to him if they deliver them wrongfully. 

Gasei-ee J. I am of opinion that the defendants conducted them- 
selves with gross negligence. When they found that the consignee was 
not to be heard of in Great Winchester Street, it was their duty to have 
inade enquiry whether the statement in the letter from St. Alban's was 
true; and if they had investigated the conduct of West, the fraud would 
have been discovered: but I doubt whether the action can be maintained 
upon a declaration framed like the present. On the second count it ap- 
pears as if a contract had been made between the consignor and the car- 
rier. Now, from Dawes v. Peck, 8 T. R. 330, it is clear that where 
goods are despatched by a carrier, the contract for payment of the car- 
riage is between him and the consignee, even though the goods should 
liave been booked by the consignor; and though the property in these 
goods turned out afterwards to be in the consignor, yet that did not ap- 
pear at the time of the contract. Then can the action be maintained in 
trover? There can be no doubt that this was a swindling transaction, and 
I incline to think that the question of fraud was sufficiently left to the jury 
by what fell from the learned Chief Justice in the course of the trial. 
33ut taking that to be so, my doubt is, whether, the goods having been 
delivered to the person, who up to the time the bill drawn by Le Cointe 
became payable, was the person apparently entitled to them, the defend- 
ants are liable in trover for such delivery, as having been guilty of a 
wrongful conversion of the goods. For delivery to a wrong person, a 
carrier is no doubt responsible in trover, but from all that appears in this 
case, it may be collected that the person who received the box at St. 
Alban's was the person calling himself West, and the person to whom it 
was intended the box should be delivered. However, Lord Tenterden 
having left it properly to the jury to say whether the box was delivered 
in the due course of the defendants' business, a nevv trial could not be 
granted except upon payment of costs; the plaintiff, too, would amend, 
and probably recover upon the second trial, so that justice appears upon 
the whole to have been done; and my two learned brothers entertaining 
a different opinion on the subject of the declaration, the rule must be 

Discharged, 



4 Bingham, 489. 53 

(IN THE EXCHEQUER CHAMBER.) 

GOLDSTEIN v. FOSS and Another.— p. 4S9. 

Libel. The declaration alleged, that whereas divers pei-sonshad boon assi)ciatcd 
together, under the name of "The Society of Guaixiians for the Protection of 
Trade against Swindlers and Sharpers," and the defendant under ])retence of 
being secretary of the society, had from time to time published primed reports 
for tlie purpose of announcing to the society the names of sucli persons as wei-e 
deemed swindlers and sharpers, and improper persons to be proposed as mem- 
bers of the society; and whereas the plaintift" was a merchant of good character, 
yet the defendant falsely and maliciously published of and concerning the 
plaintiff, 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 im])roper 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: 

Held, that the innuendo could not be supported withoit a previous averment, 
that it was the custom of the society to designate swindlers and shar])ers by 
the terms, imjirofier persons to be members 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 plahitiff 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 tiie defendant P^oss, un- 
der colour and pretence of being the secretary of the said society, had 
from time to time published, and was accustomed to publish, certain 
printed reports, for tiie 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 for as members of the said society, 

Vet the defendants, knowing the premises, but greatly envying the 
liappy state of the plaintiff, falsely and maliciously did compose, print, 
and publish the following false, scandalous, malicious, and (h^fiunatory 
libel of and concerning the plaintill' 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- 
tiff) "Castle, and Co. 51. Mark ]^ane, and lienjamin Porter, baker, 
Il.ickney Road, are reported to the society as improjier to be proposed 
to be balloted for as members thereof;" thort-by IIkmi and there meaning 
tbat the said plaiiitifl' was a swindler and a sharper, and an improper per- 
son to be a membra- of said society. 

There were other counts, varying the innuendos, but without the in- 
troductory matter as to the Guardiati society. Plea, not guilty. 

At the Middlesex sittings after Hilary term 1S2G, a verdict was found 
for the plaintiff, damages 150/.; but judgment having been arrested in 
the Court of King's Bench, on the ground tbat 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, 6 B. S: C. 151, the present writ of error was brouglit. 

JF'. Pollock, for the plaintiff, contended, that the name of the society, 
mentioned in the 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 sulli- 
cicntly connected with that mentioned in the introductory part of the 
tleciaration; 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. But, 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 thcscnse intended were correctly conveyed by the innuendo, any de- 
fect of introductory allegation would be cured by verdictj Coles v. 
Havdand, Cro. Eliz. 250. 1 Wms. Saund. 227. n. 1. 

Campbell, contra, cited 1 Wms. Saund. 243. n. 4. Holt v. Scholc- 
field, 6 T. R. 691, per Lawrence J. in Hawkes v. Hawkey, 8 East, 
427. Barhani'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 proeeeding; 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 i/fip7'oper persons the innuendo 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 pi'oper person for the Guardian Society. 
The plain ground of our judgment is, that we cannot see, on this record, 
that the plaintifT 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 any 
other than their natural meaning. If a verdict were 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 liis certificate on the 13th of November; the same day a 
Jicri facias was executed on his goods : the Court refused relief on motion. 



4 BrNGHAM, 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 1827, 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 plaintiffs), or order, 2000/., 
value received. Cyrus Morrall." On the lOlh 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 INIorrali, or order, 1000/., value received. Tliomas 
Wright Watson." Endorsed, Cyrus Morrall. No evidence was given 
of express notice to, or express knowledge by, the ph\intiffs of the pur- 
pose for which this note was drawn, or of the letter dated lOtli day of 
February hereinafter mentioned. On the said 10th February 1S24, 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 question to meet his, Morrall's, 
collateral security given in the said note lor 2000/. to ibe plaiiitills for the 
said advances, and to secure to Morrall repayment of his, thedcrfiulant'.s 
moiety of that sum or of such sum as Morrall individually should have 
to pay the plaintifls on the joint account of him.'^elf (Morrall) and the de- 
fendant. The partnership of Morrall and Watson terminated on the 2Sth 
February 1825. 

The plaintiffs proved that they were possessed Ijcfore 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 indorsed by Mor- 
rall. No consideration for such indorsement was proved, nor any a[)plica- 
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 IIkvwoou v. Watson. H. T. 1828. 

Iininls. The plainlilVs havo not maile any advances on account of the 
parttiershi]) of JNIonall and Watson since the termination of the partner- 
sljip, and luMlher Morrall nor the defendant was, at the time when the 
note came into thcphiintiUs' possession, indebted to the plaintiffs, nor has 
eillier of them since become indebted to the plaintiffs 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 plaintiffs as payees tiiereof. The plaintiffs 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 Morrall, or on his account separately, and were so 
debited in the plaintitis' 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 the note, or not. If the Court should be of opinion 
that 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 

inide Serjt. for the defendant. 

Best C. J. I think there was abundant consideration for the present 
action. Tiie 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 
fur 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 into 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 
ihere 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 pay back his proportion. 

Park J. On the face of these proceedings 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 wcs 
payable on demand, 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 sheriff of 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 support of the demurrer. By 12 G. 1. c. 29., 5 G. 
2. c. 27., and 21 G. 2. c. 3. it is enacted, that in all cases where 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, nnd no more, the 
sheriff or other officer to whom writ or process sli.dl be directed shall 
t.iko bail; and if no such affulavit sh;ill bo made as aforesaid, the plaintiff 
or plaintiffs shall not proceed to arrest the body of the defendant. 

In all actions against sheriffs for a breach of duty, it is necessary to 
shew the obligation of the defendant strictly. The omission of an aver- 
ment, (after stating a comniituMMit to prison) that the committal was ot 
record, was held fiital on special demurrer. lidrns v. Ei/lcs, 8 Taunt. 
512; Ballon v. Ki/les, 4 H. Moore, 425. So the trilling omission of the 
words " of tlic Bench," in the averment that the slu^riff had not the 
body *' before our said lord the king" on the return day, was also held 
bad on special demurrer*. Slovia v. /'crn'm^/* M. & 1'. 5(il ; 7'urnfr v. 
Ef/Ie.s, .'{ H. &: P. I5G. 

vor.. XV. S 



58 WlLCOXON V. NlGHTINliAl.E. 11. T. 1828. 

In the present case, an afTitlavlt of the amount of tho debt filed of 
record was necessary to enable the sherid'lo arrest the defendant in the 
first action, otl>er\vise the arrest would have been illegal as upon a void 
process. 

IVebb V. Heme, 1 B. & P. 281, is not an authority upon this ques- 
tion; for Croke v. Bowling, the case cited by the Judges Irom Buller's 
Nisi Friiis, p. 14, was an action for a malicious prosecution, in which 
it certainly was not necessary to set out that the plaintiff had made any 
affidavit. Jfliiskard v. JVildcr, 1 liurr. 330, was an action on a bail- 
bond, and not against a sheriff. This is an action against an officer, and 
the plaintiff is bound to set out on the record, and prove that he has 
complied in all respects with his duty, before he can complain of the 
misconduct or breach of duty of the sheriff. 

Best C. J. It is not necessary that the declaration in this action 
should contain a statement of the filing of the affidavit. No case has 
gone that length. It has only been laid down that in favour of a public 
officer the Courts will decide on grounds purely technical. The statute 
12 G. 1., indeed, requires that previously to an arrest an affidavit of the 
cause of action shall be filed; but the sheriff has nothing to do with the 
affidavit. If the plaintiff or the officer of the Court indorse a writ improp- 
erly, they are punishable for their misconduct; but the slierifi' is only 
bound to see that the writ is indorsed. It is impossible that he should 
know in Cornwall whether an affidavit has been duly filed in J..ondon. 
In Casburn v. Eeid, 2 B. Moore, 60, it is laid down that if the filing 
of the affidavit be alleged in the declaration, it must be proved; but it was 
also thought that the allegation might be omitted, and by the omission 
superfluous evidence is spared. 

Park J. I am of the same opinion. The precedents are both ways; 
and if the filing of the affidavit be stated, the Courts hold that it must be 
jiroved; but it is not necessary to state it. The point was much canvas- 
sed in Casburn v. lieid, and that was the decision which the Court 
jironounced. The present declaration states that the writ was duly in- 
dorsed; which means indorsed according to law. The objection is 
most frivolous ; and if it could prevail, would be disgraceful to the 
law. 

BuRROuGH J. It is sufficient for the sheriff if the sum demanded be 
duly marked on the writ. A declaration need only becertain to a ceilain 
intent in general, and this is so. 

Gaselee J. In Casburn v. Reid ihc Court referred to Webb v. Heme, 
where Buller J. said, '*I remember a case in Lord Mansfield's lime, 
where it was held unnecessary to produce the affidavit." If the prece- 
dents had uniformly stated the filing of the affidavit, perhaps there 
might be some weight in the objection; but I find the declaration has 
been framed in various ways, in general alleging only that the writ was 
delivered to the sheriff. 

Ourjudgment, therefore, must be for the plaintiff. 

Judgment for the plaintiffaccordingly. 



4 Bingham, 505. 59 



DOE dem. STEVENS and Another v. SCOTT.— p. 505. 

Devise to C. S. in trust for the separate use of S. S., and to convey the premises 
to S. S. lier heirs and assigns, free from the control of lier present or any future 
liusband, and to permit her to take the rents and profits : 

Held, that S. S- had no power of devising the premises. 

The lessors of the plaintiff claimed the property in dispute, as trustees 
of Sarah Scott, under the will of Mary Wilcox, which was as follows: 
"I give and devise unto Charles Stevens and his heirs, all that my 
messuage or tenement, dwelling-house and premises situate in Ayleshury 
Street, Clerkenwell, now in lease to and in the possession of JNIr. Scott; 
and all that my freehold messuage or tenement, with the appurtenances, 
situate and being in Gray's Inn Lane, in the parish of St. Andrew, 
Holborn, known by the ?ign of the Black Dog and Punch Bowl, in the 
possession of Mr. Mouse or his undei'-tenants, in trust to and for the sole 
and separate use of my daughter Sarah Scott, andto convey, assign, and 
assure the said last-mentioned freehold messuage, tenement, and premises 
unto her, the said Sarah Scott, her heirs and assigns for ever, free from 
and independent of the debts, control, power, or engagements of her 
present or any future husband, 'and to empower and permit her to take 
and receive the rents, issues, and profits of the said last-mentioned 
premises, and to give receipts and discharges for the same from time to 
time, or to appoint an}' person to receive the same as if she was sole and 
unmarried. '^ The defendant claimed under the will of Sarah Scott as fol- 
lows: '< 1 give and bequeath to my husband, Charles Scott, my two 
freehold houses, one known by the sign of the Black Dog and Punch 
Bowl, a public house in Gray's Inn Lane, in the parish of St. Andrew, 
Holborn, now in the possession of Messrs. Reid and Co. Liquor Pond 
Street, and the other now in my husband's ])Ossession, namely. No. 3, 
in Aylesbury Street, Clerkenwell, in the parish of St. John, which is 
joined to St. James's Clerkenwell, with all shops, out-houses, yards, and 
appurtenances thereto belonging, as left at my sole disposal by my 
mother's will, namely, Mary Wilcox, late of No. 9, ClerkenwellClosc, 
for and during his, my said husband, Charles Scott's natural life." 

At the trial of liie cause, Middlesex sittings in Michaelmas term Inst, 
a verdict was found for the lessors of the plaintiff, with liberty for the 
defendant to move to set it aside, and enter a nonsuit instead. 

Junes Serjt. having obtained a rule nisi to that efi'ect, 

Taddy Serjt. shewed cause. Under Mary Wilcox's wdl, Sarah 
Scott took only an e(juilablc interest; the legal estate was in the trustees, 
to enable ibem to secure the profits to Sarah Scott's separate use {II(ir- 
Inn V. JIdrlon, 7 T. K. G52; Junes v. Lord Say and Sclc^ 1 \'^k\. ('as. 
Abr. 38.3); and she could not divest them of il by a devise which she had 
no authority to make. 

Jones, contra, cited Due dem. Player v. Nicholls, 1 B. & C. 336. 

Pauk J. It is admitted that at the time of the devise by Mrs. Scott, 
tlic legal estate in the premises in question was in her trustees, for the 
purpose of securing her agninst the rights of her husband; but as the 
beneficial interest was left to her in fee, we arc called on .to presume 
that she had, incidentally to such interest, a power of devising. That 
would be going further than any court of law has liilhcrlo done, in 



60 Akld v. Stocks. H. T. 1828. 

Junes V. I^ord Sat/ ami Se/c, ihc devise was to trustees and their heir?, 
in trust to pay several legacies and annuities, and to pay the surplus to 
a feme covert for life to lier separate use, or as siie should 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 way, 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 heir. 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 atkw. 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 accovdingly. 

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. Gd. 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 plaintiflfor satis- 
fying the said sum of 10/. 155. Gd., under which warrant, the premises 
of the plaintiff, situate at Halifax, were unlawfully entered, and his 
goods and chattels therein forcibly taken and dis^trained, and sold and 
disposed of, to his loss." 

At the trial before Bayley, 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 townsliip; that Bark was not a constable; and 
it did not appear that tlie m3g:>trates had employed Bark to levy the 
distress. 



4 Bingham, 509. 61 

Upon this variance a verdict was found for tlic magistrates, willi 
leave for the plaiiititf 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 JVilde 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 them 
to get out of the dilEculty by tendering amends. 

The question therefore is, Whether this notice sufficiently discloses 
the plaintiff's cause of action within the meaning of the statute. lu 
Strickland v. Ward, 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. 

Gaselee J. (a) 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 oti the act, I feel that we arc not at liberty to do so. The act re- 
quires that the plaintiff shall give the magistrate notice of the cause of 
action, and it has been held tliat the cause must be particularly stated. 
In Ward v. Strickland, the ('ourt held the notice bad, because there 
was a mis-statement of the cause of action; and thougli it was afterwards 
determined that the cause of action need not be specified, yet 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 warrant to Bark. Perhaps it might not 
have been necessary for the plainlilf to have named the person to whom 
the warrant was directed; l)ut having undertaken to do so, his notice is not 
sufficient to su[)port an action for the seizure of his goods under a war- 
rant directed to the constable of Halifax. The rase is not in substance 
distinguishable from Ward v. Strickland , and, therefore, the rule 
must be 

Discharged, 
(a) Duirotigli J. wm absent at clianibcrs. 



6^ Smith v. Backwf.i.l. U. T. 182S. 



SMITH aiul Others v. BACKWELL.— p. 512. 

Where dcfciulaiit plciidcd delivery of ;\ pipe of wine in satisfaction of the i)hiiu- 
tiif 's dcniaiid, the C'oorc refused to permit plaintilT to sign judgment as for 
want of a plea, upon affidavit that the plea was false. 

To the plaintiffs' demand in this action the defendant pleaded the de- 
livery hy him and acceptance by the plaintiffs of twenty pipes of port 
wine, in satisfaction. 

Stephen Serjt., upon airidavit by one of ilie plaintiffs, that the plea was 
wholly false, — that the defendant never delivered, and plaintiff never 
accepted, twenty i)ipes of port, or any other wine, or any other thing, 
in discharge of the defendant's undertakings,— moved for a rule nisi 
to sign judgment as for want of a plea. After referring to Blewetl v. 
Narsdcn, 10 East, 237; Thomas v. Vandermoohn, 3 B. & A. 197; 
Barlhy v. Godslake, 2 B. & A. 199; and Shadweliv. 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 
relied on liichley v. Froone, 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 Meringlon 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, 

Spankie Serit., contra, relied on Meringtonv. Beckett, in which 
nil the preceding cases had been considered, and the Court of King's 
Bench, thinking they had gone too fiir, 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 he put on the record; but here there was no 
general issue; the defendant had 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 Bart ley 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, hecausc from the aflidavit 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, 
w'hich, except in one instance, has never been required, namely, that 
the defendant should verify his plea by aflidavit. 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. Mcn^sden 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- 
ringtonv. Beckett; and I entirely coincide with what fell from the Chief 
Justice in that case. In Young v. Gadderer, 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 
aflidavit of its truth; that is often as false a plea as the present; but the 
principle of our law is, that the plaintifl' must make out his case. With 
respect to pleas in abatement, the statute of Anne has required an aflidavit 
of their truth; and if it had been thought fit to require an affidavit in 
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 diilcrent issues, has 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. 

Kulc discharged. 

The Court intimated, that in future similar applications should be dis- 
charged with costs. 



TUCKER and Others, Assignees of JOHN ANTHONY GILBERT, 
a Bankrupt, v. JOHN HUMPHREY.— p. 3\n. 

The shippers, actinia for G., purchased, and paid for with their own money, 
flour at Stockton, which was sent l)y' a vessel to I>on(lon, and tlic invoice for- 
warded to (i. A manifest of the flour was also forwarded hy tlie shippers to a 
wharfin^^er in London, whose pi'acticc it was to deliver goods to the consiRncc 
named in the manifest upon application, and till application to keep it on hoard 



64 TucKEU V. Humphrey. H. T. 1828. 

the vessel; if not applied for before the vessel returned, he landed it, and kept 
it in his warehouse, to the order of the shipper; if the goods were to be deli- 
vered to order, lie delivered them to persons prodncing either bills of lading 
or the sliipper's invoices, (i. was in the hal)it of having flonr consigned to him 
at the wliarf, and sometimes sold it on board, sometimes when it was landed, 
and kept for him in tlic wharfinger's warchotiscs. 
Tlic flour in question arrived at the wharf on the 12th of April, but was not land- 
ed till the 22d; on the 17th, before any ajjplication by Ci., who had l)ecome 
bankrupt, the flour was claimed under an order from the shippers: Held, that 
the flour not having 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 which the Court, for the 
importance of it, desired mij^ht be argued as a special case. The action 
was an action of trover, and it had been referred by an order of the 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/. 10.9. 
for which the arbitrator decides that the plaintiifs are to recover: one for 
fifty sacks; and he decides that for those the plaintiffs 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/. lO*. ; 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 
]Messrs. 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 twenty-five sacks of flour, stating them to be 
bought and shipped for him on his account and risk. When a ship was 
thus consigneJ by Messrs. W^ilkinson 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 diflerent 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 

peel 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 
w^harf 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 tlie 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 14th 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 mentioned, 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 53/. 
lO.y. aforesaid." 

Upon these facts it was contended by Mr. Serjt. Edward Lmucs, on 
behalf of the assignees, that by the arrival of the ship at the wharf the 
transit was over; tliat the wharf, though the goods were not delivered 
out of the hold of the ship, was to be considered as the warehouse of 
Gilbert, the i)ankrupt, 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 j)ut under l)is lock and key. 

This has been well argued on both sides, and nobody can doubt that 
if sucii a state of things as is above supposed 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, the transit would have 
been over. Jiut the question is, whothcr that be the slate of things. 

The general nature of the right to slop in transitu has very properly 
not been argued: for although, comparatively speaking, such right has 
not been long known to the common law, |)erhaps not above seventy 
yn.ars, having I)cen at that time transplanted from the courts of equity; 
yet it has sincebcencstablishedbysucha variety of decisions, thatit is now 
regarded with favour by the former as a right which they arc always 
disposed to assist, not |)roccc(Iing at all on the ground of the contract 
being rescinded by the insolvency or bankruptcy of the consignee of 
the goods, but as an eriuilable right adopted for the purposes of substan- 
tial justice. IJut this case Ins been correctly argued upon the ground 

VOL. x\ . <J 



'"•o Tlcklu r. lluMiMiuLv. H. T. 1828. 

whether the transitus was ooiitiiniiiis!;, or whether it was at an eiul and 
iletermincd. Every case of this sort must dci)cnd on its own special 
lircunistanccs. In some of the earlier cases, particularly in that of 
Hunter V. Baile, J^ord iMausJicld, 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 
Dixon V. Baldwin, 5 East, 184, Lord Ellenboroiigh rej)udialcs that 
extent of the doctrine, and puts it upon a better footing, and says, " the 
(jucstion is, whether the party, tu whose toucli w actually comes, be an 
agent so far rejn'csenting the principal as to make the delivery to him a 
lull, eflectual, 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- hitn. 1 cannot but consider the transit completely at an end 
in the direct course of the goods to tiie innkeeper, and that they were 
afterwards under the immediate orders of the vendee," 

Apply that latter j)rinciple tu 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 liad 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 octually 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 have hitherto said, means to impeach the 
doctrine, first broached by the late Mr. Justice Chambre in Richard- 
son v. Goss, 3 Bos. & Pull. 127; adopted and approved by Lord 
Alvanlc}), when Chief Justice of this Court, in Scott v. Fettit, Ibid, 469; 
and lately by my brother Bayley in the case of Foster v, Frumpton, 
G Ji. &: 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 transitus 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 him, and it was 
held that the transitus of such goods was at an end upon delivery of them 
to the packer. 

In Foster v. Frampto)i 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 them 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 had 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, 516. <^/ 

on this subject, Lccausc tlic\' would only latigue the Court, and uclav" 
the other important busings ot^ tlie term. I believe all of thern wcr. 
quoted on one side or the other by the leaincd counsel, (a) I have look- 
ed at all of them, and tlie doctrine now stated by nic is not impugne '. 
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 onl \' 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 oi Jlkcrman v. 
Humphrey, tried before my Brother Biirrough 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 liberty for plaintifl to move to enter a verdict for 
him. Mr. Serjt. 7'</^i/y accordingly made such motion, but Lord Gif- 
jord, then Chief Justice, and myself thought the opinion delivered by 
the learned Judge at the trial was correct, and no lulc was granted. 

That opinion applies most pointedly to the present case; for it is there 
-taled that a shi])|)ing note and a delivery order (o the party mcdc no 
idiange of j)roperty: that they did not amoinit to a bill of lading, whicli 
is exactly like a bill of exchange, and the proi)erty mentioned in it passes 
by indorsement, but not by delivery without indorsement. The ship- 
ping note, from its nature, is not indorsible, and in point of fact neither 
the shipping note in that case nor in this is indorsed. 

I'^jr these reasons wc arc of oj)inion that the award is good upon ilin 
two (irst points, Ijut bad u])on the tljird; that is, that the consignoi- had a 
riglit to stop the twenty-live sacks in transitu. 

((0 E. /.«7£<f«Scrjt. for tlic i)laiiiliirs, after dislinpjUibhiiig Lu.sliman v. WiU'uimuy 
■tCanipl). LSI, relied cliit.lly tai RkliurdH<jn v. C'o.v.v, 3 IJ. & F. 1-7; Hojll v. Prltit, 
3 B. ik J'. 469; Rovj, v. Pick ford, H 'ruuiit. .S3; and Foatcr v. Pratii/iton, 6 li. ifc 
(\ lO'J; and 

Wilde ScTJt. for tlie defendant, on Cru7vahcni v. F.udos, 1 H. & C. 181, and 
.Urr/nun v. fhtiii/i/ircy, 1 C^arr. 2c I'. 53, 

Laxvcs in reply cited lUifizard v. Ca/icl,-\: Ring. 137, to slicw that a bliip .ittachcd 

lo a wliuri may be considered as on ;i wharf. Ihit the subject bfin^ -m fully dis- 

iibscd in the jutlrojcnt, it hub been llK'u;j,hl uinieccibaiy to rei'oii the urj^unitnt. 



t>S RiNDi i: I'. Beaumont. H. T. 1828. 

BELL V. JACOBS.— ji 523. 

The Court refused to set aside a Ixiil-hond on the ground tliat the defendant had 
been arrestetl in the Tower Hamlets by virtue of a writ which had no no7^ 
ojiiittus clause. 



GULLY and Others v. Bishop of EXFJTER and BOWLING.— p. 535. 

The plaintiff in ijuare imfiedit having traced his title through a period of two 
centuries, and the defendant having, in forty-three pleas, taken issue on every 
allegation in the declaration, though the plaintiff's claim rested solely on the 
validity of a deed of 1072, and the defendant could have no writ to the bishop, 
unless he succeeded in setting aside that deed, the Court, ai"ter the declaration 
had been amended twice, and after trial had, rescinded the rule to plead several 
matters. 



RUNDLE V. BEAUMONT.— p. 537. 

In an action on a charter-party against a charterer, the Court refused to compel 
the plahitiff to allow the detendant an inspection of the ship's log-book. 

This was an action on a charter-party against the charterer for freight 
and demurrage. 

Jones Serjt., on behalf of the defendant, moved for a rule nisi to 
compel the plaintiff to allow defendant to inspect the log-book of the 
ship, on aflidavit that he considered it matei:ial to his defence. The 
Court, he submitted, could order an insj)ection of any document which 
one party in a cause might be deemed to hold as trustee or for the benefit 
of the other: Ratclijfe v. Bleasby, 3 Bingh. 148. The log-book was 
kept for the benefit and instruction of all parties interested; as much for 
the charterer as for the owner. It was evidence of the facts stated in it; 
D^ Israeli v. Joiuctt^ 1 Esp. 427; JVatson v. King, 4 Campb. 275; and 
inspection was commonly granted in actions on policies of insurance. 
• A rule nisi having been granted, 

Wilde Serjt. shewed cause. The charterer has no interest in the log- 
book, which is the mere memoraiidum of the captain of the ship. It is 
not a public document, nor evidence for any one. In D^ Israeli v. Jowett 
the book had been deposited in the admiralty, and so became a public 
document, and in insurance cases the production of the log-book, when 
required, is stipulated for as a part of the terms of the rule to consolidate 
several actions. In the Mayor of Southampton v. Graves, 8 T. R, 
590, the Court refused inspection of the books of the corporation. 

Jones. The log-book is recognized as a public document in all books 
of marine law: and in cases of insurance, inspection has frequently been 
allowed of all papers in the adverse party's possession relating to the 
cause. Goldschniidt v. Marryatt, 1 Campb. 562. No inconvenience 
can arise from compelling the production of the book, and in Clifford v. 
. Taylor, 1 Taunt. \G1, MaJisfieldQ. J. said, " This practice of compell- 
ing the delivery of copies is very convenient, for it saves the delay and 
expence of a bill in equity." 

Park J. There is no pretencefor this application; and we should not 
have granted the rule nisi if a case had not been cited to shew that a 
log-book is evidence. But in D'' Israeli v. Jowett the log-book was 
brought from the admiralty, and was a public document. If wc were 



4 Bingham, 537. 69 

to accede to the present application we must overrule our decision the 
other day in Rowe v. Hoiodefi.(a) Nothing has been stated on affidavit 
to shew the materiality of the production of this book; the inconvenience 
that wouldresult from withholding it; or the interest of the party apply- 
ing. The law has been so clearly laid down in Ratcliffe v. Bleasbxj 
that I thought it never would be stirred again. 

BuRROUGH J. Perhaps the case might stand on a different footing if 
the log-book were evidence joe;" se\ but it is only evidence to contradict 
a witness who has kept it. In equity a bill for discovery furnishes dis- 
tinct ground for granting what is required; but no grounds have been 
stated on the present occasion. 

Gaselee J. We cannot carry this rule further than in Ratcliffe v. 
Bhashy\ this application, therefore, must fail. 

Rule discharged. 

(a) ROWE and Others v. HOWDEN. 

Plaintiffs, ship-owners, sued defendant, their broker. The Court refused to compel 
him to give a copy of a letter which he had received, touching an adventure in whioh 
the ship was to have been employed. 

This was an action by ship-owners against their broker. 

Jonta Serjt. moved that the defendant might exhibit, in order to the plaintiffs copy- 
ing it, a certain letter which iiad come to the defendant's hands, touching an adventure 
in which the ship was to have been employed. 

Wilde. Serjt. who sliewed cause, relied on Ratcliffe v. Bleasby, 3 Blngh. 148; contend- 
ing that this was a document belonging to the defendant, which there could be no 
pretence for saying he held in trust for the plaintiffs, and that it was not even alleged 
to be necessary to enable the plaintiffs to declare. 

Jones. The defendant has the letter in virtue of the confidence reposed in him by the 
plaintiff's; it regards the business of the ship, and the plaintiffs have, therefore, as great 
an interest in it as the defendant. Indeed, the defendant being no other tlian the plain- 
tiffs' agent, they, as principals, are entitled to claim the letter; but where the plaintiff" lias 
an interest in- the paper he is entitled to a copy, whether a confidence have been repos- 
ed in the holder of it or not; Baleman v. Fhillips, 4 Taunt. 157; Giqncrv. Baxily, 5 ]}. 
M. 71. 

P.*.nK J. There Is no ground whatever for this application, and if we were to accede 
to it, we shovild be flying in tlie face of the decision of this Court in Ratcliffe v. Bleasby. 
The plaintiffs make no affidavit that they cannot declare without a sight of the letter in 
question; and they call on tills Court to assume the jurisdiction of a court of equity, 
and aid them in a fisliing 1)111. Tlicy may give notice to the defci\dant to produce the 
letter at the trial, but tlicy cannot compel him to produce what may be his evidence. 
Where parties have a common interest in a paper, and a plaintiff cannot declare without 
an inspection of it, the (juestion is a very different one, and, tiiereforc, tiic case of Vriimcr 
V. Daijly does not apply. Tliere the plaintiff" had bought lands of tlie defentlants 
through the medium of an auctioneer, and called on them to produce the contract for 
tlie purpose of stam|)ing it, to enable him to s\ic tliem for not performing tlie contract, 
niitnoi (JH ,\. I refused this application at Chambers, I)ccausc it seemed to me to be 
only fishing for evidence. 

Gas£lei: J. concurred with the rest of the Court in 

Discharging the rule. 



(IN THE EXCHEqUER CIIAMI5EU.) 

Trustees of the BRITISH MUSEUM v. PAYNE and FOSS.— p. 540. 

A part of a work, to which there were twenty-six subscribers, and of which only 
thirty copies were printed, — pviblislicd at intervals of several years, at an ex- 
pense exceeding the sum to be ()l)tained by the price of the copies, and which 
expense was defrayed hy a testamentary donation, was hokkn not to be a book 
demaiidablc by the Britibh Museum under 54 G. 3. c. 150. 



CASES 

ARGUED AND DETERMINED 

IN THE 

COURT OF COMMON PLEAS, 

AND OTHER COURTS, 

IN 

EASTER TERM, 

In the Ninth Year of the Reign of George IV. — 1S28, 

COLLINS V. WILSON.— p. 551. 

Defendant, -who had a lease of land from N., entered into an agreement with G., 
who was to build houses, and pay defendant a rent of 20/. a year. G. then em- 
ployed defendant to Ijuild the houses. 

Held, that defendant was liable to contribute to a party- wall to which the houses 
were attached. 

Held, also, that the owner of the party- wall was not confined to ten days to give 
his notice, but, there being no adjoining house when it was built, might give the 
notice in reasonable time after the adjoining houses were attached. 

DOE tlcm. CALVERT v. FROWD.— p. 557. 

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, that he held the premises as tenant to S.; that he Iiad ne- 
ver considered lessor of plaintifl"as his landlord; that he should be ready to pay 
the rent to any one who should be proved to be entitled to it, but that without 
disputing the lessor of the plaintiff's pedigree, he must decline taking upon him- 
self to decide upon his claim, without more satisfactory proof, in a legal manner: 

Held, that this was a disclaimer of lessor of plaintiff^s title. 

.This was an ejectment to recover posses.sion of a house in Serle Street, 
Lincohi's Inn Fields, and tried at the Middlesex sittings after Trinity 
term 1827, before Best C. J., when a verdict was found for the lessor 
of the plaintiff, who claimed title to the premises in question as heir-at- 
law of Mary Whitall, deceased. 

Mary Whitall was seised in fee of the premises, and died so seised in the 
year ISOO, devising the premises for life to Margaret Hodgson, who after- 
wards married George SmallpiccC; and received the lent during her life. 

M, Hodgson died in 1S26. 



4 Bingham, 557. 71 

The lessor of the plaintiff claimed to be entitled to the premises as 
heir-at-law of Mary Whitall, on the decease of Margaret Hodgson, the 
tenant for life. 

At the trial, the lessor of the plaintiff having proved that he was heir- 
at-law to Mary Whitall, and her seisin, 

The following letters between the lessor of the plaintiff's attorney and 
the defendant were put in: — 

Edward Frowd, Esq. 

Sir, — In order that }jou may be fully informed of the right and title of 
my client, Mr. John Calvert, to the premises in No. 14. Serle Street, 
in your occupation, and late the property of Mrs. Margaret Smallpiece, 
Kensington, deceased, I send you the particulars enclosed, (these were a 
copy of the lessor of the plaintiff's pedigree, and a statement of his claini 
to the premises), whicli I trust will fully satisfy you of his title, and 
that there will be no dilliculty or objection to his receiving the rent, 
which will be due the 25lh instant, 1 shall readily give you any further 
information or satisfaction which you may require, if you will make an 
appointment to call on me for that purpose. 

Yours, &c. 

17th March, 1S2G. J. Mangnall. 

Sir, — In answer to your letter respecting Mr. John Calvert's claim to 
thehouse which I hold as tenant to Mr. Smallpiece in right of his wife, I 
beg to inform you, I have not hitherto considered Mr. John Calvert as 
the landlord of the house in Serlc Street, nor can I pay any rent to hin\ 
without the risk of being hereafter called upon to pay it over again to 
the person who may fancy and perhaps prove he has a better title. 1 
shall be at all times ready to pay the arrears to any i>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 the direction of the Lord Chief Jus- 
tice, who thought the defendant's letter amounted to a disclaimer, found 
a verdict for the plaintill. 

A rule nisi for a nonsuit was obtained on tlie ground, that the lessor 
of the plaintiff had treated the ilcfundaiit as his tenant, and that, there- 
fore, he ought to have had notice to {piit. 

JiosaiKjnct and Slnrhs Serjts. showed cause. The defendant's letter 
amounts to an express disclaimer of the title of the lessor of the plaintill, 
and if it be f-uch, it is clear that notice to cpiit is not necessary. 

JVildc Scrjt. contra. The letter contains no disclaimer, but merely 
cautious apprehension, and a request for further information Ujion a mat- 
ter at that time doubtful. In Doc dcin. fVilliamsx. J^dsi/xiali, Pcakc, 
N. P. C. lfH>, it was held that a mere refusal to pny rent to a devisee 
imdcr a contested will, accompanied with a declaration that the tenant 
was ready to j)ay to any person (Mitilled, did not amount to a disclaimer; 
and here there was no demand of possession by the lessor of the jilain- 
tiir, so that the defendant, being in lawfully, could not be a trespassri 
till the lessor of the plaintiff dissented to his possession. 



72 Seeley v. Mayhew. E. T. 1828. 

Best C. J. Mrs. Smallpiccc, the lessor of the defendant, had only u 
life interest in the premises: her husband had no estate by the curtesy; 
the moment she was dead, therefore, the lessor of the plaintilf might 
treat the defendant as a trespasser. If, indeed, the defendant had ever 
])aid rent to the lessor of the plaintiff, a new term would have been 
created; but this was not tlie case, and when the lessor of the plaintiff de- 
mands his rent, the defendant says, *'I will not pay, I am tenant to 
Smallpiece;" and at the trial puts the lessor of the plaintiff to prove his 
title. If this be not disclaimer, what is? 13ut I sliouM not have thought 
differently even if this case had been exactly lilfe the case oi Doe dem. 
JVilliams v. Pasquali, because a notice to quit is only requisite where 
a tenancy is admitted on both sides, and if a defendant denies the tenan- 
cy, there can be no necessity for a notice to end that which he says has 
no existence. 

Park J. There never was any relation of landlord and tenant be- 
tween these parties; rent was demanded and refused, and the lessor of 
the plaintiff could not make the defendant tenant against his consent. 
The offer of the lessor of the plaintiff was only sub niodo, and not ac- 
cepted. 

Gaselee J. If the defendant had held under the ancestor of the les- 
sor of the plaintiff, the question agitated in Doe dem. Williams v. 
Pasquali might have arisen, but all his interest expired on the death of 
Mrs. Smallpiece. 

Rule discharged. 



BENTON V. BULLARD.— p. 561. 

Costs of taxing an attorney's bill not allowed to a party who succeeds in striking 
off a sixth, where the order for taxing is not obtained till after the action on 
the bill has been commenced. 



SEELEY V. MAYHEW,— p. 561. 

The Court will not grant a new trial on the ground that witnesses, by whose tes- 
timony the verdict was obtained, have been indicted for perjury in the cause. 

Assumpsit against the defendan*:, as acceptor of a bill of exchange, 
drawn by T. Parish, and indorsed through R. Oddy to the plaintiff. At 
the trial, London sittings after Hilary term last, before Burrough J., 
the defendant's hand-writing having been proved, the defence was that 
tlie bill had been given for a horse sold by Seeley to Parish, which was 
warranted sound, but was ill at the time, and shortly afterwards died. 

There was conflicting evidence as to the warranty, and as to who was 
the seller of the horse. 

'I'he jury having found a verdict for the defendant, 

Adams Serjt. now moved for a new trial on the ground of surprise, 
the defence not having been anticipated, and true bills for perjury hav- 
ing since been found against the witnesses who spoke to the warranty, 
and the property of the horse being in Seeley. But 



4 Bingham, 561. 73 

The Court thought that was a circumstance of which they ought not 
to take notice, and observing that Lord Mansfield and Lord Erskine 
had expressed the greatest disapprobation of indicting witnesses while a 
cause was yet pending, refused the rule. Adams, therefore, 

Took nothing, {a) 
(a) See Thurtell v. Beaumont, 1 Bingh. 339. 



ROBINSON V. HOFiMAN — p. 562. 

One joint- tenant may, without the assent of his fellows, appoint a bailiff to distrain 
for rent due to all the joint-tenants. 

Replevin. Cognizances by defendant; first, as bailifFof Henry Mar- 
chant, the elder, Samuel Cullum, and Stephen Cullum, for 35/., one 
quarter's rent in arrear to them, in respect of a house held by the plain- 
tiff, under a demise, at 140/. a year, payable quarterly. 

Second, As bailiff of H. Marchant, the elder, for one undivided moie- 
ty, and two undivided fifth parts of the other moiety of 35/., one quar- 
ter's rent in arrear to him, in respect of one undivided moiety, and two 
undivided fifth parts of the other moiety of a house held by the plaintiff, 
under a demise, at 140/. a year, payable quarterly. 

Third, As bailiff of H. Marchant, the younger, for one undivided 
moiety, and one undivided fiftli part of the other moiety of 35/., one 
quarter's rent in arrear to him, in respect of one undivided moiety, and 
one undivided fifth part of the other moiety of a house held by the plain- 
tiff, under a demise, at 140/. a year, payable quarterly. 

To each of these cognizances the plaintiff pleaded no7i teniiit; riens 
in arriere; and that defendant was not bailifl". 

At the trial before Best C. J., Middlesex sittings, after Trinity term 
last, it appeared that the plaintiff held the premises under a lease execut- 
ed by Henry Marchant, the elder, Samuel Cullum, and Stephen Cullum, 
described as surviving trustees under the will of John Cullum; that the 
warrant of distress w.js signed by Henry Marchant, theelder, alone, and 
autiioriscd a seizure for 2 1/. IO9. only; and that Samuel Cullum being 
applied to, to authorize the distress, declined to do so, or to adopt it af- 
terwards. 

A verdict was thereupon taken for the pl.iintiff, with leave for the de- 
fendant to move to set aside, and enter a verdict for the defendant in- 
stead; accordingly, 

Storks Serjt. Iiaving obtained a rule ul.si to that effect, on the ground 
that one joint-tenant may distrain, and tliat if he does so, he is compelled 
to avow, pursuant to tlie terms of the lease by which the premises are 
held; 

Jfi/deSarjl. now shewed cause. He cited Leis^h v. Shepherd, 2 B. 
& B. 465; Pii/len v. Palmer, 5 Mod. 72; Year Hook, 7 H. 4. 34. pi. 1. 

Storks contra, referred to Leigh v. Shepherd; Year Hook, 15 H. 7. 
17 a. 

Best C. J. I had considered at first that there was an express dissent 
by Cullum to this distress; I cannot now collect that such was the casCf 
and it is, therefore, unnecessary to decide what would have been the ef- 
fect of such a dissent. 

VOL. XV. 10 



74 MuRiMiY i'. Bell. E. T. 1828. 

CuUiim said lie declined autlioriziiii^ this distress: this docs not amount 
to a dissent; and he, consc(jiienlly, left l)is co-tenant in the same situa- 
tion as tlie co-tenant stooil in Leif^h v. Shepherd; to the decision in 
which case I entirely subscribe. The rule, therefore, must be made ab- 
solute. 

Park J. 1 am of the same opinion, and agree with the decision in 
Leigh V. Shepherd. That is an authority to shew that the assent of the 
co-tenant is not necessary, and there has been no express dissent here. 

BuRROUGH J. One joint-tenant may recover the whole rent, and give 
a discharge for it; he may, therefore, distrain, and he must avow accord- 
ing to the title. There is no colour for saying that there was any dissent 
here. 

Gasei.ee J. If the distress had been made by Marchant, there could 
liave been no doubt; but if JSIarchant has authority to distrain for him- 
self and others, it comes to the same thing whether he distrains by him- 
self or by a bailiff. 

Rule absolute. 



ANDREWS V. DALLY.— p. 566. 

Where the expenses of passing an act of parliament are directed by the act to be 
defrayed out of certain tolls to be levied under the act, it is incumbent on the 
party who sues for the expense of soliciting the act, to shew that tolls have 
been collected sufficient to cover his demand. 



MURPHY and Another v. BELL.— p. 567. 

A policy of insurance stipulated, " that the goods insured were and should be 
valued at five tierces coffee, valued at 27/. per tierce, say 135/.; that policy to 
be deemed sufficient proof of interest :" 

Held, that the policy was void under 19 G. 2. c. 37. 

Assumpsit on a policy of insurance. The declaration alleged that 
the plaintiffs by the names and description J. and E. Murphy, or as 
agents, as well in their own names as for and in the name and names of 
all and every other person or persons to whom the same did, might, or 
should appertain in part or in all, did make assurance and cause them- 
selves ancl them and every of them to be insured, lost or not lost, at and 
from London to Cork, including the risk in craft to and from the ves- 
sel, upon any kind of goods and merchandizes, and also upon the body, 
tackle, apparel, ordnance, munition, artillery, boat and other furniture 
of and in the good ship or vessel called the Zephyr. The said ship, &c., 
goods and merchandizes, &c., for so much as concerned the assured, by 
agreement between the assured and assurers in that policy were and 
should be valued at five tierces coffee, valued at 27/. per tierce, say 
135/.: " That policy to be deemed sufficient proof of interest." 

At the trial before Best C. J. London sittings after Easter term 1827, 
a verdict having been found f)r the plaintiff in respect of a loss wilhin 
the terms of the policy, 



4 Bingham, 567. 75 

IVilJe Scrjt. in Trinity term last obtained a rule nisi to arrest the 
judgment, on the ground that the policy described in the declaration 
was void, the statute 19 G. 2. c. 37. s. 1. having enacted that no assur- 
ance shall be made on any ship or on any goods to be taken on board of 
such ship, " interest or no interest, or without further proof of interest 
than the policy, or by way of gaming or wagering, or without benefit 
of salvage to the assurer." 

Taddy Serjt this term shewed cause, and cited Grant v. Parkin- 

son, Park on Ins. 302; Da Cos la v. Firth, 4 Burr. 1966j the statute 

of 19 G. 2. c. 37. 

fVildc, contra. ry 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 tlic 19 G. 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 that gaming 
was the least of the evils that the legislature proposed to remed3\ 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 orpurposelv 
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 British manufacturers; are exempted from the 
opemtion of the act. I'his shews that gainbling was not the only thing 
guarded against. 

If a policy contains words to the same effect as those enumerated ia 
the act, the case is within it, although it may be manifest that it is not 
a gaming insurance. The temptation to fraudulent insurances is very 
great; the object to be attained by them is often easily accomplished; 
and the consequences to that most valuable class of men, undiTwritcrs, 
and seamen, whose lives are often put in hazard owing to such insur- 
ances, are dreadful. The case of the Kim^ v. Cndlinir and Easterbi/ 
and M^ Farhtnr.f 2 Russell on ('rimes, 173S, in which I was counsel 
for two of the [jrisoners, and others that have been l)rought before tho 
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 gaming policies, thr-y are valid, we shall rend(;r inopera- 
tive its provisions against fraudulent insurances and such as encourage 
rinndestine trade. The art does not say that poIici(,s conluining certain 
tipccified words shall be void, but that '-no insuranrc shall be made, in- 



76 Murphy v. Bell. E. T. 1828. 

tercst or no interest, or without furtlier proof of interest than the poli- 
cy." The ineaiiinp; of this chuisc is, that no insurance shall be effected 
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 the 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 
liie effect 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 tiiought at one time that all valued policies were within the 
act, and when one considers that frauds by the loss of ships, may be 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 Leiols v. Ritcker, 2 Burr. 1167, has determined that 
policies only covering the prime cost of the goods are valid. In the 
case of Grant v. Parkinso7i, 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 llrst 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 assured 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 error not dispensed with where the error, thuugh 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 pren:iiums received by him on 
policies subscribed by the plaintiff, was allowed to set oflf a loss on one of those 
policies effected in the name of the defendant at the request of T., on goods in 
wliich 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 Thompson 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. 

fVilde 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 which 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 Kosfer 
v. Euson, 2 M. & S. 112; Parker v. Beasleiy, 2 M. & S. 423; Gold- 
smith V. Lyon, 4 Taunt. 534; Minett v. Foresler, 4 Taunt. 511. 

Wilde, contra, was stopped by tbe Court, 

Best C. J. I think this case falls within the principle laid down in 
Parker V. Bcasley. Tlic facts areas follows: — Tlic bankrupt subscribes 
a policy to the defendant, upon which a loss has been incurred. The 
defendant is indebted to the bankrupt for premiums. But though the 
defcnrlant's name was on the policy subscribed by the bankrupt, the 
goods insured belonged to Thompson and Co.; and it has l)cen con- 
tended tbat the defendant cannot set off tbe amount of the loss, because 
he is not interested in the goods. But he might have sued the bank- 
rupt on tlie 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. Bcasley, there was no del 
credere commission, but the 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 luidervvriter; and 
that where a party has a right to sue on the policy, and has a lien oti 
the goods insured, he may set off in an action for premiums, the sum to 
be recovered for the loss. The present defendant stands in the same 
situation; he had a light to sue on the policy subscribed by the bank- 
rupt, and a lien on the goods insured; and it would be strange to say 



78 Davils v. Wilkinson. E. T. 1828. 

that he niiu;ht sue the bankrupt, and yet not set off the debt to be reco- 
vered in such suit. Thompson can never claim on tlie policy, because 
he must first discharge liis debt to the defendant, and he cannot do that 
without giving creilit for the sum charged by the defendant in respect 
of this loss. Lord McDisfield 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 there; 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, — wc 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 Koster v. Eason 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 
tiiought the princi])le tlic 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 Elleiiboroiigh 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. 
iiave paid their principals, though they have given them credit for these 
losses and returns; and if they have not paid tliem, 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 
doing clearinjusticetothcprincipalsjwhooughtto 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-ofl were not to 
take away from tlie 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 cd.sc.oi 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 tJie goods, so that tliey had only a lien to that extent, and yet 
the Court held it sufficient, and decided on the distinction which sup- 
ports tlie principle on which we now determine. Le Blanc J. said, 
''the case of Koster v. Euson established this, that where' the broker 
himself is a party to the cunlracl, so as to enable him to maintain an ac- 



4 Bingham, 573. 79 

tion in his own name, if he has acquired an interest by a del credere 
commission, he is entitled to a set-oiV. It i^^ 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. 578. 

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 him 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 
transitus 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 plaintiff at Edinburgh, the invoice 
of which reached Park on the 29th October 1S2G, when, being in insol- 
vent circumstances, he signified to his clerk that he would rot have the 
ale, and desired him to direct Vincent, an attorney, to do what was ne- 
cessary to stop the goods. 

November 2d, twenty-five hogsheads arrived, and on the 3d, 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 (Jlh the 
whole were landed on the wharf. 

On the same day the plainlilT's agent wrote from Edinburgh to 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, sheritTof London, claimed the goods 
under an execution issucfl again-it Mungo Park, by Adam Park, his 
uncle, and left the warrant for seizure. 

On the 11 th, another agent of the plaintiff dcmandod the whole, and 

On the 13lh, the defendant, the slieriff, removed llic ales under the 
execution. 

A verdict having been given for the pliintifT, 

Wilde Serjt. moved to set it asidr, and enter a nonsuit instead, on 



80 Baktram v. Fahkurother. E. T. 1828. 

the ground that Miingo Park had never rescinded his contract with the 
])laintitV, but had merely endeavoured to stop the goods 121 transitu, 
wliii'h was not eirectually done; first, because the transit was at an end; 
and secondly, because 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 that the contract was rescinded 
by Park's saying he would not have the goods, and the plaintifl"'s as- 
senting to the stoppngc ordered by Vincent; which assent, by ratifica- 
tion, made Vincent his agent for that purpose. He relied on Suite v. 
Field, 5 T. R. 211, and ^^tkin v. Barwick, 1 Str. 165. 

The Court here called on 

JVilde to support his rule, who cited Richardson v. Goss, 3 li. & P. 
127; N'edte v. Ball, 2 East, 123; Smith v. Field, 5 T. R. 404; Barnes 
V. Freeland, 6 T. R. SI. 

Best C. J. This is an action against the sheriff, for taking in execu- 
tion certain goods as the goods of Mungo Park, at the suit of one of M. 
Park's family. 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. V>\xi 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 intended was,to get rid of 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 Gth, 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 staled that the 
proposition made hy the purchaser to rescind llic contract was acceded to 
bj' the sellers.'' That shews that the principle was, not that no contract 
had existed, but that a contract had been rescinded. Salle v. Field 
was recognised in Smilh v. Field, where the decision was different, be- 
cause the rights of third parties had intervened; but Lord Kenyan took 
care not to impugn the princij)le established in *S>///e v. 7'Ve/f/, saying, 
*' In the former case of Salle v. Field, the Court went as far as the}'' 
could to assist the sellers; but there both the buyer and seller agreed to 
rescind the contract before the bankruptcy.'" Each of the Judges con- 
firmed the decision in that case, and also in Alkin v. Bariuick. jBanics 
V. Freeland does not shake the authority of the previous cases. Lord 
Kenyan says, " I cannot distinguish the present case from that of Har- 
man v. Fishej' on principle; for this bankrupt knew his insolvent situa- 
tion at the time when he wislied to deliver back t!ie goods in question to 
the defendant, as well as Ford3ce did in that case; there, Fordyce, find- 
ing that he was insolvent, was anxious to repay to the defendant some 
bills which the latter had lent him; and though those bills were as easily 
distinguishable from the rest of his effects as the iron in question was 
from tlie rest of this bankrupt's property, the Court there held, that it 
could not be done, because it would prejudice the other creditors of the 
bankrupt. Three cases, however, have been cited and pressed upon us, 
as deciding the present; but I think they are to be distinguished from 
this. In Jllkin v. Barwick the vendees, finding that tl^.eir affairs were in 
a declining condition, before the goods arrived at their house, in Corn- 
wall, refused to accept the goods, and thereby refused to become parties 
to the contract of sale: and though, when the goods did arrive by the 
waggon, the vendees could not turn them loose in the streets, yet they 
did what was tantamount to rejecting them, they sent them to a friend of 
thoconsignors for their use. In Salle v. Field, consider who was the party 
to the contract; not the clerk of the vendee, who lived in London, but 
Dewhurst, who was resitling in New York; and he, knowing his insol- 
vent situation, sent orders a month before the transaction in dispute took 
place, to his clerk here, not to |)urchnse any more goods for him. Tho 
clerk immediately on the rcfcipt of this order, applied to the vendors to 
take the goods back again, who agreed to rescind the contract." Barnes 
V. Freeland was decided on the ground that the acts were done in con- 
templation of l)ankr!q)tcy; hut in the present case there having bcou no 
bankruj)tcy, that j)rinciple docs not apply. 

It has been argued that the goods in the present case were finally de- 
livered before the stojipage took effect; but it has never been held that 
goods in the Ivmds of a carrier or wharfinger have been finally delivered 
except where the wharfinger has actually been the agent of the consignee; 
and those cases have all turned on attempts to defi;at a gcmeral body of 
creditors. In the present case the goods were not in the hands of tho 
vendee, nor were they stopped to defraud a general body of creditors; 
there is no ground therefore for impeaching the verdict which has been 
given, and the rule must he discharged. 

Park J. Slcjppoge in transitu is a right conferred on tnoritorious 
persons, and is not, as it has Ikoii argued, a hardsliip on any one ^^'ilh 
regard to the decision in ,^lkin v. Barwirk, it ^vas sanclioncil in liar 

\OI,. NV. 1 1 



Sli AXFOUIJ i'. 1*£1!KKTT, E. T. 1828. 

7)iun V, Fiaher, Cuwp. \.15; althoLigli some of the reasoning in the case 
was not agreed to. 

Suite V. Field came next, I argued the case, and did not succeed. 
It was determined that a contract had hcen 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 liad 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 t'ne 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 pa3Mnent 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 third person." The question seems to me 
clear in point of law, and the rule must be discharged. 

BuRRouGii 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. 

G-ASELEE J. concurred, and the rule was 

Discharged. 



AXFOUD v. PERRETT.— p. 58G. 

Allowini^ two years to chipse without pnH-.ecdins^s, Ilt^ld 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 oinon-pros was 
never bigaed in the county-court. 

Tins v/as an action on a rejjlevin-bond, for not prosecuting with efiect 
and without delay the suit in leplevin, according to the condition of the 
bond. Pleas: 1st, iion ent factmn; 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- 
I'c-ndant did not prosecute his suit according to the form and effect of the 
condition in the bond. 

At the trial before Gas^lec 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 rc])levin 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- 
I'ased, the county clerk alleging then, and at the trial, that after three 
courts had elapsed without any ])rocecdings 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 
lield t!;e office, a cause was considered to be in existence till a von-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 pi-osccuted the replevin suit \>ithout 
delay. 



4 Bingham, 586. 83 

Wilde Serjt. now moved to eet aside tliis verdict, and, assuming that 
tJie testimony of the older clerk of the county was the more worthy of 
credit, contended, that, according to that testimony, the replevin suit 
was still existing; and that, while a cause existed, according to the 
j)raclice of the court in which it was pending, it could not he said to he 
delayed: he referred to Brackcnburij 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 county court, and prosecute his suit, which was still 
dependijig, 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 Ehvorthy 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 Brachenhvry v. Tell was on 
special demurrer to the replication, and not after a verdict which found 
that the tiefendant 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. 



HINT V. HI.AQUIERE.— p. 5SS. 

Hail at. llie request of the dcfciuhuit's attorney, .idmisbiblc, if not indemnified by 

him. 



KMGIIT and Anollicr v. LECJII.— p. 589. 

K. being indebted to plainlilTs, ac;recd to deposit with phnntifTs, as agent to P., «. 
bill of exelumgc, as security for a sum advanced by 1*.; and liavinp; deposited 
the bill with piainiirTs, \vi-otc to them as follows; — "The bill you will hold, sub- 
ject to P. 's a/lvance; and also for any advances or CNpenscs you have against 
me." The bill having been, at the instance of the acceptor, surreptitiously 
taken by the defendant, Held, that the plaintifis might sue, and recover against 
him in trover, altlioiigh 1*. had pre\ iously sued him, and had recovered by the 
award of an arbitrator the amovnit of his advance. 

Tuis was an action of trover, brought by the plaintifis against defen- 
dant, to recover damages for the conversion of a bill of exchange by the 
defendant to his own use. At the trial of the cause before Best C. J., 
at the sittings in London, after jMichaelmas term 182(5, the jury found 
a verdict for the plainliffs, for the damages mentioned in the declaration, 
sul)ject to the opinion of the ('oiirt on the following case: — 

'i'he bill of exchange, for the conversion of which Ihe action was 
brjught, was iliawn 5lh N()verid)er li»2l, by one Thomas Claughton 
upon the dflendanf, leqiicsling him, ciiihlcen nutnlhs afterdate, to pay 
to the saifl Thomas (■|aiigliton\s order ."jOO/., value received, which bill 
>v.is after ward =5, and before il? nrgoliation, arcrptcd by the defendant. 



81 Knk.iit r. Liit.ii. E. T. 1S28. 

The bill li;uSiig I)l'cmi indwrscd by Claughtoii, he, on the Sth Decem- 
ber IS-'I, lU'livcrcil the same, with other bills of a like description, to 
one Thoinas Farquarson, who, with his consent, delivered the bill to one 
John Everth, for the purpose of raising money thereon by discounting 
or procuring a ileposit thereon, and such money, when raised, was to 
be employed, partly in making up the capita! of Evcrlh in a gun-manu- 
lactory in which he was interested, and for which ClaugiUon engaged to 
advance funds to a larger amount than tlie bill in question, and partly for 
other purposes of ClaugiUon, in which Everth had no concern. 

In the month of February iSS'li Evertli 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 plaintiff, Knight, kept by him at tiie bankers, 
he being the solicitor, both of the said bankers and of Everth, and that the 
bill should be deposited with the plaintiif, 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 I^yme Park, upon which you were kind enough to procure 
me the advance of 1000/. from Sir P. Pole, ]5art., and Co., you will 
j>lease 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 particularly, the bill was handed to me. 

" From tlic conversation which took place with Mr. Claughton, on 
Sunday last, I sh.ould 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 
U) a large amount, exceeding the amount of the bill in (juestion, of which 
icceptances the plaintiffs were aware, none of wiiich were ever paid by 
Aim, but all afterwai'ds taken up by defendant Logh. 

At the time of the date of the letter, the plalntiirs were, and for many 
years previously had been, the solicitors for Everth, who was then in- 
debted to them in a considerable sum for professional business transact- 
ed on his account, and became further indebted to them, subsequently 
to the date of the letter, both on his own account, and, also, in respect 
of the gun factory. 

In the jnonth of August liJ22 Everth applied to the plaintiff Knight, 
ir.tating that a jjerson of the name of Thornhill could get the bill discount- 
ed, provided the parties were .satLsficd that the liand-wriliiig t)f 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 Coutts 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 detaia 
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 certam 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- 
.spcct of the claims of an}'^ persons other than the plaintiffs Sir P. Polo 
and Co. 

The case was left by the Chief Justice to the jury with n 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 llie jury found for the plain- 
tiffs. 

The question for the opinion of the ('ourt 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 the plaintiffs were entitled to 
recover, the verdict was to stand; if not, a nonsuit was to be entered. 

Wilde Serjt., for the plaintiff:^, cited Morris v. liobinsoti, 3 B. & C. 
196. 

Peakc Serjt, fijr the defciidants. 

Best C. .1. The plaintills 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 Evcrtb, fur professional services; and it must 



86 Kmgiit v. Lech. L. ']". 1828. 

1)0 observctl lliat the banking; house on aJvancing the lUUO/. tlid not 
ilebit Everlh with that sum, hut Knight; it was, tlicreforc, 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/. atlvanccd to Everth, in case the bankers should have called 
on him (Knight) to pay that 1000/., he being the person debited by them. 
However, sujiposing Knight to have held the bill merely asagentof 
the bankers, still he was a lawful bailee, and had actual possession, which 
nould 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- 
lifl'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 jiroper, 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 j)laintiffs 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 expenses;'' that vested in the plaintiffs the gene- 



4 Bingham, 607. 87 

t must consequently be for 
Judgment for the plaintifl's. 



ral property in the bill, and the judgment must consequently be for 
them. 



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. 60G. 
An afRdavit 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 hill 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 the 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 heating ai)out three more. For this 
reason, it was his practice, and the })raclice of steam vessels generally, 
when they started in the morning, to till the boiler the preceding 
evening. 

The next morning it was ascertained that the pipe which conducts 
the water into the boiler had cracked, that a considerable quantity of 
water had escaped by this means into the hold, and that much of the 
cargo was damaged. The pipe was a sound and good onr^, and its burst- 
ing was occasioncfl by the action of frost on the external |)ortion 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- 
jjerly left there without heal to prevent the action of frost upon the pipn, 
liic mischief was not occasioned by the art of (lod, Ixit bv gross ncgli- 
gence. 

The jury having found for the [)l:iinlin', 



88 Batthews v. Galinuu. E. T. 1828. 

Taddy Scrjt. obtained a rule nisi for a new trial, on tiie 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 S^iith 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. 



(«') Park J. was at chambers. 



BENNETT v. DAWSON.— p. 609. 

Affidavit, that defendant was 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. 

Lawes 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. TVinsloto, 6 
Taunt. 531, and Machit v. Fraser, 7 Taunt. 171, as authorities to shew 
that the character in which the plaintiff claims must appear on the affi- 
davit. 

fVilde ^Gr]i. who shewed cause, relied on Bradshaw v. SaddingtoUy 
7 East, 94, where a similar affidavit was held sufficient. 

Best C. J. As tlie cases arc conflicting, we must follow common 
sense. Perjury might be assigned here, and that is the true principle to 
go on. We, therefore, 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 lias 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 Jakers; to the admission of whose 



4 Bingham, 610. 89 

tpstimony UllJe Serjt. objected, that slie had always heen held out to 
the world astlie wife of the defendant: as to whicli the evidence was, 
that she had lived in tlie 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 residfed, one of whom the defendant 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(«) 
in 1782, before Lord Kenyan, rejected the testimony of the witness, 
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. Laioes Serjt. obtained a rule nhi 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 V. Twemloiu, 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 
himself 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 liis mistress. ]3ut the mere circumstance of a woiuan's cohabit- 
ing with a man, tliough it goes to her credit, is no ground for rejecting 
her testimony. 

BuHRouGH J. It appears to have been admitted throughout the trial, 
that this woman was not the wife of thedefendant. If he had been sued for 
a debt contracted l)y her, he might have shewn that she was not his wife, 
and, as to reputation, it cannot be spoken of, inter vivas; it regards 
only the dead. 'J'lic case in Price has no application; for the prisoner 
called the woman his wife tliruugh tlie 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 
over and over again; in criminal cases as well as others. 

(i.ASELKR J. Without laying it down as a |)rinciple that there are no 
rases in which a party can put himself in a situation to preclude him 
from saying that a woman, \\]\o has passed as his wife, is not such, 1 
think the witness in this case ought to have been rc;ccived. In Macev. 
('(tdcll, ("owp. 2'.V.i, the plaiiitifl" INIace kept a public house, had a 
licence, and said she was mari'ietl to one l^ciu-icc. She went to the Ex- 
cise (Jllicc, had his name entered in the books, with a note in the mar- 
gii^. "married." Penrice had the licence, and continued in possession 
of the house and goods from that lime till he absconrlcd, committing 
thereby an' act of bankrn|)try. Maccr, the plaintifl", first claimed the 
goods in qucfttion, uiider a hill of sale from Penrice; but, afterwards, as 
hrr own original property, and (hniied that Penrice and she were mar- 
fa) Kcfrn-id It) by Milliards C. B. in Cinii/ibd[ \\ '/'ireni/'iti', 1 I'licf, «1. 

VOL. XV. ]■:> 



90 Bell v. Bilton. E. T. 1828. 

ried: The Court held, that, after a 5olemn declaration by the plaintiff 
that she was married to Penrice, and tliat these were the goods of Pen- 
rice in her right, she should never be allowed to say, that she was not 
married to hini, 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. Twemlow 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 \\ ith the award of a barrister. 

Best C. J. I am clearly of opinion that my decision at Nisi Prius 
w'as wrong; but I was led into error by the decision of Lord KenyoUy 
n'hich, 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, arid 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, but 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 dejure 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 crcilit 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 the 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.GlO. 

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 lOOA 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- 

BROOK.— 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 had placed in a certain garden of the defend- 
antaccn.iin 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 coidd be much hurt, maimed, and wounded; and thereupon 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 the said garden, from 
treading upon the wire, in ignorance that the same was so set, and there- 
by letiing off the gun and being injured by the discharge thereof. Yet 
the defendant, not regarding his duly in that behalf, wrongfully, wilfully, 
and n-.gligently suffered the gun to remain in his garden so loaded and 
set, without giving any such notice or warning whatever; by means 
whereijf the plaintiff, having occasion to enter into the garden, and not 
liaviii;/; 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 driven against the 
plainlill, and one of his legs was- maimed, and the jjlaintiff was other- 
wise injured, and became disordered, and so continued for a long time, 
by means whereof he sufl'ered groat f)ain, and expended a large sum of 
nionfy in his cure. 

The second count alleged, it was a duly of the defendant not to allow 
the spring gun to remain loaded in the day-time without notice, to pre- 
vent persons from treading; upon the wire from ij^norance that it was set. 

The third count described the spring gun as a certain dangerous en- 
gine, niailc 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 
the spring gun to remain in the garden without using due and proper and 
reasonable means or care to prevent such persons as might enter into or be 
in tbep;arden,from ignorantly and unwittingly treadingupon the wire com- 
municating with the lock ol" the gun; and that the delentlant diil not lake 
due and proper and reasonable care to prevent persons who might enter 
into or lie in the garden, (rom ignorantly and unwillingly treading upon 
the wire oflhc gun, and therfhy (•au>ing il lu be let ulf Thai deUMMhoit ii-- 



92 Bird v. Holuuook. K. T. 1828, 

glccteil and wholly refused so to do, ami on thcooiUrary,contrivingand in- 
lendinp; to injure the plaintiff, wrongfully and injuriously permitted ihc 
gun to remain so loaded and set with a wire, by means of which it might 
be let off and disoliargcd witliout any notice or warning, by means 
whereof the plaintiff not being able to ])crccive a certain concealed wire, 
and not having any notice or knowledge, or means of notice or know- 
ledge thereof, trod upon the said last mentioned wire, and the gun was 
thereby let off. Per quod, &c. 

The fourth count charged the defendant witli having set upon certain 
other ground of the defendant a spring gun, made with intent to lacerate, 
maim, and wound persons, being then and there-loaded with gunpowder 
and shot, and set with concealed wires; and thereupon it became tlic du- 
ty of defendant not to permit the gun to remain on the ground without 
taking due, proper, and reasonable means and care to prevent any person 
from ignorantly and unwittingly treading upon the wire, and causing it 
to be let off. 

The fifth count charged that the wires were concealed and impercept- 
ible, and that the defendant had taken no means or precaution what- 
ever to prevent persons from treading on them through ignorance that 
they were so set; and tlefendant wrongfully permitted the plaintiff in 
entering into and proceeding in the said last-mentioned ground, to tread 
upon the said wire so concealed and imperceptible, and unknown to the 
plaintiff. 

The sixth charged the defendant with setting a gun upon certain other 
land of the defendant, and alleged the breach of duty, in having taken no 
means or precaution whatever to prevent persons from treading on the 
Avire, and wrongfully and injuriously permitted the plaintiff, in entering 
into and proceeding in the said last mentioned garden, to tread upon the 
Avire. 

The cause was tried nt the Bristol assizes, 1S25, when a verdict was 
taken for the j)laintiff, by consent, damages 50/., subject to a case reserv- 
ed, with liberty to eiiher party to turn it into a special verdict. The 
following were the facts of the case: — 

, J^cfore, and at the time of tlie plain! ifi''s sustaining the injury complain- 
ed of, the defendant rented and occupied a walled garden in the parish 
of St. Phillip and Jacob, in the county of Gloucester, in which the de- 
fendant grew valuable flower-roots, and [)articularly tulips, of the choicest 
and most expensive description. The garden was at the distance of near 
a mile from the defendant's dv,^elling house, and above one hundred 
yards from the road. In it there was a summer-house, consisting of a 
single-room, in which the defendant and his wife had some considerable 
lime before slept, and intended in a few days after the accident again to 
have slept, for the greater protection of their property. The garden was 
surrounded by a wall, by which it was separated on the south from a 
footway up to some houses, on the east and west from other gardens, 
and on the north from a field, wiiich had no path through it, and was it- 
self fenced against the highway, at a considerable distance from the gar- 
den, by a wall. On the north side of the garden the wall adjoining the 
field was seven or eight feet high. The other walls were somewhat 
lower. The garden was entered by a door in tliewall. The defendant 
had been, shortly before the accident, robbed of flowers and roots from 
his garden to the value of 20/. and upwards: in consequence of which, 



4 Bingham, 628. 93 

for the protection of his property, with the assistance of another man, lie 
placed in the garden a spring gun, the wires connected with which were 
made to pass from the door-way of the summer-house to some tulip beds, 
at the height of about fifteen inches from the ground, and across three or 
four of the garden paths, which wires were visible from all parts of tjie 
garden or the garden wall; but it was admitted by the defendant, that the 
plaintiff had not seen them, and that he had no notice of the spring gun 
and the wires being there; and that the plaintiti'had gone into the garden 
for an innocent purpose, to get back a pea-fowl that had strayed. 

A witness to whom the defendant mentioned the fact of his having been 
robbed, and of having set a spring gun, proved that he had asked the de- 
fendant if he had put up a notice of such gun being set, to which the de- 
fendant answered, that "he did not conceive that there was any law to 
oblige him to do so," and the defendant desired such person not to men- 
tion to any one that the gun was set, "lest the villain should not be de- 
tected." The defendant stated to the same person that the garden was 
very secure, and that he and his wife were going to sleep in tiic summer- 
house in a few days. 

No notice was given of the spring gun being placed in the garden, and 
before the accident in question occurred, another person to whom the de- 
fendant mentioned the factof his garden having been robbed of roots to 
the value of 20/., and to whom he stated his intention of settingaspring 
gun, proved that he had told the defendant that he considered it proper 
tiiat a board should be put up. 

On the 21st March 1S25, between the hours of six and seven in the 
afternoon, it being then liglit, a pea-hen belonging to the occupier of a 
house in the neighbourhood had escaped, and, after flying across the 
field above mentioned, alighted in the defendant's garden. A female 
servant of the owner of the bird was inpursuit of it, and the plaintifl" (a 
youth of the age of nineteen years), seeing her in distress from the fear 
of losing the bird, said he would go after it for her: he accordingly got 
upon the wall at the back of the garden, next to the field, and having 
called out two or three times to ascertain whether any person was in the 
garden, and waiting a short space of time without receiving any answer, 
jumped down into the garden. 

'J'he bird took shelter near the summer house, and the boy's foot com- 
ing in contact with one of the wires, close to the spot where the gun was 
set, it was thereby discharged, and a great part of its contents, consisting 
of large swan shot, were lodgctl in and about his knee-joint, and caused 
a severe wound. 

The question for the opinion of the Court was, whether tlie plaintiff 
was entitled to recover: if so, the verdict was to slamJ; otherwise a non- 
suit was to be entered. 

pn/cle Serjt. for the plaintifT, cited 2 Inst. 31 G; East's Pleas of the 
Crown, vol. i. 273. 2SS; liegiiia v. Alawgridge, Kclyngc, 132; 
Hale's Pleas of 'the Crown, 473. 48G. ; Deanc v. Clayton, 7 Taunt. 
518; Ilottw. IVilks,^ B. & A. .308. 

Alereivether Serjt. for the defendant, cited Blilhe. v. 'I'ojihaui, 1 Rol. 
Abr. 88, Cro. Jac. 158; Brock v. C'opcland, 1 Ksp. 20J. 

JVilde in reply. 

Bkst C. .f. I am of opinion that this action is maintainable. If any 
thing which fell from mc in lio/i v. ff'il/cs were at variance with the 



91 BiuD r. IIoLUKooK. E. T. 1828, 

o])inioii I now cxprt'ss, I slioulil not hesitate to retract it; but the ground 
on which the jiuigmcnt of tlic (^^ouit turned in tliat case, is decisive of 
the present; and I should not liave laboured the point that the action 
was not maintainable in that case on the ground that the plaintiffiiad re- 
ceived notice, unless I had deemed it maintainable if no notice had been 
given. Abbott C. J. says: ♦< Considering the present action merely on 
the ground of notice, and leaving untouclied the general question as to 
the liability incurred by placing such engines as these, where no notice 
is brouglit home to the party injured, I am of opinion that this action 
cannot be maintained." Jiayley J. says: " This is a case in which the 
plaintifl' 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 he 
does not take due and pi'oper means, by giving notice, to prevent the 
injury which those engines are calculated to produce." llolroyd 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 tliat 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 evci y line of conduct 
which humanity or religion may require; but there is no'iact 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 gi^ilty of an inhuman act, and that, 
if injurious consequences ensue, he is liable to jncld 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- 
})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 weiglit 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 ])rohibitory as to pari; declaratory as 
to the setting of spring guns without 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 
Jirock v. CopelanJ, J^ord Kenyan proceeded on the ground that the 
defendant had a rigiit to keep a clog for the preservation of his house, 
and the plaintilT, who was his foreman, knew w^hcre the dog was stii- 



4 BiXGHAM, 628. 95 

tioned. The case of the furious hull is nltogethcr different; for if o mnn 
places such an animal where there is a public footpath, he iiitcrferea 
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 v. Clayton, I incline to 
the opinion expressed by my brothers Park and Burroxip,h. But iti 
Deane v. Clayton, the plaintiff, the master of the dog, had a right to 
jiunt in the wood adjoining that in which the dog was spiked; there was 
no visible boundary between the 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. JVilks 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 confme myself at present to the facts before the Court. Whether 
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 h.ui done, and his 
even expressing a desire to conceal it. In Ilott y. Jl'ilks, the whole 
(Jourt proceeded on the ground that the j)laintill 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 the 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 decided that it is 
imperative on the party using the engine to give notice. But in Ilntt v. 
f rules, the Court, one and all, decide on the ground ol' notice, and */2b- 
t)ott (y. J. 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, 
whcie no notice is brought home to the party injured, I am of ojiinion 
that this action cannot be maintained." It has been asked, where has 
it been laid down that notice must he given? I answer, by %flbholt C..T. 
in the passage I have just read; and by Bnylry J. in the same case; 



96 Harkis v. Bf.avan. E. T. 1828. 

** Allhough it may he lawful to put lliose instruments on a man's own 
ground, vet, as they iire calculatctl to produce great bodily injury to in- 
nocent j)crsons (for many trespassers are comparatively innocent), it is ne- 
cessary to give as much notice to the public as )'0u can, so as to put 
pcoj)le on their guard against the danger." One case precisely in point 
lias not been adverted to; it is that oi Jay v. JVhitfield, 3 13. & A. SOS, 
(in the ai-gument in Holt v. flllks.) Tliere the plaintiff, a bo}^, having 
entered the defendant's premises for the purposes of cutting a stick, was 
shot by a spring gun, for which injury he recovered 120/. damages at 
the Warwick Summer assizes 1S07, before Richards C. B., and no at- 
tempt was made to tlisturb the verdict. 

BuRROUGH J. Tlic common understanding of mankind shews, that 
notice ought to be given when these means of protection are resorted to; 
and it was formerly the practice upon such occasions to give public no- 
tice in market towns. But the present case is of a worse complexion 
than those which have preceded itj for if the defendant had proposed 
merely to protect his property from thieves, he would have set the spring 
guns only by night. The plaintifl' was only a trespasser: if the defend- 
ant had been present, he would not have been authorized even in taking 
him into custody, and no man can do indirectly that which he is for- 
bidden to do directly. I held that, in Deanc v. Clayton, There, the 
defendant was owner and occupier of a wood adjoining a wood of Mr. 
Townshend's, and divided from it by a low bank and a shallow ditch, 
not being a sufficient fence to prevent dogs froni passing from one wood 
into the other. There were public footpaths u-ithout fences through the 
defendant's wood. The defendant, to preserve hares in his wood, and 
prevent them from being killed therein by dogs and foxes, kept iroa 
spikes screwed and fastened into several trees in his wood, each spike 
having two sharp ends, and so placed that each end should point along 
the course of a harc-patli, at such a height from the ground as to allow 
a hare to pass under them without injury, but to wound and kill a dog 
that mij;ht happen to nm against one of the sharp ends. The defendant 
kept notices printed on boards j)laced at the outsides of the wood, that 
steel traps, spring guns, and dog spikes were set in the wood for ver- 
min. But the plaintiff, with Mr. Townshend's permission, being out 
shooting in his wood with a valuable pointer, and a hare which was 
started being pursed by the dog over the bank and ditch, into the de- 
fendant's wood, the dog ran against one of the sharp spikes, and was 
killed, although plaintiff endeavoured to prevent him from entering the 
defendant's wood. 

Here, no notice whatever was given, but the defendant artfully ab- 
stained from giving it, and he must take the corisequence. 

Gaselee .1. After the decision in Ilott v. JVilks, it is impossible to 
say that this action is not maintainable. 

Judgment for the plaintifT. 



HARRIS and Another v. BEAVAN.— p. G4G. 

Tlic assignee of the reversion snint^ defendant in covenant, alleged that the lessor 
was seised (without stating of what estate), and being so seised, devised to 
jilaintifF in fee. 

After verdict: Held, a siifiicient allegation of title. 



4 BiNtmAM, 646. 97 

The declaration staled, that Charles Bartholomew being seised of one 
undivided nioicly of certain tenements, by an indenture of 17S4 be- 
tween Charles liartholomew of tlie first part, Archdall Harris of the se- 
cond, Eleanor Harris of the third, and John Paggett of the fourth, they, 
Charles, Archdall, and Eleanor, demised the tenements to John Paggett 
for forty-five years, at the yearly rent of 40/., yielding to the said 
Charles, in respect of the said moiety, 20/. yearly: — covenant by John 
Paggett with Charles Bartholomew, his heirs and assigns, to pay to hina 
the rent of 20/. in respect of the said moiety: covenant with Charles, 
Archdall, Eleanor, and their heirs and assigns, to repair: — 

That Paggett entered, and that afterwards his interest and term of 
years yet to come vested in the defendant by assignment, and that de- 
fendant entered. 

That Charles, being so seised as aforesaid, in 1S22 devised the de- 
mised premises of him, Charles, to the plaintiffs and their heirs, and the 
same year died so seised of the reversion in the demised premises, 
whereby the plaintiffs became seised of the said reversion in the said de- 
mised premises. That while the plaintiffs were so seised of the said re- 
version, 10/. became due from the defendant for two quarters of the rent 
aforesaid. Breach, non-payment and non-repair. 

A verdict having been found for the plaintiffs at the INIiddlescx sittings 
after last Michaelmas term, 

fVilde Serjt. moved in arrest of judgment, that the declaration only 
stating that Charles Bartholomew was seised, without saying of what 
estate, it did not appear that he was seised of a sulTicient estate to demise 
to Paggett for forty-five years, much less to devise to the plaintiffs in 
fee. If his seisin were only for life, and it was nowhere averred to be 
in fee, he could do neither the one nor the other, so that the plaintiffs 
had shewn no title which could authorise them to sue the defendant. 

A rule nisi having been granted, 

TiuUhj Serjt. shewed cause, and referred to Ilobsnn v. Middleton, G 

B. & C. 302; Hex v. Bishop of Llundaff, 2 Str. 1012. 

IVildey contra, cited 1 Wms. Saund. 234«. note 3; Com. Dig. Pleader, 

C. 36; Carth. 9; Vin. Abr. Title, i). 10. F. 1; Carvick v. Bfa^rave, 1 
B. & B. 530; Bro. Abr. Pleadings, 33; Year-Book, 24 E<l. 3. 75. 

Bkht C. J. 'J'he plaintiff's title is very im|)orfe('tly staled, but it is 
suflicient after v(;rdict. No doubt, when assignees of a reversion sue, 
they must deduce title hiixn the original lessor. The phi i tit ids havi! 
done so: they allege that the. original lessor was seised, ami though 
there is ambiguity in the expression, it is cured by pleading over, and 
the finding of the jury. 

(lASKr.Ki: .1. Ill the case from 11 Modern lioporls, referred loin 
Vin. Abr. Title, I)., Jl'illr.t v. liosntmh, (1 I Mod. 17!',^ covenant was 
l)roiiglil by an heir, for rent, ag.iinsl the assignee; but it was not set 
forth in the declar;ilion ibnl the ancestor was seised of any estale win ri 
In: inad(; the demise: the Cfnirl held that bad, because it did not appe.ir 
that the ancestor had any estate; and Sravdi^i' v. //t/if'/,-ins, (-ro. Car. 
571, being referred to^ ffo// C J. s;iid, *< 'I'he case of .Stv/tv/ifc v. J fuu- 
/rins is well on issue joined, be<'aiise it .shews the father was sciised. ' 
The case F. I. does not ajipear to have been after veidifl. 'I'he rule 
thr-refore must be 

Discharged. 

vor,. XV. 13 



98 WADiintN r. Mo h his. E. T. 1S28. 



PxADBURN V. MORRIS and BOTTOMLEY.— p. G49. 

B., called as a witness for the defendant in an action brought by the ])laintifrfor a 
barge which VV. had placed in the hands of defeiulaut, and which, it was al- 
leged, H. had sold to the plaiiitifV first, and then to W., was liolden a compe- 
tent witness for the defendant, having been released by W. 

Trover for a barge. 

The plaintifl" claimed the barge under a purchase from Buckman. 
The defendants, who were partners, claimed it under Wilson, who, it 
Avas alleged, had also purchased it of Buckman. 

At the trial before Burroiigh J., London sittings after Michaelmas 
term, Buckman was calleil 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. 

JVilde Serjt. shewed cause, and cited Jiilamson v. Jarvis, 4 Bingh. 
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; Abra- 
hams V. Biinn, 4 Burr. 2254. 

Best C. J. 1 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 confmed to his interest in the immedi- 
ate cause. But if it were necessary for Wilson to release, I am of opinion 
tliat he has sufficiently done so. Where at the time the instrument is 
executed the transaction has occurred out of which the future action, if 
any, is to arise against tlie 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 confine my opinion to the last point: the witness was, at 
all events, rendered competent by the release from Wilson. Morris and 
h.is 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 say whether the first release were valid or not, though 
I am inclined to think it was, because it related to a transaction in which 
ilic three relcssors were all concerned, liutas an action could only have 
been maintained against Buckman by Wilson, his release is sufficient. 

Rule absolute. • 



4 BiNGUAM, 653. 99 



ROUTLEDGE v. GRANT.— p. G53. 

1. Defendant having offered to jjurcliase 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 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. lor a term of thirty-two years. Held, a material variance. 

3. Defendant offered to purchase a liouse upon certain terms, "possession to be 
given on or before 25 th July;" plaintiff agreed to the terms, 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 December 1S5(); 
and that defendant agreed on the 29th April 1S25, upon receiving a lease 
for twenty-one years, at 250/. a year rent, with the option of having the 
time extended to thirty-one years, on giving six montiis' notice, and, 
upon having possession on tlie 25th 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 plaintiff to be entitled to a certain term, 
to wit, a term of thirty-two years, in the dwelling-house, under a certain 
contract between the plaintiffand Anthony Hermon, who was authoriz- 
ed in that behalf; and then statetl the agreement with the defendant, ami 
the breach, as before. 

The third count alleged jjlaintill" to be possessed for the residue of a 
certain t»;rm, to expire 25th December 1S56; and the agreement, tender 
of lease to defendant, and breach, as before. 

At the trial before Best C. J., London sittings after Michaelmas term, 
it ajjpcarcd, 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 pay a premium of 2750/., upon receiving a lease for twenty-one 
years, with the option (u|)on giving six months' j)revious notice to the 
landlord or his agent) of having the time extended to thirty-one years, 
paying the same yearly rent as before, for such extended term of ten years 
beyond twenty-one years. 

"Kent, 250/. 

"Mr. Grant to pay for the fixtures at a viduation, ))ossession to be 
given on or before 25th July next, to which time all taxes and outgoings 
arc to Ik; discharged by Mr. Houtledge; and a definitive answer to be given 
within six weeks from the 18th March 1825." 

The plaintiff, who at this time bad only a term of twelve years in the 
j)rcmises, had to apply to his landlord for a new lease, before he was in 
cuntlition to accept the defendant's ofi'er. The plaintilf having cotne to 
an miderstanding with his landlord, wrote the following note t<j the de- 
fendant: — 



100 KUUTLKDCI:: u. (luANT. K. T. 1828. 

"Mr. Routlcdge bogs to s;iy tluil lie accepts Mr. (liaiit's oHer Cur liij* 
house, No. 5f> St. James's Slicet, and lliat lie will }j;lve Mr. (Iraiit \)oa- 
session on tlie first of August next. 
"Si. .himes's Street, (ith April iS'jr.. 

"Mr. II. will esteem it a j)aiticular favour if 
Mr. Grant will not, for the present, name 
the subject to any one." 

The defendant returned the following answer: — 

"7th April 1825. 

"Sir, — I received your note last night, and hasten to actjuaint you, 
that having considered as confidential the negotiation respecting your 
liousc, I had mentioned it to no one; but, ui)on consulting with a friend 
this morning in whose opinion 1 have more confulence than ni}' own, 
I am advised, for some reasons which had not occurred to myself, not 
to think of taking a house in St. James's Street for a dwelling-house. 
INIay I therefore request you to permit me to withdraw the proposal I 
made to you about it? I am in hopes you will make no hesitation to do 
this, when you consider the spirit of candour and openness in which it 
was made to you. 13ut sbould it he otherwise, as I am the last that 
would willingly act with inconsistency, I will willingly refer the ques- 
tion to friends for decision, and abide by their opinion of the case. 

"I have the honour to be, &c. 

"Alex. Grant." 
"Mr. Thomas Routledgc." 

To this the plaintiff replied as follows: — 

"Sth April 1S25. 
"Sir, — In answer to your letter of yesterday, I beg to state, that rely- 
ing upon your performing the agreement fur the purchase of my house 
in St. James's Street, I have taken anotiicr house, and made arrange- 
ments which I cannot without great los.s relincjuish. 1 hope, therefore, 
that you will not wish me to willuliaw it. 

"I am, «S:c. 

"Thos. Roulledge^" 
^'Alexander Grant, Escjuirc." 

The defendant rejoined, — 

"9th April 1S25. ^ 

"Sir, — Your note of yesterday surjiri.scd me, being altogeliier at vari- 
ance with your convcrsalion with me two or three hours j^revious to your 
note, dated on the evening of (>lli, in which, you must recollect, you 
one moment declared yourself olf; and fuially, you went away to have 
the opinion of Mrs. lioutledge, about the answer you were to send me. 
How, therefore, you can, under such circumstances, suffer loss and in- 
convenience from my declining to ])roceed further in the treaty, I am at 
a loss to imagine; and 1 was in hopes you would have been satisfied with 
Avhat I had stated in iiply to your first note, to have had the liberality 
of letting the matter tlroj). lUit if that should not be your intention, I 
have only to add, that you may proceed with your claim for "loss and in- 
convenience" as you may think most advisable. 

"I am, &c. 

"Alex. Grant." 
"JNIr. 'I'lioniai Routledg'.-." 



4 Bingham, 653. 101 

Tlie plaintilT after this surrendered the existing lease to liis landlord, 
and obtained from him a new one, dated 21st April 1825, from the 25th 
December 1S24, for thirty-two years, for the same clear yearly rent of 
250/., payable quarterly; in which the covenants on the part of the lessee 
were similar to those in tl>e former; and then wrote the defendant the fol- 
lowing letter: — 

<<Sir, — Upon referring to my letter to you of the fjth instant, accept- 
ing your offer for my house, No, 59 St. James's Street, I perceive that I, 
by mistake, stated that I would give possession on the first day of Au- 
gust ne.vt. IJy your offer, you state that possession is to be given on or 
before the 25th July next; and I inform you that I am ready to give you 
possession according to your proposal. 

"I am, &c. 

"Thos. Routlcdge." 
"29th April 1S25." 

This letter, on the day it was dated, was delivered at the defendant's 
house; and the keys, and a lease of the premises in question, according 
to the agreement, were tendered to him before the 25th July, but re- 
jected. 

The six weeks, from the ISth March 1S25, within which, by the de- 
fendant's proposal, a definitive answer was to be given, expired on the 
1st May 1S25. 

Upon these facts it was objected, first, that the plaintiff being allowed 
six weeks to accept or reject the defendant's offer, the defendant was en- 
titled, also, until it was accepted, to retract, at any period before the ex- 
piration of the six weeks; that there was no acceptance of the terms pro- 
posed, till the 2yih of April, which came too late, the defendant having 
retracted his proposal on the 9th. Secondly, that the plaintiff" hail not, 
before the defendant withdrew his proposal, any such interest in the 
premises as he was alleged to have in the declaration, or as would have 
enabled him to accede to that proposal. The plaintiff" was thereupon 
nonsuited, with leave to move the Court to set the nonsuit aside. 

Tudihj Scrjt. accordingly obtained a rule nhi to set aside this nonsuit, 
and 

fVildc Serjt. shewed cause, and cited Kcnnedj/ v. Lee, 3 Meriv.-151; 
AdarriH v. Lindsclt, 1 I J. & A. GSl; Coolce v. O.rley, 3 T. R. G53. 

Taddij and Jones Serjts. in support of the rule, referred to Carvic/c 
V. lilafrrave, 1 IJ. & IJ. 53G, 4 Ji. M. 303. 

JiKST C. J. The nonsuit was right on both grounds. I put it on the 
same footing as I did at Nisi Prius. Here is a i)roposal by the defendant 
to take property on certain terms; namely, that he should be let into 
possession in July. In that proposal he gives the phiintill" six weeks to 
consitlcr; but if six weeks are given on one side to accept an offer, the 
other has six weeks to put an end to it. One party cannot be bound 
without the other. This was expressly decided in Cooke v. Oxlt-i/, 
where the defendant proposed to sell, at a certain price, tobacco to tin; 
l)laintifl!', who desired to have till four in the afternoon of that day to 
agree to or dissent from the proposal; with which terms the defendant 
complied; and (he plainlilf having aflcrwards sued him for non-delivery 
ol the tobacco, Lord Kctii/on put it on the true ground, b}- saying, " At 



102 ROUTLEDGE V. GllANT. E. T. 1828. 

the time of entering into this contract the engagement was all one side; 
the otiiei- parly was not bound." Bullcr J. said, " It has been argued 
that this must be taken to be a complete sale from the time the condition 
was complied with: but it was not complied with; for it is not stated that 
the defendant did agree at four o'clock to the terms of the sale; or even 
that the goods were kept till that time." 1 put the present case on the 
same ground. At the time of entering into this contract tiie engagement 
was all on one side. In Fayne v. Cave, 3 T. It. 14S, it was holden 
that the defendant, who had bid at an auction, might retract his biddingany 
time before the hammer was down, and the Court said, " The auctioneer 
is the agent of the vendor, and the assent of both parties is necessary to 
make the contract binding; that is signified on the part of the seller by 
knocking down the hammer, which was not done here till the defen- 
dant had retracted. An auction is not unaptly called locus 2}ce?iiient lie. 
Every bidding is nothing more than an oiler on one side, which is not 
binding on either side till it is assented to. But, according to what is 
now contended for, one party would be bound by the oiler, and the 
other not, which can never be allowed." 

These cases have established the principle on which I decide, namely, 
that, till both parties are agreed, either has a right to be off. The case 
oi Adani'i v. Lindsell is supposed to break in on them; but I think it 
does not, because the Court put it on the circumstance that the offer was 
made by the post, and say, '• If the defendants were not bound by their 
cflTer when accepted by the plaintiOs, till the answer was received, then 
the plaiatilFs ought not to be bound till after they liad received the noti- 
fication that the defendants had received their answer and assented to it. 
And so it might go on adinjiiiituni. The defendants must be consid- 
ered in law as making during every instant of the time their letter was 
travelling, the same identical ofler to the plaintiffs; and then the contract 
is completed by the acceptance of it by the latter." If they are to be 
considered as making the offer till it is accepted, the other may say, 
" make no further ofier, because I shall not accept it;" and to place them 
on an equal footing, the party who offers should have the power of re- 
tracting as well as the other of rejecting: therefore I cannot bring myself 
to admit that a man is bound when he says, " I will sell you goods upon 
certain terms, receiving your answer in course of post." However, it 
is not necessary to touch that decision, for the reasoning of the Court 
coincides with the principle on which we now determine. As the de- 
fendant repudiated the contract on the fJth of April, before the expiration 
of the six weeks, he had a right to say that the plaintifl' should not enforce 
it afterwards. 

But upon the question of variance, we are all of opinion that none of 
the counts apply. It is not necessary, perhaps, that the termini of the 
plaintiff's lease should be set out with precision: but the variance is fatal, 
if the plaintiff has not at least an interest which will enable him to per- 
form his contract. The variance is not in words, but in substance. 
The plaintiff had no such term as that stated in the first and third counts. 
In the second, he states he had a contract for a lease: — such a contract, to 
be valid, must be in writing, and he cannot be said to have had it unless 
lie had it in writing. But there was no evidence of any such contract; 
and, therefore, upon both grounds, the rule must be discharged. 



4 Bingham, 653. 103 

IkiRROUGH J. {a) coincided in discharging the rule on the ground of 
variance. 

Gaselee J. If this case had rested on the first point, I should have 
nishcd for time to consider it; but on the ground of variance, I have no 
doubt that this rule must be 

Discharged, 
(a) Park J. was at chambers. 



JONES and Another V. STUDD.— p. 663. 

Where, tn an action on a bill of exchange, the defendant pleaded a rambling de- 
murrable plea, which appeared to l)e a trick on the face of it, the Conrt or- 
dered it to be struck out on an affidavit of its falsehood, giving the defendant 
leave to plead de novo, and requiring him to try at the next sittings. 

Assumpsit. In the first count of the declaration, the plaintiffs, as 
indorsees, sued the defendant as drawer of a bill of exchange for 857/. 
10^. due September 27ih, 1S26; the second and other counts were for 
goods sold, money lent, &c. 

The defendant pleaded 7io?i assumpsit as to the second and subsequent 
counts, except as to 857/. lOs. parcel of the sums mentioned in those 
counts; and as to the S57/. lO^-. in those counts, aclio non, because after 
the making of the supposed promises in the declaration mentioned, and 
before the suit commenced, the defendant drew his bill on Fraser and Co. 
in favour of Lupton, who on the 1st of April 1828 indorsed to plaintiffs, 
whereupon defendant became liable to pay plaintiffs the amount, et hoc 
vcrificare, &.c. 

And as to the supposed promise and undertaking in the first count; 
that before the bill of exchange therein mentioned became due, the 
])hiintiffs indorsed the bill to persons unknown to the defendant, and 
delivered it to them; and that it remained in the hands of such persons; 
whereupon the defendant became liable to pay them the sum in the de- 
claration mentioned; el hoc verificare, &c. 

Upon an ailidavit by the plaintilfs, that the bill indorsed to thcni 
by Lupton on the 1st of A])ril, a few days after it was made, had re- 
mained in their hands till it was discounted by their bankers; but that 
being afterwards returned by the bankers, the plaintiff gave them a check 
for the amount, and never again put the bill in circulation; that after it 
became due they received a letter from the defendant, praying indul- 
gence. 

Tadihj Serjt. obtained a rule nisi^ to strike the second and third j)leas 
out of the jjlea pleaded, [a) 

Jones Serjt. who shewed cause, contended, that if these pleas were 
struck out, a part of the declaration would l)e uiianswitred, and rctlicd on 
Smith V. I}(iclcu)cU, Ante, 512, where the Court resolved not to interfere 
with pleas on motion, unless they were a mockery of tb(i Court, or re- 
f|uircd different modes of trial, or were likely to perplex the pl.iintiff 
unnecessarily with nice points of law. 

The Court thought this a plea of the latter description, clearly demur- 
rable, and a mere trick on the face of it. 

Gaselee J. said, I think this is a proper and merciful application, 

(«) Sic. 



104 Dixox r. IIoviLL. E. T. 1828. 

and tliat the rule oni2;lit to ho mode ahsoUilc, with leave for the defen- 
dant to plead tic novo, uj)on hi.-> uiulertakini:; to try after term. Smith v. 
Ji(ic/i'icc/i was decideil with reference to a particular plea pleaded in that 
case; but the present case falls within the principle laid down ia 
lilcwilt V. Marsden, 10 East, 237, where the Court said, "That there 
might be occasions where they would not enter into any question as to 
the truth of a plea of judgment recovered, pleaded in the usual form, 
ujion motion, but await the time for j)roducing the roll when such a plea 
would be regularly disproved; but they expressed great indignation 
against the abuse which had grown up of late, and was continually in- 
creasing, of loading and degrading the rolls of the Court with sham pleas 
of this nonsensical nature, making them the vehicles of indecorous jest- 
ing: by which it sometimes happened that the time of the Court, which 
ought to be better employed, and was sufficiently engaged with the real 
business of the suitors, was taken up in futile investigations of nice points, 
which might arise on demurrers to such sham pleas. And, therefore, 
in order ellectually to put a stop to this practice in future, they made 
the rules absolute in this and several other causes, wherein the same 
form of plea had been filed." 

Rule absolute. 



DIXON and Another v. HOVILL and Another.— p. G65. 

Plaintiff engaged to effect for defendant an insurance with such names as should 
be to defendant's satisfaction. The voyage having been performed, and the de- 
fendant never having required to see the names on the policy: Held, that in an 
action for the premium, he could not object that the names of the underwriters 
had never been exhibited to him for his approval. 

The defendants being about to send deals by the plaintiffs' ship, the 
Brothers, found, thut in consequence of reports against her sea-worthi- 
ness, they could not effect an insurance on their goods at so low a rate 
as if they vveresent by a ship of good character, even of the second class; 
whereupon, in consideration that they would not abandon their design to 
send the deals by the plaintiffs' ship, he undertook to effect an insurance 
on the deals at the ordinary rate, with names to the defendants' satisfac- 
tion, pursuant to the following agreement: — 

''Messrs. Ifovill and Sons, — I hold myself responsible to effect an 
insurance for your goods on board the I'rothers (Cape of Good Hope,) 
valued 300/., at 40,s. per cent, with such names as shall be to your satis- 
faction, you paying such premium. 

" Thomas Dixon, Senior. 

"P. S. — If the j)remium of second class ships' insurance should ex- 
ceed 40*. premium, such premium as is given we hav'e no objection to 

pay- 

"J. HoviLL." 

The plaintiffs being thus authorized to effect an insurance on the deals, 
cfiected an insurance in the name of lloskin and Russell, brokers, for 
1000/. ; 700/. on the ship, and the interest in the remaining 300/. declar- 
ed on deals. 'I'he policy was left in the hands of lloskin and Russell, 
plaintiffs' brokcis, and the names of the underwriters were never shewi\ 



4 Bingham, 665. 105 

lo the defendant. The ship sailed in November 1826, and performe 1 
her voyage to the Cape ol' Good Hope in safety; and the defendants, 
who knew that their goods had been insured, never enquired about the 
names of the underwriters, or took any exception to ''their suificiency. 
Having afterwards refused to repay the plaintiff the premium which he 
had paid for them on the poHcy, he souglit to recover the amount in this 
action for money paid to the defendants' use. At the trial before Gaselee 
J., London sittings after Michaelmas term, upon proof of the foregoing 
facts, a verdict was found for the plaintiff, notwithstanding it was object- 
ed, that to entitle him to claim against the defendants, he ought to have 
exhibited to the defendants the names of the underwriters, to ascertain 
whether they were satisfactory or not, b -fore he effected the insurance ; 
and that an authority to effect an insurance on goods did not warrant the 
plaintiffs to effect an insurance on ship and goods. But upon these 
objections, E. Lawes Serjt. having obtained a rule nisi to enter a non- 
suit instead of a verdict, 

JVilde Serjt., who shewed cause, contended, that the obvious mean- 
ing of the agreement was, not that the names of the underwriters should 
be submitted to the defendants for their approbation, but that they should 
be names to which no person could take exception; and that the defend- 
ants having had the advantage of the policy without making any objec- 
tion, could not now say they had not been satisfied. With regard to the 
authority, it had been substantially pursued; for the interest of the plain- 
tiffs in the deals being declared, it was immaterial whether the insur- 
ance was separate or joined in an insurance on the ship. 

Lawes, contra, cited Dosioell v. Impei/, 1 B. & C. 173; statute 5 G. 
2. c. 30; Thirshy v. Helbot, 3 Mod. 272; Humjjhries v. Carvalho, 
IG East, 45. 

Park J. (a) There is no ground for the objection which has been 
made. The language of the agreement is, "1 hold myself responsible 
to effect an insurance on your goods on board the Brothers (Cape of Good 
Hope J, valued at 300/., at 40^. per cent., with such names as shall be to 
your satisfaction, you paying such premium." It never was intended 
that the names of the underwriters should be submitted to the defend- 
ants for previous apjjrobation, but merely that they should be unexcep- 
tionable names; names of persons competent to pay in case of loss. 
Then the insurance was effected in November 182(); the voyage to the 
Cape of Good Hope was successfully completctl; the defendants never 
called for the names of the underwriters; thry had the advantage of the 
protection derived Irom the insurance during the whole voyage, and 
now they refuse to pay the premium. The objection has been raised 
on the word satisfdclion, which we are called on to read as (tpproba- 
tion. In Thirsbjj v. Ilclhot, and ILiniphries v. Carvalhn, approved 
is the word employed. As to Doswdl v. Iinpci/, it is a very far-fetched 
analogy, to compare the language of a statute giving commissioners 
authority to commit where an answer is not made to their satisfaction, 
with the language of a contract, by which a party engages to procure a 
policy with names to the satisfaction of the person insured. 

With respect to the second objection, it is entirely without weight. 
The insurance was effected on the goods, and though the policy was in 

(a) lirnt C. J, was j^oiu- lo rlumibrrs. 

VOL. XV. 11 



106 Robertson v. M 'Doug all. E. T. 1828. 

the hands of Ihe hroker, the defeiulants mii:!;ht liavc sued on it, averring 
interest in tlieniselvcs, and a court of equity would have compelled the 
broker to produce it for tlie purposes of the suit. 

BrRKOUGH J. If I had fully understood the nature of the objection, 
I should not have concurred in granting a rule 7iisi. 

Gaselee J. Whatever right the defendants might originally have 
had to enquire into the sufficiency of the underwriters, it is too late for 
them now to take the objection, after lying by so long. This rule must be 

Discharged. 



ROBERTSON v. M'DOUGALL.— p. 670. 

The j)laintiflr havin,^ advertised for sale abond, executed to him l)y the defendant, 
the payment of which had Ijcen resisted in a long course of litigation in which 
the validity of the bond had been disputed, the defendant published, among the 
persons assembled to bid for the bond at an auction, a statement of all the cir- 
cumstances under which the bond was given, and alluding to the plaintiff, con- 
cluded — " His object is either to extract money from the pocket of an unwary 
purchaser, or, what is more likely, by this threat of publication, to extort money 
from me :" 

Held, that this exceeded the latitude allowed for privileged communications, or 
observations on titles by a party interested; and that it was a libel, although 
no express malice was proved. 

The plaintiff having had differences with one ^neas Morrison, agreed 
to submit them to arbitration, and the defendant, a London attorney, 
became suret}', by bond, for the performance of the award by ^Eneas 
Morrison. 

The deed of submission, bearing date June 1S23, contained a proviso 
that it should not vacate on the death of either of the parties. 

-^neas Morrison died in September 1823. 

The arbitrator published his award in August 1824, and directed a 
sum of money to be paid to the plaintiff; which not having been paid, 
he sued the defendant on the above-mentioned bond. 

The defendant suffered judgment by default in the King's Bench, but 
brought error in the Exchequer Chamber, upon which the chief ground 
of defence was, that, notwithstandingtheclause in the deed of submission, 
the award was void, as having been made after the death of JEneas 
Morrison, (4 Bingh, 435). He also filed a bill in equity to restrain the 
plaintiff from proceeding on the bond, and to compel him to go into all 
the matters which the arbitration had comprehended. 

The plaintiff, on his part, had issued an execution on the judgment by 
default in the King's Bench, which execution, as issued after tiie allow- 
ance of a writ of error, was afterwards set aside; and in this state of 
affairs, before the determination of the writ of error, or of the bill in 
equity, the plaintiff advertised the defendant's bond for public sale by 
INlr. Hoggart, the auctioneer. 

The defendant had previously offered 1000/. to end all matters in dif- 
ference; the plaintiff demanded 1250/., which defendant refused to give, 
when plaintiff said, " I will advertise the bond, and he shall see the ad- 
vertisement under his nose." 

Hoggart having written to the defendant to apprise him of the circum- 
stance, the defendant wrote the following answer, which, with some 



4 Bingham, 670. 107 

introductory matter, he afterwards printed and circulated among the 
persons wlio were present in the auction-room when the bond was put 
up for sale. 

< '11 i h ^pril 1S27. 

<< Sir, — I have to acknowledge the receipt of your favour of this date, 
and have to thank you for the courtesy of the communication. 1 have 
no doubt you know me w^ell enough to be assured, that if I owed to Mr, 
Robertson any money on bond, there would be no occasion for him to 
resort to the wicked expedient he is now attempting. His object is, 
either to extract money out of the pocket of an unwary purchaser, or, 
what is more likely, by means of this threat of publication to extort 
money from me. 

*< That the bond is not worth one farthing is clear to demonstration, 
and as there is an existing suit in equity to set it aside, I imagine you 
will not think you acquit yourself properly to the public, without you 
add to the advertisement for the sale th;it tliere is a suit in dependence. 
You ask mc, whether I would choose that Ihc bond should go into the 
market ? I have no means of preventing you from carrying into the market 
an article of no value; but if by your putting to me the above question, 
you meant that I should ofier to become the purchaser, I have only to add, 
that if you were to offer it to me for 10/., 1 should hesitate about accept- 
ing the offer. 

"I am, &:c. 

"Alexander INI'Dougall." 

Upon this the plaintiff commenced the present action against the de- 
fendant for a libel. 

The declaration stated: "That, before the time of committing the 'said 
grievances by the defendant, to wit, on the 1 7th of July 1S23, at Lon- 
don, &c., the defendant made his certain bond or writing obligator}^, 
sealed wiili his seal, and thereby acknowledged himself to be held aiul 
firmly bound to the plaintiff and one William Roberts in the sum of 1000/. 

"That the plaintiff was desirous of selling, as far as he lawfully might, 
his intere-t in the said bonrl or writing ol)ligatory, by public auction, 
and for that purpose he, before anrl at the time of committing the said 
grievances, to wit, on the 3()th of April 1S27, at London, &.C., caused 
the said bond or writing obligatory, and his said interest therein, to be, 
and the same then and there were, put up to sale by j)ublic auction, by 
one Charles Launoelot Uoggnrt, as the auctioneer and agent of the plain- 
tiff, in order that the same might be then and there sold for the plaintiff. 
Yet the defendant, well knowing the premises, but greatly envying the 
happy state and condition of the plaintiff, and contriving, and wickedly 
and maliciously intending to injure the plaintiff in his good name, 
fame, and credit, and to bring him info public scandal, infamy, and 
disgrace with and amongst all his neigbhours, and other good and 
worthy subjects of this kingdom, and to cimse it to be susjiccted and 
believed by those neighbours and subjects that he, the plainlid, had been, 
and was, guilty of the ofi'ences and misconduct thereinafter mentioned 
to have been charged upon and imputed to the |)lain(in', and to cause it 
to be suspected and believed that he had no interest in the said bond or 
writing obligatory, and that nothing was due and owing thereon from tho 
defeiulant to the plaintiff, and thul the sume was of no value, and to 
hinder and prevent the plaintiff from bclliiig and dis])o»ing of the said 



108 UoUEItTSON V. M'DOUOALL. E. T. 1828. 

hoiul or w ' iliii'j;()l)li^;atorv', aiulof hissald intcreyl thcrciti, aiul to cause and 
procure the plainlill' to sustain and be put to divers great expenses atteud- 
ing the said exposure to sale, and to vex, harass, oppress, impoverish, 
and wholly ruin him the plaint ill, heretofore and upon the said exposure 
to sale of the said bond or writing obligatory, and of the plaintifl's inter- 
est therein, and before said bond, and the plaintifl's interest therein, had 
been sold or disposed of, to wit, on the day and year last aforesaid, at 
London aforesaid, &.C., falsely, maliciously, and injuriously composed, 
printed, and published, and caused to be composed, printed, and pub- 
lished, a certain false, scandalous, malicious, and defamatory libel of and 
concerning the plaintiff, and of and concerning the said bond or writing 
obligatory, and the said exposure to sale by the plaintifi", in which libel 
was and is contained the false, scandalous, defamatory, or libellous mat- 
ter following, that is to say: 'The 1000/. bond advertised for sale by 
Mr. Hoggart, of Broad Street. The above is advertised as if it were a 
'money bond of a responsible gentleman, and how Mr. Hoggart can 
reconcile it to his character to suppress the facts with which he was per- 
fectly acquainted, is for him to explain. The short circumstances are 
these: Mr. yEneas Morrison of Glasgow, now deceased, and John Rob- 
ertson of London, recently a bankrupt, had occasion to refer to aibitra- 
tion certain disputed accounts: each party procured a friend to enter into 
a surety bond in 1000/. for the due performance of the award to be made: 
pending the arbitration, Mr. JNIorrison died, and intimation was given 
that the surety considered himself discharged; Mr. Robertson, however, 
forced the matter to proceed, and the arbitrators having differed, he pro- 
cured from an umpire an award in his own favour. Proceedings have 
been instituted in equity in this country, and also Scotland, to set aside 
this award, and, of course, to have delivered up, to be cancelled, the 
bond of the surety for the performance of it. This is the very bond 
now offered for sale ! The following letter will shew that Mr. Hoggart 
was perfectly aware of the circumstances previously to advertising it.* 
(Here followed the letter before set out; and the declaration concluded, 
that) " by reason of the premises the plaintiff had been greatly injured 
in his good name, fame, and credit, and brought into public scandal, in- 
famy and disgrace among his neighbours, and other good and worthy 
subjects, many of whom suspected and believed, and still do suspect and 
believe, the plaintiff to have been, and to be, guilty of the said of- 
fences and misconduct, and have, by reason of the committing the said 
grievances by the defendant as aforesaid, from thence hitherto wholly 
refused, and still do refuse, to have any transaction, acquaintance, or 
discourse with the plaintiff as they before were used and accustomed to 
have, and otherwise would have had; and also by reason thereof divers 
of the liege subjects of our lord the king, who were present at and upon 
the said exposure to sale, and who were then and there about to be and 
become purchasers of the snid bonrl and of the plaintiff's interest therein, 
and who might and would otherwise have bid for and purchased the 
same, were then and there deterred and prevented from bidding for and 
becoming the purchasers of the said bond, and of the plaintiff's interest, 
and then and there, and from thence hitherto, have respectively wholly 
declined to purchase the same, and thereby the plaintiff was then and 
there hindered and prevented fiom selling and disposing of the said 
bond, and of his said intciest therein, and hath thereby not only lost and 



4 Bingham, 670. 109 

been deprived of all tiie advantages and emoluments which he might and 
would have derived and acquired from the sale thereof, but hath been 
forced and obliged to pay, lay out, and expend divers large sums of 
money, amounting in the whole to a large sum of money, to wit, the 
sum of 50/. in and about the said exposure to sale, and expenses inci- 
dental thereto, to wit, at London, &c, and the plaintiff hath been, and is, 
by means of the premises, otherwise greatly injured." 

The general issue was pleaded, and justifications in relation to various 
parts of the foregoing statement; but there was no plea alleging it to be 
true that the plaintiff meant to take in the unwary, or to extort money 
from the defendant. At the trial before Gaseleei., London sittings af- 
ter Michaelmas term, the plaintiff's counsel abandoned the charge of 
slander of title, and confined his claim to the personal libel on the plain- 
tiff, which it was alleged was included in the defendant's letter to Hog- 
gart. But after proof of the foregoing circumstances, Gaselee J. told 
the jury, that if the defendant had resorted to the statement concerning 
the bond as a pretence, and had gone out of his way to attack the plain- 
tiff's character, he would be liable to answer for it in damages; but if, 
having a fair ground for his observations on the bond, he had only in 
warmth a little exceeded the bounds of temperate statement, he stood 
excused. 

The jury were discharged upon the special pleas, and found a verdict 
for the defendant upon the general issue. 

Spankie Serjt. obtained a rule nisi for a new trial on the ground, that 
though the circumstances in which the defendant was placed might have 
justified him in employing strong language with respect to the bond, he 
could not go beyond an attack on the title of that instrument, and charge 
the plaintiff with extortion and an attempt to take in unwary purchasers. 

Wilde Serjt. shewed cause, citing Ilai'gruve v. Le Breton, 4 Burr. 
2422; Pitt v. Donovan, 1 M. & S. 639; Fainnan v. Ives, 5 Ji. & A. 
642; M^Dougal v. Claridge, 1 Campb. 267; Dunman v. Bigg, 1 
Campb. 267, n. 

Spankie, in reply, referred to Brown v. Croom, 2 Stark. N. P. C. 
297. 

JJest C. J. This was an action to recover damages for a libel, and it 
is material to state that the declaration contains a charge against tiie de- 
fendant for a personal libel, the effect of which is to injure the plaintiff in 
his character. There is also a charge lor slander of title, but that may 
be considered as out of the question, having been abandoned at the trial; 
and the rpiestion is, whether this libel on the plaintifPs character is ex-^ 
cused by the circumstances under which it was published. If an individ- 
ual, unauthorised, publishes reflections on a man's character, and injury 
results from the publication, the law does not cncjuire into his motives. 
But if, in the performance of a duty, he makes charges honestly, even 
though he express himself with warmth, he is excused; for the law has 
respect to human infirmity: he must, however, confine himself to what 
the occasion requires, for if he goes beyond it, imputing base motives, he 
is not excused unless he justifies himself by shewing the trutli ot his as- 
sertions. Now, what is the publication in question? "The 1000/. bond 
advertised for sale by Mr. Iloggart of liroad Street. The above is ad- 
vertised as if it were a monny l)ond of a responsible gentleman, and how 
Mr. Iloggart can icconcilc it to his character, to suppress the facts with 



no ROHERISON V. M*DoircALL. E. T. 1828. 

Avhich lie wa? perfectly acquainted, is for him to explain. The short 
circumstances are these. Mr. ^Eneas Morrison of Glasgow, now deceas- 
ed, and John Roheilson of London, recently a bankrupt," — that was a 
fact he was authorised to state; but he goes on, and after stating the other 
circumstances attending the bond, concludes with the letter addressed to 
Hoggart, in which he says, "1 have no doubt you know mc well enough 
to he assured that if I owed to Mr. Robertson any money on bond, there 
would be no occasion for him to resort to the wicked expedient he is now 
attempting. His object is, either to extract money out of the pocket 
of an unwary purchaser, or what is more likely, by means of this threat 
of publication, to extort money from me." What occasion had the de- 
fendant to introduce the latter branch of tlie sentence? It could only be 
malicious; that is, in the legal sense of the term; in other words, mis- 
chievous and unjust; and if so, the jury were not authorized to ftnd the 
verdict they have found. We have been referred to many cases of slan- 
der of title, but they are all distinguishable from cases of personal slander, 
because an action lor slander of title is not maintainable unless special 
damage ije shewn. In fValson v. Reynolds, 1 Moody & Maikin, I, it 
was holden, that the attorney of a party claiming title to premises put 
up for sale, is not liable to an action for slander of title, if he bona fide., 
though without authority, makes such objections to the seller's title as his 
principal would have been authorised in making: but there the words 
were not actionable in themselves, and that distinction disposes of all 
the cases on the subject of slander of title. My judgment in Fairman 
V. Ives, if looked at attentively, supports our decision upon the present 
occasion. In that case a petition was addressed to the secretary at war 
by the creditor of an oflicer in the army, bona fide, and with a view to 
obtain through his interference the payment of a debt due. The libel 
was, "Your petitioner solicits your Lordship's well known justice and 
disposition to benevolence to be extended towards him, by directing an 
officer in his majesty's service,Captain W.B. Fairman, to discharge a debt 
which has been due to )'0ur petitioner above four years, and although 
frequently applied for, has never been noticed by Captain Fairman, but 
unjustly and unfairly he has deprived your petitioner of any redress ex- 
cejit through your Lordship's humane consideration, by giving an ad- 
dress, as will appear by the enclosed, where he had no credit, nor even 
was known. Your petitioner begs most humbly to enclose copies of two 
bills of exchange, one for 100/., and the other for 75/. 10^., which your 
petitioner received in payment for money, and, when due. Captain Fair- 
man had given no order to pay them, either at his agents, or at the address 
of his bills, where your petitioner was informed he did not reside, nor 
did they know any thing about his bills. Since that period your peti- 
tioner has repeatedly written to Captain Fairman, who, although he has 
received the letters, has never noticed them, and has concealed himself 
from a just and lawful demand: your petitioner has no other wish in 
addressing your Lordship, but that your influence may be extended 
towards him, by ordering Captain Fairman to discharge his debt." 

There was nothing objectionable in this: no general abuse; no allega- 
tion that Captain Fairman was a swindler, nor that he had attempted to 
extort money; but it was a bare statement of facts; and tlie Lord Chief 
Justice told the jury, that if they thought the petition contained only a 



4 Bingham, 670. lU 

fair and honest statement of facts, according to ilie understanding of the 
party who sent it, they ought to find a verdict for ilie defendant, ia that 
I agree; but in that it difl'ers altogether from the present case, because 
the defendant here, after stating all the faats," goes on to say, "his ob- 
ject can only be to extract money from an unwary purchaser, or, what 
is more likely, by this threat of publication to extort money from me." 
In Fairnian v. Ives, the Chief Justice said, "I think that it was a good 
answer to the action, upon the plea of not guilty, for the defendant to 
shew that the paper in question was addressed to the secretary at war, 
bona fide for the purpose of obtaining redress, and not for tiie purpose 
of slandering tlie piaintiti'."* The othcrjudges all hold the same language; 
all confine the justification to statements of fact. If such statements are 
made even with warmth, supposing them to be made bona fide, that will 
not subject the party to an action; but he must not go beyond facts, and 
charge a person with unwarrantable motives. In M^Doiigal v. Cla- 
ridge, the words of the libel are not set out, so that we cannot judge whe- 
ther they exceeded the due limit or not. Dunman v. Bigg goes fur- 
ther than the present case: there the defendant told a surety who was 
responsible to him for a debt of the plaintiff", incurred for beer sold by the 
defendant, that the plaintiff wished to cheat him; that he had sent back, 
as unmerchantable, beer which he had himself adulterated; that he was 
a rogue and a rascal, &.c. Lord Ellenborough said only that he was 
inclined to think that this was a privileged communication, and a juror 
was withdrawn, so that the counsel for the defendant does not appear to 
have been confident that the learned Judge's ruling would have been 
supported if discussed in banc. J3ut Brown v. Croom is in point, and 
founded on the true principle, for Lord Ellenborough said, " I have only 
adverted to cases in order to guard against deciding contrary to the prin- 
ciples laid down in them ; but I decide this case on tlie ground, that though 
a party may write freely on a subject in which he is concerned, may 
state facts, and even express himself with warmth, he must not go be- 
yond that which the occasion requires, and criminate others unnecessari- 
ly. It was unnecessary for the defendant in the present case to crimi- 
nate the plaintiff, even though he might be unable to avoid expressing 
himself with warmth; it was mischievous and unjust to criminate him in 
the way he has done, and, therefore, he is not protected l)y the situation 
in which he stood." 

Park J. I am anxious not to draw too strict a line on confidential 
communications, or statements called for in the course of business. But 
the Court must take care that men do not employ such statements to the 
injury of their neighbours, and the libel complained of here goes far be- 
yond the business in' hand. If the paper had been confined to thr first 
paragraph, it would have been witliin the reasoning of the cases, anil the 
law of the country. M'Dougidl had a clear riglit to stnte his olijoctions 
to the sale of the bond; and to slate them in strong laiiguiige. ^Vith re- 
gard to that he has stated the circumstances under whicli the bond w.is 
given, the bankruptcy of the plaintiff, and the objenlions in law which 
he considered as affecting the validity of the bond: he had a right to 
state that, within the principle established by the case of Hargrave v. 
Le Breton. There, the agent for a party interested, prevented the 
sale of an estate, by proclaiming that a person who had morfgngod it to 



ir2 Honr.KTSoN /•. M^DounAi.T.. K. T. 1828. 

the plaintiflhiul hecoine hankriipt. That was nothino; more than a state- 
monl of fart, whicli a party iiitiTcstcd was hohicii warranted in making, 
aiul that would liave warranted JNI'Dougall if he had stopped at the first 
j)aragrapl>. IJut 1 cannot conceive how that which follows is not to be 
tieemed a libel: — *• The wicked expedient he is now attempting." — 
"His object is to extract money out of the pocket of an unwary pur- 
chaser, or, what is more likely, by means of tills threat of publication, 
to extort money from me." A grosser liijcl on a man in the mercantile 
world couKl not i)e fabricated. In deciding that the defendant is not 
excused, we trench on no case which has been cited. Fairman v. Ives 
is clearly distinguishable; there, a petition aildresscd by the creditor of 
an oflicer in the army to the secretary at war bona fide, and with a view 
of obtaining through his interference payment of a debt due, was holdeii 
to be no libel, thougli derogatory to the olficer's character, being con- 
fmed (o a statement of facts which the creditor was entitled to represent. 
'J'hat was no such libel as the present. Is a man to go into the auction 
mart and read such a paper as this publicly? It is ridiculous to state 
such a proposition. I<o doubt M'Dougall was bound to make the state- 
ment in the first part; but he had no right to go out of his way to im- 
pute wickedness and extortion to the plaintiff. As to the previous bick- 
ering between the parties, that could not be brought forward as a set-off 
to the libel, but at the utmost as a circumstance to operate in mitigation 
of damages. In M^Dous^al v. Claridge, the defendant's communica- 
tion was held to be privileged, because he was really writing confiden- 
tially about a matter in which he was cojiccrned, and charged the plain- 
tiff with improper conduct in manageoient of it: he had a right to do so, 
and a juror was withdrawn. Godson v. Home, 1 B. & B, 7, is pre- 
cisely in point; there, the defendant having written a letter, blaming 
the person to whom it was addressed for em|)loying the plaintiff to sue, 
added, ** If you will be misled by an attorney, who only considers his 
own interest, you will have to repent it. You may think, when you have 
ordered your attorney to write to Mr. B. , he would not do any more 
without your further orders; but if you once set him about it, he will 
go to any length without further orders." And Richardson J. said, 
*' I cannot say that I left it to the jury, whether this was a confidential 
communication; I thought it exceeded the line of confidential commu- 
nication. If a man, giving advice, calls another a thief, surely it is not 
necessary to leave it to the jury, whether such language is a confidential 
communication. I left it to the jury to say, whether this was a caution 
against employing attornies in general, or against the plaintiff in particu- 
lar." I think the language used by this defendant exceeds the line of 
privileged communications, and that, therefore, tlTc rule must be made 
absolute. 

BuRROTTGH J. I had read the record, expecting that I should have 
tried the cause; and I thought, supposing the words to be proved, that 
the trial could be no more than a writ of inquiry. The words are clearly 
libellous. "The wicked expedient he is now attempting," — "his ob- 
ject is, to extract money out of the pocket of an unwary purchaser, or, 
what is more likely, by means of this threat of publication, to extort 
money from me." Nobody of common sense can doubt that such ex- 
pressions constitute a very aggravated libel. There is no necessity for 
proving malice in such a case; the law implies it, and it is not a qucs- 



4 BixcHAM. 670. 113 

lion for the jury. If this liad hccn an indictnienl the Jiulgc must have 
told the jury the words were clearly a libel. 

Gaselee J. If the jury did wrong I was in fault; for I left it to them 
to say, whether, by the expression, '•' His object is to extract money out 
of the pocket of an unwary purchaser, or, what is more likely, by means 
of this threat of publication, to extort money from me," the defendant 
hail gone purposely out of his way to attack the plaintiff's chai'acter, or 
whether, having a fair ground for his observations on the bond, he had 
in warmth a little exceeded the bounds of temperate statement; and un- 
til corrected to-day, I should have come to the same conclusion as the 
jury. This bond was in litigation; ISI'Dougall had offered 1000/. to 
end all matters; but Robertson demanded 1250/., which M'Dougall re- 
fused to give. Robertson then said, " I will advertise the bond, and he 
shall see the advertisement under his nose." Iloggart, the auctioneer, 
then wrote to M'Dougall, to request him to pay, in order to prevent the 
bond from coming into the market; INl'Dougall answered that it was of 
no value, and that he would not purchase it at the sum of 10/. He was, 
therefore, in some degree warranted in supposing that the object of ad- 
vertising for sale was, to induce him to buy. To that extent his letter 
appeared to me to be a privileged communication, and that, at all events, 
it was proper to leave it to the jury to consider, whether the objection- 
able words had been written with a malicious intention, or escaped him 
in warmth upon a justifiable occasion; and if they thought he had pur- 
posely gone out of his way, to consider the amount of the damage. Pro- 
bably I did wrong; but I am not at this moment prepared to say so, 
(hough I am not presumptuous enough to think that my own opinion is 
the more correct. 

Rule absolute. 



DOUGLAS and Annihfr, Assignees of STEIN and SMITH, ■Bank- 
rupts, V. FORliKS r, Kxucutor of .JAMICS IHINTER.— p. GSG. 

An action lies in the Enf^lisli cnurts on a Scotch judgment of /lornini^ against a 

Scotchman horn. 
Where the testator resided and died abroad, Held, liis executor in I'.ngland might 

he sued within six yearsiifter taking out ])rol);ite. 

Assumpsit on two Scotch decreets. The fust coimt of the declara- 
tion (which contaiiiffi twenty-nine) was as hdlows: — 'i'hat heretofore, to 
wit, on the 2')\\\ day of Fcbruarv 1^02, a certain d(!cre(; was made and 
pronounced, in and by the Court of oiw lord the then king, before the 
I^ords of Council and Session at Edinburgh, in that part of the united 
kingdoTi of Great Britain and Ireland called Scotland, to wit, at fjondon, 
in and concerning a certain action then de])ending in the same court, at 
tlie instancf; of .lohn Stein, Thomas Smilii, Robert Slein, James Stein, 
and Robcrrl Smith, before liiey br-catne bankrii|)ls, against .Fames Hunter, 
wlicreby the Lords of Coimcil and Session aforesaid, did then and there, 
decern and ordain said .lames Hunter to make payment to said .Toha 
Stein, Thomas South, Rob(Mt Stein, .Tames Stein, and Robert Smith, 
l)efore they became bankrupts as aforesaid, of a certain sum of money, 
to wit, 4-17/. C)S. 3U. sterling money of Great Britain, and annual rent, 

VOL. XV. 15 



114 Douglas v. Foukkst. E. T. 1828. 

that is to say, lr<fal interest tlicrcof, IVoin a certain day, to wit, the ISth 
of November liSOl and until payment, together with 50/. of like ster- 
ling money, as the expense of process, besides 1/. Os. 0^(L sterling mo- 
ney of Great Britain, being the full dues of extracting that decree, as by 
said decree remaining in said Court of Session at Edinburgh aforesaid 
more fully ajipcars, which said decree remains in full force and wholly 
unsatislied, wliereby said James Hunter, in his lifetime, became liable to 
pay to saici John Stein, Thomas Smith, Robert Stein, James Stein, and 
Robert Smith, before they became bankruj)ls as aforesaid, said sums of 
money so decreed to be jiaid as aforesaid, together with such interest as 
aforesaid, on said sum of 447/. Gs. 3d., according to said decree, when 
the said James Hunter should be thereunto afterwards requested; and 
being so liable, said James Hunter, in his lifetime, in consideration 
thereof, afterwards, to wit, on said 25th February 1S02, to wit, at Lon- 
don aforesaid, undertook, and then and there faithfully promised said 
John Stein, Thomas Smith, Robert Stein, James Stein, and Robert 
Smith, before they became bankrupts as aforesaid, to pay them said 
sums of money- so decreed to be paid as aforesaid, together with such 
interest as aforesaid, when he the said James Hunter should be tiiere- 
unto afterwards requested. 

The next eight counts were on the same decreet, varying the state- 
ment of it, particularly with respect to the day from which interest was 
to be paid, and laying the promises from Hunter to the bankrupts before 
their bankruptcy. 

The next six laid the promises from the defendant, as executor, to 
the plaintiffs, as assignees, after the bankruptcy of Steins and Smiths, 
and the death of Ilunter. 

The next seven were on a decreet of 75/. (with 20/. expense of pro- 
cess, and 1/. 75. lid. of extracting,) in favour of Smith, with promises 
from Hunter to Smith before he became bankrupt. 

The last five laid the promises in respect of this decreet, from the de- 
fendant as executor, to the plaintills as assignees, after the bankruptcy 
of Smith, and the death of Hunter. 

The defendant pleaded the general issue and the statute of limitations. 
The plaintiffs replied, that when the causes of action accrued Hunter 
was beyond seas, where he continued and died, in 1817, and that they 
sued out their capias ad respondendum, and brought their suit within 
six years next after the defendant took upon himself the burthen of the 
execution of the last will and testament of Hunter in Great Britain, the 
defendant having been, ever since the death of Hunter, the only person 
having authority to execute the said last will and testament in Great 
Britain, and there having been no other executor in Great Britain. 

The defendant rejoined that the plaintifls did not sue out their writ 
within six years next after the defendant first took upon himself the 
burthen of the execution of the said will and testament; upon which, 
issue was joined. 

At the trial before Best C. J., London sittings after last Trinit)^ term, 
it appeared that in 1799, Hunter, a native of Scotland, acknowledged 
himself to be indebted to Stein, Smith, and Co. of Edinburgh, in the 
sum of 447/. Gs. 3d., and to Smith in the sum of 75/. 

He went that year to India, whence he never returned, but died there 
in 1817. 



4 BixGHAM, 686. 115 

In February 1802, two decrees were pronounced against him for these 
two sums in tlie Court of Session, one at the instance of Stein, Smith, 
and Co., the other at the instance of Smith. The former was as followsj 
and the latter in the same form. 

"At Edinburgh, the 25th day of February 1S02, anent the summons 
and action raised, intended, and pursued before the Lords of Council and 
Session, at the instance of Messrs. Stein, Smith, and Co. merchants in 
London, and William Inglis, writer to the signet, their mandatory 
against James Hunter, son of the deceased James Hunter, vintner in 
Edinburgh, late clerk to the pursuers, now abroad, which summons 
maketh mention that James Hunter, son of the deceased James Hunter, 
vintner in Edinburgh, late clerk to the pursuers, now abroad, is justly 
indebted and owing to the pursuers the sum of 447/. 6^. 3d. sterling, as 
the amount of an account to be produced in process, and here held as 
repeated brevitatis causa, and annual rent of said sum from and since 
the day of ; and although the pursuers have frequently 

desired and required the said James Hunter, defender, to make payment 
to them of foresaid sum of 447/. G^. od. sterh'ng, and annual rent thereof 
from the period before mentioned, yet he refuses, at least delays, so to 
do. Therefore the said James Hunter, defender, ought and should be 
decerned and ordained by the decree of the Lords of Council and Ses- 
sion to make payment to the pursuers of the said sum of 447/. Gs. 3d. 
sterling, and annual rent thereof from and since the said day 

of , and till payment, together with the sum of 50/. sterling, 

or such other sum as the said Lords shall modify as the expense of pro- 
cess, besides the fees of extracting the decree to follow hereon, conform 
to the laws and daily practice of Scotland used and observed in the like 
cases in all points as is alleged: and anent the charge given in virtue of 
the foresaid summons, (by a messenger at arms, in manner prescribed 
by law, to the said James Hunter, defender, at the market cross of Ed- 
inburgh, pier and shore of Leith, as being furth of Scotland at the time,) 
upon the ISth day of November ISOl, to have compeared before the 
said Lords on two certain diets bygone to have answered at the instance 
of the pursuers in the said matter, and heard and seen the premises veri- 
fied and proven, and decreet and sentence given and pronounced 
therein, conform to the conclusions of the foresaid summons, or else to 
have alleged a reason. djle cause in the contrary, with certillcation as in 
the said «uinmons and execution thereof is expressed; the jjursuers com- 
pearing by Messrs. Henry David Inglis and James Clordon, advocates, 
their procurators, who for them produced in presence of the said Lords 
account lybelled on of the contents foresaid, and the defender having 
been lawfully summoned to this action as aforesaid, and failing to appear, 
the foresaid summons, execution thereof, account Iyi)clled on and pro- 
duced in absence of the defender, and sfejis of procedure after related,, 
being all at lengtli read, heard, seen and considered by the said Lords, 
and they being therewith well and ripely advised, the l^ords of Council 
and Session decerned and ordained, and licreby decern and ordain the 
said James Hunter, defender, to make payment to the pursuers of tho 
foresaid sum of 447/. G.y. 3d. sterling, and annual rent thereof, from and 
since the said day and till payment, together with tho 

sum of 50/. sterling as the expense of process, besides the sum of 1/. 0.y. 
^d. sterling, being the full dues of '.-xtracling this decreet j because after 



IIG DOIK.I.AS L'. I'OUKKST. E. T. 1828. 

elapsing of the ilic'ts ;in(l coin|)caiai)cc,s contaiiuxl in the arorcsaitl sum- 
mons liio sanjo was tabkxl and called in tlic Outer House in coinnion 
lorni, and in respect of the absence ol tlic defendiM* was apjiointed to the 
roll, anil being accordingly enrolleil in the regulation roll lor the Outer 
House, by eourse whereof the same came in and was called on the 25lh 
tlay of February 180^, the day and date hereof, in presence of Lord 
Arn)ailale, Ordinary in the Outer House for the time, when the said 
]Mr. Henry David Inglis, for tlie pursuers, resumed the lybel, and craved 
decreet in terms thereof: and the defender having not only been lawfully 
sunin)oncd to the action as aforesaid, but also oft and divers times this 
ilay ])ublicly called by a macer from the bar, as use is, yet he failed to 
nj)pear, as was clearly understood by the Lord Ordinary. In respect 
of all which his Lordship held the defender as confest on the verify of 
the lybel, and account lybelled on and protluced and decerned in ab- 
sence, intermsofthe lybel. Antl 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 efTeirs. Extracted upon this and the 
three preceding pages by 

"Alexander Menzies." 

By a decree of the same couit of July ISO J, 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 447/. G^. 3(/. with interest from the lllh 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 had 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 tiiat country, for a debt contracted in Scotland, although the debtor 
had no notice of any of the proceedings, and was out of Scotland at the 
time; that a person against whom such a decree 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 tb.e 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 application for payment, wrote to the plaintifTs 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 c/Iecl^ to be proved here. Cap- 
tain F. will write out to India without delay." 



4 Bingham, 686. 117 

He dill not lake out probate till March 1824. There was no other 
executor iu 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 
witiiout 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 
wRucker, iCampb. 63, 9 East, 192; JVilliams\. Lord Bagot, SB.kC. 
772, and Cavati 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 plaintiffs, subject to the consideration of 
these points. 

Wilde Serjt. moved for a new trial and in arrest of judgment on these 
grounds, and a rule ^i/^Hiaving 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 Wiis. 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; Raivlinson 
V. Shaiv, 3 T. R. 559; Wentworth's Ofliee of Executor, 41; Toller 
471; Wentvvorth, p! 36. 

Thirdly, the 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; Plowden, 2S0 b. ; Com. Dig. Administration, B. 9; Cro. 

Eliz. 92; Wentw. Ofl". Exor. 38. r^ ^ it 

Cur. adv. vult. 

Bf.st C. J. This was an action brought by the assignees of Stein and 
Co. bankrupts, against the executor of the will of James Hunter. 

On the 3 1st May 1799 the testator acknowledged himself to be in- 
debted to Stein and Co. in the sum of 147/. (i.v. 3d.; and on the 11th 
June, in the same year, he acknowledged that he owed 75/. to Robert 
Smith, one of the bankrupts, and one of the firm of Stein and Co. The.sc 
debts were contracted in Scotland, of wiiich country the deceased was 
a native, and in which he had a heritable property. Shortly after 
the year 1799, the deceased went to India. He died in India in 1817, 
liaving never revisited Scotland. 

Dn the 25lh February 1S02 two decrees were proiiounc^ed in the (!ourt 
of Session in Scotland against the ileceascd, one at the instance of Steirt 
and Co., and the other at the instance of Robert Smith. In the first of 
these the tieceased was ordered to pay to Stein and Co. AMI. 6y. 2d., 
with interest, from the day of , besides expenses of process, &c. 

In the second decree the deceased was ordered to pay Robert Smith the 
sum of 75/., with interest, from the of , bcside.s expen.ses of 

process, &c. It appeared, from these decrees, that the deceased was out 
of Scotland at the time the proceedings were iiistiluted in these causes. 
He never had any notice of those proceedings. The decrees stated, that 



lis Douglas v. Fouhest. E. T. 1828. 

the ilcccnscil lind been (accortling to the law of Scotland) sumnioned at 
the market cross of Edinburgh, and at the pier and shore of Leith. A 
Scotch advocate proved, that, by the law of Scotland, the Court of Ses- 
sion might pronounce judgment against a native Scotchman who had 
hcrilaljlc property in that country, for a debt contracted in Scotland, 
allhougli tiie debtor liad no notice of any of the proceedings, and was out 
of Scoihind at the time. After such proclamations as were mentioned in 
these decrees had been made, the same witness proved, that a person 
against whom such a ilecree was pronounced, might, at anytime within 
forty years, dispute the merits of such decree; but that after the expira- 
tion of forty years, it was conclusive against him, and all who claimed 
under him. 

By a decree of the Court of Session, of the date of the 5th July 1804, 
that Court adjudged that certain property which the deceased possessed 
in Scotland should belong to Robert Smith and his heirs, in payment and 
satisiaction of the sum of 75/,, with interest, from the 11th June 1799. 
By anotiier decree of the same date, the Court of Session adjudged, that 
certain other property of the deceased in Scotland should belong to Stein 
and Co. and their heirs, in payment and satisfaction of the sum of 447/. 
G.9. 3d., with interest, from the 11th of June 1799. The two last decrees 
fill up the blanks left in the first decrees, by giving the time from which 
interest was to be paid on the debts, namely, from the 11th June 1799; 
and if the plaintiff's can maintain their action, entitles them to a verdict 
for the sum of SG2/. The terms in wliich the two last decrees are ex- 
pressed, seem to import that the lands adjudged to Stein and Co. and 
Smith, were given to and accepted by them, in satisfaction of these debts; 
but this cannot be the true construction of these decrees, because none 
of the decrees are conclusive against the deceased and those who claim 
under him, until the expiration of forty years from the time of pro- 
nouncing the two first decrees. Phe advocate who was examined in the 
cause proved, that by the law of Scotland, these decrees would not oper- 
ate as satisfaction of the debts, during the period that the debtor had a 
rigiit to disjiute the validity of the first judgments. A Scotch statute, 
which we have looked into, shews the accuracy of the opinion given to 
us on the Scotcli laws by the learned advocate: and I feel it due to him 
to say, that, from the manner in which he gave his evidence, the clearness 
and precision with which he explained the grounds of his opinion, I have 
no doubt that he is extremely well acquainted with the Scotch law, and 
that we may safely rely on every part of his evidence. 

The two last decrees, proving that interest was to run from 1799, and 
the testimony of the learned advocate, who proved, that when decrees 
adjudged that interest should be paid, but did not shew the time from 
whicli it was to run, interest was payal)le from the time of the citation, — 
dispose of the objection that no interest could be recovered upon these 
decrees. 

The plaintiffs rested their claim on these decrees. The defendant in- 
sisted that these decrees would not support an action in our Courts, 
because they were repugnant to the principles of justice, having been 
pronounced whilst the deceased was at a great distance from Scotland, 
and without any notice given to him that any jiroceedings were institu- 
t«^*d against him. This defence was made on the general issue. The 
defendant also pleaded, that the plaintiff's cause of action did not accrue 



4 Bingham, 686. 119 

within six years before the commencement of the suit. To this there 
Was a replication, that the deceased, at the time when the cause of action 
accrued, was beyond seas, and remained beyond the seas until the year 
1S17, when he died; and tliat the plaintiffs sued out their writ against 
the defendant, within six years after he first took on himself the burthen 
and execution of the will of the deceased in Great Britain, and that he 
had no other executor in Great Britain. This replication was fully 
proved, and, therefore, the issue taken on it was properly found for the 
plaintiffs. 

The questions to be decided are, first, whether an action can be main- 
tained in England on these judgments of the Court of Session in Scotland. 
Secondly, whether the replication is an answer to the pleas of the stat- 
ute of limitations. 

On the first question we agree with the defendant's counsel, that if 
these decrees are repugnant to the principles of universal justice, this 
Court ought not to give effect to them; but we think that these decrees 
are perfectly consistent with the principles of justice. " If we held that 
they were not consistent with the principles of justice, we should con- 
demn the proceedings of some of our own courts. If a debt be contracted 
within the city of London, and the creditor issues a summons against the 
debtor, to which a return is made, that the debtor hath nothing within 
the city by which he may be summoned, or, in plainer words, hath 
nothing by the seizure of which his appearance may be enforced, goods 
belonging to the debtor in the hands of a third person, or money due 
from a third person to the debtor, may be attached; and unless the debtor 
aj)pears within a year and a day, and disputes his debt, he is forever de- 
prived of his property or the debts due to him. 

In such cases the defendant may be in the East Indies whilst the pro- 
ceedings are going on against him in a court in London, and may not know 
thatany such proceedings are instituted. Instead of the forty years given 
by the Scotch law, he has only one year given to him to appearand pre- 
vent a decision that finally transfers fi'om him his propert}'. Lord Chief 
Justice l)c Grey thought this custom of foreign allaclimcnt was an un- 
reasonable one, but it has existed from the earliest times in London, and 
in other towns in England, and in many of our colonies from their first 
establishment. Lord Chief Justice De Grey and the Court of Common 
Pleas, after much consideration, decided against the validity of the at- 
tachment, according to the report in 3 Wilson, 297, because the party 
objecting to it had never beeri summoned or had notice. The report of 
the same case in 2 Blackstone, 834, shews tliat the Court did not think 
a personal summons necessary, or any summons that could convey any 
information to the person summoned, but a summons with a return of 
nihil \ that is, such a summons as I have mentioned, namely, one that 
shews that the debtor is not within the city, and has nothing there, by 
the seizing of which he may be compelled to appear. The .ll G. 3. c. 
137. nototdy recognizes the practice on which these decrees arc founded, 
as being according to the law of Scotland, but enacts, that on notices be- 
ing given at the market cross at Ivlinbuigh, and on the pier and shore of 
Leith, to (lel)torsout of the kingdom, in default of their appearance the 
creditors may issue a sequestration against their effects. Can we say that 
a practice which the legislature of the United Kingdom has recognized 
and extended to other cases is contrary to the principles of justice? 



MO Dorci.xs r. Foiinr.sT. E. T. 1828. 

A intiuMll) )ni siihjiMM. of nny country, quitting tlmt country, but 
liMvini; property ninloi- the |)rotO('lion of its law, even during his al)sence, 
i)\vos ohcdionoe to those laws, particularly when those laws enforce a 
moral obhgalion. 

The lieceascd, before he left his native country, acknowledged, under 
his hand, that he owed the debts ; he was under a moral obligation to 
ilischargc those debts as soon as he could. It must be taken for granted, 
from there being no plea of piene admiJiisfravit, that the deceased had 
the means of paying what was due to the bankrupts. The law of Scot- 
land has only enforced the pei'formance of a moral obligation, by making 
bis executor pay \^ hat he admitted was due, with interest during the time 
that be cle|)rivcd his creditors of their just debts. 

The reasoning of Lord Ei'/enboroiii(h, in the case of Bnchanan v. 
NucA-er, 1 Campb. 63, and 9 East, 192, is in favour of these decrees. 
Speaking of a case decided by Lord Kenyon., 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 bad any property in it. In botb 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 to 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 
time 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 Dugot ; in that case a summons to appear, and an attachment to 
compel ajipearance issued at the same time, and were returnable at tiie 
same lime. 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. If), 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 
tlie injury of which the plaintiffs complain has existed more than six 
years, yet they had no cause of action until there was some person with- 
in the realm against whom the action could be brought. Cause of action 
is the right to prosecute 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 
bis death there was no person in England against whom the plaintiffs 
could proceed, until the defendant took upon himself the execution of his 



4 Bingham, 686. 121 

Avill. The clelendant tlid not act ns 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 rii];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, 
imtil 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 liaiulinson 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 plaintifl' who might be sued 
as defendant. In Joliffe v. Pitt, 2 Vern. 694, 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 JVehster v. TFebste)', 
10 Vcs. 93, it appeared that the testator died in 17S6 ; the will was 
proved in 1S02. 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 17!>2, upon whicii he allowed the plea of the statute of limi- 
tations, and said there was not ordy 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 rinis from the time; that an executor has either acted 
or proved the will, 'i'lu; replication in this case is a good answer to th« 
plea. Tlie postea must be flelivored to the plaintiffs, and the verdict en- 
tered for them, fur ^fli/. 

Judgment for the plaintills. 



DITCIIAM v. CIIIVIS— p. 70fi. 

PlaintirTallcjrcd that defendant, hnvinp agreed to convey her safely by his coach 
from London to Hlacklu-atli, nci^lrcted his diitv, by ihinwin)j; her dr)\vn, &r 
Defendant's macti ran from Cliarini; Cross to Ularkheatli, and plaiiilinTgot up 
at The Klcpliant and Castle ; lint d<-fciidant had inbcribcd on his coach " Lon- 
don to Blarkhcath:" Held, no variance. 
VOL. XV. 1'; 



122 DiTciiAM V. Cun is. E. T. 1828. 

Case against the defendant, a coach proprietor, for not safely carry- 
ing the plaintilT from London to Blackhcath. 

The declaration stated, that the defendant was owner of a stage-coach 
running from London to Blackheath, and that the plaintiff, at his request, 
agreed to become an outside passenger, to be safely carried from London 
to Blackliealh, whereupon it became the defendant's duty to use proper 
care in carrying her: that defendant, not regarding his duty, did not 
take proper care, but permitted the horses to move on while the plaintiff 
•was getting up, wlicreby she was thrown down with great violence, and 
was much bruised and wounded. 

At the trial before Pat'k 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. 

Tuddij Serjt. having on these grounds obtained arule?22« to set aside 
the verdict and enter a nonsuit instead, 

Wilde Serjt. now shewed cause, and referred to Burbige v. Jakes, 1 
B. &P. 225; Frith V. Gray, 4^1. R. 561,n.; Drewryw. Tiviss,4T. R. 
558. 

Taddy and Andrews 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 jilaintiff from this 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 the 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 cariy 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 Burbige v. 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. 

Gasei.ee 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 the Court held that in substance that supported the allegation. The 
rule, therefore, must be 

Discharged. 



FOTHERGILL v. WALTON and RONDEAU.— p. 71 L 

Where administration had been taken out, the Court refused, without the 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 plaintiff(he having been a bankrupt), to shew cause why 
tiie 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 Tcrceira, and plaintiff engaged to ship and take on board 
at Ilavre six pipes of brandy, the freight and amount of whicli was to 
be taken out in fruit at a certain price; in consideration of which, the 
defendants agreed to pay freight, and guarantee a full cargo home: 

That the defendant, Walton, went to Tcrceira, and contracted for 
fruit in barter for brandy; tliat 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 tbc 
brandy; but, that without the brandy, the merchant who had contracted 
to furnish the fruit, refused to deliver it; that the siiip returned to Eng- 
land; that an action was commenced against the plaintiff 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 to Ter- 
ccira, and the action was not finally settled at the death of the plaintiff, 
which hnppened in IS27; that sliorlly after defendants had sued plain- 
tiff fur damages, plaintiff commenced an action against defendants for 
freight, and recovered ajudgment lor damages aii<i costs, 41S/. \Ss.{u)\ 

(n)Sfc Folhcrpill v. Walton, H Taunt.. '576, in wliicii it \v;is li^ldcn, tlial U)cdc 
Jivcry of the brandy I)y I'othcriiill was not acondilitJii piccedcnt. 



124 FoTiii-R(;ii,i, V. Walton. E. T. 1828. 

that (ihilcr this jiulgnicnl Rondeau was taken in execution, in May 1820, 
by the shorilVof Surrey, and still remained in execution; that tlicphnn- 
tilT had no interest in the charter or damages, hut that Messrs. Attvvood 
and others were the owners and interested, and that plaintiff acted under 
their orders; that defendants relied on the delivery of the brandy, in 
iaith of which defendant, Walton, went abroad and contracted for fruit 
and cargo, which contract lie being unable to execute for want of the 
brandy, a loss was incurred of 2000/.: that defendants offered to plain- 
tiff, to allow a set-off of 41S/. 18.y, 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 
1S22, 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. 

Laivcs cited Pai'Jcinson v. Horlock, 2 N. R. 240, where, after the 
plaintiff's death, the Court in ISOG discharged from execution a defen- 
dant who had been in custody ever since the year 1792; and Broiigh- 
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 tlie responsibility of doing so; and if she declined incur-" 
ring that responsibility, the Court could not impose it on her. 

Laives {E. La ives S>erjt was with him), referred to Bauerman-v. 
Jladcnitis, 7 T. R. GG3, as establishing the principle, that a court of 
law will not look to the rights of parties onl}"^ equitably interested, the 
declarations of a trustee plaintiff having been admitted in that case to de- 
feat the action. In like manner, he urged, the disclaimer of the admi- 
nistratrix in the present instance ought to operate as a release to thede- 
fcndant. At all events, if the Court would on one side look to the rights 
of those who were equitably interested, they would consider also what 
was equitable for the other side; and the affidavit on which he moved 
sufficiently cstablisiied the defendants' claim to be discharged ongood 
conscience, independently of his years and long imprisonment. 

Best C. J. Appeals have been 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, tiion, to interfere and relieve her from the responsibility on which 
slie detains him.^ Wc could not do so without great injustice. Since 



4 Bingham, 711. 125 

the court for the relief of insolvent debtors has been cstablislicd, 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 apph*, 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 vaHd judgment and power to discharge the defendant. In Dunsford 
v. Gouldsmilh, 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 tliat respect there is no difference between an execu- 
tor and an administrator. Bauerman v. Radeiiius has nothing to do 
with the present question. 

The rest of the Court concurring, the rule was 

Discharged. 



IIAWKES 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 bv 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 .had 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 b}'- one Calver, payable at Messrs. Days, Norwich. 

At the tjial of the cause before the Lord Chief Baron, Norfolk Sum- 
mcr assizes 1827, it appeared that the bill became due on Saturday, the 
7lh of January 1827 ; that it was on that day presented at Messrs. 
Days, Norwich, for payment, and dishonoured; that Calver, the ac- 
ceptor, lived within a mile of Norwich; that the defendant, the drawer, 
lived at Swafficld, 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' clerk.s 
stated, that a letter from the plaintiffs, which the witness had copied, 
giving the defendant notice of the dishonour of the bill, was sent by the 
post from Norwich on Tuesday morning, the 10th of January, but ho 
liad no recollection 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; tliat notice of dishonour ought to have been sent by the 
Monday's post; and that at all events there was not suflicicnt evider>co 
that the letter had ever been put into the post. 

A verdict was found for the plaintiffs, but the objections were re- 
served for the opinion of the ("ourt, and 

Slorfcs Scrjt. accordingly obtained a rule nisi to enter a nonsuit or a 
verdict for llic defendant, on the grounds above stated, against which 

S'pan/t-ir Serjt. shewed (muso. Allhough by statute an acceptance at 



126 PiiiLi'oT V. Bui ANT. E. T. 1828. 

a particular place is the same as a general acceptance, and the bill might 
have been presented to Calver himself, yet if he appoints an agent to 
j)ay the bill, presentment to that agent is in law the same thing as pre- 
sentment to himself. Then the plaintiffs were, according to all the de- 
cisions, allowed a day to give notice of dishonour. They could not 
write on Sunday, for that would have been conti'a bonos mores; and 
they were not bound to get up at an unseasonable hour on Monday morn- 
ing; they might write during the whole of Monday, and Tuesday morn- 
ing's post was early enough, there being no post on Monday night. \w 
Bray v. Iladwcn, 5 M. & S, 6S, where the bankers of the holder of a 
bill received on a Sunday morning notice of its dishonour, which they 
wrote to apprise the holder of, on Monday, but put the letter into tho 
post after twelve o'clock at noon, at which time the mail started, so that 
it did not go till the next day; it was holden that they had all Monday 
to write, and that as far as tliey were concerned there had been no im- 
proper delay. The same point was decided in Wright v. ShaivcrosSy 
2 B. & A. 501, n. 

The evidence was sufficient to go to the jury. In Hetherington v. 
Kemp, 4 Campb. 192, Lord Ellenboroitgh said, "had you called the 
(plaintiff's) porter, and he had said that although he had no recollection 
of the letter in question, he invariably carried to the post-office all the 
letters found upon the (plaintiff's) table, this might have done." 

It is the same thing if the clerk who copied tlie letter affirms that it« 
was sent, though he does not recollect whether he or another clerk put 
it into the box. 

Slorks insisted that the bill ought to have been presented to Calver 
himself; for the words "payable at Messrs. Days," formed no part of 
the contract since the act of parliament which had made such an accept- 
ance a general acceptance. At all events there was no evidence that 
the letter had been put into the post; the clerk called could not know 
what the other had done; and he had no recollection as far as concerned 
himself. 

Upon the authority of the cases cited. 

Best C. J. expressed himself clearly of opinion, that it would have 
been sufficient if the letter had been put into the post before the mail 
started on theTuesday morning; butthat there was no sufficient evidence 
that it had been put in, even on Tuesday morning. 

The Court therefore granted a new trial, on payment of costs. 

Rule absolute for a new trial. 



PIIILPOT V. BRIANT.— p. 717. 

If liic executor of the acccjjtor of a bill of exchange, orally promise to pay the 
holder out of her own estate, provided he forbear to sue, and the holder fovbear 
to sue in consequence ; the jiromise being void, the drawer of the bill is not 
discharged by the holder's having promised to give time, and having delayed to 
sue under such circumstances. 

Action by the holder against the drawer of a bill of exchange, whicfj 
had been accepte<l by the drawer's brother. None of the counts in the 
declaration stated the acceptance or notice of non-acceptance. 



4 Bingham, 717, 127 

The defence was, that time had been given by tlie holder to the ac- 
ceptor's executrix, without the knowledge or consent of the drawer; as 
to which the evidence was, that the bill, which was payable six months 
after date, was due March 19, 1S23; that the acceptor died before that 
day; that the plaintiff applied to the acceptor's brother, the son and 
agent of his executrix, for payment, when he said there was not suffi- 
cient personal property to pay the bill then, but that if the plaintifl' would 
let the matter stand over, the executrix would engage to pay the bill out 
of her private income. Plaintiff promised, provided the interest were 
paid, to give a reasonable time; and in pursuance of this agreement, 
interest was paid out of the private income of the executrix. 

It was also objected that the declaration was insufficient, in not aver- 
ring an acceptance or notice of non-acceptance. 

Park J., before whom the cause was tried at the London sittings after 
Michaelmas term, overruled the latter objection; but upon a verdict be- 
ing taken for the plaintiff, reserved to the defendant leave to move to 
enter a nonsuit on the former, 

Taddy Serjt, having obtained a rule nisi accordingly, 

Wilde Serjt., who shewed cause, argued that there was no considera- 
tion for the promise made by the executrix to pay out of her own ef- 
fects; and that even if there were, it was void under the statute of 
frauds, as not being in writing. If the promise of the executrix were 
void, there was no consideration for the plaintifi's promise to give her 
time; and if that promise was without consideration, it was also void. 
The plaintiff was not bound by it, for he was always entitled to be 
paid out of the testator's assets, and obtained no better security by the 
executrix's promise. He might, therefore, have sued the executrix at 
any time notwithstanding his promise, so that in effect no time was le- 
gally given her. 

Taddy. The plaintiff's remedy against the acceptor was in effect sus- 
pended, and that is sufficient to discharge the drawer. But for the pro- 
mise given by the defendant the plaintiff would have sued at once on 
the bill. The promise to pay, if proceedings were stayed, was in sub- 
stance a promise to pay out of the assets; and the stay of proceedings 
was a sufficient consideration for such a promise. But if time was given, 
it is immaterial whether there was a consideration for giving it or not. 
In Tindall v. Brown, 1 T. R. 169, Bidlcr I. says, "as to giving 
time, the holder does it at his peril. In no case has it been tietcrmined 
that the indorser is liable after the holder of the note has given time to 
the maker." In that case there was no consideration for the time given 
by the holder, nor (>id he obtain by it any other security. 

Cur. adv. vnll. 

Best C. J. A creditor by giving furHior time of paymonl, under- 
takes that be will not, during the lime given, receive the (lcl)l from any 
.surety of the debtor, for the instant that a surety paid the d(i)t he would 
have a right to recover it against his principal. The creditor, there- 
fore, by receiving his debt from the surety would indirectly deprive the 
debtor of the advantage that he had stipulated to give him. If the cre- 
ditor had received from his debtor a consideration for the engagement 
to give the stipulated delay of payment of the debt, it would he injus- 
tirn to him to force him to pay it to any one before the day given. If 
to prevent the surely fiom suing the piincipal, the crcflilor refuses to 



128 PiiiLi'oT V. Briant. \\. T. 1828. 

receive the debt from tlic surety until the time given to tlic debtor for 
paynient by the new agreement, the surely must be altogether dis- 
charged, otherwise he might be in a situation worse than he was in by 
his contract of suretyship. If he be allowed to pay the debt at the lime 
when he undertook that it should be paid, the principal debtor might 
liavc the means of repaying him. Before the expiration of the extend- 
ed jieriod of payment the principal debtor might have become insolvent. 
A creditor, by giving time to the principal debtor, in equity, destroys 
the oblig:Uion of the sureties; and a court of equity will grant an injunc- 
tion to restrain a. creditor, who has given further time to the principal, 
from bringing an action against the surety. This equitable doctrine 
courts of law have applied to cases arising on bills of exchange. 

The acceptor of a bill of exchange is considered as the principal 
debtor; all the other parties to the bill are sureties that the acceptor 
shall pay the bill, if duly presented to him on the day it becomes due, 
and if he does not then take i4; up, that they, on receiving notice of its non- 
payment, will pay it to the holder. If the holder gives the acceptor further 
lime for payment, without the consent of the drawer or endorsers, he dis- 
charges them from all the liability that they contracted by becoming 
parties to the bill: but delay in suing the acceptor will not discharge 
the drawers or endorsers, because such delay does not prevent tjiem 
from doing what, on receiving notice of non-payment by the acceptor, 
they ought to do; namely, pay the bill themselves. 

The time of payment must be given by a contract that is binding on 
the holder of the bill; a contract, without consideration, is not binding 
on him; the delay in suing is, under such a contract, gratuitous; not- 
withstanding such contract, he may proceed against the acceptor when 
he pleases, or receive the amount of ihc bill from the drawer or endor- 
sers. As the drawer and endorsers are not prevented from taking up 
the bill by such- delay, their liability is not discharged by it; to hold 
them discharged under such circumstances, would be to absolve them 
from their engagements, without any reason for so doing. In the case 
of the partners of the Jirundel Bank v. Goble, which is to be found in 
a note to Cliitty on Bills, 296, and the accuracy of which note is proved 
by my Brother's report to us of what passed at the trial of the cause be- 
fore him, that point is decided, Tlie acceptor applied to the holders 
for indulgence for some months; they, in reply, vvrote to the acceptor, 
informing him that they would give him the time that he required, but 
that they should expect interest. On a motion for a new trial, the Court 
of King's Bench held, that as no fresh security was taken from the 
acceptor, the agreement of the plaintifis to wait wjis without considera- 
tion, ?nd did not discharge the drawer. This is a stronger case than 
the present. In our case thejp is no agreement for any particular time, 
nor any consideration for the giving the time that was given to the ac- 
ceptor. 

If the promise made by the executrix of the acceptor be considered 
to be a promise to pay the debt, with interest, out of the assets of the 
executrix, it gives no claim to the holder beyond what the bill gave 
him. The executrix was, before that promise was made, bound to pay 
principal and interest out of her testator's'cfrects. If it is to be taken to be 
a personal promise of the executrix, it is void under the statute of frauds, 
not being in writing. The holder, therefore, had no better security. 



4 BlNGHAM; 717. 129 

nor any advantage beyond what the bill had given him. We hesitated, 
only, in consequence of what fell from Mr. Justice Buller, in Tindall 
and Brown. IJut in that case there was no notice by the holder to the 
defendant of the dishonour of the note. The opinion of Buller is not 
the ground on which the Court gave the judgment, and that opinion is 
overruled by the case in Chitty. 
The rule for a nonsuit must be 

Discharged. 

MACLEAN V. DUNN and WATKINS, who survived AUSTIN. 

p. 122. 

1. If A., without authority, makes a contract in writing forthc purchase of goods 
by B. , and B. subsequently ratifies the contract, such ratification renders A. an 
agent sufficiently authorised to make tlie contract under the statute of frauds, 

2. Where tlie purchaser of goods refuses to take them, the vendor, by re-selling 
them, does not preclude himself from recovering damages for the breach of 
contract. 

This was a special action of assumpsit for not accepting and paying 
for a quantity of Russian and German wool. At the trial before Best 
C. J., London sittings after Michaelmas term 1S2G, the facts of the case 
as far as they are material to the questions here noticed, were as follows: 

The defendants were carrying on business in London as druggists 
and dry-salters, when Ebsworth, a London wool-broker, met Watkins 
at Manchester, near which place Watkins lived, and on the part of the 
plaintiff agreed to sell the defendant 1G5 bags of Russian and German 
wool, to be paid for partly by 14.5 bags of Spanish wool, which, 
on the part of the defendants, he agreed to sell to the plaintiff, and partly 
by acceptances or cash, on certain terms specified in the following 
bought and sold note, which he delivered to the plaintiff's clerk. 

<• D. Maclean, Esq. <•' Manchester, 2Sth March, 1825. 

"Sin — We have sold for your account, to Messrs. Dunn, Austin, 
Watkins, and Co. 1G6 bags of Russian and German wool, viz. [here 
followed a specification of the wools, as in the note made out for the de- 
fendants, amounting to IG.o bags only, the insertion of IGG having been 
admitted on the trial to have arisen by mistake in the casting,] after de- 
ducting the amount of 115 bogs of Spanish wool sold you, the balance 
to be paid for by an acce|)tanro at four months, with 2\ per cent, dis- 
count, or in cash with 5 per ct:nt. discount, at your option. — ('ommis- 
sion for polling, 1 per cent. " IOiisvvorth and liADHAiM." 

*' D. Maclean, Esq. <« Manchester, 2Sth March, 182.5. 

"Sir, — Wv. have bought for your account, of Messrs. Dunn, Austin, 
Watkins, and Co., 14.5 bags of Spanish wool, viz. [here followed a 
.specification of 11.5 l)ngs of wool,] th(! amount of 145 bngs to bo deduct- 
ed from the lfi.5 bags of Russian and German wool bought of you this 
dny, and the balance to be paid for by an acceptance at four months at 
2\ per cent, discount, or in cash, with 5 per cent, discount, on the 1st 
July, at your option. — Commission for purchasing, h per cent. 

"Ebsworth and IJAniiAM." 

This bought and sohl note was written on one sheet of pnpcr. 

f'orrcsponding liought and sold notes, rnitl(/li.'i tniitcnulis, were made 
out by Ebsworth for liie dcfcridnnls. In these notes the 1st of July was 

VOL. XV. 17 



130 Maclean r. Dumn. E. T. 1828. 

fpecified ns the day for cash with discount, at the end of the sold note 
as 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, witli 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 wa3 
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- 
ptrument 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 thepart 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 Chapliyi v. 
Rogers, 1 East, 192; Hinde v. TVhilehouse, 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. *ilshlin, 3 
Campb. 425. 

Taddy and Spankie 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 ratihabitio 
retrotrahilnr et mandato cequiparatxir: and in my opinion, the subse- 
quent sanction of a contract signed by an agent, tiikes 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. Surry, where the 
broker, who signed the broker's note upon a sale of corn, was the seller's 
agent. Lord EUenhurnugh 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 Suamcs v. Spencer, 1 Dow. & Ry. 32, 
where A. and B. bein^; jointly interested in a quantity of oil, A. enter- 
ed into a contract for the sale of it, without the autliorily or knowledge 
of B., wlio, upon receiving information uf the circumstance, refused to 
be bound, but aflerwurds assented by parol, and samj)!cs wore 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 the principal relates back to the time when the agent made 
the contract. 

Then, with regard to the resale, it seems clnar to me, that it did not 
rescind the contract. It is admitted tli.it porishahio articles may be re- 
sold. It is difficult to say what may bo esteemed perishable articles, and 
what not: but if articles arc not pf:rishal)l(!, price is, and may alter in a 
few days, or a few hours. In that resj)ect there is no difference bf^lwcen 
one commodity and another. It is a practice, therefore, founded on 
good sense, to make a resale of a disputed article, and to hold the original 
contractor 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 Lucas r. Nockklls. E. T. 1828. 

Ihority of ilcciilcd cases. Those wliicli have been cited do not apply. 
Where a man, in an action lor goods sold and delivered, insists on liaving 
from the vendee tiic price at wliich he contracted to dispose of his goods, 
he cannot, j)erhaps, 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: he merely alleges that a contract was 
entered into for the purchase of certain articles, that it has not been ful- 
lilled, and that he has sustained damages in consequence. There is no- 
tiiing in this which requires that the property should be in his hands when 
he commences the suit; and it is recjuired 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 every 
branch of trade is equally against the objection which has been raised on 
the part of the defendant*. 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 e.r ahundanti cauiela, 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. 

Plaintiff, a ship-owner, agreed by charter-party with T. to take any goods on 
board whicli T. sliouUl sliip, 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 the delivery 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 tlie cargo forcil)ly from the ship, exhil)iting the 
sheriff's warrant to the captain; they did not sell under X.\\cfi. fa. but after- 
wards made affidavit at the custom-house that they landed the cargo as the 
iiniyortcrs. 

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 abacjue residuo 
caus£, 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 6onay?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 ii 
they had acc^ptcd them under the bill of lading. 



4 Bingham, 729. 133 

Error on a bill of exceptions. 

Nockells, the plainlid' below, declared in trespass fur 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. Hopley, 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, wlio made 
out their warrant in writing to Davis and liull, 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 Eicke), 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 ship, 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 Tenlerden C. J., London sittings after 
Trinity term 18'.i(j, it ajjpcarcil, that the plaintifl" below was owner of the 
shi|) Emerald; that by a charter-party of the Sth August 1822, executed 
at Port Jackson, New South Wales, by the son of the plaintiff below, 
under a power of altorne}', (and reciting a former charter-party of April 
1821, by which the |)laintiff below diil grant, and to freight let, and 
Nathaniel Thornton did hire and take to freight all the said ship Emerald 
for the term of a year from May 1st, 1S21, with an agrccniont 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 
ha I agreed and difl agree to put an end to and (Ictcrmino that charter- 
party and enter intoalresh one), 'the plaintiff below and William Elliott, 
the master of the ship, jointly and severally covenanted 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 goods as N. Thornton 
should tender to William Klliott, and should with all convenient dispatch 
|)rocecd" with her cargo to London, and should discharge at London, 
to Thornton or his assigns; Thornton cunvcnanting to pay *' freight at 



134 Ia( AS V. NocKELLS. E. T. 1828. 

the rate of 1 55. per ton per month," ten daya after the delivery of the 
cargo. 

Ihuler this chartcr-pnrty, a cargo of oils, furs, hides, &c. was shipped 
by Tliornton, at Van Diemen's Land, for London, and Elliott signed a 
bill of lading, by which this cargo was to be delivered to Messrs. Hop- 
ley and Linghams, 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 
plaintiir below 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 Hopley and Lingiiams 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 charlei'- 
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 Hopley 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, Hopley ^md Linghams who 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 17lh, 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; ])laintiff below said, " He'd 
bedanincd 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 tlie sheriff, and it was proved that Davis 
had said the sale of the cargo taken out produced 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, 
which we have paid duty on, and are desirous of landing at the legal 
quays." 

On the 10th July, the captain of the ship 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 property." 

On the 7th of August, Hopley 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 taken 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 plaintiff below, notwithstanding the charter-party, 
had still sutficient possession of the ship to maintain an action of tres- 
pass. 

Secondly, Whether he had a lion on (he goods seized in respect of 
which he could sue in trespass 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 bona fide taken under the writ of execution, or whether 
the execution was resorted to as a colour for taking them, not to effect a 
levy by virtue of the execution, but with a view to land Ihcin without 
subjecting the defendants below to the claim of the plaintiff beluw for 
freight. 

/". Pollock, for the defendants below, rited Savillc\.C<tmpion, 2 H. & 
A. 50.3; Christie v. Lewis, 2 Ji. &. H. 410; Hut ton v. Bra^i^, 7 Taunt. 
It; Railt v. Mitchell, 4 Cam|)b. 146; Crowlherv. Ihimsbotiom, 7 T. 
R. 654; Ex parte PVilbran, 5 Maddox, 1; Dr. Grcnville {(Jrocnvelt) 
v. The Collate of Physicians, 12 Mod. 360; 3 Rep. 26. 

Campbell contra. 

Pollock in reply. It cannot be said there wa.^ any fraudulent inten- 
tion to deprive the plaintillof his frcijiht ; for it is not rle;ir that he was 
entitled to freight ; that belongerl to the charterer, Tliornton, and the 
plaintiff below had only a claim against him under the charter-party 
for the hire of the ship: Moorsoni v. Kyincr, 2 M. & S. 303. If per- 
5on3 who execute legal process proceed irregularly, a.s !)y destroying, 



13G Lucas v. Nockells. E. T. 1828. 

inslcail of soHiim;, Uic gooils taken, that is a matter for wliichtlic parties 
idjiircil l)y the iiioi^iilarity may obtain redress by application to the coiul 
out of which the process issues ; but proof that an execution has been 
irregularly conducted is not jjroof that the goods seized were not seized 
under the writ. If the party has the writ when he seizes, and the writ 
authorizes a seizure, it is impossible to say the goods are not taken under 
the writ ; though the conduct of the parties subsequently to the seizure 
may be such as to call for reprehension. Here there was no cause of 
complaint but the irregularity of handing the goods over to the creditor 
immediately, without the formality of a sale. If it were proposed to 
impute fraud to the defendants b.^low, fraud ought to have been replied. 
As the pleadings stand, the valiLlity of the seizure under the execution 
cannot be disputed. 

Best C. J. The bill of exceptions raises three questions for our de- 
cision. First, Was it competent to the Chief Justice, in this cause, to 
leave it to the jury to say, whether the goods were really and bona fide 
taken by virtue of the writ of execution, or whether the execution was 
had recourse to, merely as a colour to enable the delendants, Hopley 
and Lingham, to get possession of and land the goods as importers, 
without subjecting themselves to the claim that might have arisen, if 
the}'' had accepted them under the bill of lading ? Secondly, Whether 
the plaintifi' had such possession of the ship as would enable him to main- 
tain trespass ? Thirdly, Whether the plaintiff had any lien on the goods 
for the freight due for bringing them from Van Diemen's Land to Lon- 
don? The counsel for the defendants below very properly declined argu- 
ing the second question. 

The charter-party, by which the ship was let to freight, contained no 
terms conveying to tlie chartei'cr the possession of the ship. It was a 
covenant, that the master would bring in her all the goods that she was 
capable of carrying. As the freight, by the bill of lading, was made 
payable according to the terms of the charter-party, and as by the char- 
tvr-parly no freight was due until ten days after the delivery of the car- 
go, we think that the plaintiff below had no lien on the cargo for the 
freight. But although the plaintiff below had no lien, and although 
Hopley and Linghams were entitled to have the cargo delivered to 
thnm under the bill of lading, yet they had no right to take it by force, 
without producing the bill of lading, and so avoid acceding to the con- 
dition on which the cargo could be claimed under the bill of lading, 
namely, that of becoming responsible for the payment of the freight, ac- 
cording to the terms of the charter-party. The special property which 
the plaintiff l)elowhad in the cargo was sufficient to support an action of 
trespass against those who took it from him without authority from the 
owner. 

The circumstance of the plaintiff below having no lien could only 
operate in reduction of the damages, and this was not the ground on 
which the Chief Justice's direction was excepted to. But the want of 
lien in the plaintiffbelow, as the freight would have become due from 
Hopley and Linghams in ten days after they had taken the cargo, if 
they had claimed it under the bill of lading, could not have had such an 
effect on the amount of daniages as to render it proper to send the case to 
another trial. 

The exception, on which the first question is raised, was applied to 
the pleadinnjs in the cause ; but the counsel for the defendants below has 
insisted in his argument before this Court, that as the defendants below 



4 Bingham, 729. 137 

had a writ which would justify their entering the ship and taking the 
cargo, it would not have been competent to the Chief Justice, whatever 
pleadings had been on the record, to direct the jury to enquire whether 
the defendants below did the acts complained of under the authority 
given to them by that writ. In other words, that the defendants below 
having authority to do what they did, that authority will protect them, 
although they did not act under it. Perhaps, if the writ had given them 
authority to do all that they did, we could not, without overruling some 
decided cases, hold that the jury might enquire whether they were acting 
under the writ ; but it will be found that the writ of execution did not 
justify the conduct of the defendants below ; this writ, therefore, could 
not protect them. The action was maintainable, whether they entered 
the ship under the authority of the writ or not, if the writ did not justi- 
fy them in disposing of the cargo in the manner in which it was disposed 
of by them. Although they did enter the ship under the writ, yet if they 
dealt with the cargo in a different manner from that in which the writ 
required them to deal with it, they were themselves trespassers ab initio. 
Reason, as well as law, says, that a party who abuses an authority, shall 
not protect himself by it. In the case of Dije v. Leatherdalc and 
Simpson, 3 Wils. 26, the plaintiff complained that the defendants took 
a certain hog, drove it away, and converted it to their own use. The 
defendants justified, that they took the hog damage-feasant, and im- 
pounded it. The plaintiffs replied, that, after taking and impounding 
tiie hog, the defendants converted it to their own use. The Court held 
the replication good, because when the defendants had shewn that the 
taking and impounding were lawful, it became necessary to re- assert the 
converting and disposing to their own use ; for by that, the Judges say, 
the defendants made themselves trespassers ab initio. In Reid v. Har- 
rison, 2 BI. 1218, which was an action of trespass for taking goods, the 
defendants justified under an attachment ; it appearing on the plea that 
they continued in possession of the plaintifl's premises from the I7tli day 
of July 1775, to the 10th January 1776 ; the Court said '' that, by not 
removing the goods, and by "continuing so long on the plaintiff's pre- 
mises, although they entered under the writ of attachment, they had 
made themselves trespassers ab initio." So, in tlio present case, if the 
defendants I)elow had a writ that would have justified them in entering 
the ship, seizing the cargo, and selling it to raise the money to pny the 
debt to levy the amount of which tlic execution was levied, yet, if they 
did not derd with the property according to the cxigoncy of such a writ, 
hut in a diffcrenl manner, and thereby occasioned an injury to the jilain- 
tifl below, he might well say, ** It is true that you had a writ, but you did 
not do what that writ commanded you, but dealt with the goods in a 
manner very different from ihat which the writ directed, and, tliercfore, 
you arc trespassers ;" this he has said hv traversing all tho plt-a except 
the judgment and writ. 

15y his new assignment, he says, in effect, ** A1iIioii<t1i voti had a writ, 
you did not enter the ship under it." TJj)on these pleadings it was for 
the jury to enquire wljetlier the defendants below were acting under Iho 
writ, or whether they obtained the writ to give a false colour to their 
conduct. 

It has been argue:! before us, that motives are not exaininable, and 
that the allegation, in pleas, of virtnle ciijiis is not Iraversahic. If a 
man has done what hn is justified in doing, and no more, the law, in 
many cases, will not permit his motives to be enq-iired into: as if he has 

VOL. XV. 18 



138 Li TAS V. NocKELi s. E. T. 1828. 

a right to proBCciite for a crime or to arrest for a debt, there can be no 
enquiry with wliat motives these acts are done: but if he does more than 
as a prosecutor or creditor he liad a right to do, he will not be justified, 
and it becomes proper to enquire whether the prosecution and arresting 
were not mere pretences. Such an enquiry is material for the purpose 
of getting at the real nature of the transaction, and enabling a jury to 
award proper damages. The virtute ciijus is sometimes a mere infer- 
ence of law, as. What is the meaning of a writ, or the extent of authority 
given by it? In such cases a question of law is raised, and there can 
be no traverse, for that withdraws the consideration of law from the 
Judges, and presents it to the jury. But the virtute cujus sometimes 
raises a mixed question of law and fact; and when this is the case, there 
may be a traverse, for that is the only mode by which the facts are to be 
settled on which the law depends. In Beat v. Siinpsoii, 1 Ld. Raym. 
410, Powell i. says, "When a matter of law only is comprised in a 
virtute cifjus, then it is not traversable. But matter of fact in the vir- 
tute cujus is traversable." Trehy C. J. differed from Powell xin this 
point, and said, By virtue of the writ, meant, by authority of the 
writ, by an operation of law on the writ, without any ingredient or mix- 
ture of matter of fact. The other Judges agreed with Poivell, "and said, 
when the virtute cujus is mixed with fact, it may be traversed. It ap- 
pears from 1 Saund. 23., that virtute cujus may be traversed, and he 
refers in support of this opinion to Hob. 52, and 9 Hen. 6., 14. & 20. 
The learned editor, Mr. Serjeant fVilliams, says, "When the words 
virtute, prxtextu, per quod, &c. introduce a consequence from the pre- 
ceding matter, they are not traversable. But matter of law connected 
with fact, or rather matter of right resulting from facts, is traversable." 
In The Grocer^ s Company v. T'hc Jirchbishop of Canterbury, 3 Wils. 
234, Lord Chief Justice De Grey says, in giving the judgment of the 
Court, ''Law connected with fact is clearly traversable." 

In this case the plaintiff below does not, by his replication and new 
assignment, deny the motive with which the writ of execution was exe- 
cuted, or raise any question as to the import of the writ; but says, 
"Although you had a writ, you did not use it; you did not enter under 
the writ, and 1 deny what you have asserted in your plea, that you sold 
the goods and levied the debt by such sale, and paid the money so levied 
to the other defendants, w^ho caused the writ to be issued: on tl)e con- 
trary," says the plaintiff below, "Hopley and Lingham took the goods 
cs indorsees of the bill of lading, and they have made their sheriffs the 
instrument to give the transaction the colour of an execution, that the}'' 
might get the goods without paying the freight, and oblige the plaintiff 
below to seek his remedy against a charterer, who may be out of the 
reach of our law, or may be insolvent." These are facts. These were 
to be submitted to the jury: not with what motive the writ was executed, 
but whether it was executed. 

it is not necessary for us to decide what would have been the effect on 
the claim of the plaintiff below for freight, if the goods had been sold 
under the execution. If they were not taken and sold imder the execu- 
tion, he has a right to take advantage of it, and to obtain from the real 
defendants the freight which is justly due from them to the plaintiff 
below. 

In this case the plaintiff below complains that the defendants below 
took his goods and converted and disposed of them to their own use. 
'i he defendants below Fay that Hopley and Linghams had a judgment 
against the coHi'ig-ior and owner of ih-:^ goods; tliat on thaf judgment they 



4 Bingham, 729. 139 

issued a writ of testatum fieri facias, by which the defendants, the 
sheriffs, were commanded that of the goods of the consignor, they should 
cause to be levied the debt and damages due under the judgment, and 
have the money so levied before our lord the king at Westminster; that 
the sheriffs made their warrant under that writ to the defendants, the 
officers; that they entered and took the goods in execution; that the 
sheriffs sold them, and by the sale levied 1950/. ; and that they paid the 
1950/. to Hopley and Linghams, in part satisfaction of their debt- 

The substance of the replication is, Although it is true there was such 
a judgment as is pleaded, although a writ was sued out, the defendants 
below did not enter the ship to execute that writ. They did not proceed 
to sell the goods as they say they did. They did not levy the money 
and pay it to the plaintiffs in the execution; but the goods were taken 
under another authorit}-, and for a purpose different from that of levying 
the money due to the judgment creditor. In the new assignment the 
plaintiff below says, that the defendant below, for other purposes than 
those mentioned in the pleas, entered the siiip and took the goods. If 
the question can be raised, whether the goods were taken under the bill 
of lading or under the writ, these pleadings arc calculated to raise it. 
These put that question directly in issue. The question is not raised by 
an inference of law, from the writ only, but from facts. If the sheriffs' 
officers had a warrant, but instead of proceeding to dispose of the goods 
according to the directions in the warrant, they took the goods, intend- 
ing to keep them for their own use, might not that be shewn by their 
conduct with regard to the goods, and subsequent to their taking them? 
Certainly it might. 

In this case, the manner in which these goods were disposed of after 
they were taken, shews as plainly that they were not seized under the 
writ, as if the officers who took them had kept them for their own use. 
Instead of being sold by the sheriff, and any debt being levied by the 
Rale, they were handed over to Iloplcy and Lingham. Iloplcy and 
Lingham, instead of taking the goods as purchasers from the sheriff, tell 
us by their whole conduct, and most distinctly by their oatlis, that they 
obtamed the goods as importers. In such a case, is not the virtit/e ciijiis 
a mixed question of law and facts, and so, according to tlic authorities, 
that I have referred to, traversable ? Is it consistent with common sense, 
to say, that although some of the defendants below have sworn they 
were the importers of the goods, and held themselves out as having the 
goods as importers, and in no otiicr character, yet, because they had a 
writ of execution against tiie consignor, if they dare to stale on the re- 
cords of a court of justice, that they possessed ihcmsclves of thorn by vir- 
tue of that writ, they cannot be contradicted, but tliat to defeat justice 
their plea must be taken to be true, aUhougli negatived by their conduct; 
although shewn to be false by the oaths of some of those who pleaded it.^ 

It is proper to take notice of the cases that have been cited by tlie 
counsel for the defendants below. The first that was mentioned was 
Crowthcr v. liainshollnm. In that case the defendants were authoris 
rd, by tlie writ of justices, to do all that tlioy wern charged to have done. 
Tliey were cmj)Owcred to attach thf plaintiff l)y his goods, to compel aii 
appearance. They did no more, Ajrilie jjropcily taken was returned 
on the plaintilPs ciitcriiigan appearance. 

If they used too much violence, that should have been new-assigned ; 
and if they took more property than it wai necessary for them to tnkc, 
that, as Lord Kenyan says, only rendered them liable to an action on th-j 



MO Lucas v. Nockells. E. T. 1828. 

case on tlic statute of Marlbriilgc, but did not make them trespassers. 
Lord Kem/on says, " Ifhe can sliew that he had a legal justification for 
what he did, that is suflicient. xV man may distrain for rent, and avow 
for hcriot service. "" 

In the case before us, the writ does not justify all that the defendants 
below have done. In the language of Lord Kenyan, it is not a legal 
justification for what they have done ; on the contrary, the conduct of 
the defendants below is so unlike the conduct required by the writ, that 
the plaintiff below has a right to say, what was done could not be done 
in execution of the writ. 

In the case of the distress mentioned by Lord Kenyan, it is precisely 
the same thing to the party distrained on whether the distress was for 
rent or heriot service, if the property was taken as a distress, and treat- 
ed as the law requires that property so taken should be treated. In the 
present case, the property was not treated as it would have been if it had 
been taken under the writ. The reason on which the law of distress is 
founded, is, that if the party has a right to do the act complained of, he 
shall not be deprived of the advantage which the right gives him by an 
immaterial misdescription of his right in the pleadings. 

The only other case cited is. Dr. Groenvelt v. Dr. Burwell and 
others, in 12 Mod. 386, 3 Salk. 354, and 1 Lord Raymond, 454. In 
that case the plea justifies the imprisonment, which was all that the 
plaintiff complained of, under a warrant from the College of Physicians 
for mala praxis. The replication does not state any facts to shew from 
the defendants' conduct, that they were not acting under the warrant, 
but merely says, ''that which they did was done of their own wrong." 
This justification, as it is said in the short report of the case in Salkeld, 
was merely denying the legality of the warrant ; and if he was not taken 
under the warrant, but for some other cause, he should have pleaded that 
cause specially. This was a traverse of a matter of law, namely, the 
legality of the warrant, and not, as in the present case, an allegation that 
the writ was not used, and would not authorise the manner in which the 
property was disposed of by the defendants below. Halt C. J. says, 
*' If the plaintiff was arrested for any other cause, and not on this war- 
rant, then the plaintiff should have shewn the other cause." The plain- 
tiff below, in the present case, has shewn that the goods were taken for 
another cause ; he has satisfactorily proved at the trial that they were 
taken for another cause, and not under the writ. 

If, according to the strict rules of pleading, he ought to have shewn 
the particular cause for which they were taken, it is too late to take ad- 
vantage of that formal defence. 

- The cases on which the counsel for the defendants below relies, are 
distinguishable from that which we are now called on to decide. This 
"^vas an attempt to abuse the process of the Court, by suing it out for the 
purpose of defeating the plaintiff's claim to freight. 

'NVe affirm the judgment of the Court below. 

Judgment for plaintiff below. 



END OF EASTER TERM 



REPORTS OF CASES 

ARGUED AND DETERMINED 

IN THE 

COURT OF KING'S BENCH. 



Br RICHARD VAUGHAN BARNEWALL, 
OF Lincoln's inn, 

And CRESSWELL CRESSWELL, 
or the inner temple, esqs., barristers at law. 



yOL. VIIT. 



Containing the Cases of Easter, Trinitv, and Michaklmas Terms, 
in the 9th Year of Geo. IV. 182S. 



CASES 

ARGUED AND DETERMINED 

IN THE 

COURT OF KING'S BENCH, 

IN 

EASTER TERM, 

In the Ninth Year of the Reign of George IV. — 1823. 



SPARKES and Others v. BELL and Wife.— p. 1. 

A married woman, taken in execution together with her husband for a debt due 
from her before marriage, is not entitled to be discharged, unless it appears 
tliat she has no separate property, even although the husband has been dis- 
charged under the insolvent act. 

A rule 7iisi had been obtained to discharge an order made by Bayley 
J. for discharging Sarah Bell out of custody, she having been taken in 
execution, together with her hiisband, on a ca. sa. issued against them, 
and for issuing a new writ of ca. sa. against her. YSy the affidavits 
it appeared that Sarah Bell before her intermarriage with the other 
defendant carried on the business of a baker at Exeter, and I)ecame in- 
debted to the plaintiflTs in tlie sum of 100/. and upwards. In February 
1827 she married the other defendant, having previously conveyed a 
house and other premises, in which she had an estate for her own life, 
her furniture and stock in trade, to a trustee for her separate use. Soon 
after the marriage the plaintifls commenced an action against the two 
defendants for the recovery of the 100/. due, and arrested them both, 
whereupon they gave bail. The husband was soon al'lerwards arrested 
for anotiier dcht, and committed to prison, and he and iiis wife suffered 
judgment by default in the action brought i)y liie plailltif^^^, and afterwards 
a ca. sa. was issued, upon vvhicii the husband, then in custody, waa 
charged in execution, and Sarah Bell was committed to the same prison. 
An order for her discharge was made by Bay ley J., and the husband af- 
terwards obtained his disciiarge as an insolvent del)tor. 

The affidavits in answer did not deny the allegations made by the 
plaintin's, but shewed that the house was mortgaged, not, however, to 
the full value. 

JlrchhdltL shewed cause and contended, tiiat the application io dis- 
charge the order was too late, the husband having in the mean time oh- 
Inined his discharge as an insolvent debtor. In the case of Miles v. 
IVillinms ct Ux.,\ P. VVms. 21!), it was held that a debt contracted by 
the wife dum sola was discharged by the bankruptcy of the husband: 
this case is precisely analogous; tho debt was discharged hy the provi- 
•ions of tho insolvent act, and the wife cannot now be retaken in cxocu- 



144 Sparkes I'. Bell. E. T. 1828. 

tion for it. She cannot obtain her discharge under the insolvent act, Ex 
parte Deacon, ') 13. & A. 15'J. 

Merewc//ier Serjt. and /'. Kelly contra, were stopped by the Court. 

Bayley J. I do not recollect upon what ground the order for dis- 
charginp; Sarah Bell was made, but 1 am satisfied by the affidavits now 
before the court that the order was improperly made. The debt in ques- 
tion was originally t!:3 debt of the wife, by i.he marriage it became the 
debt of the husband and wife; and where judgment is obtained in an ac- 
tion for such a debt, the rule as to the execution is correctly laid down 
in Tidd's Practice, 1026, 9th edit. "In an action against husband and 
wife, tlicy may both be taken in execution; and when the wife is taken in 
execution slie shall not be discharged unless it appear that she has no 
separate property out of which the demand can be satisfied, or that there 
is fraud and collusion between the plaintiff and her husband to keep her 
in prison. " There is no pretence for imputing any collusion in this case, 
and it does appear that the wife has separate property: she has a house, 
the clear rent of which exceeds by 8/. a year the interest of the mort- 
gage upon it. I am, therefore, of opinion that a new writ of ca. sa. must 
be issued. 

HoLROYD and Littledale Js. concurred. 

Rule absolute (a). 
Crt) See 3 Wils. 124. 



WILDBOR V. RAINFORTH and Another.— p. 4. 

Wlicre a pauper, who had been permitted to occupy a parish house, went away 
from home: Held, that the overseers might lawfully enter and resume posses- 
sion, without giving any notice to quit, and were not bound to pursue the mode 
pointed out by the 59 G. 3. c. 12. s. 24. 



KEATES V. WHIELDON.— p. 7. 

A promissory note for 11/., payable to A. B. on demand, is a promissory note 
payable to bearer on dem ind, withing the meaning of the S5 G. 3. c. 184., and 
requires a stamp of two shillings. 



RICHMOND V. SMITH.— p. 9. 

Where a traveller went to an inn, and desired to have his luggage taken into the 
commercial room, to which he resorted, from whence it was stolen: Held, 
that the inn-keeper was responsible, although he proved that according to the 
usual practice of his house, the luggage would have been deposited in the guest's 
bedroom, and not in the commercial room, if no order had been given respect- 
ing it. 

Case on the custom of tlie realm against the defendant, an inn-keeper, 
for the loss of certain goods which the ])lainti(f, a guest, had carried 
with him to the defendant's inn. Plen, the general issue. At the trial 
before Alexander C. B. at the last Spring assizes for Nottingham, it ap- 
peared that the plaintiff went by a stage-coach from London to the de- 



8 BaRNEWALL & CllESSWELL, 9. 145 

fendant's inn at Nottingham, having with him several packages. Some 
of them were taken up stairs to his bed-room, but one package, at his 
desire, was carried into the commercial room, into which he was sheVvn. 
It was the usual practice at that inn to take all the luggage of the guests 
into their bed-rooms, unless orders to the contrary were given. The 
package taken into the commercial room contained silks of various kinds, 
and on the day after the plainlifl's arrival at Nottingham he took it out, 
to exhibit his goods to different customers: some were sold, and the 
package was taken back to tlie commercial room, from which it was 
afterwards stolen. For the defendant it was contended, that ilie plain- 
tiff by ordering the goods to be taken into the commercial room took 
them under his own protection, and therefore could not make the inn- 
keeper responsible for the loss. The Lord Chief Baron told the Jury 
that the defendant was in the situation of a carrier, and could not get 
rid of his common-law liability unless by giving an express notice; and 
under that direction they found a verdict for the plaintiff. 

Clarke now moved for a new trial, and contended that the Lord 
Chief Baron mis-directed the jury in stating that the defendant could 
only get rid of his liability by express notice. In Burgess v. Cle- 
"inents, 4 M. &. S. 306, it was held that a guest who desired to have a 
private room, in which he placed his goods, out of which they were 
stolen, had exonerated the inn-keeper. Here the goods but for the plain- 
tiff's order would have been taken to his bed-room, where in all proba- 
bility they would have been safe. But he chose to have them in the 
public room; it is, therefore, but reasonable that he, and not the land- 
lord, should suffer by the loss that ensued. 

Lord Tenterden C. J. I am of opinion that we ought not to grant 
aTulc on the ground of the supposed mis-direction in this case. It ap- 
pears that the plaintiff went to the defendant's inn as a guest, taking 
certain goods with him. It was the habit of the servants of that inn to 
place the goods of their customers in their bed-rooms, but the plaintiff 
chose to have the package in question carried into the room to which 
travellers in general resorted. It is clear that at common law when a 
traveller brmgs goods to an inn the landlord is responsible for them. 
And if it had been intended by the defendant not to i)C rcs]ionsiblc un- 
less his guests chose to have their goods placed in their bed-rooms, or 
some other place selected by him, he should have said so. In this re- 
spect I think that the situation of the landlord was precisely analogous 
to that of a carrier, and that the direction given to the jury was right. 

BAYLEy J. It appears to me that an inn-keeper's liability very, 
closely resembles that of a carrier. He is prima facie liable for any loss 
not occasioned by the act of God or the King's enemies ; although he 
may be exonerated where the guest chooses to have his goods under his 
own care. 

Iloi.uovn .T. In the case o{ Bvrgrss v. C/fmr;?/.y the plaintiff asked 
to have a rooin which he used for the purposes of trade, and not merely 
as a guest in the inn. That was very difibrenl from the present case. 

Kulc refused. (rt) 

ia) Sec 1 Roll. Al)r. Anion sm Ca'c, V. pi. 5. 

VOL. XV. W) 



146 Penny v. Foy. E. T. 1828. 



PENNY and Another, Assignees of R. BUNCOMBE, a Bankrupt, 
V. FOY.— p. 11. 

Where a defendant pleaded, by way of set-off, a bond given to him by the plain- 
tiff, conditioned for payment of an annuity to a third person, which had been 
previously granted by the defendant, and that a certain sum was in arrear : 
Held, tliat he was not bound to prove that he had paid the money in order to 
set it ofi", but that on production of the bond the plaintiff was bound to prove 
payment. 

Debt on bond, dated the 7th June 1817, for 658/., given by the de- 
fendant to the bankrupt before his bankruptcy. Pleas, (after craving 
oyer of the condition of the bond, whereby it appeared to be for the 
payment of 329/. and interest on the 7th of June 1822,) first, non est 
factum. Secondly, that R. Buncombe did not become bankrupt as 
alleged in the declaration. Thirdly, that before R. Buncombe became 
bankrupt, he executed an assignment of all his property, bonds, bills, 
&c. to certain persons upon certain trusts, and that the trustees accepted 
the assignment, whereby the bond in the declaration mentioned, and all 
R. Buncombe's beneficial interest therein, became vested in the trus- 
tees. Fourthly, that at the time of the commencement of the suit there 
was due to the plaintiffs upon the bond in the declaration mentioned 
455/. for principal and interest, and that before the said R. Buncombe 
became bankrupt, to wit, on the 7th of June 1817, he, by his writing 
obligatory, became bound to the defendant in the penal sum of 300/., 
subject to a condition, whereby (after reciting that certain premises of 
the defendant were charged with the payment of an annuity of 50/. to 
Elizabeth Buncombe, and which the defendant also engaged to pay, arid 
that R. Buncombe, in consideration of 149/. to him paid by the defen- 
dant, had agreed to pay and discharge the said annuity to E. Buncombe, 
and to indemnify the defendant of and from the same,) it was declared 
that if R. Buncombe did well and truly pay the said annuity, and in- 
demnify defendant from the same, then the bond should be void, other- 
wise, &.C. Averment, that after making the said last-mentioned bond, 
to wit, on, &c. a large sum of m.oney, to wit, 200/. for and on account 
of the said annuity, became and was due and in arrear to the said E. 
Buncombe, and that at the time of exhibiting the bill of the plaintiffs 
they were and still are indebted to the defendant in the sum of 200/., 
being the amount of the said arrears. And further, that plaintiffs at 
that time were and still are indebted to the defendant in the further 
sum of 300/. for money lent, &c. To the third plea plaintiffs replied, 
that the bond did not pass to the trustees. To the fourth, that they the 
plaintiffs were not indebted as alleged. At the trial before Gaselee J., 
at the last Spring assizes for Somerset, the jury found a verdict for the 
plaintiff" on the first three pleas. In support of the fourth, the defen- 
dant produced the bond set out in the plea, but did not give any evi- 
dence that he had been obliged to pay the annuity to E. Buncombe. 
For the plaintiffs it was contended, that the defendant could only set 
off" what he had paid, and, therefore, in the absence of proof of any pay- 
ments, the issue on that plea must be found for the plaintiff"s. The 
learned Judge thought that the plaintiff's were bound to prove payment 
according to the condition of the bond, and directed a sum of 200/. for 
the arrears mentioned in the plea to be deducted from the amount of the 



8 Barnewall & Cresswell, 11. 147 

verdict on the other issues, but gave the plaintiflf leave to move to enter 
a verdict in his favour on that issue also. 

Wilde Serjt. now moved accordingly, and contended, as before, that 
the defendant could not be entitled to set oft' any more than he had ac- 
tually paid. 

Lord Tenterden C. J. This question^ arising on a plea of set-off, 
must be treated as if it had arisen in an action on the bond. Now that 
was conditioned for payment of the annuity as well as for indemnifying 
the defendant; and had an action been brought on this bond the obligor 
would, as in the ordinary case of actions on bonds, have been bound to 
prove payment. 

Bayley J. If the bond had been a bond of indemnity only, the de- 
fendant must have proved actual damage. But as the condition was 
for payment of the annuity the onus of proving payment was upon the 
plaintiffs. Toussaint v. AIarlinna?it mid ^^nolher, 2 T. R. 100, is 
an express authority, that where a bond is given to a surety, conditioned 
for payment of the money, the surety may sue upon it as soon as the 
condition is broken, although he has not been called upon to pay. 

Rule refused. 



MAUGHAM V. HUBBARD and ROBINSON, Assignees of LAN- 
CASTER, a Bankrupt.— p. 14. 

A witness called to prove the receipt of a sum of money, was shewn an acknow- 
ledgment of the receipt of such money signed by himself; and on seeing it 
said that he had no doubt he had received it, although he had no recollection 
of the fact : Held, that this was sufficient parol evidence of the payment of the 
money, and that the written acknowledgment having been used to refresh the 
memory of the witness, and not as evidence of the payment, did not require 
any stamp. 



Hr!:NLEY v. SOPER the Elder.— p. IG. 

Debt lies on the decree of a colonial court made for i^aynient of the I)alunce due 
on a partnership account. One of the jjartncrs gave liissou a jjower of attor- 
ney "to act on liis behalf in dissolving the partncrsliij), with authority to ap- 
point any otlier person as he might see fit :" Held, tliat this gave the son power 
to submit tlie accounts to arliitration. 

Dkbt on a judgment of l!io supremo court of judicature in Newfound- 
land, whereby the jjlaintiff recovered a del)t of <iOS/. 2d., with costs of 
suit, which were taxed at Sfi/. f).s. lid. Count for interest. Pica, nil 
debet. At the trial before Gaselee J. at tiic last Spring assizes for De- 
vonshire, the proceedings of the supreme court were given in evidence, 
whereby it appeared tliat on the -Ith of June 1825 the present plaintiff 
presented a petition to lliat court, stating that he and defendant entered 
into certain partncrsliip trans;iction.H in ISIS; that in 1S'-21 the defen- 
dant pro[)Osed that they shouM close their concerns, to wliich plaintiff 
assented; that plaintiff had been unal)le lo obtain an accoimt of the af- 
fairs of the partnership, and therefore prayed that the court would order 
him to be turnished with a true statement of the accounts. Upon this 
petition an order was made that the defendant should appear in court on 
the 6th of June to answer such cpieslions as might be put to him touch- 



14S Uenlly v. Sopek. E. T. 1828. 

ing the ni'itlcis set forth in tliu petition. On Ihc 13th of June, Joseph 
Sopcr, junior, as the attorney of his father, J. Sopcr, senior, appeared 
in court, and stated that he had it not in his power to answer; in eon- 
scquoncc. of wliich the cause was ordered to stand over until Novemher 
then ne\t, to allow dcfenilant time to produce a statement of tiic part- 
nership accounts. On the 0th of Dccenibcr 1S25, thcplaintifl in his own 
propci person, and the defendant by his attorney, J. Soper, junior, 
prayetl the court that all matters in difference between them might be 
submitted to the arbitration of A. B. and C. D. ; that the court would 
be pleased to appoint an umpire, and that the award of the arbitrators, 
signed and delivered into court, might be made a rule of the supreme 
court, and he considered final and binding on them, plaintifl' and defen- 
dant. To which prayer the court assented, and P. M. Esq. was by the 
court appointed umpire. On the 25th of January 1S26 an award was 
made, and on the 12th of July 1826 this award was set aside by the su- 
preme court, and the arbitrators were authorized to enter into a new in- 
vestigation of the accounts between the parties, upon JNIr. Soper's pay- 
ing all the costs already incurred in the proceeding. On the 16th of 
July the arbitrators made a second award-, and thereby found that Soper 
Avas indebted to Henley in the sum of GOSL 2d., and for the amount of 
this award the supreme court gave judgment for the plaintiff on the 31st 
of July 1S26, and on the 5th of July 1S27 the court taxed and allowed 
the plaintifl's costs at 5GL Os. lid. In order to prove the authority of 
J. Soper, junior, to appear and act as agent for his father in the supremo 
court, a letter was given in evidence written by the defendant to the 
plaintiff on the 9th of April 1821, wherein he stated that he was deter- 
mined on dissolving his connection with the plaintiff, and in order to fa- 
cilitate that object, had given his son a power of attorney to act on his 
behalf, with authority to ajipoint any other person as he might see fit. 
And also a petition from the defendant to the supreme court, dated the 
30th November 1825, praying for further time to produce his accounts 
before the arbitrators. For the defendant it was contended that the j)ro- 
ceeding in the supreme court was in the nature of a bill in equity for 
an account of partnership transactions, and that the money awarded was 
for a demand which could not be sued for in the courts of law in this 
country, therefore no action was maintainable on the judgment ; se- 
condly, that the authority given to the defendant's son did not warrant 
a submission to arbitration; and, thirdly, that the second reference did 
liOi appear to be made with the assent even of Sopci-, junior. The learn- 
ed Judge directed the jury to find for the plaintifl" for the amount of the 
foreign judgment, together witli tiie taxed costs and interest, and gave 
the defendant leave to move to enter a nonsuit. 

H'ilde Serjt. now moved accordingly, and cited Carpenter v. 
Thornton, 3 B. & A. 52; Sadler v. Robina, 1 Campb. 253; Fhillips 
V. Hunter, 2 H. Bl. 410; Walker v. Witter, 1 Doug. 1. 

Lord Tentekden C. J. I am of opinion that llie verdict in this case 
•was right. The action was founded on a decree of a colonial court which 
in substance fixed the amount of a balance due from one of two partners 
to tlie t)thcr. There is a great difference between the decree of a 
colonial court and of a court of equity in this country. The colonial 
court cannot enforce its decrees here, a court of equity in this country 
may; and, therefore, in the latter case there is no occasion for the in- 
terference of a court of law, in the former there is, to prevent a failure 



8 Barnewall & Cresswell, 16. 149 

of justice. There is another difference, also: in considering the pro- 
ceedings of a colonial court we must look at the substance and not ai the 
form, according to the rule adopted by the privy council. If we, sit- 
ting in England, were to require in the proceedings of foreign courts all 
the accuracy for which we look in our own, hardly any of their judg- 
ments could stand. With respect to Carpenter v. Thornton, I tlfink 
it does not establish the broad principle for which it was cited. It ap- 
pears by the report that I then expressed myself with much caution, and 
I do not find that I ever said that a decree of a court of equity, fixing 
the balance due on a partnership account, could not be enforced in a 
courtof law, unless the items of the account could be sued for. My 
judgment proceeded on the particular circumstances of that case: the bill 
was for the specific performance of an agreement, which is a matter en- 
tirely of equitable jurisdiction. But it is a general rule, that if a part- 
nership account be settled, and a balance struck by due authority, that 
balance may be recovered in an action at law. In the present case, the 
first step appears to have been taken by the plaintiff to procure an ad- 
justment of the partnership accounts. The defendant's son, acting un- 
der a power of attorney, appeared for his father, who was thereby made 
virtually a party to the suit. Then the accounts were referred to arbi- 
tration. The first award made by the arbitrators was certainly by the. 
authority of the defendant, but that award was disturbed; and it is said 
that neither the defendant nor any person on his behalf consented to the 
second reference. But looking at the substance of the proceedings, and 
considering that the second reference took place upon the defendant's 
paying the costs of the first, we must presume that it was made at his 
instance. Then we find the balance of a partnership account duly ascer- 
tained, and a decree made for payment of it; and I think a promise to 
pay the debt ascertained by that decree may and ought to be presumed. 
If so, there is no fault to be found with the verdict in this case. In 
the case of Sadler v. Robins, \.\\q. sum due on the decree was left indefi- 
nite, the costs which were to be deducted never having been taxed; but 
Lord Ellc7ihnrough said, that had the decree been perfected he would 
have given effect to it as well as to a judgment at common law. 

Bavley J. I am of the same opinion: and it appears to me that the 
case of Carpenter v. Thornton docs not militate against our present de- 
cision, for there the only ol)ligation on the defendant was to pay 
sometliing awarded on eriuitable princij)lcs. But an action at law is 
always maintainable for the balance of a partnership account duly ascer- 
tained; and it cannot make any did'crence that the balance in the j)resent 
case was settled by the Court instead of i)y the jjarlics iheuisulvesout of 
Court. Then it is said that Soper's son had no authority to subniit the 
accounts to arbitration; but I think he had such power, and that we must 
presume his assent to the second reference, inasmuch as it was ordered 
uj)on payment of costs by him. 

JfoMJovn .T. But for the case before Lord Ellen boron i(h I shoy\\d 
Iiavc entertained some doubts upon the present question. That, liovv- 
ever, is an authority in favour of an action upon the decree of a foreign 
court of equity if duly perfected. Here the decree was |)erfecled. 

LiTTLEHALK .1. I am entirely of the same opinion as to the sum de- 
creed to be ])aid as the balance of the jiartncrship account, nor do I see 
any objection to the demand of the other two sums for costs and interest 

Kulc refused. 



150 Doe d. Oldham v. Wolley. E. T. 1828. 



DOE on the demise of OLDHAM and Wife v. WOLLEY.— p. 22. 

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 arc 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 con- 
trary, the death of a party without issue might be presumed. 

Ejectment for lands in Worcestershire. Pica, the general issue. 
At tlie trial before fimghanh.fai the last Spring assizes for Worcester, 
it appeared that the lessors of the plaintiff claimed as devisees of 
Frances Wolley, who was said to be heir of T. Wolley, who died in 
ISOO, seised of the estate in question, having devised it to his widow for 
life, remainder to his right heirs. This will was dated the 21st Feb- 
ruary 1798, more than thirty years before the trial, but one of the 
subscribing witnesses was proved to be still living; and it was insisted 
for the defendant that he must be called to prove the execution of the will, 
as the testator had died within thirty years. The learned Judge thought 
that the thirty years must be computed from the date of the will, and 
over-ruled the objection. In order to prove that Frances Wolley was 
heir of T. Wolley the testator, a deed was produced, being a settlement 
made in 1GS9, on the marriage of Thomas Wolley, the grandfather of 
T. Wolley the testator; by which it appeared that he had several brothers, 
of whom Edward, the grandfather of Frances Wolley, was the youngest. 
No evidence was given to shew what had become of the other brothers, 
or that they died without issue. IJut wills of some members of 
the family, made after the date of the marriage-settlement, were pro- 
duced, and they did not mention any brothers, except the grandfather of 
T. Wolley, the testator, and the grandfather of Frances Wolley. The 
learned Judge said that, in the absence of any evidence to the contrary, 
the jury might presume that they died without issue, and the jury found 
a verdict for the plaintifl'. 

Campbell now moved for a new trial on two grounds; first, that the 
will of T. Wolley was improperly received in evidence, for that the 
plaintiff should have called the existing subscribing witness to prove the 
due execution of it, and cited ]\PKenire v. Fraser, 9 Ves. 5. Secondly, 
the learned Judge ought not to have allowed the jury to presume that 
the elder brothers of Frances Wolley's grandfather died without issue. 
Doe V. Griffin, 15 East, 293. 

Lord Tenterden C. J. As to the first point I am of opinion that 
the rule of computing the thirty years from the date of a deed is equally 
applicable to a will. The principle upon which deeds after that period 
are received in evidence, witiiout proof of the execution, is, that the 
witnesses may be presumed to have died. But it was urged that when 
the existence of an attesting witness is proved, he must be called. That, 
however, would only be a trap for a nonsuit. The party producing the 
will might know nothing of the existence of the witness until the time of 
the trial. The defendant might have ascertained it, and kept his know- 
ledge a secret up to that time, in order to defeat the claimant. As to 
the other point it must at all events be admitted, that the death of the 
grandfather's brothers might be presumed, and then, in order to raise 
ibe objection, two affirmatives must be presumed: viz. that they did 
marry, and did leave issue. I think that would be very unreasonable, 
and that the direction of the learned Judge was right. 

Rule refused. 



8 Barnewall & Cresswell, 25. 151 

DOE on the demise of the Honourable HENRY WATSON, Clerk, 
V. B. W. FLETCHER, Clerk.— p. 25. 

Where a party was presented to a rectory in consideration of his having given a 
bond to resign in favour of a particular 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 simoniacal, and the king then presented A. B , and he was institu- 
ted and inducted : Held, that he might maintain ejectment for the rectory 
against the person who had been simoniacally presented. 



The KING V. The Inhabitants of ASHLEY HAY.— p. 27. 

Since the statute 6 G. 4. c. 57, in order to gain a settlement by settling upon a 
tenement, the reserved rent for one whole year (whatever be its amount) must 
be paid. 



The KING v. The Inhabitants of BIRMINGHAM.— p. 29. 

Where a marriage was solemnized by license between a man and woman, the 
former being a minor, whose father was living, and who did not consent to the 
marriage : Held that it was nevertheless valid, the 4 G. 4. c. 75. s. 16., which 
requires such consent, being directory only. 

Where the 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. 



R. B. BURLEIGH and Others, Executors and Executrix of ROBERT 
BURLEIGH, deceased, v. E. STOTT, Administratrix of T. STOTT, 
deceased. — p. 3G. 

To an action upon a joint and several promissory note of A. and B. , the latter being 
a mere surety, Ijrought l)y payee against the administrator of B. , the defend- 
ant pleaded tliat the cause of action did not accrue within six years, uijon which 
the i)laiiitiff took issue. The ])laintin"i>r()ved, tluii witliin six years, and during 
the lifetime of B., A. made a ])ayment on account of tlie note. B. afterwards 
died: Held, that such payment operated as a new ])romise bv B. to pay, ac- 
cording to the nature of tlic instrument, and that his administrator was liable 
on the note. 

Assumpsit on a promissory note made by T. Stolt, the intrsfate, 
dated 4lh March ISiy, for GOO/., payable to Robert liurlcic;h, willi inter- 
est. Common money counts. Plea, first, the general issue, upon which 
issue was joined; secondly, the statute of limitations. Tho. plaintifls 
replied, a writ issued on the 3d of October 1826, by the plaintifTs as 
executors at^ninst the defendant as administratrix. Rejoinder, admitting 
the writ, but alleging!; that the caus(;s of action did not accrue within six 
years of the issuing; of the same, uj)on which issue was joined. At the 
trial before Lonl Tentcrdm C. J., at the London siltinjrs lieforc* Michael- 
mas term 1S27, a verdict was found for the pl.iinlilfs for fi2.5/. , subject 
to the opinion of this Court on the followinp; case: On the 4lh March 
ISIS, Thomas Burleigh and Thomas Slott signed the following promis- 
sory note: 



152 UunLEicii V. Stott. E. T. 1828. 

*» £600 London, 4th Mnroli ISIS. 

"On (Icmanil wo jointly .ind scvnrally promise lo pay Mr. Robert 
Burleigh the sum of six huiulrccl pounds, with lawful interest thereon.'* 

The note was given by T. Burleigh to Roljcrt Burleigh for money 
lent, and T. Stott was merely a surety. On the 10th October 1S18 T. 
lUirlcigh paid to Robert Burleigh the interest then due on the note, 
i;ul the iollowing intlorscment was thereupon made upon it by Robert 
iV.irlcigh: " Received the interest on this note to tlie lOth October 1818. 
[I. Hiirieigh." On the lOlh October 1820 T. Burleigh paid to Robert 
Burleigh the interest then due on the note, and 100/. on account of the 
l)rincii)al, 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. Stott had no communication with Thomas Burleigh about the 
note. Robert Burleigh always applied to Thomas Burleigh for money. 
Tlic payments on the 10th October 1818, and 10th October 1820, were 
inadc 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 1S26. The question for the opinion of this Court 
was, Whether the plaintiffs, under these circumstances, were entitled to 
recover? 

Chili]!/, for the plaintiff, contended that the part-payment of the money 
secured by the note within six years by Burleigh operated as a fresh 
promise by Stott to pay the residue, citing IVood v. Braddick, 1 Taunt. 
101; IVhitcomhv. IVhifing, Doug. G52; Perhamv. Raynal,2 Bingh. 
306; Atkins v. Trcdgold, 2 B. & C. 23. 

Alderson contra, referred to Pitlamv. Foster, 1 B. & C. 248; Brand 
V. Ilasleri.g, Boug. 652; Jackson v. Fairbank, 2 H. BI. 340j Bran- 
dram V. JVharlon, 1 B. & A. 463. 

Lord Tenteuden C. J, lam of opinion that the plaintiffs are entitled 
to recover. I quite 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. ]3ut 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, ^nd 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 by 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 I)y 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. 

Batlev 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. IVhitcomb 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 hia 
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-HULL v. LA 
MARCHE.— p. 42. 

By an act of parliament, certain persons were incorporated as the Hull Dock 
Company, and premises (before tlie property of the crown) were given to them 
for the piuposps of the act, and tliey were .luthorised to make a dock, quays, 
wharfs, &c. which, it was enacted, should be vested in them for the purposes 
of the act. Anjongst other things, it was provided, that "all goods, i'vc. which 
should be landed or discharged upon any of the quays or wharfs which should 
be erected by virtue of tlint act, shoidd l)e liable to pay, and should be charged 
and chargeable witii the like rates of wharfage and ])ayments as were usually 
taken or received for any goods, 6vc. loiidcd or discliarged upon any quays or 
wharfs in the port of London." Held, that as the premises were only vested 
in the Company for the purposes of the art, they had no common-law right to a 
rompensation for the use of tliem, and that the statute did not give them any 
right to claim wharfage for goods ship])ed off from their quays. 



The KING v. The LONDON GAS-LIGHT and COKE COM- 
PANY.— p. 54. 

The 7 G. .1. c. ."7. vhich enacts, that certain lands to be embanked from the river 
Thames shall be " free from all taxes and 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 enlarging, 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 tlie aldermen and the major part of 
the common councilmcn, upon all persons who inhabited, held, occupied, pos- 
sessed, or enjoyed any land, house, shop, warehouse, 8cc. 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. By another clause, it was 
made lawful for the alderman and the major part of the common councilmen of 
each ward, 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 dii-ect, 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 pai'tnersin 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 dem. 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 plaintiflf in ejectment, which was 
brought for a messuage and tenement. 

ChiltT/, 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. 7L 

Tlie 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, Ijona 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-house, although part of 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 hidenture. 



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 9s. 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 
•wrords, "having adjudged," nuist be understood as woi-ds of present adjudica- 
tion, and that the order was good in this respect: Held, secondly, that so muck 
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 Ijy 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. 'ITie ^ssions having found that tliis was a de- 
fective contract of apprenticeship, and not a contract of hiring, this Court con- 
firmed the order of sessions. 



The KING v. The Inhabitants of SHIPTON, in the County of SA- 
LOP.— p. 58. 

The master of a parish apjjrentice not having work sufficient for liim, proposed to 
him to goto a farm in adiftcrcnt parish, occupied by the master's sister. The 
pauper assented to the proposal, and agreed with her 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. 
During the third and fourth lie received wages: Held, first, tliat no settlement 
was gained by the service with the sister, tlie service not heing under tlie inden- 
tures: Held, secondly, that there had been :i putting away nf the apprentice 
without the cfUjHeiiJof tlie justiccK, within tlic nie.ining of the statute 56 (i. 3.c. 
139. s. 9. and that the pauper did not by his service with the sister gain any 
settlement by hiring and serviee. 



The KING V. The Inhabitants of STOURBRIDGE.— p. 06. 

The mother of a pauper stated, that .ibout twenty-four years ago she rccci vc4 iTin- 
ney from the parish offitcrs at S. to put her son out ai)i)renticc. and tliat she 



156 Tiv.x v. TiiK Inhau. of Stourbuidge. E. T. 1828. 

acconlinslv jiut hin» out; that the indenture ^vas signed by her, the pauper, the 
master, aiid by a witness; thai 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.;th'it 
the market-gardener and his wife were both dead, the latter having survivci 
her husband; that she did not know whether the market-gardener's wife had 
left any will, but liad heard that she had. Evidence was then given that search 
had been made in the parisii-chest of S. for the indenture, and that it could not 
be found: Held, that as it was the duty of tiic overseers, if the 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 the same county, the sessions con- 
firmed the order, subject to the opinion of this Court on tiie 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 the 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 lor 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 husbailH 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 INIosely, an overseer of Stourbridge, that he had 
searched diligently in the chest where the papers of the township are kept 
for the indenture of apprenticoship, 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 
j)ossession 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? 

Shut/ in support of the order of sessions. The secondary evidence 
was properly rejected, becnuse 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 Tenteuben 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 hatl 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 
parisli, and was, by an order of justices, removed to the parish of B. There 
was no ajjpeal against tlie order of removal. I'he pauper returned on the samc 
day to his house in tlic parish of A., and continued to occupy it until the expira- 
tion of the year for wliicli lie had liired it, and paid the rent for tlie year: Held, 
that as the pauper had hired and held tiie house for a year, and paid the 
rent for that period, all the requisites of the statute 59 G. 3. c. 50. had Ijeen 
complied with, and that he gained a settlement in the pai-ish of A. by renting a 
tenement. 



BOLLAND and Others, Assignees of W. MARSH and Others, Bank- 
rupt.s, 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 that partner to M. and 
Co., who discounted it, and afterwards indorsed it for vahic to S. Ueforc the 
bill became due, M. and ("o. became bankrupts, havini; funds in the hands of S. 
more than sufficient to pay the bill, and havini^ in tlieir iiands money Ijclonjjing 
to A. When tlie bill became due S. presented it for ])aynunt to A., who 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 brought by the assignees against A., as accejjtor of the bill, that 
there had bcr^n before the l)ankruptcy a mutual credit between the bankrupts 
and A., and that the latter was entitled to set off against the sum due to the 
bankrupts on the bill, the debt due to him from M. and Co. at the lime of their 
bankruptcy. 



158 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 iliocaee, by a person claiming the 
right of patronage, although the bisliop 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 
was 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 thatR. H. was a person whose duty it was 
to an-est 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 8th 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, &lc,, 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 ill 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 inforce, 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 customsj, 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 tlic 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 o^ir said lord the King, to 
arrest and detain all such goods and merchandizes as should within his 
knowledge be imported into Great Britain, whicli U|)on such importa- 
tion would become forfeited to our said lord the King by virtue of any 
acts of parliament, &c. The allegatiun that Hooper was a person cm- 
pIo3'cd in the service of the customs is an allegation of fact. 'J'he alle- 
gation that it was his duty to seize goods wiiich upon importation were 
forfeite<l, is an allegation of matter of law. That being so, the fact 
from which that duty arose ought to have been stated in the count. If, 
indeed, it could be said to be the duty of every person employed in the 
vservice of the customs to seize such goods, then the allegation would 
have been sufficient. But it is clearly not the duty of every such per- 
son; as, for instance, it is not the duty of a |)ortcr employed in the ser- 
vice of the customs to seize such goods. Tiic case of Max v. lioherls, 
12 East, 89; is in point; there the count staled *' that the defendants 



160 Samuel v. Royal Exchange. E. T. 1828. 

boinc; owners of a ship at Liverpool bound on a voyage from thence to 
^V'alc^ford, the plaintitf shipped goods on board to be carried upon the 
said voyage by the defendants, ami to be delivered at W. to the plain- 
tifl''s assigns; and thereupon the plaintiff insured the goods at and from 
L. to W., and then averred that it was the duty of the defendants, as 
such owners, to cause the ship to proceed on tiie voyage from L. to W. 
without deviation; and alleged a breach of such duty by their causing 
the siiij) to deviate from the course of that voyage, after which she was 
lost, with the goods; and the plaintiff, by reason of such deviation, lost 
his goods, and the benefit of his policy, &c.;" and it was held that the 
count cduld not be sustained. Lord Ellcnboroiigh, in delivering the 
judgment of the Court in that case, says, "The first count of the de- 
claration alleges a shipment by the plaintiff of goods on board a vessel 
of which the defendants are stated to be owners; but it does not pro- 
reed to state that such goods were delivered to or received by the de- 
fendants, or that the defendants in any manner ever had notice of the 
fact of such shipment. So that in this count there is not only a want of 
any words importing a promise by the one party to the other, but there 
is also an entire absence of all circumstances or facts from which any 
promise or agreement could be implied, or duty inferred between them 
in respect to such goods." The ground of the decision in that case 
was, that there was not any fact alleged from which the law would im- 
ply any duty in the defendant with respect to the goods. Now, in this 
case, there is not any fact stated in consequence of which the law cast 
on Hooper the duty of making seizures. By the 6 G. 4. c. 108. s. 34. 
that duty belongs to an officer of the army, navy, or marines, or officers 
of the excise or customs, or a person having authority from the com- 
missioners of the customs or excise. It is not averred that Hooper was 
a person coming within any of these classes. Neither is it averred that 
he was a person employed on the duty or service of making this seizure, 
so as to make him an officer of the customs for that duty or service with- 
in the statute 6 G. 4. c. lOG. s. 8. The rule for arresting th© judgment 
must be made absolute. 

Rule absolute. 



SAMUEL V. The ROYAL EXCHANGE Assurance Company.— 

p. 119. 

A vessel insured from Sierra Leone to London, and upon which the insurance 
was to endure until she had been moored in good safety twenty-four hours, ar- 
rived in the evening of the 18th of February, and the captain having orders 
to take her into the King's Dock at Deptford, moored her near the dock-gates. 
On the following morning he was informed at the dock, that no order for his 
admittance had been received; but that if it had, the vessel could not be then 
admitted, on account of the quantity of ice in the river. The order was sent 
by the Navy Board on the 21st, but on account of the ice, the ship could not 
be moved until the 27th, and then, in warping hef towards the dock, a rope 
broke, she grounded, and was totally lost. The jury found that the vessel re- 
mained at her moorings from the 18th to the 27th of February on account of 
the ice, and not for want of an order to enter the dock. Held, that upon this 
finding, the plaintiff was entitled to recover, for that the place where the ves- 
sel was moored, not being the place of her ultimate destination, the policy 
did not expire when she had been there in safety twenty-four hours; and as the 
vessel remained at those moorings on account of the ice, and not waiting for 
the order, the underwriters were not discharged by the delay. 



S Bahnewall & Cresswell, 119. 161 

Covenant on a policy of assurance at and from Sierra Leone to 
London, *' on ship, called Salmon River, and freight, to begin at 
Sierra Leone, and endure upon the ship until she shall have arrived at 
London and hath there moored at anchor twenty-four hours in good 
safety, and upon the goods until the same be there discharged and safe- 
ly landed." Averment, that whilst the vessel was proceeding on her 
voyage, and before she had been moored at London twenty-four hours, 
she grounded, and was wrecked and totally lost. Second count for a 
loss by barratry of the master. Plea, the general issue, according to 
the statute, that the corporation have not broken their covenants, or 
any of them. At the trial before.Lord TenterdenC. J., at the London 
sittings after Trinity term 1S27, it appeared that the Salmon River sail- 
ed from Sierra Leone for the port of London on the 3d of December 

1826, laden with teak, and chartered to one Lennox, who had entered 
into a contract with the Navy Board, to supply them with a cargo of 
teak to arrive before the end of that month. On the 2d of February 

1827, the vessel having received damage in a gale of wind, the captain 
put into Dover, and remained there under repair until the 13th of Feb- 
ruary. During that interval he came to London for orders, and Len- 
nox directed him to take the ship into the King's Dock, at Deptford, 
and deliver her cargo there. In the afternoon of Sunday the ISth of 
February the vessel arrived at Deptford, and was moored alongside a 
King's ship, near the dock gates. On the following morning the cap- 
tain made inquiries at the dock-yard respecting the admission of his 
ship, and was informed that no bills of lading had arrived, and there 
were no orders to admit her; but that she could not under any circum- 
stances be then admitted on account of the quantity of ice in the river. 
The captain then went to London, and after some negotiation with 
Lennox, the Navy Board consented to take the cargo, which they at 
first refused to do, because it arrived out of time, and on the 21st of 
February the chief officer of the dock received orders to admit the 
vessel. From the ISth until the 25th of February the quantity of ice 
in the river continually increased, but on that day the frost gave way, 
and on the 27lh the Salmon River was cast off from her moorings and 
warped towards the dock. In consequence of a rope breaking, she 
went ashore near the dock-gatcs, and was totally lost. It aj)pcared also 
that many vessels la'len with timber discharged their cargoes at the 
place where the Salmon River had i)cen moored. Upon this evidence, 
it was contended for the defendants, either that the place where the 
Salmon River was moored must be considered as the place of iier destin- 
ation, in which case she had been in good safety for twenty-four hours 
before the lo.ss, or that if it were not, the captain had remained there 
an unreasonable time, and conserpicntly the underwriters were dis- 
charged. The Lord Chief Justice loft it to the jury to say whether the 
Salmon Kiver remained lashed to the King's ship waiting for an order 
to be admitted into the King's J)ock, or whether she remained there be- 
cause from the 18th to the 27th of February she could not have removed 
elsewhere for the purpose of delivering her cargo had the owner wished 
it, and directefl them, if they thought she remained waiting for the order, 
to fmd for the defendants, otherwise for the plaintiff. The jury having 
found a verdict for the plaintiff, the Attorney-General, in Michaelmas 
term, obtained a rule nisi for entering a nonsuit, against which 

Campbell, Pollock, and Joshvti Evans shewed cause. 
VOL. XV. 21 



163 BuAziER V. JoNiiS. E. T. 1828. 

Sir J. Scarlc/l, ami Jiosanqiict Serjt. contra. 

Lord Tentekden C. J. Upon the whole, I am of opinion that this 
rule oup;ht to l)C discharged. It has hccn contended, that his Majesty's 
dock at Dcptlbrd cannot be considered as the place of destination of the 
Salmon River. But upon the evidence, I think it was the place of her 
destination. The master was ordered to take her there, and he came 
up the river intending to go there. It is true that at that time he had 
no right to enter the dock, and it was quite uncertain whether permis- 
sion to do so would be granted or not. He arrived on the evening of 
Sunday the 18th of February; of course he could not then go into the 
dock, and on the Monday he found that no orders for his admission had 
been received; and if at that time the vessel could have gone in, her 
detention at the moorings would have been improper, and the under- 
writers thereby discharged. That question of fact I left to the jury, 
and they found that the vessel did not remain at Dcptford for want of 
an order to enter the dock, but because she could not be safely moved 
to any other part of the river. Another point made was, that the place 
where the vessel was moored must be considered as her place of dis- 
charge, because some vessels do in fact discharge their cargoes there. 
But it was manifest that there never was an intention to discharge her 
cargo there, the orders to the master being to take her into the King's 
dock. That ground of defence therefore fails; and as the delay would 
only be improper if the vessel could have gone to some other place of 
discharge in the river, I think that the plaintiff is entitled to retain the 
verdict found in his favour. 

HoLROYDJ.(a) It seems to me that the question is concluded by 
the finding of the jury, that the state of the river prevented the removal 
of the ship from the ISth to the 27th of February. Under such cir- 
cumstances, there could be no improper delay, and there is no ground 
for considering the place where she was lying as the place of her ulti- 
mate destination. 

LiTTLEDAi.E J. concurrcd. 

Rule discharged. 

(a) Bayley J. had gone to Chambers. 



BRAZIER v. JONES.— p. 124. 

Id an action against the Marshal for an escape, tlie declaration alleged, that 
plaintiff and W. B. having divers disputes, by mutual bonds of submission, re- 
ferred them to the arbitration of C. and D. That an award was made, order- 
ing W. B. to pay the plaintiff a certain sum of money on, &c.; and because the 
award was not performed, the plaintiff sued and prosecuted out of the court 
of C. P. a writ commanding the defendant to attach W. B. (then being in his 
custody), so that he might have his body before the Justices of C. P. on, &c., 
to answer, &c.; and W. B. being and remaining in the custody of defendant as 
such marshal, by virtue of the attachment, on, &c. was brought before Sir S. 
G,, a j\idge of C. P., at his chamljcrs, by writ of habeas corpus, and by him 
committed to the custody of the Warden of the Fleet, and afterwards was 
brought 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 defen- 
dant afterwards suffered him to escape: 

Held, that plaintiff was bound to prove the execution of the bond of submission 
b/ himself as well as by W. B. Scmblc, That he need not have done so had 



8 Barnewall & Cresswell, 124. 163 

he alleged and proved a rule of C.P. ordering the issuing of the attachment, 
although proof of such rule, without a statement of it in the declaration, would 
not be sufficient. 
Quxre, Whether the commitment by a judge at chambers was legal? 

This was an action against the Marshal of K. B. for an escape. The 
first count of the declaration stated, that before the committing of the 
grievances, &c. divers differences and disputes had arisen and were de- 
pending between plaintiff and one W. B., and in order to put an end 
to them it was mutually agreed upon by and between plaintiff and W. 
B. that all the said matters in difference should be referred to certain 
persons, to wit, &c.; and thereupon in pursuance of such agreement 
plaintiff and W. B, on, &c. did by mutual bonds of submission, bear- 
ing date, &c. submit themselves to, and bind themselves to abide the 
award of the said, &c. concerning the said matters in difference under 
the terms and upon the conditions more particularly set forth in the re- 
spective conditions of the said bonds of submission. That the arbitra- 
tors afterwards, to wit, on, &c. did amongst other things award, that 
W. B. should pay to the plaintiff on, &c. the sum of 3S5/. , &c., of all 
which premises W. B. had notice. And plaintiff for having perform- 
ance of the award, procured the bond of submission entered into by 
W. B. to be made a rule of C. P. And because the award was after- 
wards, to wit, on, &c. so far as concerned the said W. B. wholly un- 
performed; and because the day assigned for payment of the said sum 
of money in the award mentioned had long since elapsed, the plaintiff 
on, &c. sued and prosecuted out of the C. P. a writ directed to the de- 
fendant, (W. B. then and there being in the custody of the defendant 
2S Marshal of K. B. ) commanding him to attach W. ]i. so that he 
might have his body before the justices of C. P. at Westminster on, 
&c, to answer, &c. And W. B, being and remaining in custody of the 
defendant as such Marshal, under and by virtue of the said attachment 
afterwards, to wit, on, &:c. was duly brought before Sir S. Gaselee, 
Knight, then and now being, &c. at his chambers, &c. in his own per- 
son, in custody of the said defenciant as such Marshal, by virtue of a 
writ of habeas corpus directed to the defendant; and W. B. was then 
and there committed by Sir S. G. to the custody of the Warden of the 
Fleet in contemjit, for the non-payment of the said sum of 385/., &c. 
And W. B. being and remaining in custody of the said Warden after- 
wards, to wit, on, &.C. was brought before Sir ./. Litlteddlc, Knight, 
then and now being, &c. at his chambers in, &c. in his own person in 
custody of the said Warden, by virtue of another writ of habeas corpus; 
and the said W. B. was then and there committed b)' the said Sir^A L. 
to the custody of the defendant as such Marshal as aforesaid, charged 
with the said contempt; and the defendant then and there took the said 
W. B. into his custody, &C. and afterwards, to wit, on, &c. voluntarily 
suffered and permitted him to escape. The second count stated, that 
W. li. on, &,c. had been duly committed to the custody of the Warden 
of the Fleet by Sir S. (i . in contempt for the non-payment of the sum 
of 3.S5/. , &c. pursuant to the said nward so made as aforesaid, and the 
bond of submission to the said award, and the condition thereunder 
written and entered into by the saifj W. B. ; and the submission be- 
tween the said plaintiff and the sairl W. B. mentioned in the said last- 
mentioned condition, and wliirli had Iieen bc-forc that lime duly made a 
rule of llic said last ineiilinnc-l ("onrf 'I'hc dcrlarjtion then averred a 



164 Brazier v. Jones. E. T, 1828. 

coniniitniciit of W. 0. lo the custody of the defendant by Sir J^ L., 
and an Lscajie as before. Plea, not guilty. At the trial before Lord 
Tenterde7i, C. J. at the Westminster sittings after Trinity term 1S27, 
the plaintilf proved the execution of the bond of submission by W. B. 
but not by himself. It was objected that, unless the execution of the 
bond by both were proved, the submission would not appear to be 
mutual, and, consequently, the award could not be binding. The Lord 
Chief Justice reserved this point. It then appeared that the award was 
not made within the time originally limited, but there was an indorse- 
ment on the bond, bearing date before the expiration of that time, 
whereby it was enlarged, and the award was made within the enlarged 
time. This indorsement was proved to be in the hand-writing of the 
arbitrator, but no evidence was given of its being written at the time 
of its date. The Lord Chief Justice held that such evidence was not 
necessary, and the award was read. The plaintiff then gave in evi- 
dence a rule of C. P., making the submission a rule of court, the rule 
nisi and the rule absolute for an attachment, the issuing of the attach- 
ment, and the commitment of W. B. for the contempt, by a Judge at 
chambers, as alleged in the declaration, and the subsequent escape of 
the prisoner. For the defendant it was objected, that this commitment 
was illegal, for that it ought to have been by the Court, and not by a 
Judge at chambers. This point was reserved by the Lord Chief Jus- 
tice; and, subject to the questions reserved, the case was left to the 
jury, who found a verdict for the plaintiff, with nominal damages. In 
JSIichaelmas term a rule nisi for entering a nonsuit was granted, against 
■which 

Sir J. Scarlett and Patteson shewed cause. 

Gurney and Campbell contra, referred to Rogers v. Jones, 7 B. 
& C. 80. They were then stopped by the Court. 

LordTzNTERDEN C. J. The first point is the only one upon which 
I propose to say any thing at present, viz. whether the plaintifi having 
averred, but not having given evidence of a mutual submission, failed to 
prove a material allegation. The answer given is, that the allegation 
was wholly unnecessary, and that sufficient remains if it be struck out, 
for that as against the marshal proof of the order of the Court of C. P. 
for the attachment was sufficient. If the declaration had commenced 
by a statement of that order, I should have been inclined to think it 
sufficient; but there is no allegation that the Court made an order for the 
attachment. The averment is, that the plaintiff sued and prosecuted out 
of the Court of C. P. a writ, commanding tlie defendant to attach W. 
B., so that it would appear to be the act of the party. Then it was urged 
that proof of the rule for the attachment sufficed, without proof of the 
mutual submission; according to which argument, want of proof of mat- 
ter alleged is to be compensated by proof of matter not alleged. I think 
that would be a most dangerous doctrine. Suppose neither the thing 
averred nor the matter not averred were proved, still there could be no 
motion in arrest of judgment, for after verdict it would be assumed that 
all the allegations of the declaration had been proved. On this ground, 
I think that the rule for entering a nonsuit must be made absolute. 

Bayley J. In an action for an escape, the plaintiff must aver and 
shew in evidence, not only the escape of the prisoner, but that he was 
previously lawfully detained. Here nothing analogous to a judgment is 
alleged, but certain other matters entitling the plaintiff to an attachment 



8 BAkNEWALL & Cresswell, 124. 165 

are shewn. Thus the award is stated, but that would not suffice unless 
made upon the mutual submission of the parties; such submission was, 
therefore, necessarily alleged; but the plaintifl' failed to prove it. I 
have been considering whether it could, after verdict, be assumed that 
an order for the attachment was proved; but I am satisfied that it cannot, 
for the rule is, that you may presume every thing to have been proved 
which the allegations on the record made necessary, but nothing else. 
Proof of that order could not, therefore, be properly substituted for proof 
of an allegation on the record. 

HoLRovu J. Although if the rule of the Court of Common Pleas for 
the attachment had been made the foundation of the plaintifl's action, 
proof of it might have sufficed, still as that was not done, but other things 
were relied on in the declaration, the plaintiff was bound to give legal 
evidence of them. 

LiTTLEDALE J. It was in the option of the party to begin his declara- 
tion with the rule for the attachment, or to state the preliminary matters, 
and the issuing of the attachment, without mentioning the rule. I think 
that on a motion in arrest of judgment, either form would have sufficed. 
But here the question is not as to the form of the declaration, but as to 
the proof of the allegations. And this does not come within any of 
the cases as to omitting proof of superfluous allegations, for in all of them 
there was proof of the material things alleged. Here the evidence re- 
lied on was of a matter not alleged. Nor can the rule for the attachment 
be considered as evidence of the preliminary matters, for it appears to 
have been made upon reading certain affidavits, the contents of which 
were not shewn. There was no evidence that those affidavits related 
to the preliminary matters alleged: the rule, therefore, could not be proof 
of those matters. Rule absolute. 



LOVICK V. CROVVDER and Another, late Sheriffs of the City of 
LONDON.— p. 132. 

In Marcli, the then slieriffs of London seized the goods of a debtor by virtue of 
a fieri facias. An officer was put in possession of the goods: but the execution 
creditor directed the sheriffs not to sell, and the debtor continued to have the 
controul of his goods until Noveml)er, wlien another execution creditor sued 
out a fieri facias, directed to the succeeding sheriffs of London: Held, that the 
latter were bound to levy under this second fieri faciiis, and that it was their 
duty, when they found the officer of the former sheriffs in possession, to inquire 
into the facts; and if they had done so, they would have learned that the first 
execution was fraudulent. 

Tnis was an action against the defendants for a false return to a writ 
of fieri facias issued against the goods of one Harrison. Plea, not guilty. 
At the trial before Lord Tentcrdoiil. J. at the London sittings after 
Trinity term LS27, it appeared that the plaintilf, having rccMjvcrcd judg- 
ment against Harrison, sued out a fi. fa. against the goods of Harrison on 
the 2(1 of Novcrnijcr 182.5, and that the defendants, being at that time 
sheriffs of London, on the 12th of November returned nulla bona; 
that Harrison carried on the business of a wine-merchant in Fleet 
Market, and at the time when the writ was delivered to the de- 
fendants there were large f|uantities of wine on his premises. It ap- 
peared further, tliat down to the 2d of November 1825, Ihc business was 
carried on on Harrison's account, the clerks or servants always account- 



166 LovicK i>. CiioWDEK. E. T. 1828. 

ing to him i'ov tlie monies received. On the part of the defendants it 
was proved, that on the 31st of JNlarcli 1825, a fi. fa., at the suit of one 
M'>iab, had issued against the goods of Harrison, directed to A. Brown 
and J. Key, being tiien sherill's of London; that they under that writ 
seized the goods of Harrison, and phiced an ollicer in possession, but 
that by tlic direction of M'Nab they had forl)orne to sell the same, and 
the goods continued unsold in November, when the plaintiil's writ was 
issued. It was further proved on the part of the defendants, that the 
plaintiff, after the return of nulla bona had been made by the defendants 
to his writ of fi. fa., had sued out a ca. sa. against Harrison; and that 
Harrison having afterwards become bankrupt, he had proved his debt 
under the commission. Upon these facts it was conceded by the defen- 
dants' counsel, that M'Nab having allowed Harrison to have the controul 
of the property for so many months, the defendants, if they had been 
sheriffs of London at the time when the writ issued at the suit of M'JNab, 
would have been bound to take notice that the first execution was fradu- 
lent, and to levy under the plaintiff's writ; but it was contended that 
they having come into office after Harrison's goods had been seized 
under M'JNab's execution, could not be presumed to have any know- 
ledge of the facts attending that execution; and that finding an ollicer 
already in possession, they were not bound to make any enquiry. It 
was further contended, that the plaintiff had waived his right of action 
against the defendants, by suing out a ca. sa. against Harrison, and prov- 
ing under his commission. Lord TenterdenC. J. directed the jury to 
find a verdict for the plaintiff for 259/. l5. Of/., the value of Harrison's 
goods, and gave liberty to the defendants to move to enter a nonsuit. 
A rule nisi having been obtained by Gurney in last Michaelmas term. 
Sir J. Scarlett and Flutt now shewed cause. 
Gurney and Cumyn contra. 

Lord Tentkrden C. J. It seems to have been conceded at the trial, 
that if the same persons who filled the office of sheriff in March, when 
the first execution issued, had filled it in November, they would have 
been bound to levy; and, consequently, if the defendants had tilled the 
oflice at those times, they would have been liable in this action. But it 
was said that the goods, having been seized by the former sheriffs, were 
in custody of the law, and that they could not, therefore, be seized by the 
defendants. It seems to me, that they were not in custody of the law at the 
time when the fieri facias at the suit of the plaintiff was sued out; they 
were in custody of the slieriff 's officer by virtue of legal process fraudu- 
lently kept on. Tiie first fieri facias was sued out returnable in Easter 
term. The sheriff was never ruled to return the writ, and he made no 
return. Harrison continued in possession, and carried on the business 
as usual so far as his failing circumstances permitted. When the plain- 
tiff's writ came to the defendants, and they found the officers of the 
former sheriffs in possession, it became their duty to enquire by what 
authority they were there. I ihink the law does impose on a sheriff the 
duty of making such enquiry. The possession of the former sheriff is 
no more than the possessionof any third person would be under a bill of 
sale, Prec, in Cha. 286, 287. Now, if a party be in possession of goods ap- 
parently the property of a debtor, the sheriff, who has a fieri facias to 
execute, is bound to enquire whether the party in possession is so bona 
fide; and if he find the possession is held under a fraudulent bill of sale, 
he is bound to treat it as null and \oid, and levy under the writ. The 
rule for entering a nonsuit must be discharged. 



8 Baunewall & Ckesswell, 132. 167 

Bayley J. There cannot be any doubt that these goods were liable 
to the plaintiff's execution. Where a plaintiff sues out execution, and 
seizes under a fieri facias the goods of his debtor, and suffers iheni to 
remain long in the debtor's hands, a subsequent execution creditor may 
treat the goods as the goods of the debtor. The only question is, does 
the change of sherifl' make any difference ? Being apparently the goods 
of Harrison, the defendants ought, prima facie, to have seized them. Rice 
V. Serjeant, 7 Mod. 37; Bradley v. Wyndhavi, 1 Wils,44, 1 Ves. 245. 
But it is said that they ought to have forborne seizing them, when they 
found the officer of the late sheriffs in possession. I think, however, 
that it was the duty of the defendants to ask to see the warrant; and if 
they had done so, they would have found, from the date of the warrant, 
that there had been gross delay, and then they would have been bound 
to treat the first execution as fraudulent and void, and to have seized the 
goods. But it is said that the subsequent act of the plaintiff has des- 
troyed his right of action against the defendants. But the plaintiff's 
right of action against them became complete by their breach of duty 
in not seizing when they ought to have seized, and he has not by any 
subsequent act released or destroyed such right of action. 

HoLROYD J. I think the plaintiff's right of action, if he had one, is 
not destroyed. The goods were not in custody of the law at the time 
when the second execution issued. They were originally the goods of 
Harrison; and the first execution by INI 'Nab being wholly null and void, 
they remained the goods of Harrison, notwithstanding that execution, 
and were liable to be seized by the plajntifi', or any subsequent execu- 
tion creditor. 

Rule discharged. 



The KING v. The Justices of MONMOUTHSHIRE.— p. 137. 

Where, upon an appeal against an order of removal, the justices at sessions were 
equally divided, and made an order, that the hearing of the ajjpeal sliould be 
atljourned; one of the justices, who voted in favour of the respondent jiarish, 
being a rated inhabitant of that ])arisi\. An a])plication for a certiorari to re- 
move the order of sessions, in oi'dcr tliat it and tlie ori,qiMal order of removal 
might be quashed, was refused, on the ground that, even if the order of sessions 
were erroneous, this Court had no jurisdiction to review it. 

A RULE nisi had been obtained for a certiorari to remove into this 
Court an order of two justices of the county of Monmouth, for the re- 
moval of James Lewis, his wife and family, from the town (if IJsk to 
the parish of Langwn Ucha, and all orders of sessions made I hereon or 
in relation thereto, in order that tlie order of removal, and also an order 
of sessions for adjourning the hearing of fbc appeal against the sani(^ order, 
might be quashed. It appeared by the allidavits, that, on tin; hearing of 
the appeal at the Kpi])hany sessions l.S2<S, there were four magistrates 
j)resent. One of these was the removing justice, and a rated inhabitant 
for the relief of the poor of the town of Usk. He and one other of the 
magistrates voted for the respondents, and the other two justices for the 
appellants. The chairman announced that the court were cfiualiy di- 
vided. The counsel for the appellants moved the court to (piash the 
order of removal, on the ground that the respondents had not made out 
their case. But the court made an order that the appeal should be ad- 
journed. 



168 Rex v. Jl'Stices ofMonmouthshiue. E. T. 1828. 

liussell Scrjt. and Watson now shewed cause. This Court is not 
a- court of error to review the judgment of the court of quarter ses- 
sions. It is true, that, in Kex v. Giidridge, 5 B. & C. 459, it was 
held that a magistrate, a rated inhahitant of the parish, ought not to 
vote on the determination of an appeal against an order for the allowance 
of overseers' accounts, or even on a question as to granting a case for the 
opinion of this Court. But in that case this Court only decided, that, 
under the circumstances, the writ of certiorari ought not to have issued 
for removing into this Court an order of sessions made under such cir- 
cumstances. In Rex v. The Juslices of Leicestershire, 1 M. & S. 442, 
the Court refused to grant a mandamus to the justices at sessions to hear 
an appeal against an order of removal, after judgment given by them and 
entered by the clerk of the peace for quashing the order, the application 
being made on the ground that justices at sessions were divided in opin- 
ion, and that judgment was entered by mistake, instead of an adjourn- 
ment of the appeal. But Rex v. The Justices of Momnouthshire, 4 
B.& C. S44, is precisely in point. There, on appeal against an order of 
removal, the justices at sessions were equally divided in opinion as to a 
question of fact on which the settlement of the pauper depended. The 
sessions thinking that it lay on the respondent parish to establish their 
case to the satisfaction of a majority of the court, quashed the order of 
removal. The sessions having decided the case, this Court refused to 
grant a mandamus, on the ground that this Court was not a court of error 
from that court; that it might compel the court of quarter sessions by 
mandamus to hear and decide the appeal, but when they had so deter- 
mined it, this Court could not cdmpel them to corr9ct their judgment if 
it appeared to be erroneous. 

Campbell and Maule contra. It must be conceded that this Court 
is not a court of error to review the decisions of the court of quarter 
sessions; but here the court of quarter sessions have made the order of 
adjournment without having any jurisdiction so to do. There were two 
good votes in favour of the appellants, and only one good vote in favour 
of the respondents. The vote of the magistrate who was interested was 
a nullity, The Parish of Great Charte v. Kennington, 2 Str. 1173; 
Rex V. Yarpole, 4 T, R. 71; the case of Foxam Tything, 2 Salk. 607. 
And if that be so, then the only judgment which the court had jurisdic- 
tion to pronounce, was, that the order of removal be quashed. 

Lord Tenterden C. J. This rule must be discharged. But I wish 
to have it clearly understood that in doing so we do not in any degree 
intend to sanction a magistrate's voting in any case in which he is inter- 
ested. This is an application to the Court to quash an order of sessions 
made for adjourning an appeal, on the ground that upon the question 
whether the order of removal should be confirmed, the justices were 
equally divided in fact, though it is alleged that, in point of law, two 
were for quashing the order, and one only for confirming it; because it is 
contended that the vote given by one of the justices for confirming the 
order was a nullity, and therefore the sessions ought to have quashed the 
order of removal, and not to have adjourned it. The late decisions es- 
tablish, however, that we cannot assume to ourselves the jurisdiction of a 
court of error, and revise the judgments of the court of quarter sessions. 
It is said that the court of quarter sessions, under the circumstances, had 
not jurisdiction to make the order of adjournment. It is clear that it 
had jurisdiction to make any order concerning the subject matter of the 



8 Batinewall & Cresswell, 137. 169 

appeal, and, among others, the order that the hearing of the appeal should 
be adjourned. In Rex v. Gudridge, 5 B. & C. 459, the rule which had 
been obtained was not to review the order of the court of quarter ses- 
sions, but to quash a writ of certiorari quia improvide emanavit. The 
question before the Court in that case was, whether that writ ought to 
have been allowed to issue to remove an order of sessions made under 
circumstances nearly similar to those in this case. And this Court thought 
that the writ of certiorari ought not to have issued. Here a judgment 
has been pronounced by the court of quarter sessions relating to a subject 
matter over which that court had jurisdiction; and, assuming that judg- 
ment to be erroneous, I think we have not jurisdiction, as a court of 
error, to review it. This rule must, therefore, be discharged. 

Rule discharged. 



BUSZ ARD and Others, Assignees of JONES and Another, Bankrupts, 
V. CAPEL and Another.— p. 141. 

It was stated in a special verdict, that by an indenture A. demised to B., all that 
wharf next the river Thames, described by abutments, together with all ways, 
paths, passages, easements, profits, commodities, and appurtenances whatso- 
ever to the said wharf belonging; and that by the indenture the exclusive use 
of the land of the river Thames opposite to and in front of the wharf, between 
high and low water mark, as well when covered with water as dry, for the ac- 
commodation of the tenants of the wharf, was demised as appurtenant to the 
wharf, but that the land itself between high and low water mark was not de- 
mised : Held, that the meaning of this finding either was, that the land was de- 
mised as appurtenant to the wharf, and then it would be a finding that one piece 
of ground was appurtenant to another, which in law could not be; or, that the 

i' mere use of the land passed by the indenture, and that was a mere privilege or 
easement, out of which rent could not issue, and consequently, that the lessor 
could not distrain, for rent in arrear, barges, the ])roperty of R., lying in the 
space between high and low water mark, and attached to the wharf by ropes. 

Trover for two liarges; first count on the possession of the bank- 
rupt, second count on the possession of the assignees. Plea, not guilty. 
At the trial before Lord Toilerden C. J. at the London sittings after 
Trinity term 1827, the jury found a verdict of not guilty on the first 
count; and on tlic second a special verdict, stating, as to the griev- 
ances in that count mentioned, tiiat, at the time of making the dis- 
tress thereinafter mentioned, VV. R. Jones and G. Jones had be- 
come bankrupts, and the plaintilTs had been chosen and appointed 
their assignees ; and that the plaintiffs, as such assignees, before and 
at tlie time of the making of the distress thereinafter mentioned, 
were lawfully possessed, as of their property as siicli assignees, of the 
barges tiiercinaftcr mentioned to have; been taken and distrained by the 
dcfendnnts; nnd that by an indenture dated tlie Dili of March ISIG, and 
made before W. R. Jones and (i. Jones, or cither of them, beroine bank- 
rupts, between one T. Brown of tiie one part, and the bankrupts of tho 
other part, Brown demised, leased, &c. to the bankrupts all Ihat wharf, 
ground, and premises next the river Thames, and also all that capital 
brick built warehouse of three floors erected and built thereon, abutting 
north on the river Thames, east on premises in the occupation of T. 
Flockton, south on the street cartway and common highway leading 
from Pickle Herring Stairs to Horsley Down Stairs, and west on the 
Five Footway or Little Wharf for landing goods, and certain otlicr pre- 

vol.. XV. 21 



17© RuszARD V. Capei- £. T. 1828. 

mises in tlio indenture more particularly mentioned, together with free 
liberty for them the bankrupts, their executors, &c. during that demise, 
to land and load goods, &c. in common with the rest of the tenants of 
Brown, at the said Five Footway or Little Wharf fronting the river 
Thames, together with all cellars, ways, paths, passages, lights, ease- 
ments, profits, commodities, and appurtenances whatsoever to the said 
wharf, ground, warehouse, and premises, or any of them, belonging or 
appertaining; habendum, the same premises, with their and every of their 
appurtenances, unto the bankrupts, their executors, &c., from the 23d 
March then past for the term of thirteen years, at the yearly rent of 
555/., by equal quarterly payments, payable to Brown, and after his 
death to the person who should be entitled to the freehold of the pre- 
mises. The special verdict then stated, that by the indenture the ex- 
clusive use of the land of the river Thames opposite to and in front of 
the said wharf ground between high and low water mark, as well when 
covered with water as dry, for the accommodation of the tenants of the 
wharf, was demised as appurtenant to the said wharf ground and pre- 
mises, but that the land itself between high and low water mark was not 
demised; that on the 12th of November 1826, the sum of 565/. of the 
rent was in arrear and unpaid; and that on that day, and at the time of 
making the distress thereinafter mentioned, the two barges, the property 
of the plaintiffs as such assignees, were attached by ropes head and 
stern to the wharf ground aforesaid, and were lying and being on that 
part of the river Thames opposite to and in front of the said wharf ground 
and premises, and between high and low water mark, the exclusive use 
of which was demised as aforesaid ; that the defendants on the said 
12th November as the bailiffs of the person who was then entitled to the 
freehold of the wharf and premises, and was duly authorized by law to 
distrain for the arrears, seized and took the two barges as a distress for 
the arrears of rent, and shortly afterwards sold and disposed thereof to 
satisfy such arrears. This case was argued on a former day in this 
term by 

Richards for the plaintiff. The defendants could not by law distrain 
the barges while they were betvyeen high and low water mark, because 
a distress can only be made on the land out of which the rent issues, and 
here the rent did not issue out of the land between high and low water 
mark. That land was not demised, but only an exclusive right to use 
it. That was a mere easement. In Co. Litt. 47. a. it is said, "that it 
appeareth by Littleton that a rent must be reserved out of the lands or 
tenements whereuntothe lessor may have resort or recourse to distrain, 
as Littleton here also saith; and, therefore, a rent cannot be reserved by 
a common person out of any incorporeal inheritance, as advowsons, 
commons, offices, corodie, mulcture of a mill, tithes of fairs, markets, 
lilierties, privileges, franchises, and the like. But if the lease be made 
of them by deed for years, it may be good by way of contract to have 
an action of debt, but distrain the lessor cannot." Here the land be- 
tween high and low water mark is not demised, but a mere right to use 
it. That is a privilege or easement, and, consequently, no rent can issue 
out of it. The 11 G. 2. c. 19. s. S. enables the landlord to distrain any 
cattle feeding upon a common appurtenant to the land demised. At 
common law such cattle could not be distrained, because the soil of the 
common belonged to the lord of the fee; and the lessor of the land (to 
which the right of common is appurtenant) could not, therefore, enter 



8 Barnewall & Cress WELL, 141. 171 

on the common land to distrain. So, in this case, the soil of the land be- 
tween high and low water mark belongs to the king. The lessor of the 
wharf, therefore, can have no right to distrain on that jland, though he 
may have, as appurtenant to his land, an exclusive right to use the space 
between high and low water mark. There are cases where land hav- 
ving been demised for a term of years, and the lessee having had re- 
served to him a right of using part of the demised premises after the 
expiration of the term, his crops have been held to be subject to distress 
so long as they continued on the land, as in Boraston v. Green, 1 H. 
Bl. 5, and Knight v. Benett, 3 Bing. 304. But in those cases the land 
itself on which the distress was made was originally demised, and not 
the mere use of it, as in this case. 

Starr contra. The exclusive use found by the special verdict is a 
certain and determinate interest or profit, in contradistinction to a pro- 
fit to be taken in an uncertain place, or to a mere easement, which latter 
could not be described in the old precedents as appendant or as appur- 
tenant, Godley v. Frith, Yelv. 159; but in this case the right of the 
lessee between high and low water mark is found by the special verdict 
to be appurtenant. It may be a substantial and tangible interest where- 
to a lessor may resort to distrain, and yet be appurtenant to land. The 
technical rule is only that land shall not be appurtenant to land. In Co. 
Litt. 121. b. it is said that prescription doth not make any thing ap- 
pendant or appurtenant, unless the thing appendant or appurtenant 
agree in quality and nature to the thing whereunto it is appendant or 
appurtenant; as a thing corporeal cannot properly be appendant to a 
thing corporeal, nor a thing incorporeal to a thing incorporeal. Mr. 
Butler in his note to this passage, after adverting to some examples to 
shew that this position is not universally true, says, "The true test 
seems to be the propriety of relation between the principal and the ad- 
junct, which may be found out by considering whether they so agree in 
nature and quality as to be capable of union without any incongruity. 
In this case the principal is the wharf; the exclusive right to use the 
land between high and low water mark is the adjunct. Tliey agree in 
nature and quality, so as to be capable of union withoutany incongruity; 
one, therefore, may be appurtenant to the other, and yet not be incor- 
poreal. 

But assuming this to be an incorporeal interest, the same remedies 
arc applicable to the recovery of it, and the same consequences of lavr 
attach on the demise of it, as upon that of the cori)orc:il principal. It 
is an interest for the recovery of which an assize of novel disseisin would 
lie at common law. That is a writ of entry wherein A. conij)I;iins that 
B. hath disseised him of his freehold, and the sheriff is to cause lluit 
tenement to be rcseised, and twelve men to view that tenement, &c., 
Fitz N. B. 177. Bracton, in his chapter on the Assize of Novel Dis- 
seisin, lib. iv. fol. ini, says, *' Locum aulem non solum habet hiijus- 
modi assisa in rebus corporalibus sicut in /e/zcwe/i/i'.y quibuscunque; ve- 
rum etiam in rebus incnr])orulihu!i sicut in servilulihns ct in rcbita 
<]usn pertinent rid tenetncntnm sicut in jure pasccndi, f.ilcandi, fodicn- 
di et hnjiismodi." And again in fol. 170, "In quibus casibiis omnibus 
subvcnitur disscysito per breve de ingrcssii secundam formas infcrius no- 
tandas, tam super posscssionibus rerum corporaliinn, quain suj)cr juribns 
scilicet rebus incorporalil)us sicut super jure pascendi ct hujusmodi 
utendi fruendi." Here the lessee had the jus utcmli, for he had the 



172 lirszAin. V. Cai'kl. E. T. 1828. 

exclusive riglit of using the land between liigli and low water mark. 
Again, wherever a view could be had oi tenements among which arc 
servitutcs, an assize lay for the recovery of the rent, and even a dis- 
tress might be made upon a servitus for the rent of the scrvitus, provi- 
ded it were practicable, Bracton, lib. iv. fol. ISl. It has been said that 
assize lay in tiiesc instances only because it was a speedy remedy; but 
Bracton, lib. iv. fol. ISl, says that it lies only where strictly applicable; 
and, therefore, if the complainant is ignorant of or cannot describe his 
tenement either in quality*or quantity, or its local situation, the writ of 
assize of novel disseisin will not lie. The remedy by assize of novel dis- 
seisin was extended by the statute of Westminster 2d. I..ord Coke, in 
commenting on that statute in 2 Inst. 412, observes that Bracton, who 
wrote before the making of that act, said that the assize lay for any com- 
mon appurtenant to the freehold, as for common of pasture or of turbary; 
and Lord Coke then says, "that in the reign of Henry the Third, 
which was before the making of that act, an assize did lie of common of 
piscary; and these opinions had great probability of reason, yet be- 
cause (as hath been said) there was no writ in the register in those cases, 
therefore before this act no writ did lie by the general opinion of the 
judges; but now this act hath cleared the question. And P?racton, when 
he mentions the writ of entry ad terminum qui pra^teriit, lib. iv. fol. 
324, asserts, that it will lie for common of pasture dum tamen pastura 
fuerit certa et designata ad certum numerum averiorum. These writs 
of entry therefore are applicable, the one to that interest in land stated 
in the special verdict, the other to that right of common which the same 
interest is admitted to resemble. 

Secondly, The same consequences attach upon the demise of it as 
upon that of the corporeal hereditament. The lessee has acknowledged 
under his hand and seal that this appurtenant is part of the premises de- 
mised in respect of which the rent is reserved. The power of distress 
is incident to and inseparable from rent service, and to that power there 
are no stricter limits than the following, which are given in Fleta, lib. 
ii. c. 49. " In qualibct captione tria principaliter requiruntur, certus lo- 
cus, certa causa, et seisina alicujus." In the present case all these thiee 
requisites concur. Littleton, sect. 58, does not confine the right of dis- 
tress to lands, but says, " If the lessor reserve to him a yearly rent up- 
on such lease, he may chuse for to distrain for the rent in the tenements 
letten." Lord Coke, in commenting on this passage, says, that the rent 
must be reserved out of the lands or tenements whcreunto the lessor may 
have resort to distrain. The reason given by Lord Coke, therefore, why 
the rent should be reserved out of the lands and tenements is, that there 
should be a certain place to distrain upon. He afterwards proceeds to 
say that a rent cannot be reserved by a common person out of an incor- 
poreal inheritance; as tithes, &c. ; I)u<t if lease be made of them by deed 
for years, it may be gooll by way of contract to have an action of debt, 
but distrain the lessor cannot." This dictum, that it is good by way of 
contract only, is at variance with what was said by the Court in Bally 
V. IVells, 3 Wils. 25, where tithes were held to be such an estate as would 
create a privity between the lessor and assignee, so as to make the latter 
liable upon a covenant running with the tithes. There it was objected 
tithes were incorporeal, and could not support a covenant by the lessee 
thereof to run with them, so as to bind the assignee. But the Court, in 
delivering judgment, say, " there seems to be no difference between an 



8 BaUNEWALL & CliESSWELL, 141. 173 

inheritance in lands and tithes as to this matter. Tithe is tlie tentli part 
of the profits of the lands ; the profit of the land is the land itself; tithes 
are tangible and visible ; may be put in view in an assize ; an ejectment 
li^s of them ; a precipe quod reddat lies of a portion of tithes ; a war- 
ranty may be annexed to incorporeal inheritances. They have every 
property of an inheritance in land except that they lie in grant, and not 
in livery." Those observations apply obviously to the nature of the 
interest which the lessee took in the space between higli and low water 
mark. Again, beasts upon the common might, at common law, be dis- 
trained for the rent of the common. In the year-book 26 Hen. 8. p. 5. 
this case is stated, ''In replevin defendant avowed that plaintifTand his 
ancestors, &c. had used to have common in certain acres of the defen- 
dant, for which rent was reserved at the festival of Christmas, which 
rent was in arrear, and avowed the taking. — JNIervin. Sir, it seems to 
me that the prescription availeth not, for he prescribes to distrain in his 
own soil, which would be inconvenient. — Fitzherbert. It is a good pre- 
scription, and may have a lawful beginning : the soil is not charged with 
the distress, but only the beasts. Afterwards, on another day, Mervin 
moved Englcfield on the same points, who said as Fitzherbert had said." 
In Gray's case, 5 Coke, 78. S. C. Cro. Eliz. 405, it was resolved that 
the lord might distrain cattle for the rent of the common on a common, 
although tliere was no prescription to distrain. In the Mayor of North- 
ampton's case, 1 Wils. 115, Lee C. J. seems to have thought that the 
owner of the soil might distrain even for stallage, provided the sum were 
fixed. These authorities shew that there may be a distress for rent issu- 
ing out of an interest analogous to that which the lessee took under the 
indenture in the space between high and low watermark. The exclu- 
sive use found by the jury was inferred from those acts of enjoyment of 
which this soil is capable, such as making beds for the barges, clearing 
out the mud, &c. The interest of the tenant may be likened to the ves- 
tureof land, which may bedistrained upon, Co. Litt. 47. a. ; orto those 
particular rights for any injury to which trespass will lie, as a right to 
the herbage ; or a piscary, Co. Litt. 4. b. Wilson v. Mackreth, 3 Burr. 
1824. fVelch v. MycrSy 4 Campb. 368. These barges, although not "in 
and upon" the wharf ground, would have had no certain local habita- 
tion but for the wharf ground to which they were attached. If these 
barges were lawfully distrained, when the privilege of being so attached 
only was demised (as the Court of Common Pleas decided in this very 
case, 4 Bingh. 137), a fortiori, a distress of Ihcm is lawful when in the 
occupation of the interest stated in this special verdict. Thev occupied 
the premises demised according to the mode of occupation of which they 
were capable; 

Richards in reply. The soil between high and low water mark did 
not pass by the indenture, but the mere riglit to use it. The land which 
did pass is described by metes and hounds. Coupling the words of the 
deed with the finding of the jury, the lessee had a mere easement in the 

soil between high and low water mark. ^, , ,, 

° Lia'.aav.vttll. 

Lord Tenterden C. .1. It is difllcult to understand what is really 
meant by that part of the finding of the jury, " that the rxclusivc use of 
the land of the river Thames opposite to and in front of the said wharf 
ground between high and low water mark, as well when covered with 
water as dry, for the accommodation of the tenants of the wharf, was dc- 



174 Archh. of Canterbury v, Tappen. E. T. 1828. 

niisctl as appiirlciiant to the said wharf ground and premises; but that 
the land itself between high and low watermark was not demised." And 
it is dillicult to understand how the exclusive use could be demised and 
the land not ; hut in either case the distress cannot be supported. If the 
meaning of this finding be that the land itself was demised as appurtenant 
to the wliarf, that would be a finding that one piece of land was appur- 
tenant to another, which, in point of law, cannot be. If, on the other 
liand, the meaning be that the use and enjoyment of this land passed as 
appurtenant, that would be a mere privilege or easement, and the rent 
would not issue out of that ; the landlord, therefore, could not distrain 
there for rent issuing out of the land in respect of which the easement or 
privilege had its existence. That is understood to be the law of the land, 
and an act of parliament was passed to remedy this inconvenience as far 
as rights of common were concerned. Taking the finding of the jury 
in either sense, the defendant had no right to distrain on the premises iii 
question, and the judgment of the Court must be for the plaintiffs. 

Judgment for the plaintiffs. 



The Archbishop of CANTERBURY v. TAPPEN.— p. 151. 

An administrator is not, by the condition of the bond, given in pursuance of the 
statute of distributions, 22 and 23 Car. 2. c. 10., bound to distribute the surplus 
of the intestate's estate after payment of debts, &c., until a decree directing him 
so to do has been made by the court into which his inventory and account has 

' been exhibited. 

Debt on bond dated 10th May 1809. The defendant craved oyer of 
the bond, by which he, one R. E., and Sir T. H. Page were jointly and 
severally bound to the plaintiff in the sum of 12,000/. in pursuance 
of the statute of distributions. He also craved oyer of the condition, 
which was, thatSir T. H. Page, next of kin, and administrator of B. W. 
deceased, should make a true and perfect inventory of the goods, chat- 
tels, and credits of the deceased, and exhibit the same into the registry 
of the prerogative court of Canterbury, on or before the last day of No- 
vember then next, and the same goods and chattels should well and truly 
administer according to law. And further, that he should make, or cause 
to be made, a true and just account of his said administration, at or before 
the last day of May 1610; and all the rest and residue of the said goods, 
chattels, and credits which should be found remaining upon the said ad- 
ministrator's accounts (the same being first examined and allowed of by 
the judge or judges for the time being of the said court), should deliver 
and pay unto such person or persons respectively, as the said judge or 
judges, by his or their decree or sentence, pursuant to the true intent 
and meaning of an act of parliament (entitled "An act for the better set- 
tling of intestates' estates"), should limit and appoint. And that if any 
will of the deceased should afterwards be exhibited and proved, he 
would deliver the said letters of administration into the said court. Plea, 
that Sir T. H. Page did make and exhibit into the registry of the prero- 
gative court before the last day of November next ensuing the day of the 
dateof the bond, to wit, on, &c., a true andperfect inventory ofthcgoods, 
chattels, and credits of the deceased, and the same did well and truly ad- 
minister according to law; and did make a true and just account of his 



8 Barnewall & Cress WELL, 151. 175 

said administration before the last day of May 1810, to wit, on, &c., and 
that the judge or judges for the time being of the said court have not, at 
any time hitherto, by his or their decree or sentence, pursuant to the 
true intent and meaning of the said act of parliament in the condition 
mentioned or otherwise, limited or appointed the said Sir T, H. Page to 
deliver or pay all or any of the goods, &lc. remaining upon the said ad- 
ministrator's accounts unto any person or persons whomsoever. But on 
the contrary, he was on, Sic. cited to appear before Sir J. N., commissa- 
ry of the said court, on, &c., to exhibit cm inventory and render an ac- 
count; that he did appear, and such proceedings were thereupon had, 
that on, &c. he was dismissed from all further observance of justice in 
the said cause; and that it hath not at any time hitherto appeared that 
there was, or is, any will of the deceased; and this defendant is ready to 
verify, wherefore, &c. Second plea similar, with the exception that the 
citation and other proceedings in the prerogative court were omitted. 
The replication assigned as breaches, first, that Sir T. H. P. did not ex- 
hibit a true and perfect inventory, upon which issue was joined; secondly, 
that B. W. died intestate, leaving Sir T. H. P., A. P., S. 0., &c. her 
next of kin; that after the death of B. VV., and before the first of January 
1820, out of certain goods and chattels which came to his hands. Sir T. 
H. P. paid all the debts, &c. of B. W., and that 10,000/. remained over 
and above in the hands of Sir T. H. P., as administrator, which ought, 
according to the condition of the bond, to have been well and truly ad- 
ministered by Sir T. H. P. according to law; that is to say, in manner 
following; that is to say, (&c.); yet that Sir T. H. P. hath not well and 
truly administered the said last-mentioned goods and chattels, or any 
part thereof, according to law, or paid or delivered or divided the same 
in manner aforesaid, or otherwise howsoever. Rejoinder, that the judge 
or judges for the time being of the said court have not at any time by his 
or their decree limited and appointed Sir T. H. P. to distribute the said 
last-mentioned goodsand chattels in the manner mentioned in the breach, 
or to any other person or persons whomsoever. Demurrer and joinder. 

The case was argued on a former day in this term by Chilty for the 
plaintiff, and Plait for the defendant; Devey v. Edwarda and Tappcn, 
3 Add. Ecc. Rep. GS, and The Jlrchbiahop of Canterbury v. Ilowse, 
Cowpcr, 140, were cited for the plaintifl", and The Archbishop of Can- 
terbury v. Willis, 1 Salk. 315, and Greensidc v. Benson, 3 Atk. 248, 
for the defendant; and now the judgment of the Court was delivered by 

Lord Tenterden C. J. Tliis is an action upon a bond executed 
to the plaintifT, on the grant to Sir T. H. Page, of letters of adininistia- 
tion to the effects of Blanch Woilaston. The defendant has prayed oyer 
of the bond and condition, and they arc set forth at length upon the re- 
cord. The bond is dated on the 10th of May 1809, and by liie terms of 
the condition the bond is to be void, 

P'irst, If the administrator make a true and perfect inventory of the 
goods, &c. of the intestate, and exhibit the same into the registry of the 
prerogative Court on or before the lOih day of November then next en- 
suing; and, 

Seconflly, If he well and truly atlminister according lo law the same 
goods, &c. and all other goods, &c. tliat shall come to his hands; and, 

Thirdl}', If he do make a true and just account of his said administra- 
tion on or before the last day of May 1810; and, 

Fourthly, If he shall deliver and pay all the rest and residue of the 



170 Archu. or Caxtkwhuiiy v. Tappen. E. T. 1828. 

gooils, &i'. wliirli shall be found remaining upon his accounts unto such 
]>ersons respectively as the judsj;e of the court shall by decree or sentence, 
jHirsiuuit to the statute 22 & 23 Car. 2. c. 10. for the better settling of 
intestates' estates, limit and appoint; and, 

Fifthly, If he deliver the letters of administration into Court, in case 
anv will of the deceased shall appear. 

The defendant then pleads affirmatively, that the administrator per- 
formed the first three branches of the condition; and as to the fourth 
branch, that the judge of the court has not, by decree or sentence, limit- 
ed or appointed the administrator to pay the residue of the goods, &c., or 
any part thereof, which were found remaining upon the said accounts of 
the administrator, to any person whatever; but that, on the contrary, the 
administrator was cited to appear before the commissary of the court to 
exhibit an inventory, render an account of his administration, and see 
])orlions allotted, and a distribution made of the goods, &c. ; that the ad- 
ministrator did appear in consequence of the citation, and such proceed- 
ings were had in the Court, that he was duly dismissed from all further 
observance of justice in the cause. 

To this plea, the plaintiffhas by replication alleged and assigned, as a 
breach of the condition, that certain persons particularly named were 
tiie only next of kin of the intestate ; that the administrator paid all her 
debts ; that goods of great value, and more than sufficient to pay all debts 
and charges of the administration, came to the hands of the administra- 
tor, which ought, according to the condition, to have been duly ad- 
ministered by him according to law; that is to say, in manner follow- 
ing, to wit, by paying certain sums specified in the replication to the 
persons before mentioned as the next of kin, whereof the administrator 
had notice ; that a reasonable time for doing this has elapsed, yet the ad- 
ministrator has not administered the goods according to law, or paid or 
delivered the goods, or any part thereof, to the persons before named, 
or either of them, but neglected and refused so to do, contrary to the ef- 
fect of the condition, whereby the persons before named have lost the 
use and profit of their proportions of the goods, &c. To this part of the 
replication the defendant has rejoined, that the judge of the court has 
not, by decree or sentence, limited and appointed the administrator to 
deliver or p;iy the goods to the persons named, or any other person. 
And upon this there is a demurrer by the plaintiff, and a joinder in de- 
murrer. 

The question of law, therefore, is, Whether the neglect or refusal of 
the administrator to distribute the surplus or residue of the effects of the 
intestate among the next of kin, according to the statute of distributions, 
without the previous decree or sentence of the court, be a breach of the 
condition of the bond? 

The question is not, Whether such a neglect or refusal be a breach of 
the duty of the administrator, but whether it be a breach of the condition 
of the bond? And we are all of opinion that it is not. Tiie question 
docs not appear to have been directly decided in any court. According 
to the report of the proceedings before Sir i/o/m yVic/zo/, 3 Add. Rep. CS, 
on the application to allow the bond to be put in suit, that very learned 
judge appears to have thought, that this neglect might be a breach of the 
condition, but his attention was not particularly directed to this point ; 
the great contest before him being, whether the sureties ought to be 
cliarged under the particular circumstances that had taken place ; and it 



8 Barnewall & Cresswell, 151. 177 

is obvious, from some parts of his judgment, that he would have thought 
it right to allow the next of kin to try this or any other doubtful questioti 
in a court of law, by an action on the bond, which could not be brought 
Without the permission of the court. 

This form of an administration-bond is given by the statute 22 Car. 2. 
c. 10., the first statute which ordains the distribution of the effects of an 
intestate among the next of kin. And the bond is obviously intended to 
secure a performance of what the statute ordains. We should, therefore, 
examine the statute, and see what it ordains, in order to come at a right 
construction of the bond, and the terms and meaning of the condition. 

From the form of the replication, it appears that the plaintiff insists 
(and the argument on his part was to this effect), that an administrator 
cannot be said well and truly to have administered the goods within the 
meaning of the condition, unless he has paid their distributive shares to 
the next of kin. The clause in the condition, by which he is required 
thus to administer, precedes the clause by which he is required to make 
a true account of his said administration, and this, also, precedes the 
clause by which he is required to deliver and pay the residue which 
shall appear upon his account to such persons as the court shall, according 
to the statute, appoint. Let us, then, see how the order and course of 
proceeding, thus marked out in the condition of the bond, agrees with 
the statute. 

Now the statute first requires all ordinaries, as well the judges of the 
prerogative courts of Canterbury and York as all other ordinaries and 
ecclesiastical judges having power to grant administration, to take bonds 
with sureties in the form afterwards set forth. It then enacts, that such 
bonds shall be good, and that the said ordinaries and judges may pro- 
ceed and call administrators to account touching the goods, and, upon 
hearing and due consideration, order and make just and equal distribu- 
tion of what remaineth clear (after debts and charges paid) among the 
wife, children, &c. according to the laws in such cases, and the rules and 
limitations thereinafter set down ; and the same distribution to decree 
and settle and compel the administrators to observe and pay the same by 
the due course of his Majesty's ecclesiastical laws. The statute then enacts 
fscction 5.), that all ordinaries and every other person who by this act 
is enabled to make distribution of the surplus, shall distribute the whole 
surplus in manner following ; and then mentions the different degrees of 
kindred and persons to participate in different cases, and their shares; 
and then, to the cm(\ that a due regard may be had to creditors, it en- 
acts that no distribution shall be made until a year after the death of the 
intestate, and that every one to whom distribution shall be made shall 
give bond, with suretins, in such courts, to repay to the administrator a 
rateable part of debts that may afterwards appear, and of the costs of suit 
and charges that he may be put to by reason of such debts. 

The vv(jrd person in the fifth section of the statute evidently means 
judge ; and from this view of the statute, it appears that tlu; ordinary or 
judge is to make the distribution among the persons entitled, and that 
the arlminisfrator is to pay according to the sentence of the ordinary, so 
that the sentence of the ordinary is to precede the payment. And this 
may in many cases be necessary for the information and protection of 
the administrator, who, where the claimants are numerous and remote 
in kindred from the intestate, may not know with certainly what par- 
ticular persons are entitled, or in what ])roportions, and may, if he pays 

VOL. XV. 2J 



178 NoTLEY V. Buck. E. T. 1828. 

to a person not entitled, be obliged to pay over again to the person le- 
gally entitled. And if the administrator has a right to have the sentence 
of the court before he j^ays, then, inasmuch as such sentence is only to 
be pronounced upon the residue of the effects, and after the administra- 
tor has furnished an account of his said administration (which is the 
language of the condition), the administration thus referred to cannot be 
an administration comprising a distribution of the effects among the next 
of kin ; and, consequently, the preceding words offhe condition to 
which the reference is thus made, that is, the words <*well and truly ad- 
minister the goods according to law," cannot be understood of an admi- 
nistration comprising a distribution among the next of kin. It is true 
that where an administrator intends to act faithfully, and the claims of 
the next of kin can be, as in general they may be, ascertained without 
difficulty, he will not put them to the expence and delay of calling for 
his account, and obtaining the sentence of a court ; and therefore it may 
well be said that it is his duty to make the distribution, although it can- 
not be said that a forfeiture of the bond is incurred if this be not done. 

This construction of the bond agrees with the opinions expressed by 
Lord Chief Justice Holi and by Lord Hardwicke. If the words, well 
and truly administer according to law, import a distribution of the residue 
among the next of kin, they must, a fortiori, import a payment of debts 
out of the proceeds of the effects. But in the case of the Archbishop of 
Canterbury \. Willis , 1 Salk. 315, Holt C. J. says, "Whereas by the 
words of the condition he is to administer well and truly, that shall be 
construed in bringing in his account, and not in paying the debts of the 
intestate; and, therefore, a creditor shall not take an assignment of the 
bond and sue it, and assign for breach the nonpayment of a debt to him." 
And in Greenside v. Benson and Others, 3 Atk. 248, which was a 
suit arising out of an action at law on a bond, in which the breach assign- 
ed was the not bringing in a true and perfect inventory, Lord Hardwicke 
says, '' What the counsel for the plaintiff aim at would have been right, 
supposing the ordinary had assigned for breach the nonpayment of the 
creditor's debts." 

For these reasons, and upon these authorities, we think the breach 
to which the demurrer applies is not well assigned, and that the judg- 
ment must be given for the defendant. 

Judgment for the defendant. 



NOTLEY and Others, Assignees of the Estate and Effects of ELIAS 
JARMAN, Bankrupt, v. BUCK, Esquire.— p. 160. 

Where a creditor obtained judgment by nil dicit against a trader and thereupon 
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 duly declared a bankrupt, of which the 
sheriff had notice, but nevertheless sold the goods, and paid over the proceeds 
to the execution-creditor: Held, 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 money 
had and received. 

Quxre, Whether the sheriff was justified in selling the goods after notice of the 
bankruptcy? 



8 Barnewall & Cresswell, 166. 179 

COLVIN and Others v. NEWBERRY and BENSON.— p. 166. 

Where the owner of a ship, by an instrument called a charter-party, appointed G. 
B. to the command, and agreed that (the ship being tight, &c. and manned with 
thirty-five men) G. B. should be at liberty to receive on board a cargo of law- 
ful goods (reserving 100 tons to be laden for account of the owner), and proceed 
therewith to Calcutta, and there re-load the ship with a cargo of East India 
produce, and return therewith to London, and upon her arrival there and dis- 
charge, the intended voyage and service should end. And the owner further 
agreed, that the complement of thirty-five men should, if possible, be kept up; 
that he would supply the ship with stores, and that she might be retained in the 
said service twelve months, or so much longer as was necessary to complete 
the voyage. In consideration of which G.B. agreed to take the command, and 
receive the ship into his service for twelve months certain, and such longer 
time as might be necessary to complete the voyage, and pay to the owner for 
the use and hire of the ship after the rate of 25«. per ton per month, of which 
1000/. was to be paid on the execution of the charter-party, and 2000/. by two 
approved bills on Calcutta, one of which was to be payable one month, and the 
other two months after her arrival there: the residue to be paid or secured to 
the satisfaction of the owner on the arrival of the ship at London, and previous 
to commencing the discharge of her homeward cargo. (Certain other stipula- 
tions for payment of freiglit, if the ship were detained in India, were then 
made.) And it was further agreed, that G. B. should remit all freight-bills 
for the homeward cargo to B. B. and Co. in London, who should hold them 
as joint trustees for the owner and G. B. ; that 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 management of the 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 knowledge of 
this instrument, shipped goods on board the vessel for London, which were 
never delivered there: Held, that they might recover against the owner, not- 
withstanding 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. 

Case ajiijainst the defendants, as the owners of the ship Benson, for 
the loss of goods, shipped by the jjlaintiffs in India to be conveyed to 
England. The first count of the declaration alleged, that the defendants, 
before and on the Ilth day of March 1817, were owners of the Benson, 
whereof one George Bethain then was master, and which ship or vessel 
was then riding at anchor in parts beyond the seas, to wit, in the river 
Ilooghly, in the East Indies, and bound on a voyage from thence to the 
port of London; and that the defeiulants so being owners of the ship or 
vessel as aforesaid, the plaintiffs heretofore, to wil, on, &c., in the river 
Ilooghly aforesaid, shipped and loaded, and caused to be shipped and 
loaded, in and on board of the said ship or vessel, whereof the said 
Oeorge Betham then was master, and which said shi|) or vessel was (hen 
riding at anchor in the river Ilooghly aforesaid, divers goods and mer- 
chandizes, to wit, 2171 hags of sugar, and IfJl chests of indigo of them 
the plaintiffs, then being in good order and well conditioned, and of a 
large value, to wit, of the value of 20,000/. of lawful money of (Jreat 
Britain, to be taken care of, and safely and securely carried and convey- 
ed in and on board of the said ship or vessel from the river Ilooghly 
aforesaid to the port of London aforesaid; and there, to wit, at the 
port of London aforesaid, to be safcl}' anil securely delivered in the like 
good order and well conditioned, to certain |)ersons, commonly called 
and known by the names, and ifsing the style and fnmof Messrs. Bazelt, 



180 CoLViN v. Newuerrv. E. T. 1828. 

Farquliar, Crawford, and Company, or to their assigns, (the act of God, 
the King's enemies, fire, and all and every other dangers and accidents 
of the seas, rivers, and navigation of whatever nature and kind soever 
excepted), for certain freight and reward, payable by bills in that behalf: 
and, although the said goods and merchandizes were then and there had 
and received by the said George Betliam, so being master of the said 
ship or vessel as aforesaid, in and on board of the said ship or vessel in 
the river Hooghly aforesaid, to be carried, conveyed, and delivered as 
aforesaid; yet the defendants, so being owners of the said ship or vessel 
as aforesaid, not regarding their duty as such owners, but neglecting 
the same, and contriving, and wrongfully and unjustly intending to 
injure the plaintifl's in this behalf, did not, nor would, take care of, and 
safely or securely carry or convey the said goods and merchandizes, or 
cause the same to be carried and conveyed in or on board of the said ship 
or vessel, or otherwise, from the river Hooghly aforesaid to the port of 
London aforesaid, nor there, to wit, at the port of London aforesaid, 
safely or securely deliver^the same, or cause the same to be delivered to 
Messrs. Bazett, Farquhar, Crawford, and Company, or to their assigns, 
although the defendants were not prevented from so doing by the act of 
God, the King's enemies, fire, or other damages or accidents of the seas, 
rivers, or navigation of any nature or kind soever; but, on the contrary 
thereof, they, the defendants, so being owners of the said ship or vessel 
as aforesaid, so improperly behaved and conducted themselves with 
respect to the said goods and merchandizes, that by and through the mere 
carelessness, negligence, misconduct, and default of the defendants, and 
their servants, in this behalf, a great part of the said goods and mer- 
chandizes, being of great value, to wit, of the value of 10,000/. of the 
like lawful money, became and was wholly lost to the plaintiffs; and, 
also, thereby the residue of the said goods and merchandizes, being of 
great value, to wit, of the value of 10,000/. of like lawful money, be- 
came and was greatly damaged, lessened in value, and spoiled, and the 
plaintiffs lost and were deprived of divers great gains and profits which 
might and would otherwise have arisen and accrued to them from the 
sale thereof, to wit, at London aforesaid. Plea, not guilty. At the 
trial before Lord Tenterden C. J., at the London sittings after Michael- 
mas term, 1826, a special verdict was found as to the promises in the first 
count of the declaration mentioned, in substance as follows. On the 11th 
IVlarcli, in the year of our Lord 1817, the plaintiffs shipped on board 
the ship Benson, near Calcutta, in the East Indies, then riding at anchor 
in the river Hooghly, 2171 bags of sugar, and 191 chests of indigo, then 
being in good oixler and well conditioned, for which the following bill of 
lading was signed by George Betham, then being the master of the said 
ship, under the circumstances hereinafter mentioned: *' Shipped by the 
grace of God, in good order and well conditioned, by Messrs. Colvins, 
I3azett,and Company, in and upon the good ship called the Benson, where- 
of ismaster, under God, for this present voyage, George Betham, and now 
riding at anchor in the river Hooghly, and by God's grace bound for 
London, to say, 2171 bags of sugar, and 191 chests of indigo, being 
marked and numbered as in the margin, and are to be delivered in the 
like good order, and well conditioned, at the aforesaid port of London, 
the act of God, the King's enemies, fire, and all and every other dan- 
gers and accidents of the seas, rivers, and navigation of whatever nature 
and kind soever excepted; unto INIcssrs. Bazett, Farquhar, Crawford, and 



8 BaRNEWALL & CllESSWELL, 166. 181 

Company, or to their assigns; freight for the said goods being paid by- 
bills." G. Betham received the said goods on board the said ship in 
the river Hooghly, to be carried and conveyed according to the bill of 
lading. At the time of the said goods being so shipped and received, 
and the said bill of lading signed, and before that time, the defendants 
wjre the owners of the said ship, and before the said ship sailed to the 
Eist Indies, and whilst they were such owners, the following charter- 
party, bearing date the 7th day of June, in the year of our Lord 1816, 
was executed by the defendant, Thomas Starling Benson, who was then 
the managing owner of the ship, and acting on behalf of himself and the 
other owner of the ship on the one part, and G. Betham, of the other 
part, for the said ship Benson. 

<' This charter-party of affreightment, made and concluded in London 
the 7th day of June, in the year of our Lord 1816, between Thomas 
Starling Benson, of the city of London, part owner of the good ship or 
vessel called the Benson, of 573 tons measurement, or thereabouts, now 
lying in the port of London, of the one part; and George Betham of the 
city of London, merchant and mariner, freighter of the said ship, of the 
other part; witnesseth, that the said owner, for the considerations here- 
inafter mentioned, doth hereby promise and agree to and with George 
Betham, his executors, administrators, and assigns, that he G. Betham 
shall have, and he is hereby accordingly appointed to, the command of 
the said ship, but with such restrictions as hereinafter mentioned, and 
subject to the proviso or condition hereinafter contained respectiiig the 
appointment of an agent on board the said ship on the part of the said 
owners. And the said ship being tight, staunch, and substantial, and 
every way properly fitted, victualled, and provided, as is usual for ves- 
sels in the merchant's service, and for the voyage and service herein- 
after mentioned, and being also manned with thirty-five men and boys, 
the said commander included, he the said George Betham shall be at 
liberty, and he is hereby allowed and permitted to receive, take, and 
load on board the said ship, in the port of London, all such lawful goods, 
wares, or merchandize as he may think proper to ship, not exceeding in 
the whole what the said ship can reasonably stow and carry over and 
above her stores, tackle, apparel, and provisions, and reserving sulTicient 
room in the said ship for 100 tons of goods to be laden by or for account 
of the said owner as hereinafter is mentioned. And the said ship being 
so laden, he G. Betham shall and will set sail therewith and proceed to 
Calcutta in the East Indies, with liberty to touch at Madeira and Ma- 
dras in her outward passage; and being arrived at Calcutta aforesaid, shall 
and will unload the said outward cargo, and reload the said ship with a 
cargo of East India produce, and return with the same to the port of 
London, and upon her arrival there, and being finally discharged of her 
cargo, and cleared by the revenue ollicers, the said intended voyage and 
service is to end and be completed, the act of God, the King's enemies, 
restraint of princes and rulers, fire, and all and every the dangers and 
accidents of the seas, rivers, and navigation of what nature or kind so- 
ever excepted. And the said owner doth hereby further promise and 
agree to and with (J. Betham, his executors, &:c. that in rase any of the 
aforesaid complement of thirty-five men and boys shall happen to die, 
or desert, or leave the said ship during the said infcndcd voyage and 
service, so that the number shall bo reduced below thirty-two, that then 
and in every such event happening, the aforesaid number of thirty-two 



182 CoLviN V. Newberry. E. T. 1828. 

shall, if practicable, be kej)! and made up at the expense of the said 
owner. Ami further, that tlie said ship shall at all times durmg her 
said intended voyage and service be furnished and provided with pro- 
per and sullicient stores, provisions, and other necessary articles, and 
that tlie said ship shall, if required, be kept and continued in the ser- 
vice aforesaid for and during the period of twelve calendar months, to 
be accounted from the twelfth day of the present month of June, and 
for and during such longer time or term as may be necessary to com- 
])lete her aforesaid voyage, and until her return to the port of London, 
being finally discharged of her lioineward cargo, and cleared by the 
revenue ollicers. And the said owner doth also promise and agree that 
tlie said ship shall, previous to her departure from the port of London 
on her above-mentioned voyage, be furnished and provided with good 
water casks, capable of containing eighteen tons of water, and the 
said owner doth also engage to provide the said ship with coals and 
wood for cooking and dressing the passengers' provisions, for which the 
said freighter is to pay or allow unto the said owner, at and after the 
rate of fourteen pence for every passenger or servant per lunar month, 
and so in proportion for a less period. In consideration whereof, and 
of every thing above mentioned, he, G. Betham, doth hereby promise 
and agree to and with the said Thomas Starling Benson, in manner and 
form following, that is to say, that he, G. Betham, shall and will take 
upon himself the command of the said ship for and during her said in- 
tended voyage, and until her return to the port of London, and shall and 
will navigate her to the best and utmost of his skill and ability; and, 
also, that he, G. Betham, shall and will accept, receive, and take the 
said ship into his service for and during the term or space of twelve cal- 
endar months certain, to commence and be accounted from the 12th day 
of the present month of June, and for and during such longer time or 
term, if any, as may be necessary to complete her said intended voyage, 
and until her return to and final clearance in the port of London afore- 
said. And, further, that he shall and will well and truly pay or cause 
to be paid unto the said owner freight for the use or hire of the said 
ship, at arid after the rate of 25s. per ton, register measurement of the 
said ship per calendar month, for and during the aforesaid term of twelve 
calendar months certain, and for and during such longer time or term, 
if any, as may be necessary to complete her said intended voyage, and 
until her return to the port of London, and being finally discharged of 
her homeward cargo, and cleared by the revenue officers, or up to the 
day of her being lost, captured, or last seen or heard of; such freight to 
be paid in manner following: that is to say, the sum of 1000/., part 
thereof, at or before the execution of these presents; the sum of 2000/., 
further part thereof, by approved bill or bills to be drawn in London 
upon Calcutta, in favour of the said owner, payable, as to one moiety 
thereof, at one calendar month, and as to the other moiety thereof at 
two calendar months next after the ship shall arrive at Calcutta, and the 
residue and remainder of such freight to be paid or secured to the satis- 
faction of the said owner, upon the arrival of the ship in the port of 
London, and previous to commencing the discharge of her homeward 
cargo: Provided always, that in case the said ship shall be kept or de- 
tained at Calcutta aforesaid more than ninety days, then and in such 
case the said George Betham doth hereby engage to pay or cause to be 
paid at Calcutta aforesaid, to the agent of the said owner, the sum of 



8 Barnewall «& Cresswell, 166. 183 

1000/., either in cash or by bills to be approved of by such agent, in 
part payment of the balance of freight which may become due under 
and by virtue of this charter-party: and the further sum of 1000/. at the 
expiration of every sixty days after the said ninety days which the said 
ship may expend or lie at Calcutta aforesaid. And it is hereby declared 
and agreed by and between the said parties, that bills remitted from India 
in manner hereinafter expressed shall be deemed, taken, and considered 
as good and sufficient security for the payment of the residue or balance 
of freight which may become due under and by virtue of these presents 
as hereinbefore mentioned. And G. Betham doth hereby especially 
promise and agree, that all and every the bills of exchange which may 
be taken in payment of the freight of the said ship's homeward cargo, 
shall be made payable to, or to the order of Messrs. Buckles, Bagster, 
and Buchanan of the city of London, merchants, or indorsed over to 
them, and delivered to the owner's agent, to be by him remitted to the 
said Buckles, Bagster, and Buchanan, in London, who it is hereby espe- 
cially agreed by and between the said parties, are to receive the amount 
thereof, as joint trustees for the said owner and G. Betham, he G. 
Betham hereby authorizing and empowering them to appropriate the 
proceeds of such bills of exchange in or towards payment to the owner 
of the balance of freight which may be or become due to him under and 
by virtue of these presents, and the residue, if any, to G. Betham. And 
G. Betham doth hereby further promise and agree to furnish and pro- 
vide, at his own expense, sufficient provision and water, and also all 
other necessaries for the use of the passengers on board the said ship; 
and that he shall and will pay for all provisions belonging to the owners 
of the ship which shall be issued for the use of, or consumed by, any of 
the passengers or servants during the voyage, an account of the same 
being rendered to him once a week by the said owner's agent, or by the 
steward on board the ship. And further, that all expenses of bulk 
heads, cabins, and other accommodation for passengers, shall be paid by 
him G. Betham; the materials for which are to be left on board the ship 
at the termination of the voyage, and become the property of the owner. 
And G. Betham doth also agree to pay and defray all port charges and 
pilotage which may be incurred by the ship during her intended service, 
save and except such as may be incurred in the port of London, out- 
ward and homeward bound, and once at Calcutta. And G. Betham 
doth hereby further agree, that the owner siiali have the liberty of ship- 
ping on board the said ship outward hound, fieight free, any quantity 
of iron, vinegar, and mustard he may think fit, not exceeding in the 
whole 100 tons, to be delivered at Calcutta: Provided always, and it is 
hereby expressly agreed and understood by and between ti)e parties to 
these presents, and particularly by (i. Betham, that an agent shall be 
put on hoard the ship by the owner for and during the whole of her 
aforesaid voyage and service, and who is to have a separate cabin in the 
said ship for bis sole use, and to mess at the said George Bctham's table; 
which agent is to have the sole management, direction, and superinten- 
dancc of the ship's stores and provisions, and the issuing and delivering 
out of the same for and during the intended voyage; and such agent is 
likewise to have the sole ordering and purrhasinp; of any su[)])lies, stores, 
provisions, and other artirhrs which may be rfiniircd for the use of the 
ship during her voyage, and that all hills whirh may ho. required to be 
ilrawn upon the owners of the ship for any such supplies or otherwise 



184 I'oi.viN i-. NmvHERiJY. E. T. 1828. 

on aoconnt of iholiip, shall he tirawii by such n<>;(;nt only: Provided 
;i!.so, and it is horohy rurthcr ajijrced by and between the said parties, 
.md espciMally by the owner, tli.it the fieighler shall have the liberty 
;ind privilege of employing the ship in the East Indies for any interme- 
diate voyage or voyages he may think fit, without prejudice to this 
charter-party, but not exceeding in the whole the time or term of 
twelve calendar months, to be computed from and after the expiration 
of thirty days next after the arrival of the ship at Calcutta aforesaid, 
tipon his G. Bctham's paying or causing to be paid to the owner the 
same rate of freight as is hereinbefore stipulated, viz. 25*. per ton per 
month for all such additional time as the ship may be so employed or 
detained in India; such additional freight being paid to the owner's 
agent for the time being, or secured to his satisfaction, previous to the 
ship entering or proceeding on such additional voyage or service. And 
it is hereby expressly provided and declared, that in case G. Betham 
shall proceed with the said ship to any part or place other than Madeira, 
^Madras, and Calcutta aforesaid, without the special leave in writing of 
the agent of the owner for the time being, or if G. Betham shall be 
guilty of a breach of any or either of the promises and agreements here- 
in contained on his part, then and in any such case he shall be and be- 
come divested of any further command of or in the ship, and it shall 
thereupon be lawful for the owner's agent for the time being to appoint 
another commander for the ship in lieu and stead of the said George 
Betham." This charter-party was made and executed bona fide. On 
the 25th of July 1816, the following memorandum was signed and 
agreed to by the defendant, Thomas Starling Benson, and the said G, 
Betham: "Conditions agreed between Thomas Starling Benson, Esq., 
owner, and George Betham, Esq., commander of the ship Benson, on 
a voyage to India. Wages, say 10/. per month. No primage or pri- 
vilege of tonnage whatever. Cabin allowance for voyage (it being un- 
derstood that the agent, chief and second mates, and surgeon, if any, 
mess in cabin), 150/., owner providing nothing. Allowances while in 
India, three sicca rupees per day.'^ Samuel Oviatt went as agent on 
board the said ship Benson under the said charter-party, on the said 
voyage, and carried out letters of introduction from the persons using 
the said firm of Buckles, Bagster, and Buchanan, being merchants in 
London, on behalf of the said defendants, to the plaintiffs, by which he 
was directed to apply to tliem in case of necessity, and he did apply to 
them, and they acted as agents at Calcutta, both for the said defendants 
and G. Betham as hereinafter mentioned. Samuel Oviatt acted under a 
power of attorney executed by the defendant Thomas Starling Benson, 
which recited the charter party, and then gave Oviatt authority to do on 
liis behalf all things for which that instrument contemplated the appoint- 
ment of an agent. Samuel Oviatt carried out with him the charter-party, 
and communicated it to the plaintiffs as soon as he arrived at Calcutta, 
and before the shipping of the goods, and the plaintiffs before that time 
read the charter-party, and received a copy thereof, and for the freight of 
the said quantity of sugar and indigo in the bill of lading mentioned, 
the plaintiffs drew bills upon certain other persons, payable sixty days 
after the ship Benson's arrival in London to the order of Buckles, Bag- 
ster, and Buchanan, which bills they delivered to S. Oviatt to be re- 
mitted to the said last mentioned persons, pursuant to the stipulation in 
the charter-party; and the said bills were so remitted. B. Betham em- 



8 Barnewall & Cresswell, 166. 185 

ployed the plaintifls as his agents at Calcutta, who accordingly acted as 
his agents, and collected and paid over to him the freight of the goods 
carried in the ship on the voyage from London to Calcutta, and procured 
freight for iiim on the voyage from Calcutta to London; and they had a 
commission from him for procuring such freight. The ship sailed on her 
voyage from the river Hooghly to London with the said quantities of 
sugar and indigo on board, but they never were delivered to the plain- 
tiffs or their assigns pursuant to the bill of lading, although no act of 
God, the king's enemies, fire, or any other dangers or accident of the 
seas, rivers, or navigation of what nature or kind soever, prevented the 
same from being so delivered; but, on the contrary thereof, 1651 bags 
of the said sugar, and twelve chests of the said indigo were wholly lost 
to the plaintiffs, and the residue of the said sugar and indigo greatly les- 
sened in value. This case was argued on a former day in this term by 

Parke for the plaintiffs, who cited Boucher v. Lcavson, Cas. temp. 
Hardw. 85. 194; Parish v. Crawford, Abb. on Shipping, 19; James 
V. Jones, Abb. on Shipping, 20; M'-Kenzie v. Ruiuc, 2 Camp. 4S2. 

Campbell contra, referred to Powell v. Lay ton, 2 N. R. 365; lire- 
thcrton and others v. Wood, 3 B. & B. 24; Saville v. Campion, 2 B. 
& A. 503; Tate v. Meek, 8 Taunt. 2S0; Abbott on Shipping, p. 22. 

Cur. adv. vult. 

The judgment of the Court was now delivered by 

Lord Tenterden, C. J. This was an action brought by certain per- 
sons, who shipped goods at Calcutta in the East Indies, against the 
owners of the sliip for the loss of the goods. The goods were shipped 
by the plaintiffs, and the bills of lading were signed by G. Betham, who 
was the master of the ship. These facts, amongst various others, have 
been found by a special verdict. The defendants rested their defence 
on the ground that an instrument, called a charter-parly, had been 
made by one of them, on the part of himself and the other owners, 
before the ship sailed from l-.ondon on the voyage to the East Indies; 
and it was contended, that they, having chartered the ship, were no 
longer liable, as owncis, for the loss of goods shi])ped to be convcycil 
on the voyage for which the shij) was chartered. (His Lordship then 
slated the particulars of the cluirter-j^nrly, and the otiicr material parts 
of the special verdict.) Now, the fjuestion is. Whether the owners of 
the ship were, by this instrument, maile between them and the master, 
to be considered as having chartered their ship in such a manner as to. 
be released from the responsibility, which belonged to them by the go-* 
neral rules of law as owners, for goods shipped on board their ship? 
And, on consideration of the case, we are of o|)inion, that they are 
not discharged by that instrument; for, taking the whole together, it 
appears to be, in subst.'zncc!, nothing more than the a|)|)ointment of a 
master, upon an undertaUing by him that thr; shi]) shall earn a certain 
sum, and all beyond that sum was to t)e lor his own ijcncfil, but all los.s 
was to be made good by him; and it is provided, that he shall sccun; 
the performance of that undertaking, by remitting to the agents of thu 
owners all freight bills drawn in respect of goods shipped at Calcutta. 
It woidd certainly create a gieat deal of confusion, and do a great deal 
of mischief, as far as regarils tlic shippers of goods, if it were comj)e- 
tcnt for th(' owners of the ship to dischaige themselves from responsi- 
bility by means of such a contract as was executed in this instance. It 
was relied on, during the argument, that Ihr [ilniiitiUs were infurmecl 

VOL. XV. ;.' I 



186 Bklcheu v. Sikks. E. V. 182S, 

of the nature ol" tliat contract; l)ut il' the eflect of it he not such as the 
defendants contend for, the rcsponsihility, l)y the general rules of law, 
helongs to tliem as owners with respect to goods shipped on hoard their 
ship. We being, therefore, of opinion, tliat the plaintiffs are not pre- 
vented by a knowledge of that instrument, from suing the defendants, 
as owners, the judgment of the Court must he for the plaintiffs. 

Judgment for the plaintiffs. 



BELCHER V. W. B. SlKESand Others, Executors of the last Will 
and Testament of A. BRYMER, deceased, who was surviving Ex- 
ecutor of the last Will and Testament of JAMES BRYMER, de- 
ceased. — p. 1S5. 

An indenture recited, that A. and B., in May 1813, had entered into a contract 
with the commissioners for victualling the navy, to supply his Majesty's ships 
with sea provisions and victualling stores, and that the said A. and B. in Sep- 
tember 1813, had nuitually agreed to dissolve the copartnership entered into 
by them as aforesaid, for carrying on the business of the said contract, and all 
other contracts, entered into with the commissioners by B. or A., and in which 
they, or either of them, were in anywise interested or concerned, and all 
other copartnerships whatsoever subsisting between them; and upon the treaty 
for such dissolution, it was agreed that the share of B. in the property belong- 
ing to the copartnership should be estimated at 50,000/., and be taken by A. 
at that sum. It then further recited, that it had been agreed that A. should, 
by his bond, indemnify B. against all damages by reason of his having entered 
into the said recited contract with A, and by reason of all other contracts en- 
tered into by B. and A. respectively, and in which they or cither of them had 
any interest as aforesaid. The indenture then witnessed that A. and B., by 
mutual consent, dissolved the said copartnership so entered into, and then or 
lately subsisting between them for supplying his Majesty's ships witli provi- 
sions and stores, under or by virtue of the said recited contract, and of all 
other contracts in which B. and A., or either of them, had any interest or con- 
cern as aforesaid. The deed then contained a mutual release of all actions, 
accounts, reckonings, &;c. which either of them (A. and B.) now had or ever 
had, or which either of them, or cither of their executors, should or might 
thereafter have, claim, or demand against, from, or under the other of them, 
or his heirs, executors, 6cc., for or by reason of the said copartnership or co- 
partnerships so thereby dissolved as aforesaid, upon or by reason of any of the 
acts, matters, and things whatever in anywise relating to the said recited con- 
tract, and all other contracts in which B. and A., or either of them, had any 
interest whatsoever. B. then assigned to A. all the share and interest of him 
(B.) of and in all the debts and sums of money whatsoever, then due and ow- 
ing to them (A. and B. ) under or by virtue of the same several contracts, or 
otherwise, and all bonds, bills, &;c. relating to the said contract, debts, and 
sums of money, or any part thereof, and all the goods, stock, and effects 
whatsoever then belonging to them, the said A. and B., as such copartners 
respectively, and all the right, title, and interest of him (B.) of, in, to, from, 
out, or in respect of the premises. A power was then given to A. to recover, 
and give discharge for tlie said debts. 

At the time when this deed was executed, B. and A. had been concerned in con- 
ducting business together as contractors for the navy. In some contracts B. 
was solely interested as contractor; in others A. was solely interested as con- 
tractor; and in some they were jointly interested as partners and contractors. 
They had, however, both been concerned in all the contracts. A. havhig 
been agent in managing those contracts in which A. was solely interested, and 
B. having been agent in managing those contracts in which A. was solely inter- 
ested; and there was money due from the commissioners of the navy in respect 
of each of these classes of contraclb: Held, that by this deed, the contracts 
in which B. had been originally sepai'ately interested, were constituted as be- 



8 Barnewall & Cresswell, 185. 187 

tween A. and B. partnership contracts, and consequent!)', that A. was entitled 
by the deed to receive all sums due to B., in respect of those contracts, at the 
time of the execution of the deed. 
Bv the deed, B. for himself, his heirs, executors, and administrators, covenan- 
ted that, for and notwitlistandingany act done by him (B. ), it should be lawful 
for A. to receive the money debts, and premises thereby assigned, without any 
let, suit, interruption, or denial of B., his executors, or administrators, or any 
person claiming under him or them : Held, that the words, " for and notwith- 
standing any act done by B." being inconsistent with the subsequent pai-t of 
the covenant, ought to be rejected, and, therefore, that it was a sufficient 
breach of rhai covenant to allege a receipt of the money by the executor of 
B. in respect of the contracts mentioned in the indenture. 

Declaration stated that heretofore, and in the lifetime of James 
Brymer, to wit, on the 10th of March 1814, at, &c., by a certain in- 
denture made between the plaintiif, of the one part, and James Brymer 
of the other part, after reciting, amongst other things, that the plaintiff 
and James Brymer in or about the month of May 1S13, entered into 
and signed a contract with three of the commissioners for victualling 
his Majesty's navy, to supply and deliver on board his Mnjesty's ships 
at Halifax in Nova Scotia, Quebec in Canada, Norfolk in Virginia, and 
the island of Bermuda, all such quantities of sea provisions and victual- 
ling stores, consisting of the several articles specified in the contract, 
as should f^rom time to time be required for the use of the ships, &c. for 
the space of twelve calendar months certain, and further until six 
months' notice in writing should be given by either of the contracting 
parties for the termination of the contract, and for which provisions and 
victualling stores so to be supplied and delivered, it was agreed that 
the plaintiff and J. Brymer should be paid at the rates and prices men- 
tioned in the contract, upon production of the vouchers and documents 
therein also mentioned; and further reciting that the plaintiff and J. 
Brymer, in pursuance of the contract, supplied and delivered from 
lime to time divers considerable quantities of sea provisions and victu- 
alling stores to the saifl ships and vessels at the several stations aforesaid; 
and also that tin; plaintiif and J. lirymcr about the 17lh September 
1S13, mutually agreed to dissolve the ropartnershij) so entered into by 
them for carrying on the business of the said contract, and all other 
contracts entered into with the commissioners for victualling his Majes- 
ty's navy by J. Brymer or the plaintiff, and in which they or either of 
them were in any ways interested or concerned, and all other copart- 
nerships whatsoever subsisting between them; and upon the treaty for 
such dissolution it was agreed that the share and interest of J. Jirymer 
of and in the monies, properly, and eflccts belonging lo the said co- 
partnership, or to them the said parties on account thereof, should be 
csliiiialcfl at the stun of 50,000/., and he taken by the plaintifl' at that 
sum; and that the said plaintiff should thenceforth have the lull benefit 
of the said recited contract, and cany on the business thereof on his 
own account, and for his own exclusive use; and that he should concur 
with J. Brymer in an application to the commissioners for victualling 
his Majesty's navy to withdraw the name of J. Brymer from the said 
recited contract; and also reciting that the application hail accordingly 
been made to the commissioners, who consented that the name of .1. 
Brymer should be withdrawn, and the samr^ had accordingly been 
wilbdrawii from the said lecited contract; and ;ilso reciting that the 
|)lainti(f had paid to .[. Brymer 30,000/. in part of the said sum of 
^i(),Of)0/ , file vahn" i>r his sliaio of ilw |i:ir)n<'rslii|i |)i(tpr)(\. mdiiir. 



188 BiiLCHEU v, Sikes. E. T. 1828. 

and cflccts ;is he J. lirymer did thereby admit and acknowlo(lf>;c, testi- 
fied by bis cxccutinjj; the said recited indenture. And the phiintifl' for 
sccurinu; to .1. Brymcr the payment of the sum of 20,000/., residue of 
the sjid sum of 50,000/., and interest from tlie 1st of January then last 
])ast, liad accoj)ted certain bills of exchanj^e therein particularly men- 
tioned. And also rccitinc; that upon the treaty for such dissolution as 
aforesaid, it was further aj^rced that the plaintiff should, by his bond in 
a sufficient penalty, save, defend, and keep harmless and indemnified 
J. 13rymer of, from, and against all costs, losses, charges, damages, 
and expenses whatsoever by reason or on account of his having entered 
into tlie recited contract with the plaintiff, and by reason or on account 
of all other contracts entered into b)^ J. Brymer and the plaintiff re- 
spectively, and in which they or either of them had any 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. Brymcr 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, 
Avell 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, alieady 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. Brymcr 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, cither 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 cither 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 b}' rea- 
son, or means, or on account of any breach or non-performance, either 
made or committed, or to be made or conmiitted, of the said several 
contracts so entered into as aforesaid, or any, or either of them, or any 
])art 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-partncrshi]) 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. Brymer and tlie 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. 
Bjymcr, in any manner, or ii])on any account whatsoever, and did 



8 Barnewall & Cresswell, 185. 189 

thereby declare and agree that the same co-partnership should be, and 
be considered, as having ceased, determined, and been utterly void to 
all intents «nd purposes whatsoever, upon the said 17th day of Septem- 
ber 1S13; and that notice of such dissolution of the said co-partnership 
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 lieirs, executors, or administrators, for or by 
reason, or means, or on account or in consequence of the said co-part- 
nership or co-partuerships 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 except 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 tlie recited 
agreement on the part of .1. Brymer, and in consideration of all and 
singular the premises, he J. Brymer did bargain, sell, assign, transfer, 
set over, and confirm unto the plaintiff, his executors, &c. all the share 
and interest of him J. Jirymer of, in, and to all and singular the debts, 
sum and sums of money whatsoever then due ami owing to them the 
plaintiff and .1. JJrymcr by virtue or in consef|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 |)art 
thereof, and of and in all and singular other the monies, goods, chat- 
tels, stock, and effiicts whatsoever and wheresoever then of or belong- 
ing to them the jjlaintiff and J. Brymer as such copartners respectively; 
and all the right, title, and interest, property, claim, and demand 
whatsoever of him J. Jirymer of, in, to, from or out of or in rcs|)ect 
of the premises. To have, bold, receive, take, and enjoy the said 
share and interest of him J. Brymer, assigned or intended to be as- 
signed by the said indenturf; of and in the said dehls, monies, goods, 
chattels, and all and singtdar other the effects and premises thereinbe- 
fore nientionetl, and every [)art of the same, and all benefit and advan- 



190 Belcher V. SiKES. E. T. 1828. 

tagc thereof unto (he ])hiintifl', his executors, administrators, and 
assigns, as ;.nil for his and their own pro])er monies and cH'ccts ahsohite- 
ly, and with full 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, debts, and premises, and every part 
thereof, but subject nevertheless as therein mentioned. And J,Br3^mer 
tlid thereby for himself, his heirs, executors, and administrators 
(amongst other 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 tlie contrary by liim J. Brymer, it should and might be law- 
ful for the ])laintiff, 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, 
without 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 any 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 
.T. 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 ISth 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 tlic 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. 
J5rymer for himself and his executors as aforesaid. Third 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. Brymer did not at any 
time demand or receit^e 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 tlie 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 tho 
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 plaintiff 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 ihe plaintiff. The 
arbitrator also found the following facts upon which 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, both been concerned in 
conducting all the contracts; A. Belcher having been agent in managing 
those contracts in which J. lirymer was solely interested, and J. Bry- 
mer having been agent in managing those contracts in which A. Belcher 
was solely interested. Under these circumstances, on the 10th day of 
March 1S14, A. Belcher and J. lirymer dissolved partnership by the 
following deed. (The arbitrator, after sotting out the indenture stated 
in the declaration, proceeded as follows:) At the time when tliis deed 
was 80 executed, there were the following sums due from the commis- 
sioners of the Navy Board, viz. under a contract dated the 1 7th of Sep- 
tember 1793, the sum of 230/. ds. 4d.; under seven different contracts, 
two dated the 2 Ith day of January 17!)S, one dated the 3(1 of September 
179S, two dated the 2Gth of July 1S03, and two dated the 1th of August 
1803, the simi of 7177/. M.S'. f>.U/.; and, lastly, under a contract dated 
July fith 1H07, the sum of 11S5/. 18.y. Oid. These several contracts were 
iluly entered into with the Navy Board at the above dates. For all these 
several sums which arose from the fmal settlement of long and compli- 
cated accounts under the above contracts, J. Brymer belorc his death 
made a claim on the Navy Board. 'I'his claim, sid)ser|iiently to the death 
of J. Brymer, was renewed by his executor A. Brynier, and the several 
sums above mentioned were, after a long investigation, fnially allowed, 



192 Uklciieh v. Sikes. E. T. IS28. 

ami the monies |iai(l to A. Hrymer by the Navy Board in 1S17. Of all 
those transaclioiis, A. IJelcher was ignorant till lonji; after the receipt of 
tlie money hy A. Hrynier. As to the contract of the 17th day of Scp- 
icniher 1793, the arbitrator founil as a fact that prior to the arrangement 
iiKulc by the above deed of the lOlli of March ISl t, A. liclcher was solely 
interested therein as contractor to tiie Navy Board. As to the contract 
of the filh 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 17f)S, the 3d of Septem- 
ber 1798,* the 2CA\\ day of July 1S03, and the 4th of August 1803, he 
fouinl thnt prior to the arrangement made by the deed dated the lOtli 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 should 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^. Oid. 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-Gcneral, Scarlett, 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- 
tiff. The intention of the parties must be collected from the whole con- 
text and contents of the deed. Earl of Clunrickard^s 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 Brymer's interest in the separate contracts was 
intencjpd to pass to Ijclcher? 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 either of them, 



8 Barnewall & Cresswell, 185. 193 

were interested. It is impossible to give effect to those words without 
holding that the interest of James Brymcr in the separate contracts pass- 
ed to Belcher by the deed. Then, os 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 
his 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, Walker 
V. Hull, 1 Lev. 177, and Bennetts 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 Canons of IVindsor, 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 tiiese 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 tliis point they cited 
Harivood v. Hilliftrd, 2 Mod. 209; Jtnnnymons, Skin. 39; Penning 
v. Ladij Plat, Cro. Jac. 383; Ilellamij \'. linsscll. Sir T. Jones, 18f). 
But even if the broach be too general, it shall be aided after verdict for 
the plaintiff, Kuii^hl v. Leach, Comb. 204. 

Denmun, Brodrick, and Manning contra. I'^irst, the judgment 
ought to he arrested, because the covenant on which the fiisl breach is 
assigned applies to acts done by the testator only, and not to acts done 
by his executor; and the broach assigned is in respect of an act done 
by the executor. The covenant is, "that for and notwithstanding any 
act done by James Brymer, it shall be lawful for Belcher to receive the 
money without any let or interruption of him James Brym(;r, his execu- 
tors, &.C." The testator i)inds himself and his executors ;iu;;iinst any act 
(lone by him James Brymer in his lifetime. [Lord Tcntrrden (/. J. 
Must not the words "for and notwithstanding any act done," be reject- 
ed as insensible, they being wholly inconsistent with the subsequent 

VOL. XV. 2j 



191 Helcheu v. Sik.i:s. E. T. 1828. 

part of the coronant by whicli Brynicr ajrrees lliat Belcher shall receive 
the money without the interruption of him or his executors? — Bayhy 
J. IMa}- not the meaning; be, lor and notwithstanding any act done before 
the execution of the deed ?] Tiie words arc not in the ])ast tense. The 
particular sense of those words must be collected from the context. Upon 
this point they cited Rich v. Rich, Cro. Eliz. 43; Tiroughlon v. Con- 
tvoy, Dyer, 240; Ford v. Wilson, 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 breaches 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 CHiy 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 Belcher were 
jointly interested. The primary object of the deed was to dissolve and 
determine the partnership of liclcher 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 \n ere in any ways inter- 
ested or concerned. The words "or either of them" here 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 ibr 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 Brvmer and 



8 Barnewall & Cresswell, 185. 195 

Andrew Belcher, or either of them, had any interest or concern. Now, 
thou<Th 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 either 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 first breach. Tiie 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 1814, they 
dissolve partnership by the deed set out in the award. After stating the 
dates 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/Stituted 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 
do this. 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 ])rincipal and agent 
subsisted between them. That not having been done, it may reasonably 
be supposed that the parlies might, in order to put an end to all contracts, 
elect to consider all contracts as partnt^rship concerns; and looking to 
the whole of this deed, I think that intention may bu colhiclcd from lis 
different recitals and provisions. The deed recites a contract llit-n in 
esse, which had been made in May 1813, and that the plaintiffand Bry- 
meron the 1 7th of September 181.3 agrcetPto dissolve lheco|)artncrship 
for carrying on the business of the said contract, and all other contracts 
entered into with the commissioners for victualling the navy by Brymer 
or the plaintiff, and in which liicy or either of thnin wnrc in any ways 
interested or concerned ; and all otlinr copartnerships whatsoever «ub- 
sisting between them. These latter words must mean partnerships in 
other contracts besides those entered into with the conimissioruirs of the 
.,navy. It seems to me from thcrccil;d, that liiere was a manifest intent 



196 Belcher v. Sikes. E. T. 1828. 

to treat all the contracts as having been copartnership transactions. I 
cannot otlierwise lind any sense lor tlie 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 Brymcr 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 plaintiff 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 
eniered into by Brymcr 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 cofiartnership 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 conjo'intly or by either 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 Baunewall & Cressvvell, 185. 197 

money charged in the breach being an act done by the executor, is not 
within 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 that tlicre should be 
no future reckoning or accounting between the parties. By that clause 
each party discharges (he other from all accounts, reckonings, &c. which 
either of them had or might thereafter have, for or by reason or on ac- 
count of the said copartnership, or on any other account whatsoever." 
Thisclause entirely prevents all future rcckonin<i;sbetween the parties upon 
any contract entered into by one or the other. It is quite clear, that l)iit 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 
resprcfivc/t/ and the words or cither of llicin, which occur frerpiently 
in the deed, were introduced intentionally, 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|)arate- 
ly or jointly interested. I think also that Alexander Brymer, the ex- 
ecutor of James Brymer, having wrongfully received the money which 
the plaintiff ought to have received, has comniitted a breach of covenant. 
The words "for and notwithstanding any act done," may perhaps bo 
understood to refer to an act already rltnie at the time of the execution of 
the deed, or, if they will not bear that sens^', 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, I 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 tiling 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, 1 should be disposed 
to reject the first 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 filed, 
in order to enable the plaintiff 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 effect such a purpose. It is a rule in construing deeds to give effect 
to all the words, and undoubtedly if full effect be given to the words "or 
either of Ihetti," there is an insuperable objection to any other construc- 
tion of the deed than that put upon it by my Lord and my Brother Buyley. 
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 partnersiiip. 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 differ from my Lord 
and my Brother Buyley, but only that I entertain considerable doubts. 

Rule discharged. (a) 

{a) This case was argued and determined on the 1st of May, but the report of it 
was unavoidaljly postponed. 



GROOCOCK V. COOPER and Others.— p. 2U. 

By the 6 G. 4. c. 16. s. 3.3. commissioners of banknipt are authorized, by writing 
under their hands, to summon before them certain personsj and if any such 



8 BaRNEWALL & 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, Semblc, 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, brought by the plaintiff against the 
defendants, who were commissioners under a commission of bankrupt 
issued against JNIessrs. 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, 1S26, 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 replied it would not. The London 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 plaintilffor not 
attending; and the commissioners having receivcil the letter on Wednes- 
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 detained 
in custofly 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 plaintifl" was a person liable to l)e summoned, within 
the 6 G. 4. c. IG.s. 33. (r/); but it was contendeil, on the part of the j)l;iin- 

(n) Sect. .^.l. of tlie 6 Ci, 4. c. \(\. enacts, "that after adjudication, it shall he 
lawful for the commissioners, by writing under their liands, to summrHi before them 
any person known f)r suspected t«) have any of the estate of tlie bankni|)t in his 
possession, or supposed to be indebted to the bankru])t, or any jjcrson wliom the 
commissioners believe cai)able of giving information concerning tlic person, trade, 
dealings, or estate of sik h banknijjt, or concerning any act of bankruptcy rum- 
mittcd by him, or any informa ion ma'crial to tin- full disclosure of tiie dealings 
of the banknipt; and it shall be lawful for the commii-sioners to require such per- 



200 OuoococK V. Cooi'Ku. E. T. 1828. 

tifl", that tlic clofeiidants were not justified in issuing their warrant, inas- 
nuich as the summons was not sulliciont, there not having been a reasona- 
ble time, between the service of the summons and tiie return, for the 
jdaintitT to go down to Norwich, and, at all events, that this was a ques- 
tion of fact to be submitteil to the jury. Secondly, that the wairant itself 
was illegal, because the defendants bad 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 Tenlerden C. J. was of opinion 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 sufl!icient 
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 plaintiflT 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 
in sound health to have gone to Norwich. Secondly, it was not neces- 

son to produce books, &c. in his custody 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 tlie 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." 



3 Barnewall & Cresswell, 211. 201 

sary that tlie commissioners shouki, in order to justify them in issuing 
their warrant, have had the 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, 
\Yhether 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 contra. 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 subpana, 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, whetiicr the service of the summons were 
reasonable or not was a question of lact 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 ^wc 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 fi)r an offence without 
information on u:i\.h, Morfrnn v. I/ughrs, 2 T. \l. '225. [fiai/lei/ J. 
The only question there was whether case or trespass was the proper 
form of action.] Lastly, the defendant was not bound to obey the sum- 
mons without a tender of a sum of money sufficient to defray bis reasona- 
ble expenses in going to and returning from Norwich, and 51. was not 

^"°"S^' Cur. adv. vult. 

Lord TENTERnKN C. J. We are 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. 2G 



202 Haurod v. Benton. E. T. 1828. 

tendered to the plaintifl'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 tive 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 
January. 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, 
IVarmoll v. Young, 5 B. & C. G60; and which is the only legitimate 
course of proceeding incases like the present. 



8 Barnewall & Cresswell, 217. 203 

•y/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 a jury ; and the courts of equity have in some instances so determined 
without sending the question to be tried in an issue, Lady Arundelly. 
Phipps and Taunton, 10 Ves. 139; Taylor v. Jones, 2 Atk. GOO; 
Baldiuinx. Cawthorne, 19 Ves. 166; Meggott \. Mills, 1 Ld. 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 fidse return; 
but it is hard upon the sheriff' 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 has 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 his report. 



Ex parte CULLIFORD v. VVAHREN, Gent., one, &c.— p. 220. 

The Court will not compel an attoniey to pay a sum of money he has received in 
his character of attorney ; he iuivmg after tlie receipt of tlic money become 
bankrupt and obtained liis certificate. 

Sir J. Scarlett had oblaincd a nilo, calling upon the defendant, an 
attorney, to shew cause why Ik; should not pay over a sum of money 
paid by Culliford to him, as his attorney, being tlu; amount of ind^rost of 
a mortgage procured by Warren in ly23, for (vulliford, and which it 
was his duty to have transmitted to the niorfgagcp. It a|)pearc(l, by the 
affidavits against the rule, iliat after the receipt of the money by the attor- 
ney for the piM'|)Ose alleged, there had been a treaty for 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 had, in his way to the place of meeting ap]n)int(!d for 
transferring the mortgage, been arrested for debt, and that he had subsc- 
<pjently been made a bankrupt, and duly obtained his certificate 



204 Hasti:low v. Jackson. E. T. 18.;8. 

Jcremi/ now slicwod cause, and contended, tliat in the absence of any 
particular fraud, shewn in liis character of attorney, there was no ground 
lor the interference of the Court; but that Culliford ouglil to be left to 
his remedy at law, and come in with the general creditors. 

Lord Tentkrhen C. J. We sec notiiing in this case which ought 
to deprive tlic attorney of the jirivilege of i)is certificate. 

Bayley .f. If an action were brougiit against Warren for money had 
and received, the certificate might be pleaded in bar. 

Rule discharged. 



HASTELOW V. JACKSON.(flj— p. 221. 

\V'here A. and B. deposited money in the hands of a stake-holder to abide the 
event of a boxini^-match 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 HolroydZ., at the Summer assizes for Nottingham, 1827, 
it appeared, that the plaintiffand one Wilcoxon had each deposited 20/. 
in the 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 
was 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. Thurland, 5 T. R. 
405; Smith v. Bickmore, 4 Taunt. 474; Bale v. Carlwrighl, 7 Price, 
540; Howson v. Hancock, 8 T. R. 575. 

Reader and Humphrey contra, referred to Lacaussade v. White, 7 
T. R. 535; Howson v. Hancock, 8 T, R. 575. [Bay ley 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; Jindree v. Fletcher, 3 T. R. 266; 
Morck V. Jlbel, 3 B. & P. 35; Vandyke v. Hewitt, 1 East, 96; Lub- 
bock \. Potts, 7 East, 449; Tenant v. Elliott, 1 B. & P. 3; Farmer 
V. Russell, 1 B. & P. 296. 

Bayley J. I am of opinion that this rule must be discharged. The 
cases of Tenant v. Elliott and Farmer v. Russell do 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 argn^d and determined. 



S BaRNEWALL 8<. CUESSWELL, 221. 205 

the holder, but only that when Ihe loser has paid the money into the 
hands ot" an agent lor tiie winner, the agent cannot set up the illegality 
against tlie claim of his principal. Tiiose 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 diiference 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. 
Thurland, 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 o( 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 Howson 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, the whole was demanded: the defendant 
said he shotdd pay it to the other party, the |)I;untiif desired him not to 
do so, and threatened him with an action. Tliat was a plain expression 
of dissent; the defendant therefore paid over tiie money at his own peril, 
and having paid over what could not have been recovered from him, he 
paid it in his own wrong. Wilcoxon could not have recovered more 
than his own money, without proving himself the winner, and that 
could only be estaldished by evidence of his having done an illegal act. 
He therefore could not have recovered the money de|)osited by the 
plaintiff: and the defendant having paid over the whole after the plain- 
tiff's prohibition, which was valid as to a moiety of the stakes, paid over 
that moiety wrongfully, and is liable to refund it to the present plaiutifl'. 
For these reasons, I think the o|)inion expressed by my brother Holroyd 
at the trial was correct, and tliat this rule must be discharged. 

HoLKOvn J. It appears to me now as at the trial, that the case of 
payment to a stakeholder diflers from that by one j)arty to the other. 
Thcfjueslion made at the trial was, whether it was necessary for the 
plaintiff to rescind the contract. I think it wai? not; .uul that he did 



1106 Doe d. Long v. Puu;g. E. T. 1828. 

sufliciont ijy giving notice that he would sue the defendant if he paid 
over the money. 

LiTTLF-DALE 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 there 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 he 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 he gained a settiement. 



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 fiicls 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 llje above- 



8 Barnewall & Cressvveli.j 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 su7'- 
viving children shall refer. 

The case was argued at the sittings after Hilary term, by 
Curtvood for the jjlaintifT. The expression "surviving children," in 
this will, refers to the period of the testator's death. He referred to Ives 
V. Leggc, 3 T. R. 188; Hose v. /////, 3 liurr. 1881; Doe v. Lawson, 
3 East, 278. 

G, R. Cross contra, cited Neivton v. wli/scorigh, 19 Vcs. 531; 
Htiwes v. Halves, 1 Ves. sen. 14; Strina;er v. l'hilli])s, 1 Eq. Ca. Abr. 
292; Hose v. /////; Brown v. Bigu;, 7 Vcs. 279; lloglUon v. Whit- 
greave, 1 J. &. W. 1 10"; Cripps v. H'olcott, 4 Mad. 11. 

Chir. adv. vvlt. 
Baylev J. now delivered the jiidginont of the Court. The fpiostion 
in this case arose upon the will of^ William Shipman, and depended upon 
the effect of a limitation in remainder to the .vi/r?;/?,'///,:,'" children of Wil- 
liam Jennings and John Warren and their heirs. By the will the tes- 
tator flevistd to his mother for her natural life oidy, remainder to his 
wife for her natural life only, remainder to the surviving children of 
William Jennings an<l John Warren, and their heirs for ever, the rents 
and profits to be divided between them in rrpial proportions, share and 
share alike; but in a given event ho revoked llu? devise to his wife, and 



208 DoK il. I.oNi; V. Piuci;. K. T. 1828. 

gave to his mollier lor lior nnlniMl lil'c only, aiul from and after her ilt'- 
ceasc to llic siirviviii!^ ehildion of VV^illiani .Icnnings aforesaid, and John 
Warren, and to be divided amongst them as above mentioned. The 
])erson«, therefore, coming within the description of "the surviving 
chiUlrcn,'' &c. were to take in possession in the one case upon the 
deaths both of the mother and wife, and in the other case upon the 
death of the mother only. The question is, when they wore to take in 
in/crest, whether they wore to take vested estates in remainder imme- 
iliatcly uj)on the deatli of the testator, or whether their estates were to 
be contingent till the mother and tiie wife, in the one case, and tlie 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 etTect 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; Iio& 
v. Perry n, 3 T. R. 48 1; 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 eflect 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 
]iarticular 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 Si Cresswell, 231. 209 

Wilson V. Bayley, 3 Bro. Pari. Ca. 19S, wlicre a testator bequeathed 
certain leaseliolds 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, tliat 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 JMark 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 ^V. and John Prick- 
low, share and share alike, or to the survivor of them, Sir P. Ardciij 
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- 
buck 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 Maberly 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: 
ant', upon a question between a nephew who survived Samuel, and tho 
representative of the other nephew and niece, Jlrden, Master of the 
Rolls, said, *' On tiie liiind words, toilh bcnefil of survivorship, the 
safest and soundest construction, best warranted by the authorities, most 
beneficial to the parties, and most likely lo have been intended, was to 
apply thein to such as should survive the testator, not to let it remain 
in contingency, and vest only in such as should hap|)en to survive Sa- 
muel, with the chance of the wliole being lost, and a total intestacy 
after the death of Samuel occasioned." In Edwards v. Sytnons, 2 
Marsh. 2^1, (i Taunt. 213, where lands were devised to trustees in trusl, 
to apply the rents lo the maintenance of six younger children, till tho 
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 twenty-one, 
the Court of Common Pleas certified to the ('ourt of Chancery that he 
liad a share, which at his death desceiuled upon his heir; so that the 
C'ourt of Common Pleas must have considered the words '< (he survi- 
vors and survivor" as applying to tlie period of the testator's death, not 
to the period of lOlizabeth's attaining twenty-one. In L'ose v. ///'//, 
Burr. 1881, which was cited in argument, in Doe v. Sjn/rrow, \3 Kasi, 
359, and in Clnylon v. Lome, 5 JJ. &. A. G3(i, word.s of survivorship 
were referred lo the period of the testator's ricatli, not to any ulterior 
time in the case of devisf.s of land; and in Lord IHuilon v. Lord Siif- 

VOL. XV. J? 



210 Doe d. Long v. Prilig. 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 wliicli 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 docs not apply to the cases of JVilson v. Bayley, Perry v. 
Woods, Mahcrly 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 tliose 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, aid his own father for the last three, to learn twodiflFer- 
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 unnecessaiy ; and, therefore, an order, merely stating that the "justices 
had, upon view, found, or that it appeared to them," that the way was linnc- 
cessary, is bad. 



8 Barnewall & Cresswell, 257. 211 



CUBIIT V. PORTER— p. 257. 

Tlic 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. 

Where 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 the defendant on, &c., at, &c., broke and 
entered a certain close of the phiintifT, 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 plaintiff, 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 plaintifiPs close, by means of which several premises the wall of the 
I)laintifrhad been and was greatly weakened and injured, &c. Plea, not 
guilty. At the trial hc^ove. Jltexander 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 plaintifl''s father. The defendant was 
the owner of premises adjoining those occupied by the plaintiff, and se- 
parated therefrom by a wall, part of wiiich the defendant, in .luly 1825, 
had pulled down, and erected on the site of it another wall (of a greater 
height than the old wallj, with a cottage and other buildings against it, 
and the present action was brought, after the new wall had been rebuilt, 
to try the right of properly in that wall. There was evidence on both 
sides of various acts of user of the wall by the rcs|)cctive owners of the 
jjlaintiff's and defendant'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 respective own- 
ers of the plaintilf's and defendant's premises, they believed tiie plaintiff 
and defendant had a common properly in it. Tiie verdict returned by 
the foreman of the jury was, "We find this to be a party wall." The 
Lord Chief Baron said, That is a verdict for the dt-fenilant. After the 
jury liad se[)nrated, the plaiiitilPs counsel ol)St;rved, that the wall might 
l)e a parly wall, and yet ihe [ilaintiff and defendant might not be tenants 
in common of if, or of the land on which it was built; for if each of the 
proprietors of the two estates contributed the site of the land on which it 
was built in equal moities, or had contributed in the same proportion the 
expense of building if, each of them would remain the owner of a moiety 
of the wall, and might maintain an action against the (jther for any inju- 
ry done to that moiety. S/orks Serjt., in Michaelmas term, l.S2n, ob- 
tained a rule nisi for a new trial, upon the ground, first, that the atten- 
tion of the jury had not been drawn to that distinction, and that it niight, 
therefore, be true that the wall was a party wall, and yet ilii'< ;u iioi\ 



212 CuDiTT /,'. Pom Kit. E. T. 1828. 

n'ouKl be nuunlainablc. Secondly, assuininif lliat the verdict establisherl 
that tliey were tenants in common of tlie 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. 

Robinson and IVallinger now sliewcd cause, citing Mails v. Hiuu- 
kins, 5 Taunt, 30; JViltshirc v. Sidjord (a). 

Storks Serjt. and F. Kelly, contra, referred to Malts 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 plaintilPs wall. 
If the wall was the exclusive property of the plaintiff, 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 property? 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 
differently 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 Burrough 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 it 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 wzs? for anew trial was obtained, princi]jally up'^n the 
ground, that the verdict was against evidence. Upon the reading of the report, 
the Court called upon the counsel for the plaintiff to support the rule. I'hey re- 
lied on Malts v. Ilawkhis, 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 ATatts v. Hawkins, where the quantity 
of land which each party contributed was known; and said, where that was not 
known, the reasonable presumption, 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 boiJi. Thf y therefore thought the verdict light, and discharged the rule, 

Rule discharged. 



8 BarNEVVALL & CuESSVVELL, 257. 213 

had been done, the verdict miglit 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 common 
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 
belon"- to the two persons in undivided moieties. It does not appear 
whether at the time when this wall was built the land belonged wholly 
to one individual. It might at that time have belonged entirely to one, 
and then he might have sold off a part; or he might have sold an undivided 
moiety of the w-all with the land on one side, and an undivided moiety of 
the wall with the land on the other side. If the land on which the wall was 
built belonged on one side tooiie party, and on the other to the other party, 
and they between them agreed to build the wall, it would have been prudent 
at least to make this bargain, that so long as there was to be a wall continu- 
ing on this property, the land on which it was built, and the wall which 
stood upon that land, should betaken and considered to be the common pro- 
perty of the two, and that the owners of tiie estates on each side, should 
be tenants in common of the undivided moiety of that land and of that 
wall; with the power of adopting such remedies for partition as tenants 
in common may adopt. On the other hand, if the wall stood partly on 
one man's land, and partly on another's, either party would have a right 
to pare away the w^all on his side, so as to weaken the wall on the other, 
and to produce a destruction of that which ought to be the common pro- 
perty of the two. It seems to me, the probability of the case is, that 
this was not a party wall according to the principle which was acted upon 
in the case of Matts v. Haivkins, 5 Taunt. 20, but that it was a wall 
built on the common property of the two, and that the wall was the com- 
mon property of both. Mails v. Haivkins naturally led to a different 
conclusion; for under the party-wall act, each is to contribute the land 
for that which is to be built on the common soil of the two. If the land 
is to be contributed by the parties in equal proportions, it may be a pro- 
ble con.sequencc (I do not say whether it is or not) that the wall belongs 
one half to one and the other half to the other; but that, as it seems to me, 
in the country where the party-wall act docs not apply, is such an im- 
probable state of things, that we ought not to scnil it down again to a 
new trial, on the ground that that view of the case was not jircsemed to 
the consideration of the jury, when at tlic trial it was not desired by 
the counsel that it should be so presented to them. 

Then, the next point is, whether, assuming that the land on which 
this wall was built, and that the wall itself, was the common property 
of the two, the act done by the defendant entitled the plaintiff to main- 
tain trespass. It has been contended that trespass is maintainable, on 
the ground that there was a destruction of the thing, and tlial if one 
tenant in coinmon destroy that which is the subject of the tenancy in 
common, that is an actual ouster and expulsion by ihc one of the other, 
and that the party so expelled may maintain an action of trespass for 
what has been done in tliat respect. Perhaps if one had rntircly de- 
stroyed the wall, that might have been a foundation for an action of trcs- 
pass. But I take it, that in the case of a wall, a temporary removal, 
with a view to improve j)art of the property on one side at least, and, 
pfrhaj)S, on both, is not such a destruction as will justify an action of 
trespass. There is no authority to shew that one tenant in common can 



214 Cub ITT v. Poiiter. E. T. 1828. 

maintain an action against tlie other lor a temporary removal of the sub- 
ject-matter of the tenancy in common, the part}'^ removing; it having at 
the same time an intention of making a prompt restitution. It was not 
a destruction : the ohject of the party was not that there should be no 
wall there, but tliat there should be a wall there again as expeditiously 
as a wall could be made. But then it is said the wall here is much high- 
er than the wall was before. What is the consequence of that? One 
tenant in common has, upon that which is the subject-matter of the tenan- 
cy in common, laid bricks and heightened the wall. If that be done 
further than it ought to have been done, what is the remedy of the other 
party ? He may remove it. That is the only remedy he can have. If 
there be land belonging to two as tenants in common, and one builds a 
wall on that land, the other cannot bring trespass, because he is exclud- 
ed from the surface of that ground for a certain period of time, viz. for 
so long a period as that wall stands. This case falls within the principle 
acted upon in IViltshire v. Sidford, Ante, 212. The view in which 
it was presented to the jury by the Lord Chief Baron was the right view 
of it. There was evidence of a common user by both parties, which jus- 
tified the presumption either that the wall was originally built, on land 
belonging in undivided moieties to the owners of the respective pre- 
mises, and at their joint expense ; or that it had been agreed between 
them that the wall and the land on which it stood should be considered 
the property of both as tenants in common, so as to insure to each a con- 
tinuance of the use of the wall. For these reasons I am of opinion that 
this rule ought to be discharged. 

HoLROYD J. I am of opinion that this rule ought to be discharged. It is 
incumbent on the plaintiffto establish his right of action. The declara- 
tion in this case was for pulling down the old wall and building the new 
one. The presumption arising from the acts of enjoyment is, that the 
wall was the property of the plaintifl'and defendant as tenants in com- 
mon; for the law will presume that what was done without opposition 
for a considerable time was done rightfully, and that these acts of enjoy- 
ment were lawful. That being the case, there was abundant evidence 
upon the trial to raise a question to go to the jury, whether the wall was 
or wcs not the common wall of both. There having been a joint use of 
the wall by both, each must have had the right originally, or have ac- 
quired the right in the course of time by legal means. The jury have 
found in effect that it was their common property. The question then 
arises, whether one tenant in common can maintain an action of trespass 
against another for such acts as were done in this case by pulling down 
the old wall and building the new one on its site. Taking it to be the 
law, that where there is a complete destruction by one tenant in com- 
mon of that which he has in common with others, so that that other is 
wholly deprived of the use of it, an action of trespass will lie, I think 
the act done by the defendant in this case cannot be considered as a de- 
struction of the wall; the removal of the old wall having been effected 
merely for the purpose of rebuilding another on its site as speedily as 
possible. 

LiTTLEDALF. J. I am entirely of the same opinion. The plaintiff" 
seems to have claimed the wall as his own exclusive property, and so 
did the defendant. There was abundant evidence to raise the question 
for the consideration of the jury. Whether the plaintiff" and defendant 
were tenants in common ? It is suggested, that although the learned 



8 Barnewall & CiJESSWELL, 257. 215 

Judge left it to the jury to fintl vvhclhcr tlie wall was the property of the 
plaintiflfor of the defendant, and also whether it was tlie common pro- 
perty of both as tenants in common, yet that the foreman of the jury 
when he returned the verdict did not in express terms answer the ques- 
tion put to them by the learned Judge, but said that the jury found it to 
be a party-wall; and that that finding is consistent witji thefact of the 
wall, and the soil on which it was built, having originally belonged to 
the plaintiff and defendant, or those under whom they claimed, in equal 
moieties. It appears that when that verdict was returned, the Lord 
Chief Baron observed that it was a verdict for the defendant. The plain- 
tiff's counsel did not then suggest to the Lord Chief Baron the propriety 
of leaving to the jury the question in any other form than that in which it 
was left to them, or intimate any doubt as to the sufficiency of the evidence 
to warrant the jury in coming to the conclusion to which they did come. 
That being so, a new trial cannot now be granted on that ground. But 
even assuming the parties to have been tenants in common of this wall, 
then it is said that trespass will lie in this case by one tenant in com- 
mon against the other, because there was in this case a destruction of the 
subject-matter of the tenancy in common. In Com, Dig. Estates, (K.) 
S, there are various cases as to the remedy which one tenant in common 
has against another. It appears that with regard to actions in respect to 
matters not chattels, in some cases an ejectment will lie, if one actually 
oust his companion of the possession, and trespass will lie where there 
has been a -complete and total destruction of the subject-matter of the 
tenancy in common ; as if one tenant in common destroys the whole 
flight of a dove-cote, or all the deer in their park. In other cases where 
there has not been a total destruction of the subject-matter of the 
tenancy in common, but only a partial injury to it, waste or an action 
on the case will lie by one tenant in common against another; as if one 
tenant in common of a wood or piscary does waste against the will of 
the other, he shall have waste; or if one corrupts the water, the other 
shall have an action on tlie case. There are other cases where the only 
remedy is to retake the property. As if one take a chattel real or per- 
sonal entire, the other may retake it when he has an opportunity ; but 
he has no remedy by action. If, again, there be two tenants in common 
of a house or mill, and it fall into decay, the one is willing to repair, and 
the other will not, he that is willing shall have a writ do reparatione 
facienda. It has been said that trespass will lie in this case by one tenant 
in common against the other, because there has been an expulsion 
amounting to an actual ouster. Now, if there has been an actual ouster 
by one tenant in common, ejectment will lie at tbe suit of the other. But 
I am not aware that trespass will lie, for in trespass the breaking anil 
entering is the gist of tbe action; expulsion or ouster is a mrro. aggrava- 
tion of tbe trespass. If the original entry therefore be lawful, trespass 
will not lie. In Taylor v. Cole., 3 T. 1{. 2.'»2, the first count was for 
breaking and entering the plaintiff's house, and expelling iiim. As to 
the breaking and enterine, the defendant justified as sheriff of Middle- 
sex under a fieri facias. Upon general demurrer it was held that the plea, 
which only justified the breaking and entering by .sbnwing a good cause 
for it, was a full answer, because the breaking and entering were the 
gist of the action, and thf rxpulsinn was only nialfrr of aggravation; and 
that if the plaintifl harl wished to tako advantage nf the expulsion, which 
was merely matter of aggravation, he ouglit to have shewn the special 



■;:16 CuniTT V. PoKTF.u. K. T. 1828. 

imltrr in a now assignment, in oivlcr to make tlio party a trespasser ah 
initio. TluMi, il" the expulsion l)e mere ao;ii;ravation, trespass will not 
lie for it, heraiise the ori<:i;inal entry is lawful, Tiie original entry beinu; 
the gist of the action in trespass, and the expulsion mere aggravation, I 
doubt much whelJier trespass can be maintained even for an expulsion. 
Here the defendant pulled down one wall, and built another on its site. 
If two persons be tenants in common of land on which there is a wall, 
nnd one refuses to repair, and the other pulls down the wall, and sells 
the materials, and builds a better wall, it may be said tliat there has been 
:\ total destruction of the original wall, more especially if he sold the ma- 
terials. Still if he did that lor the purpose of getting other materials to 
make the new wall better than the old one was, and he builds the new 
one, though there was a destruction of that which was originally the 
subject-matter of the tenancy in common, an action of trespass will not 
he maintainable. Such an act is more properly the subject-matter of an 
action upon tlie case, because it is in the nature of a partial injury, and 
not of a total destruction of the subject-matter of the tenancy in common. 
If tenant for life or tenant for years pull down any wall or other build- 
ing, it is the subject of an action of waste at the suit of the reversioner. 
It is expressly laid down in Com. Dig. Estates, (K. 8.) if one tenant in 
common of wood, turbary, &c. does waste against the will of another, he 
shall have waste concerning it. Here the pulling down of the old wall 
without the consent of the plaintiff might be waste. An action of waste 
is tlie proper remedy for a reversioner or landlord against ^ tenant who 
pulls down a building; and such an action may be maintained by one 
tenant in common against another, who has improperly pulled down a 
wall, the common property of the two. Upon the whole, I am of 
opinion that trespass is not maintainable. The rule for a new trial must 
tliereforc be discharged. 

Rule discharged. 



The KING V. The Inhabitants of LAWFORD.— p. 271. 

A pauper, while lie was under age, quitted his parent, and went to sea, serving 

sometimes in a kinj^'s ship, at other times in trading vessels, and remained in 

s\ich service, and so separated from his father's family, when he attained the 

age of twenty-one years: Held, that he was then emancipated, and that his 

. -ittlement did not afterwards shift with that of his father. 



ATKINSON and Others, Assignees of SLEDDON, v. BELL and 

Others.— p. 277. 

A. having a patent for certain spinning machinery, received an order from B. to 
have some sj/mning frames made for liim. A. employed C. to make the ma- 
chines for B., and informed the latter that he had so done. After the machines 
had been completed, A. ordered them to he alteretl. They were afterwards 
completed according to this new order, and packed up in boxes for B., and C. 
informed B. that they were ready, but he refused to accept them: Held, that 
C covdd not recover the price from B. in an action for goods bargained .ind 
sold, or for work and labour, and materials. 



8 BauNEWALL & CUESSWELL, 277. 317 

Assumpsit for goods sold and delivered, goods bargained and sold, 
work and labour, and materials found and provided. At the trial be- 
fore Ilullock B. at the Summer assizes for Lancaster 1S27, it appeared 
that the defendants were linen and thread manufacturers at Whitehaven, 
in Cumberland. The bankrupt Sleddon before his bankruptcy was a 
machine-maker residing at Preston, in Lancashire. One Kay, of Pres- 
ton, obtained a patent for a new mode of spinning flax, and the defend- 
ants being desirous of tr3'ing the effect of it, on the 12th November 
1525 by letter ordered him to procure to be made for them as soon as 
possible a preparing frame and two spinning frames, in the manner he 
most approved of. In January 1826 Kay ordered two spinning frames 
and a roving frame to be made by Sleddon for the delendants, and in- 
formed them that he had so done. These machines were formed on 
Kay's first plan, and completed at the end of March, and after they 
had been so completed they lay in Sleddon's premises a month, while 
two other machines of these defendants, intended to be used in the 
same mills, were altered by Sleddon, under Kay's superintendence; 
and when those had been completed to his mind, he ordered the ma- 
chines in question to be altered in the same manner. They were altered 
accordingly, packed in boxes by Kay's direction, and remained on 
Sleddon's premises. On the 23d of June 1S2G Sleddon wrote to the 
defendants, and informed them that the two frames had been ready for 
the last three weeks, and begged to know by what conveyance they 
were to be sent. On the 8th of August a commission of bankrupt issued 
against Sleddon, under which he was duly declared a bankrupt. The 
assignees afterwards required the defendants to take the frames, but 
they refused to do so. It was objected on the part of the defendants, 
that the action was not maintainable for goods bargained and sold, be- 
cause the property in the frames had never vested in the defendants. 
The learned Judge was of opinion that the action was not maintainable, 
and he directed a nonsuit to bs entered, with liberty to the plaintifls to 
move to enter a verdict for the price of the machines. A rule nisi hav- 
ing been obtained for that purpose, 

lirougham and Parke now shewed cans?, and referred to Muckloio 
v. Maiif^les, 1 Taunt. 318; Simmons v. Stvijf, 5 13. & C. S57; Towers 
V. Osborne, 1 Str. 500; Garbul v. fValson, 5 B. & A. 613. 

Cross Scrjt. and Tomllnson contra, cited Jl'oods v. Russell, 5 B. 
& A. 912; Ro/idc v. Thnuiilrs, G M. & C. 3SS: Towers v. Osborne, 1 
Str. 506; Dunmow v. Taylor, Peakc, N. P. 11. 

Bayley J. I think the rule for entering a verdict for the plaintiff 
ought to be discharged. If the declaration had contained a count for not 
accepting the mnchincs, the plaintilfs might have been entitled to reco- 
ver; and I think now that, upon payment of costs, they should be allow- 
ed to set aside the nonsuil, and add other counts to the declaration, and 
have a new trial. Hut I caiuiot siy that the property passed to the de- 
fendants, so as to enaide the plaintiffs to recover on the counts for goods 
bargained and sold, or for work and labour. It is said that there was 
an appropriation of these specific machines by the maker, and that the 
property thereby vested in the defendants. I think it did not pass. 
Where goods are ordered to be made, while they are in progress the 
materials belong to the maker. The property docs not vest in the party 
who gives the order until the thing ordered isrompletod. And although 
while the goods are in progress the maker may intend thrm for the per- 

VOL. XV. 2b 



218 Atkinson v. Hell. E. T. 1828. 

5on 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, still a good title is given 
to the party to whom they are delivered. It is true that Kay saw these 
things while tlic}' were in progress, and knew that the bankrupt intend- 
ed them for the defendants: yet thc}'^ might afterwards have been deli- 
vered to a third person. This case is not affected by the argument that 
tliese are patent articles, because they might have been delivered to a 
third person with Kay's assent. The case of fVoods v. Jiussell, 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 vvas 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 tb.e 
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, althoMgh 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 apj)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 h:ive 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. 2S5. 

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 premises 
within six years is bad upon special demurrer. 



BRYAN v. WHISTLER, Clerk.— p. 288. 

Where a rector granted to A. H. by parol, leave to make a vault in the parisli 
church, and to bury a certain corpse there, and that lie should have tlie exclu- 
.sivc use of the vault; and afterwards, without the leave of A. ]\., opened the 
vault, and buried another person tlierc: Held, tliat no action coukl l)e maintain- 
ed against him for so doing; for that if the rector had power to grant the exclu- 
sive use of a vault, lie could not do it by parol. 

Semblc, That a rector 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 
tliat the defendant was rector of the pnrisli clnirch of St. Clement, 
Hastings, and pl.iintifl" being desirous of burying one M. A. W. in a 
vault in that churcli, on, &.c. applied lo the defendant, as such rector, 
for permission to make a vault there for that purpose, and to put up a 
tablet or monument near the vault to perpetuate the same; and the de- 
fendant, as such rector, in consideration of 20/. to bo paid to him for 
such permission, consented and agreed that the ])laintiir should have 
jjcrmission to make such vault and to |)ut up .s ich tMblct, and should 
liave the .sole and exclii.sivii use of such v.uill, u])on l)cing \r.\\i\ 20/. and 
1/. Is. for the service. Avernient, that the j)laintiir d'd at his expense 
make such vault, and cause the body of M. A. \W . to be buried there- 
in, and put u[) a tablet, and pay the defendant 20/. for such pjimission, 



220 Hkvan v. Whistler. E. T. 1828. 

ami 1/. Kv. lor llio service, yet the defendant intending to injure the 
plaintill, anil to deprive him of the exclusive use and hehellt of the 
Vault, and riglit of interment therein, and to disturb the remains of the 
Slid ]\r. A. W., afterwards, to wit, on, &.C., broke into and damaged 
the said vault, and wrongfully, and without the leave of the plaintill", 
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 jilaintiff, 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 plaintifl 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 1S19, 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 1S19, 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 tliat 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, iV/r/zrya/ in Michaelmas term 
obtained a rule nisi for entering a nonsuit, against which 

Gurncy, Hodgson, and Chilly shewed cause. They cited 3d Inst. 
202; y Ed. 4. 14.«.; Franccs\. Ley, Cro. Jac. 366; Degge's Parson's 
Counsellor, 176, 6th edit. ; Gibson's Codex, 542; Hewlins v. Shippam, 
5B. &C. 221; Winlerv. Brock well, 8 East, 308; Taylor v. WaterSy 
7 Taunt. 374; Palmer v. T/ie liishop of Excler, 1 Sir. 576. 

F. Pollock contra, cited Hewlins w. Shippum, 5 B. & C. 221; Tay- 
lors. Waters, 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 keej) the money and recede from his 
undertaking. But if the question of law be with him, his defence to 
this action must prevail, it seems to me that the objection raised is 



8 Barnewall & CuESSWELL, 288. 221 

valid. The 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. Cemetry (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 disturljancc of a pew, the right 
to whicli is granted for the sj)ccial purpose of attending ilivine service. 
I'ut wlietlier the grant were for a special purpose or general for all pur- 
jioses, the right could not |)ass without deed or writing. Here, there- 
fore, the plaintiff proved no legal right, and consequently cannot sustain 
his action. 

LiTTLKPALK J. I oin of Opinion ihat this action is not mninlainablo. 
The right claimed does not appear (o i)e an interest in land, so as to bo 
affected by the statute of framls. The right said to have been granted 
was merely a privilege to make 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. Cemetry (B), that must be prescribed 
for as appurtenant to an ancient messuage. Prescription presumes a 
grant, and I have little difliculty in saying that the rector had no power 
to grant the privilege claimed in this case, TIk- riglit acfjuired can be 



222 Doe d. Jeff v, Robinson. E. T. 1828. 

no higher than the riglit to a pew, which can only be claimed as appur- 
tenant to an ancient messuage or by a faculty. In Frances v. .Let/y 
Cro. Jac. 3()(), it is said, "that 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 the 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 
liave the 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 
lie 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 Bayhy 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 possession 
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 afortsaid 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 freeiiold 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 the said county of York; and all his 
the said testator's personal estate, unto the said Robert JcfTand Thomas 
Hunter, their heirs, executors, administrators, and assigns, according to 
the respective natures and tenures thereof ujjon the several trusts therein 
mentioned. And the said testator appointed iliem executors in trust of 
his said will. The said Thomas Robinson, one of the cestui que vies 
named in the said lease of the 24lh 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 
Dowson. 

The case was argued at the sittings in banc after last Hilary term by 

Jllexnnder for the pl.-iintilf, who referred to IVilluims v. 'Jc/ci/l, 2 Vcs. 
sen f)81 ; liiplci/ v. iVuteriDorlli, 7 V(.'s. jun. 4 10; IVeslfdliinj^ v. West- 
falintr, :i Atk. 'jGO; 2 Roll. Abr. tit. Occupant, (f.) pi. 2; Dyer, 328; 
2 Roll. Abr. Occupant, (O) pi. 3; Sailer v. Jiuller, Cro. Eliz. f)01. 
Yelv. 9. Monro, GfJl. Noy, 4G; Com. Dig. Estates, (F 1.); Bar. Abr. 
tit. Estate for Life and Occupancy, (li 3.); St. Jolin\s CoUra;c v. Flem- 
ing, 2 Vern. 320; CamphrJlv. Sujuiifs, 1 Scho & Lef. 288. 

Cresswcll for the defendants, cited Bac. Abr. tit. Estate for Life and 
Occupancy, (B 3); L^wis Bowie's case, 11 Co. 83; flilbcrt's Tenures, 



224 Doi: d. Jkif v. Rouinson. E. T. 1828. 

p. 3; Lilt. s. 5t); 1 Inst. 41; Edward Seymour's case, 10 Co. 98; Stat. 

2i) Car. 'J; Low v. Burron, 3 P. W. 262; Litt. s. 3S7; 1 Inst. 239; Doe v. 

Ltixton, () T. 11.291. 

»QlcxanJcr in rcpK-. /> 7 n 

' •' Cur. adv. vult. 

Bayley J. This was an ejeclment 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 liishop 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 have 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, As 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. Plad 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 statute 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; 
tiiere 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 & Cress WELL, 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 the 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 a^;recmcnt, in consideration of tl»e rent and condilions there- 
inafter mentioned, A was to luive, hold, and occupy, as on lease, certain pre- 
mises therein specified, at a certain rent i)er acre. And it was stipulated, tluit 
no buildings should be included or leased bv virtue of the agreement; and it was 
further agreed and stipulated, that A. should take, at the rent aforesaid, certain 
other parcels, as the same mifrht fall in; and, lastly, it was stipulated and con- 
ditioned that A. sliould not assign, transfer, or iinderlct, any \y.\n of the said 
lands and premises otherwise than to his wife, child, or children: Held, that by 
the last clause a condition was created, for the breach of which the lessor 
nught maintain an ejectment. 

Ejectmknt brought to recover certain lands and premises in the 
county of Somerset. This cau.'^c wa% tried before Jiiirroiiif/i J., at the 
Summer assizes for the county of Somerset, 1S27. It appeared that the 
defendant, in October 182.'), became Iciiant to the lessor of the plaintifl" 
of the premises in rpjcstion, tinder and I)y virtue of the following instru- 
ment, signed by the defendant, and bearing date the 2'lth day of Oc- 
tober 1825: ** Klcmorandum of agreement made with George Watt, 
bailiff, of the manor of Chalcolt, otherwise Calcott, 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 that piece or tract of turbary land, com- 
monly called The Five Hundred Acres, situate in the said manor, which 

VOL. XV. 29 



226 Dor. d. HKNNiKi:ri i'. Watt. E. T. 1828. 

jnay now be in hands and disengaged or unlet, for the term of twenty- 
one years from Lady-day lS2r), at llie 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 5*. 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 
(A2); Litt. s. 3G5; Plowd. 142; Co. Litt. 219 h.\ Vin. Abr. Condition 
(E r.); Co. Litt. 203 h\ CromweVs case, 2 Co. 270. 

Jerem?/, contra, cited 1 Roll. Abr. 414; 3 Vin. Abr. Condition (R), 
69; Muchel v. Dunton, 2 Leon. 33; Doe d. Willson v. Phillips, 2 
Bingh.l3; Doe d. Wilson v. Jlhel, 2 M. & S. 541; Litt. s. 328; 4 
Cruise Dig. 378 ; CorbePs case-, 1 Rep. SG j Cooper v. AndrewSy 

Cur. adv. vult 



8 Barnewall & Cresswell, 308. 227 

Baylet 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 plaintiif 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 G. 
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? This 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 proijcr words for the purpose. The words 
" provitlcd always, sub condilionc, ita quod," used in a conveyance of 
real estate, by themsfdvos, 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 tliat the words uset! were intemhid to have tin; 
effect of creating a condition. They must be the words of the lamllord, 
because he js to impose the condition. Here, first, the agreement pur- 
ports to be in consideration of the rent and co«^/<7/o».y thereinafter men- 
tioned; and then the words "it is stipulated" occur more than once; ■ 
and then, in the last sentence of the iiisinnnenf, roiue the words, <* it is 
lastly stipulated antl conditioned, that Walt siiall not assign, transfer, 
underlet, or part with ar>y part of the lands, otherwise than to his wifo 
or children." These wonls are clearly introduced in]o the instrument 
on the part of the lessor, for they are for his benefit. 'I'hc word condi- 
/ioned is fairly a word of conditioti. In pleading, a bonil is stated to bo 
conditioned for j)aymcnt of money. It is said that the word slipuldlcJ. 
and the word condUinncil, being used together, have the same mean- 
ing, and inqiort a covenant, and not a condition; but there arc several 
authorities \vlii<-Ii shew ili;il it words both of novcnaiit anil condition aio 



228 Doe d. Hennikkr v. Watt. E. T. 1828. 

used in tlic same instrument, they bolli shall operate. If the word 
stipulated import a covenant, it will operate as such; and if the word 
couditioncd import a condition, it must also operate. In Simpson v. 
Tiltcrell,CYO. Eliz. 242, one Bcnbow let the land to the defcndant/jro- 
viso semper and it was further covenanted that the lessee should not 
assign except to the lessor. These words were held to create a condi- 
tion; because it was a general rule tliat where a proviso is that the lessee 
shall perform or not perform a thing, and no penalty to it, this is a con- 
dition, otherwise it is void; but if a penalty is annexed it is otherwise. 
So in The Earl of Pembroke v. Sir H. Berkeley, Cro. Eliz. 384, 
where there was a grant of a walk in a forest, " provided also, and the 
said grantee doth covenant not to fell or cut any wood but for necessary 
browse," and the heir of the grantee cut down four oaks, the question 
was, Whether this was a condition or a covenant? Gawdy and Clench 
thought it was a covenant only, but Popham and Fenner thought it was 
a condition; and afterwards, upon a conference amongst all the justices 
of England, it was held by the greater part of them to be a condition. 
In Harrington v. Wise, Cro. Eliz. 486, where the words were, ''it ia 
covenanted and agreed between the parties that Harrington doth let the 
lands for five y^zTs, provided always, that Wise shall pay to the defen- 
dant during the term 120/. per annum," it was held to be a good reser- 
vation of rent; but Popham, J. said that it was a reservation and condi- 
tion also, as in the case of Sir H, Berkeley, where a provision joined 
with the words of covenant made it a condition and a covenant also. In 
Litt. s. 329, it is said, if the words be, "provided always, that B. do 
pay to A. such rents," the feoffee hath but an estate on condition. Lord 
Coke, in commenting on that section in Co. Litt. 203 b, says. So it is 
if a man by indenture letteth land for years; provided always, and it is 
covenanted and agreed between the said parties that the lessee shall not 
alien; and it was adjudged that this was a condition by force of the pro- 
viso, and a covenant by force of the other words. We are of opinion, 
therefore, that by the last clause of the instrument in question a condi- 
tion was created; and that being so, the rule for a nonsuit cannot be 
made absolute. But we think the rule should be absolute for a new 
trial, because there was evidence to shew that the land was underlet by 
the defendant with the consent and express licence of the lessor, and 
that evidence was not submitted to the jury. 

Rule absolute for a new trial. 



WHYTT V. M'INTOSH and Others.— p. 317. 

Where a defendant obtains a mandamus under 13 G. 3. c. 63. s. 44, for examin- 
ing witnesses in India, tlie plaintiff, gaining the cause, is entitled to the costs of 
cross-examining those witnesses. 



£ND OF EASTER TERM. 



• CASES 

ARGUED AND DETERMINED 

IN THE 

COURT OF KING'S BENCH, 

IN 

TRINITY TERM, 

In the Ninth Year of the Reign of George IV.— 1S2S. 

The KING V. ROBERT BROOKS.— p. 321. 

Wlicre a party had been sworn into, and had exercised a corporate office for 
more than six years, the Court, in the exercise of their discretion, and without 
deciding whether he was pi-otected by the 32 G. 3. c. 58., refused to grant a 
quo warranto information against him, on the ground of his not having been 
sworn in before the proper officer. 



GRIMMAN V. LEGGE.— p. 324. 

A. demised to B. the first and second floor of a house for a year, at a rent paya- 
ble quarterly. During a current quarter, some dispute arising between the 
parties, B. told A. that she would quit immediately. The latter answered that 
she might go when she pleased. B. (juittcd, and A. accepted possession of the 
apartments: Held, that A. could neither recover the rent, which, by virtue 
of the original contract, would have become due at the expiration of the cur- 
rent quarter; nor rent pro rata, for the actual occupation of the premises for 
any period short of the quarter. 

Assumpsit for use and occupation. Plea, general issue. At the trial 
before Lord Tcndcrden C. J., at the Middlesex sittings after last term, 
it appeared that in October 1S2(), the plaintiff agreed to let to the defend- 
ant for a year from the 2.5th of December following, af a rent of .OO/. , 
payable fpiarterly, the first and second floor of a house in York Sireet, 
Rryanstone Square. The defendant entered at ("iirislmas, and paid a 
fjuarter's rent on the 2.5lh of March 1S27. In April a dispute liaving 
taken place between the plaintiffand defendanl, tlie hitter said she would 
quit. The plaintiff said that she might go when she pleased, and he 
should be glad to get rid of her. The defendant began to remove her 
furniture on the following day, and continued removing it for three days. 
On the 1 9th of April she delivrred \.\\v. keys of tlie rooms to the plaintif]', 
and he accepted them. Upon (his Lord Tnilcrdcn told the jury that 
(he defendant was liable to pay the ^[uartci's rent due at midsummer 



^30 TlNNEY l\ PiNNEV. T. T. 1828. 

lS2t), unless tlicTc was an airrecment between the plaintiff and defend- 
ant that the latter should quit without i)aying any rent, and he directed 
them to find for the defendant if they thought from the evidence that 
such an agreement was made between the parties. The jury having 
found a verdict for the defendant, 

Campbell now moved for a new trial, and cited Mollelt v. BraynCy 
2 Campb. 103; fVhitchead y. Clifford, 5 Taunt. 518. 

Lord Tentekdex C. J. There was an express contract to pay a 
(|uarter's rent at Midsummer; before that time arrived, some dispute 
arose between the parties. The tenant said to the landlord^ I shall quit; 
and the latter said, you may do so, and I shall be glad to get rid of you. 
The defendant then removed her furniture, and sent the keys of the 
rooms to the plaintiff, and he accepted them, I thought that the jury 
might presume that the original contract between the parties was re- 
scinded. 

Bayley J. Whiteheads. Clifford, 5 Taunt. 518, shews that the 
plaintiff cannot recover the rent for the whole quarter. But then it is 
said he is entitled to recover rent pro rata for so long a time as the defend- 
ant occupied his premises. Where there is an express contract between 
the parties, none can be implied. The plaintiff, therefore, having des- 
troyed his right to recover the rent according to the contract, has des- 
troyed it altogether. Where a party by agreement engages to pay 
freight on arrival at a specified port, and the ship never arrived at that 
port, but landed her cargo at an intermediate point, and it was accepted 
by the freighter: it was held that the plaintiff was not entitled to re- 
cover a proportionable part of the freight for such part of the voyage as 
the ship performed; because where there is an express contract, the law 
will not imply one. Cook v. Jennings, 7 T. R. 3S1. So in this case, 
the parties having entered into an express contract, by which the rent 
was to be paid quarterly, I think the law will not imply a contract to 
pay rent for any period less than a quarter. 

Rule refused. 



The KING v. The Justices of BERWICK-UPON-TWEED.— p. 327. 

A rate in the nature of a county rate may be levied in Berwick-upon-Tweed, 
that being a place not subject to the commission of the peace of any county in 
England, and never having contriliuted to a rate made for any county, although 
it does not lie within the l)ody of an English county, and although no rate had 
ever been levied there before, the corporation having defrayed out of their own 
funds the charges to which the sums raised by a county rate are applicable. 



BARNARD PINNEY v. JOEL PINNEY.— p. 335. 

In trover for a chattel claimed by the i)lainli(r, as vendee of an executor, the will 
is not evidence of the title of the executor. The probate must be produced. 

Trovek for a horse and gig. Plea not guilty. At the trial before Lord 
Tenlerden C. J., at the Middlesex sittings after last Easter term, the fol- 
lowing appeared to be the facts of the case: — The defendant's father died 
in March 1S27, having left several testamentary papers. Francis Pin- 
iioy, the defendant's brother, claimed to be executor, and the defendant 



8 Barnev^^all & Cresswell, 335. 231 

.•>iso. The Ecclesiastical Court, at the time of the trial, had not granted 
probate of any of the wills. Francis Pinney sold lo the [jlnintilTthe horse 
and gig (which had been part of the property of the testator) ; but before 
and after such sale, the defendant frequently used it, and finally carried 
it away, and converted it to his own use. Francis Pinney, being called 
as a witness, stated that he was one of the executors of his father, and 
that he sold the horse and gig to the plaintiff. The plaintiff then offered 
to give in evidence the wills or testamentary papers by which Francis 
Pinney was appointed executor. It was objected, that a will of person- 
al estate was of no effect until probate ; that it was no will until it was al- 
lowed as such in the spiritual court, it being for that court to judge 
whether it be a will or not. '{a) Lord Tenterclen C. J. held the produc- 
tion of the probate to be necessary to prove the title to personal proper- 
ty under the will, and refused to receive the will itself. No probate having 
been produced, he said, that if the plaintiff had proved a clear undisputed 
possession, it might have been sufficient; but here it appeared, that the 
defendant before and after the sale to the plaintiff used the horse and gig. 
The plaintiff had no exclusive possession, and Francis Pinney could 
have no title as executor, unless the will was allowed by the spiritual 
court, and probate was obtained. The plaintiff elected to be nonsuited. 

(rurney novv moved for a new trial; and contended, that one of several 
executors might, before probate, sell the property of the testator, and 
give a good title to the vendee, and that before probate the will must 
be the only evidence of the right of the executor. [^Bayley J. When 
the probate is granted, then, by virtue of the will, all the property of the 
testator vests from the time of his death in the executor; you did not 
prove that Francis Pinney was an executor, for no probate was proved. 
Non constat that the will under which he claimed to be executor is a 
valid will, unless it be allowed as such by the Ecclesiastical Court. Here 
the horse and gig were delivered to the plaintiff, who had no title to 
them.] 

Lord Tentkkden C. J. I thought at the trial, and lam still of the 
same opinion, there was no proof of title in the plaintiff. 

Rule rcfusefl. 

(«) Channtrr v, C/iauntcr, cited in Vincr, Executors (A a), 20., ami 1 niirn, 
E. L. Wills, I'rohato, 7. 



JONES V. KENRICK.— p.337. 

I'.y the Welch jiulicaturc act, 5 G. 4. c. lt'6. 8. 21., it is enartrd that in all IranM- 
tory actions which sliallbc brought In any court of record out of the prinrijjali- 
ty, and the debt or daniapes recovered shall not amount to .'JO/., and it sliaii a])- 
pcar on the evidence given on the trial that the cause of action arose in the 
principality, and that tlie defendant was resident in Wales at the time of the 
service of any writ or other mesne process served on liim in such action, and it 
shall be so testified niuhrr the liund of the Jud^.'ie who tried the cause, a judK- 
ment of nonsuit shall be entered : Held, that it is discretionary in the judge 
who tries the cause to grant or refuse the certificate nientioned in 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, by Lord Tmtrrdrn C. J. at Nisi Prius, that it lies >ipnn ihr defendant to 
shew that lie 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)efore and subsequent tn the commencement of the 
action, was in Wales, is not sufficient. 



>32 Lestkh v. Jenkins. T. T. 1828. 



l.ESTER V.JENKINS.— p. 339. 

Dcchiration v\i)on a bill of exchange, drawn on the 29th November, 1827, pay- 
able two months after date, was entitled generally of Hilary term 1828; 
Held, that it was competent to the plaintitVto prove by the parol evidence of the 
attorney (without producinu; the writ) that the action was commenced after 
the 1st of February, when the bill became due. 

Assumpsit by the indorsee against the defendant, asacceptorof a bill 
of exchange bearing date the 29th day of November 1827, payable two 
nionliisafUT date. At the trial before Lord Tenferden 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 
due 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 
liave been commenced before the cause of action accrued. The plaintiff's 
attorney then proved that he did not receive his instructions to com- 
mence 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. 

Brodrick now moved accordingly, and cited Morris \. Piigh and 
Harwoody 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. 

Bavley 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 Jniton v. Cirdlcstonr, 5 B. Sc A. 847. Lyttleton v. Cross, 3 B. & C. 
317. 



The KING v. SMITH and Two Others.— p. 341. 

Wlicre an indictment for a conspiracy alleged, that "at the court of quarter ses- 
sions holden, 5cc. 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 the 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 staled, 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 Vaughan B. at the Summer assizes for INTonmouthshire, 1827, 
the prosecutor, in order to prove the allegation tliat 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, lOtlx 
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 
IVlichaelmas term Lxidloic Serjt. oi)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 fmding of the bill. 

7?M.wc// Serjt. , Manlt and JVatson, shewed cause. The finding of 
the bill at the quarter 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 to draw up the records 
in form, AV.r v. Ilftins, Comb. .3.37; lls/icr v. Lone, 2 VV. Bl. 83^. 
(Lord TcntKrdcn C. J. The minutes there received were of the pro- 
ceedings of inferior courts, the court of rpiarter sessions is a court of 
oyer and terminer, and is not a court of inferior jurisdiction. ] In lira-: 
v. Tooke^ 25 St. Tr. 446, the minutes of the court were received to 
prove the acquittal of Hardy. 

Lord Tkntehuf.n f'. .1. If np|Kars to me that the evidence given 
was not sufficient to sustain the allegation that an indictment against 
II. S, was found at the quarter ses.sluns, which is a coiM't of oyer and ter- 
miner and a court of record. In order to prove the fuKlingof an indict- 
ment, it hns always been the practice to have the record mrularly drawn 
up, and to pro<luce an ex.uninetl copy. If any other evidence were al 
lowed, I do not know how we could say that a conviction or acquittal 
might not also be proved by the minutes in the book kept by the clerk 
of the peace. That would he to break through the cslablishcd rules 
of evidence, which is always a dangerous course. I therefore think wo 
are bound to say that the evidence was not sufficient, and thnt as to the 

vor.. XV. 30 



234 Teague I'. HuuDAKD. T. T. 1828. 

two clefeiulaiifs who were fouml si^iilty llierc iniist lie a new trial. The 
case of /icj' v. Toukc is dislinguishablc ; for there the matter proved by 
the minutes occurred before the same court sitting under the same com- 
inisjion. 

Bayley J. I am of llie same opinion. The caption is a necessary 
part of the record; and the record it.sclf, or an examined copy, is the 
only legitimate evidence to prove it. 

Kule absolute. 



Ex parte BAXTER.— p. 344. 

Where a jjarty, committed by commissioners of bankrupt for not answering to 
their satisfaction, wislics 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 i)er 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- 
ce})ted he indorsed it to the actuary of the company, and the latter indorsed 
it to another member, who was the managing director, and wlio 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 was 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 Tenierden C. J., at 
the London sittings after Trinity term, 1S27, the following aj)peared to 
be the facts of the case : Tiie 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 additional 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 Conness, he, on the 1st of April 
1S26, drew two bills of exchange upon Conness, one for 200/., and the 
other for 13.3/. 'J'he 200/. hill was in the form following: "Two 
months after date, ]:»ay to my order 200/., value received." This bill 
was accepted by Conness, indorsed by Hubbard to W. Mcars, who was 
the actuary of the company, and by the latter to Teague. The other 
bill, which was for 133/., was precisely in the same form, and had simi- 
lar indorsements. The plaititilf iiurchascd tin for the comjjany, and at 
the time when the bills were indorsed to him the company were indebt- 
ed to him in a sum exceeding the aggregate amount mentioned in the 
two bills. The plaintiff was debited in his account current with these 



8 Bauxewall & Cresswell, 345. 235 

bills, Conness became insolvent before they became due. The plaintiff 
failed in proving due notice of dishonour of the bill for 133/., but proved 
that the defendant had received from Conness ten shillings in the pound 
upon the amount of that bill. It was objected, on the part of the de- 
fendant, that as the bill for 200/. was drawn and indorsed by the defend- 
ant on account of the company, the plaintiff being a co-partner could 
not sue upon it as indorsee; and that he could not recover from the de- 
fendant the money received by ^le latter on account of the bill for 
133/., because that money was received by him in his character of a 
member of the compan)-, and not in his individual character. Lord 
Tenterden directed the jury to find a verdict for the plaintiff for the 
amount of the bill for 200/., and of the composition received by the de- 
fendant on the other bill, but reserved liberty to the defendant to move 
to enter a nonsuit. A rule nisi having been obtained for that purpose, 

Campbell and Chitty sliewed cause. 

F. Pollock and Follctt contra, cited Pinkney v. Hall., 1 Ld. Raym. 
175; Smith v.Jarves, 2 Ld. Raym. liS4; Lord Galway v. Mathew, 
1 Camp. 403, 10 East. 26 i; Muinw:irifig v. Newman, 2 Bos. & Pul. 
120; Mojfatt v. Van Millingefi, 2 Bos. &: Pul. 124. n.; and Neale v. 
Turlon, 4 Bing. 149. ^^^^ ^^^^ ^^^^ 

The judgment of the Court was now delivered by 

Lord Tenterden C. J. This was an action against the defendant as 
drawer of two bills of exchange, and for money had and received. It 
appeared that the bills were signed by the defendant, and indorsed by 
him to Mears, who was the actuary for a mining company, and by the 
latter to the plaintiff. Notice of the dishonour of one of the bills was 
not proved; but it appeared that the defendant had received 10^. in the 
pound from the acceptor on the other bill, and for that sum a verdict 
was taken on the count for money had and received. It further appear- 
ed, that both the plaintiff and defendant were members of the mining 
company. If, therefore, the plaintiff coulcl recover on these bills, it 
would be a recovery by one joint contractor against another, and then 
the defendant would have a right to call upon the plaintiff for contribu- 
tion. It is clear, therefore, that no action can be maintained upon the 
bills; but during the argument, I thouglit the verdict taken on the 
count for money had and received might be sustained. Upon further 
consideration, however, we think tliat the defendant must he taken to 
have reccive(l the money, not in his individual capacity, l)ut as a mem- 
ber of the trading company; anil tiiat being tiie case, if the plaintiff 
were allowed to recover it in tliis action the same consefpience would 
follow, the defendant would have the same right to call upon the j)lain- 
tiff for contribution, as if the verdict had been taken on the count 
framed upon the bill. For these reasons we arc of ojiinion that a non- 
suit must be entered. 

jvule absolute. 



The KING v. IM •LSFOUl).— p. :ir>(). 

VV'ljcrc an t k( linn tc» an office in a r<»r|)<>r.iti<>u was to l)c made- Ijy a sclfcl body 
appoinud by the cliarlcr to l)c aiding the mayor: Held, that, the mayor was 
not Ijouiid to j;i\ c to the nicinberb of butli select b<n\y ;,i". cific noilct ol" a meet- 



236 Rk\ v. Pui.skoud. T. T. 1828. 

iiig to !)«.• huUlcii iov the pur[)i)so of such cUctioii; but that a reasonable aiul 
usual notice- rctiiiiiing thcni to attend at a meeting of the corporation at a time 
specified, without staling for wiiat purpose the meeting was called, was suf- 
ficient. 

Quo warranto information for usurping the office 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, 

Taimton, Campbell, C F. Williams, and Bayly, shewed cause, 
and cited Hex v. Hill, 4 B.& C. 426; Rex v. The Mayor, fyc. of 
Shrewsbury, Cas. temp. Hardw. 147; Bex v. Mayor, Src. of Carlisle, 
1 Sir. 3S5; Bex v. Mayor of Liverpool, 2 Burr. 723; Bex v. Mayor 
of Doncasler, 2 Burr, 738; Bex v. Thcodorick, 8 East, 543. 

B. C. Scarlett and Carter contra, referred to Bex v. Wake, 1 Bar- 
nard, 80. ^, , u 
' Lur. 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 insufficiency 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 altcndancc at a corporate meeting, on a certain 
day, at a particular hour, but not specifying the purpose for which the 
meeting was about to be holden. The Lord Chief Justice of the Com- 
mon Pleas was of opinion that the purpose should have been specified, 
and ou 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 



8 BaUNEVVALL & 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. Hi/l the election was by the body at large, which is a very different 
thino-. 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 their attendance is required; 
and we 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, the 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 PAfJ- 
HAM, and certain other Places in the County of SUSSEX. — p. 355. 

Where commissioners of sewers acting bona fide for the benefit of the levels for 
which they were api)ointcd, erected certain defences against the inroads of 
tlie sea, which caused it to flow with greater violence against, and injure the 
adjoining land not within the levels: Held, that they could not be conn)clled 
to make compensation to the owner of the land, or to erect new works Jor his 
protection; for that all owners of land exposed to the inroads of the sea, or 
commissioners of sewers acting for a mmiher of land-owners, have a right to 
erect such works as arc necessary for their own protection, even altliough 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 Sussex to 
summon a jury for the purpose of enquiring what lunt, loss, or disad- 
vantage hath been sustaiiifd by VV. Coscns by reason of certain groynes 
md other works erected and made by the said commissioners within the 



238 Rex v, Pegu am. T. T. 1828. 

limits ol" the snid levels, ami of assessing and ascertaining the com- 
pensation to l)c paiil to the saiil W. Cosens tor the same; or to erect 
and make sucii other works as should be necessary and snflicient to 
prevent further injury being done to the premises of the said W. Cosens 
by reason of the said groynes and other works above mentioned. 

The 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 iVom 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 lifteen 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 gro3'nes or other works were erected for its protection. 
That 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. 

Gtcrjiei/, T/iesiger, and Capron 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. 64G; Rex v. The Vice-Chan- 
cellor of Cumbrii/i^e, 5 Burr. 1660. 

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 tiiey 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 greaU^r inroad upon it, than possibly it might 
otherwise have done; and that as the commissioners, acting for the bene- 



8 Baiinewall & Cresswell, 355. 239 

fit of the level, have occasioned this damage, they must make compensa- 
tion for it. It may be conceived that such is the cficct 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 ditferent 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 JNIr. 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 otiiers, 
in like manner, to protect themselves against the common enemy. For 
these reasons, the rule for a mandamus must be discharged. 

Haylev J. I am entirely of the same opinion. It seems to me that 
every land-owner exposed to the inroads of the sea has a right to protect 
himself, and is justified in making and erecting such works as arc neces- 
sary for that purpose; and the commissioners may erect such defences as 
are necessary for the land entrusted to their superintendence. If, in- 
deed, they made unnecessary or improper works, not with a view to the 
protection of the level, but with a malevolent intention, to injure t!ie 
owner of other lands, Ihey would be amenable to piniishment by criminal 
information or indictment, for an abuse of the powers vested in them. 
But if they act bon;i fide, (Icing no more than they honestly think neces- 
sary for the protection of the level, their acts are jiisli(ial)le, and those 
uho sustain damage therefrom must protect themselves. It has been ar- 
gued that Mr. Cosens, having sustained damage from the groyne erected 
by the commissioners, is entitleil to compensation. I do not agree to 
that as an abstract proposition. If a man sustains damage by the wrong- 
ful act of another, he is entitled to a remedy; but to give him that title 
those two things must concur, damage to himscit", and a wrong rommitted 
by the other. That he has sustained damage is not of itself sulllcient. 
Now here Mr. Cosens may have sustained damage, but the commis- 
sioners have done no wrong. The dictum of Mr. Justice W'iJmot was 
cited to shew that where there is a right this Court ought to find a reme- 
dy. Hut the right that Mr. Cosens and each land-owner has, is to pro- 
tect himself; not to be protected by his neighbours. To that right no in- 
jury has been done, nor can any wrongful act be charged against the com- 



2i0 Uex v. Guf.kt. T. T. 1828. 

missioncrs ; \\\c I'ourl, th(>reforo, have no grounils lor granting llic nian- 
ilanuis applied for. 

IIui.Kovi) and Littlepale Js. concurred. 

Rule discharged. 



The KING V. GREET.— p. 363. 

Information for usurping tlic office of jurat of the borough of Q. Plea, that the 
borough of Q. was a free borough, and tliat the burgesses of the borough were 
a body corporate, consisting of the mayor, bailiffs, and burgesses of the borough, 
and that by cliarter it was granted tliat the mayor, bailiffs, and burgesses, by 
whatever name they had before been incorporated, should thereafter be a body 
corporate by ihe name of " mayor, jurats, bailiffs, and burgesses;" that there 
should be one of the more honest and discreet burgesses or inhabitants called 
" mayor," to be elected as tlicrcin mentioned; and four honest and discreet bur- 
gesses or inhabitants called "jurats;" and two other honest and discreet burgesses 
or inhabitants called "bailiffs;" that the jurats and bailiffs should hold their of- 
fices for life, unless removed for reasonal)le cause; and whenever it should hap- 
pen that cither or any of the jurats or bailiffs for the time being should die, or 
be removed or withdrawn from his or their office or offices, it should be lawful 
for the surviving and remaining jurats and bailiffs for the time being, or the 
greater part of them (of whom the mayor should be one), within convenient 
time, to nominate another or others of the burgesses or inhabitants of the bor- 
ough for the timcl)eing tobe a jurat or jurats, bailiff or bailiffs, of the borough. 
The plea tlien stated a vacancy in the office of jurat, and that the defendant, 
being an inhabitant of the borough, was duly elected to be a jurat. Replication, 
first, putting in issue the due election of the defendant ; and secondly, that from 
the time of granting the charter, hitherto it had been used and accustomed 
within the borough, that every inhabitant of the borough elected to be a jurat, 
before he took ujjon himself the office of jurat, should be sworn and admitted a 
free burgess of the borough, and that the defendant, before he took upon him- 
self the office of jurat, had not l)ecn admitted and s\vorn 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 bailiffs, and two jurats: Held, 
that the election 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 coi-poration, because in the event of the death or removal of one of the 
bailiffs, it would be impossible that at the election of a new bailiff there should 
be present a majority of the bailiffs. 

Held, upon demurrer to the re])lication, that according to the true construction 
of t]\e charter, it was competent to the corporation to elect the jurats from the 
inhabitants of the liorough or from the burgesses, and, therefore, that the plea 
was good, inasmuch as it shewed that the defendant was an inhabitant of the 
borough at the time he was elected to tlie office of jurat. 



The KING V. The Justices of the County of BUCKINGHAM.— p. 375. 

An indictment had been preferred against a county for not repairing a bridge, 
at the instance of tlie inhabitants of a parish, and the question intended to be 
tried was, whether the inhabitants of the ])arish or of the county were liable to 
repair iti* The Court refused to compel the inhabitants of the parish to allow 
tlie parties indicted to inspect the parish books and documents relating to the 
repair of the bridge. 

A UULE nisi had been obtained for liberty for the defendants to in- 
spect, and take extracts from, the books, papers, minutes, and proceed- 
ings of the prosecutors, as bridge-wardens and trustees of Marlovv Bridge, 
and all other documents of them the bridge-wardens relating to the said 



8 Barnewall & Cresswell, 375. 241 

bridge. Tliis rule was founded on an affidavit of the clerk of the peace 
for (he county of Buckingham, which stated the following facts: In 
Trinity term an information against the defendants, for not repairing 
Great Marlow Bridge, was obtained at the instance of the bridge-wardens 
and trustees of certain lands in the parish of Great JSIarlow, the annual 
rents whereof were applicable to the repairing of Marlow Bridge; and 
in order to make a good defence to the information, it was necessary to 
inspect the books of account, and of minutes of the proceedings of the 
bridge-wardens; and also to inspect all other papers and documents 
touching or concerning the receipt of the rents, and the management o£ 
the estates held by them the bridge-wardens for the purposes aforesaid; 
and also the accounts of the disbursements of such rents. The clerk of 
the peace had made application to the bridge-wardens' solicitor for in- 
spection, but permission to inspect was refused. He found in his office 
of clerk of the peace, among the records of the county, a statement of a 
case, with the opinion of counsel thereon, which statement appeared to 
have been made with the consent of the bridge-wardens, inasmuch as it 
contained copious extracts from their book, called the Bridge Book; and 
from such statement it also appeared that the said bridge-wardens and 
trustees had been from time to time elected by, and their accounts sub- 
mitted to, and allowed by, the inhabitants of Great Marlow in vestry 
assembled. 

Giirney and Bayly shewed cause, and cited The. Mayor of South- 
ampton V. Graves, 8 T. R. 590; Cox v. Copping, Ld. Raym. 337; 
The Queen v. Mead, Ld. Raym. 927; Rex v. Holland, 4 T. R. 691. 

Maltby contra, referred to Harrison v. Williams, 1 B, & C. 262; 
Pickeriuf; v. Noyrs, 3 B. & C. 162; Allan v. Tap, 2 Blac. Rep. 850; 
Browning v. Aylivin, 7 B. & C. 204. 

Lord Tenterden C. J. The question at the trial of the information 
in this case will be, Whether the inhabitants of the county or the in- 
habitants of the parish of Great Marlow are liable to repair the bridge? 
The defendants will say that the inhabitants of the parish arc liable. 
The question therefore, will be the same as if the inhabitants of the 
parish had been indicted. Now it is clearly established by the authori- 
ties, that if the application were made on behalf of the prosecutor in an 
indictment against the parish to inspect the books of the latter, the Court 
would not compel (he latter to furnish evidence to make a case against 
themsefvcs; and as the efl'ect of granting the application in a case like 
the present may be to compel the parish to furnish evidence which may 
hereafter be used against (hem on an indicltnent preferred against them, 
I think we ought not (considering this as a contest between the county 
and the parish) to compel (lie parish to produce the documents in ques- 
tion: and if we ought not to compel the inhabitants of the parish to jiro- 
duce these documents, ought we to compel the bridge-wardens wlio are 
trustees for the parish? It has been said that it may be a question whether 
ihe bridge-wardens are trustees for the county or for the parish. Upon the 
aflidavils there is every reason to suppose that they arc trustees for the 
parish. They are identified with the jiarish. They are elected by, and 
their accounts are submitted to, (he parishioners in vestry assembled. 
As we could not compel (he parish to [irodiicc evidence against them- 
selves, I think we ought not to compel the bridge-wardens to do so, 
lhf\v appearing (o be trustees for the parisli. 

BAvr.Kr J In order to entitle a parly to inspect hook^, they must 

vol.. XV 31 



242 FiuTH V. Thrush. T. T. 1828. 

either be public books, or the party who applies for such inspection 
must have an interest in them. In the case of corporation books, no 
person wholly unconnected with the corporation has a right to inspect 
them. This is a public prosecution, and the application is made on be- 
half of the defendants. If all the subjects of the realm have an interest 
in the books and documents, the application ought to be granted. But 
these books are kept not for the benefit of all the subjects of the realm, 
or even of the inhabitants of the county of Buckingham, but for the bene- 
lit and on the behalf of the inhabitants of the parish of Great Marlovv, 
They are, properly speaking, not public but parochial books. This, 
therefore, is an application by one litigant party to compel the other to 
produce his own private books to make out a case against him. This is 
indeed a proceeding against those who apply for the inspection, but if 
they obtain inspection of the parish books, they may hereafter institute 
a criminal proceeding against the parish of (ireat Marlow, and use the 
extracts from their own private books as evidence against them. 
HoLROYD and Littledale Js. concurred. 

Rule discharged. 



The KING v. The Justices of WILTS.— p. 380. 

The 17 G. 2. c. 38. s. 4, does not make it imperative on the justices to hear and 
determine an appeal at the sessions next following the publication of the rate, 
but they may adjourn it to the next sessions. Where a rate was published on the 
16th September, and the appeal was entered at the Michaelmas sessions, but 
the defendant did not give notice of his intention to try his appeal at those ses- 
sions, and the justices adjourned it as a matter of course to the Epiphany ses- 
sions, according to the usual practice, and the appellant gave notice of his inten- 
tion to try his appeal at the Epiphany sessions, wlien the justices refused to 
hear it, on the ground that it ought to have been heard and determined at the 
preceding sessions, this Court granted a mandamus to compel them to hear the 
appeal. 



HAY WARD and Others v. WRIGHT.— p. 38G. 

Where a cause has been sent back by procedendo to an inferior court, this Court 
will not quash the writ on the ground tliat the cause is important, and fit to be 
tried in the superior court. 



FIRTH V. THRUSH.— p. 387. 

The indorsee of a bill of exchange, dishonoured by the acceptor, being ignorant 
of the place of residence of one of the indorsers, employed an attorney to give 
notice to him and the other prior indorsers ; the attorney, after inquiry, having 
received information of this indorser's place of residence on the following day, 
consulted liis client, and on the tliird day sent notice of the dishonour of the 
bill : Held, that the notice was sufficient. 

The declaration averred that tlie defendant had notice of the dishonour: Held, 
that allegation was satisfied by proof, that he had notice as soon as it could rea- 
sonably be given, and that it was unnecessary, therefore, to state in the decla- 
ration the special circumstances which rendered valid the notice given at a 
later period than in ordinary cases v/ould be sufficient. 

Declaration by the plaintiff, as indorsee, against the defendant as 
indorser of a bill of exchange. The declaration was in the usual form, 



S Baunewall ik Cresswell, 387. 243 

and alleged non-payment of the bill by the acceptor, of which the de- 
fendant had notice. Plea, general issue. At the trial before Lord Ten- 
ttrden C. .T., at the London sittings after last Michaelmas term, it ap- 
peared that the action was brought to recover the amount of the following 
bill of exchange: 

''Frome, October 1st, 1825. 
" Ten months after date pay to my order two hundred and fifty 
pounds, for value received. 

"Mr. S. Greenland, Clothier, ** Richard Major. 

*< Frome." 

The bill was accepted, payable at Sir Peter Pole's banking-house in 
London, was indorsed by Major to the defendant, by the latter again in- 
dorsed to Major, and by Major to Swain and Co., of London, and by 
them to the present plaintiff. Major, thcdrawer of the bill, resided in 
Somersetshire, and was the i)rolher-in-law of the defendant, and by the 
authority of the laltcr, had put his name on the bill. Before the bill be- 
came due, the plaintiff had ajiplied to Swain and Co. for information 
respecting the defendant, but tliey could give him no information. He, 
as well as Swain and Co., repeatedly applied to Major, and also to Mil- 
ler, his attorney (who acted in this suit as the attorney for tiie defend- 
ant). They returned for answer, that the plaintiff must not expect to 
get any thing from Thrush, and they gave no information respecting his 
place of residence. The bill was dishonoured by Greenland, the ac- 
ceptor, on the 4lh August 1S26, the day it became due. The plaintiff 
then delivered the bill to Pownal, his attorney, and directed him to give 
notice to the parties on the bill, and due noiice of such dishonour was 
given to Swain and Co., and to Major; and on the 5th of August a let- 
ter containing notice of the dishonour of the bill was put into the post- 
office in London, addressed to the defendant at Frome. He in fact did 
not reside at Frome, but at Burton, which is ten miles from Frome, and 
never received the letter, and it was returned through the post-office to 
the plaintiff, on the 21th Sejjtcmber. He then directed Pownal to use 
the utmost diligence to ascertain the place of residence of tlie defendant, 
and tlic latter wrote to a jjrofcssional man at Frome to use his endea- 
vours for the same ])urpose; and, on the Ifith October, he, Pownal, re- 
ceived information, by loiter, that the defondant resided at Burton. On 
the 17lh October, Pownal consulted his client upon the subject, and on 
the 18th wrote a letter to the defendant, giving him notice of the dis- 
honour. Upon these facts it was contended, by the defendant's counsel, 
that tlic plaintiff ought to be nonsuited, because, admitting that, under 
the parlifular circumstances of this casf, the plaintiff was excused from 
giving notice of the dishonour of the bill on the 5th day of August, the 
time when he otherwise ought to have ffiven it, the evidence did not 
prove the allrgalion in the declaration, that the defendant had notice: 
and, secondly, that the notice actually given was not valid; for admit- 
ting that the facts proved shewed that tlin plaintiff had used due diligence 
to ascertain the place of residence of ti)e defenelant in the first instance, 
still the plaintiff's attorney having acquired knowledge of the defen- 
dant's residence on the Kith October, ought to have given notice on the 
I7lh: whereas he neglected to do so until the IStli. l^ord Tcntrrtfcn 
was inclined to be of opinion that as Major was the agent of Thruf<h for 
the purpose of indorsing the bill, he might be con>ideied hi;i agent fur 



244 FiRTii V. TiiKi'sn. T. T. 1828. 

the purpose of receiving notice, and, therefore, that notice to Major was 
notice to Tlirush; hut even if that was not so, that under tlie peculiar 
circumstances of this case, the notice on the ISth was suflicie;it; and as 
to the other point, he was of opinion that if the evidence shewed tliatthe 
defendant had notice as soon as it was required by law, the averment 
\vas proved; but reserved the points, and directed the jury to find a ver- 
dict for the plaintiff lor the amount of the bill, with liberty to the de- 
fendant to move to enter a nonsuit. A rule nisi for that purpose having 
been obtained in last term, 

Sir J. Scarlett and Barnewall now slicwed cause. 

Brougham and Chitty contra, cited Cory v. Scott, 3 B. & A. 619. 

Lord Tenteuden C. J. I cannot entertain any doubt that the alle- 
gation in the declaration, that the defendant had notice of the dishonour 
of the bill, was fully proved,,by shewing that he had a notice good and 
available in law. It was quite unnecessary to state on the record the 
special circumstances or facts which rendered the notice valid, although 
it was given at a later period than would in ordinary cases have sufficed. 
Then all difficulty as to the form of the declaration being removed, 
the only remaining question is. Whether the notice of dishonour was 
good and valid. It struck me at the trial, that as Major was the agent 
of the defendant for the purpose of indorsing the bill, he was also 
his agent for the purpose of receiving notice of dishonour, and that 
notice having been given to him in due time, that was notice to 
the defendant. 1 still incline to be of that opinion. But it is un- 
necessary to decide the case upon that ground. I would rather de- 
cide it on more general principles. For a month or more there was 
no knowledge of the defendant's abode. It was clear that the holder 
of the bill was not guilty of any laches before the 24th of Sep- 
tember. He had made enquiries of Major and of his attorney as to 
the defendant's residence, and they would not give him any informa- 
tion. The plaintiff sent notice of dishonour to Frome, which was the 
place where the bill purported to have been drawn. That letter was re- 
turned to Pownal on the 24th of September, and he thereupon wrote to 
an attorney at Poole, and requested him to ascertain the place of resi- 
dence of the defendant. On the IGth of October he received information 
of the defendant's residence. If he had written to the defendant on the 
17th, there would not have been any doubt that the notice would have 
been sufficient; but he did not write till the IStli: the question is. Whe- 
ther he was entitled to take a day to consult his client.'' Pownal was 
not the holder, he was the agent and attorney of the plaintiff, employed 
by the latter to give notice of the dishonour. If Pownal, the agent of 
the plaintiff for the purpose of giving notice of dishonour, had a right 
to take a day to consult his client under the special circumstances of the 
case, the notice was sufficient. I think he had. If the letter had been 
sent to the principal, he would have been bound to give notice on the 
next day; but it having l)een sent to the agent, he was not bound to give 
notice on the following day. A banker who holds a bill for a customer, 
is not bound to give notice of di:?honour on the day on which the bill is 
dishonoured. He has another day; and upon the same principle I think 
the attorney in this case was entitled by law to be allowed a day to con- 
sult his client. This rule must, therefore, be discharged. 

Baylef J. I am of the same opinion. The allegation that the dc- 



8 Barnewall & CuESSWELL, 387. 245 

fendant had notice was proved by showing tliat he had notice as soon 
as it could reasonably be given. The duty of the holder of a bill is to 
use due diligence to discover the residence of parties entitled to notice. 
Here the holder attempted before the bill became due to ascertain from 
the drawer the place of the defendant's residence, and the drawer would 
not give the information. It was unnecessary when the bill became due 
to renew the same attempt, and the plaintiff sent notice to the place 
where he might reasonably suppose the defendant to reside. On the 
16th of October Pownal received notice that the defendant resided at 
Burton. Pownal was entitled to go to his client and consult him. He 
has one day for that purpose, and goes on the 17th of October. Pownal 
had the same period of time as the party himself. There is a class of 
cases analogous to this: I mean those cases where bills are deposited in 
the hands of a banker for the benefit of a customer. The banker has a 
day to give notice to his customer. If the holder of a bill place it in 
the hands of his banker, the latter is only bound to give notice of its 
dishonour to his customer in like manner as if he were himself tlie holder, 
and his customer must send to the party next entitled to notice; and the 
customer has the like time to communicate such notice as if he had re- 
ceived it from a holder (a). 

HoLROYD J. The law requires reasonable notice. The facts proved 
in this case show that reasonable notice was given. This is exactly like 
the case of a bill deposited by a customer with his banker. If the bill 
in question had been deposited by the plaintiff with his banker, and dis- 
lionoured on the 16lh, it would have been sufficient for the banker to 
have given the plaintiff notice on the 17th, and for the plaintiff to have 
given notice to the defendant on the 18th. I am, therefore, of opinion 
that the notice given in this case was sufficient. I think also that the 
form of declaration is proper, and that the allegation that the defendant 
had notice, was satisfied by proof that he had that reasonable notice 
which the law requires. 

LiTTLEDALE J. I think that the notice was sufficient, for the rea- 
sons already given by the rest of the Court. I also think that the aver- 
ment in the declaration was proved. In Balcmdn v. Joseph^ 2 Camji. 
461, 12 East, 133, which was an action by the indorsee against the 
payee and fust indorscr of a bill of exchange, it appeared that the plain- 
tiff received notice of the dishonour on the 30lh of September, in time 
to have given notice on that day; he gave no notice till thcllh of Octo- 
ber, byt his clerk proved that he did not know the defendant's residence 
till that day. Lord Ellcnhorougli there said '* the holder must not 
allow himself to remain iti a state of passive and contented ignorance; 
hut if he uses reasonable diligence to discover tiie residence of the in- 
dorscr, I conceive tiiat notice given as soon as this is discovered, is due 
notice of the dishonour of the bill witliin the usage and nistoni of mer- 
chants." Anrl he left it to the jury to find for the jjlaiiiliff if they thought 
lie had used due diligence to discover the residence of the indorscr. In 
this case there can be no doubt that due diligence was used in that re- 
spect. If the notice under the peculiar circumstances of the case, was 
a valid notice at the time it was given, the allegation is salisficfl by the 
proof. I do not recollect to have ever seen tlic special rircumstanccs 
which excuse the want of notice at the time when it is usually required 

(a) Sec fffn/nm v. fltrH/i, .1 Bos. ^ Tul. A99. Sco(( v. l.ifford, 9 East, 347. 
I.aitgiale V. Trimmer, 15 EaJ^t, -91. 



246 Faiiilie v. Denton. T. T. 1828. 

staled iti a ilccIanUion. Tlic Icpjal cflect of such special circumstances 
is to make a notice on the ISth of October a good and valid notice. It 
is sullicient in jjleading to state tlie legal efl'cct. The rule for entering 
a nonsuit must, therefore, be discharged. 

Rule discharged («). 

(a) Sec Baldivin v. Richardson, 1 B. & C. 245. 



FAIRLIE V. DENTON and BARKER.— p. 395. 

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 
Vt. and a debt to tlie same or a larger amount due from C. to A., and the thicc 
agree that C. sliall be li.'s debtor instead of A., and C. promises to pay B-, the 
latter 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. 

Assumpsit for money had and received. Plea, non assumpsit. At 
the trial before Lord Tenterden C. J., at the London sittings after 
Hilary term 1828, the following appeared to be the facts of the case. By 
articles of agreement, the defendants and one E. Perry agreed to grant 
a piece of land therein described, unto S. Crossland and J. Stonehouse^ 
who agreed to build on tlie same land twelve brick messuages or dwell- 
ing-houses. The defendants and Perry agreed to purchase from Cross- 
land and Stonehouse a yearly rent charge of 96/. to be charged upon the- 
said messuages, at and for the sum of 1200/., which said sum of 1200/. 
was to be paid to Crossland and Stonehouse, or to their order in writing, 
by six instalments, at specified stages in the progress of the buildings. 
The 5th instalment was ISO/., and was to be paid as soon as the plaster- 
ers' work should be finished. The 6th and last instalment was 240/., 
and was to become due when each of the twelve messuages should be 
painted, papered, and coloured, iron rails and iron work fixed, and in all 
respects completely fit for the reception of a tenant. 

The defendants from time to time made payments on account of the 
1200/. to Crossland and Stonehouse, and the latter at different times gave 
to the plaintiff eight orders in writing on the defendants, for several sums 
of money, amounting in the aggregate to 499/. 10*. The defendants paid 
the sums mentioned in the first live orders only. Crossland being called 
as a witness, stated, that he kept a book in which he entered all monies 
received by him of the defendants, and he entered as cash payments 
made by them, the amount of the several orders given by him and Stone- 
house in favour of the plaintiff; and he further stated, that the defendants 
kept a book, in which there were entries corresponding in all respects 
with his own, the two accounts having been frequently checked and 
compared with each other. The defendants' book having been pro- 
duced, it a])peared that they had charged Crossland and Stonehouse, on 
account of the orders given to the plaintiff, with such sums only as they 
had actually paid the plaintiff. Crossland further stated, that after all 
these orders had been given, and the first five had been paid, he on the 
5th of February applied to the defendants for a further advance. At that 
time the defendants had advanced to Crossland and Stonehouse, includ- 
ing the sums paid in pursuance of their orders to the plaintiff, 872/., 



8 Barnewall & Ckesswell, 395. 247 

and the plaintiff had lodged in the defendants' hands orders of Crossland 
and Stonehouse to the amount of 233/. They refused to advance Cross- 
land and Stonehouse any further sum, alleging as a reason for their re- 
fusal that there was upwards of 200/. due to the plaintiff on the orders 
lodged with them, for which they, the defendants, were responsible. 
The plaintiff gave no evidence to shew that at the time when this con- 
versation took place, the buildings were in such a slate of forwardness 
as to entitle Crossland and Stonehouse to a larger sum than that which 
had already been advanced to them by the defendants; and it afterwards 
appeared in the course of the defendants' evidence, that the buildings 
were not only not completed on the 5th of February, but it was at least 
doubtful whether the plasterers' work had been done so as to entitle 
Crossland and Stonehouse to the fifth instalment. The defendants after- 
wards paid to Crossland and Stonehouse the further sum of 95/., which, 
together with the sums paid by them, and the sum of 233/., which the 
plaintiff claimed to be paid to them in pursuance of their orders, would 
make up the full sum of 1200/. which was to become due to Crossland 
and Stonehouse when the buildings should be completed. 

Upon these facts, it was contended, on the part of the defendants, 
that the plaintiff could not recover, because he claimed as assignee of a 
debt which by law could not be assigned. If by an agreement between 
the three parties, the plaintiff had undertaken to look to the defendants 
and not to his original debtors, that would have been binding, and the 
plaintiff might have maintained an action on the agreement; but in order 
to give him that right of action, there ought to have been an extinguish- 
ment of the original" debt, which would have been a good consideration 
for the defendants' promise. IV/iarton v. Walker, 4 B. & C. 163. 
Here the plaintiff never agreed to discharge or release the debt owing 
to him by Crossland and Stonehouse, and lie may sue them at any time. 
Secondly, assuming that the original deijt was extinguished, this action 
for money had and received is not maintainable, because the defendants 
never in fact received any money on account of the plaintiff. Lord 
Tenterden directed the jury to find a verdict for the plaintiff, if from 
the evidence they thought that the defendants had ever acknowledged 
that they held in their hands money for the plaintifi"; but he reserved 
liberty to *he defendants to move to enter a nonsuit, if the verdict 
should be against tlitnn. A verdict having been found for the plaintiff, 
a rule iiisiiov entering a nonsuit was obtained by Sir Jumcs Scarlett it) 
last Easier term. 

F. Pollock and R. V. Riclianh now shewed cause. They referred 
to Sprat t V. Ilohkoiisc and Others, 4 Bingh. 173; Cuxon v. Chadley^ 
3 B. & C. 591; IVharton v. Walker, 4 B. & C. 103; Hudirsnn v. ./?;j. 
demon, 3 B. & C. 842. 

SirJ!, Scarlett and Comyn, contra, were stop])ed by the Court. 

Lord Tkntkruen C. J. It is a general rule of law, that a chose in 
action cannot be assigned, 'i'hcrc; is, howeviT, an exception to that 
rule. It has been held that where it has been adniilled and agreed be- 
yond dispute that a defined and ascertained sum is due from A. lo B , 
and that a larger sum is due from C. to A., and the Ihiee agree that C. 
shall be B. 's debtor, instead of A., and C. promises to pay B. the 
amount owing to him by A., an action will lie by B. against ('. Here, 
at the time when the defendants were supposed to have admitted that 
they were responsible to the plaintiff, there was not any defined and asccr- 



248 Biutis V. Fem.ovvs. T. T. 1828. 

taincil sum due ironi them to Crossland and Stonehouse. Crossland tlicn 
asked llic dolV'iidants for a fiirtliLT advance, which Ihey refused, hecause 
lliey held orders in favour of the plaintilf for payment of more than 
200/. ]}ut non constat that that sum was then due from them to Cross- 
land and Stonehouse. It nu<2;ht afterwards liavc heen to hecome due 
in tlie progress of the work, which was not at that time completed. It 
lay upon the ])laintifl', in order to hring himself within the cases which 
form exceptions to the general rule, to shew that at the time when the 
defendants are supposed to have proinised to pay him the debt owing to 
him by Crossland and Stonehouse, there was a debt ascertained to be 
due to th^m from the defendants. Not having done so, he has not 
brought himself witliin the exception to the general rule, and, there- 
fore, the rule for a nonsuit must be made absolute. 

Rule absolute. 



BIGGS and Others, Assignees of COLLIER, a Bankrupt, v. FEL- 
LOWS, surviving Partner of TATLOCK.— p. 402. 

Ii) Avigust 1821, A., a trader, being indebted 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. 
committed an act of bankruptcy; and in November, at B.'s desire, he sent 
goods to the wareliouse of B. and C. as a further security for the debt. In 
December, B. and C. dissolved partnership, and the former afterwards re- 
ceived from A. several sums of money on account of the warrant of attorney, 
and also sold the goods, towards satisfaction of the debt. A commission of 
bankrupt issued against A. in January 1823, and in November of that year B. 
died ; Held, that A.'s assignees might 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 the goods by an action of trover. 

Assumpsit for money had and received by the defendant and Tatlock 
in his life-time, to the use of the plaintiffs as assignees of Collier. Plea, 
the general issue. At the trial before Lord Tenterden C. J. at the 
J-.ondon sittings after Michaelmas term 1827, it appeared that in Mav 
1821, the bankrupt dishonoured a bill for 321/. which he had accepted 
for the accommodation of Whltton and Co., and which they had in- 
dorsed to the defendant and Tatlock, who then carried on business in 
copartnership. Tatlock pressed Collier for payment, and not being 
able to obtain it, demanded security, and on the 4th of August 1821, 
Collier consented to give a warrant of attorney to secure payment by 
if. Raiments; and this security was given to Tatlock alone, because at 
that time a dissolution of the partnership between him and the defend- 
ant was contemplated, and which was carried into effect on the 1st of 
.fanuary 1822. The terms of the dissolution were not proved. In 
October 1821, Collier committed an act of bankruptcy. This was not 
known to the defendant or Tatlock; but the latter at that time knew 
Collier was insolvent, and finding him not punctual in paying the in- 
stalments as they became due on the warrant of attorney, demanded 
further security; and in November 1821, Collier sent goods to a consi- 
derable amount to the warehouse of Fellows and Tatlock, which re- 
mained there at the time of the dissolution of partnership betweea them. 
In February and March 1822, Tatlock received from Collier, on ac- 
eountof the debt secured by the warrant of attorney, 110/., and, in 



8 Barnewall & Cresswell, 402. 249 

Michaelmas term 1S22, he entered up judgment, and issued a fieri facias 
thereon, against Collier's goods, under which he received a further sum 
of 441. A commission of bankrupt issued against Collier on the 7th 
January 1S23, under which the plaintifls were chosen assignees, Tat- 
lock died in November 1S23. For the defendant it was contended, that 
these payments being received by Tatlock under the warrant of attorney 
which was given to him alone, were not payments to the defendant, 
and that the action should have been brought, not against him, but 
against the personal representative of Tatlock. Lord Tenterden 
thought the plaintifls were entitled to recover the two sums of 110/. 
and 44/., and directed the jury to find a verdict accordingly, but gave 
the defendant leave to move to enter a nonsuit. A rule nisi for that 
purpose was obtained in Hilary term, against which, 

Sir J. Scarlett and Richards shewed cause. 

Denmun and Alderson, contra, cited Kilgour v. Finlyson and 
Others, 1 H. Bl. 155. 

Lord Tenterden C. J. I am of opinion that this rule must be dis- 
charged. It appeared in evidence at the trial, that Collier was indebted 
to Tatlock and the defendant, on a bill of exchange which he was un- 
able to pay when it became due. He was then informed of an intend- 
ed dissolution of partnership between the defendant and Tatlock, and 
upon the application of the latter, who appears to have managed the 
concerns, a warrant of attorney was given to him alone in August 1S21. 
The partnership, however, was not dissolved until the last day of that 
year, and if an action had been commenced by both partners to recover 
the debt immediately after the warrant of attorney was given, there 
can be no doubt that they might have recovered. In the month of Octo- 
ber, Collier committed an act of bankruptcy; after that, and after the 
dissolution of partnership, the money in question was paid to Tatlock. 
The terms upon which the dissolution took place were not in evidence, 
but if they contained any stipulation that could have had the eflcct of 
exonerating the defendant from his liabilit)^, that should have been 
shewn by him. In the absence of any such proof, I ihink that pay- 
ment to one was in law payment to ijoth, and that the money received 
after the act of bankruptcy may be recovered from the defendant. 

Bayley J. The money was paid in respect of a debt duo to thri 
partnership; both the jiartncrs were, therefore, prima facie liable to 
refund it to the assignees of the bankrupt. If there had been a bargain 
between Tatlock and the defendant, which made it the receipt of 'i'ai- 
lock alone, that should have been proved by the defendant. The war- 
rant of attorney was not, of itself, sulficient to make that out in the 
absence of any evidence ihat Tatlork was to retain thr money to \\\» 
own use. 

Iloi.uoYi) J. A judgment taken by one of two joint creditors, does 

not extinguish the debt, unless if be clearly taken witli the concurrcnco 

of both. The debt, therefore, in the present case, remained due to 

the defendant jointly with 'I'nllock, notwithstanrling tlv warrant of 

attorney. 

LrrTr.KnAl.E J. coii^nrred. i> i i- i i 

Jtnle discharged. 

There was also an action of trover between the same parties, brought 
to recover the value of the goods deposited by Collier with 'I'atlockand 
the tiefcndant, as mentioned in the former case, and sold by Tatlock 
after the dissolution of partnership. In this case also, a rule for eu- 

VOL. XV, .)\i 



250 Kdmonus v. Lowe. T. T. 1828. 

trring a nonsuit had l)een granted, and, alter the former case had been 
disposed of, 

Deivnan was called upon to support his rule: and he contended that 
the sale by Tatlock, after the dissolution, was a wrongful act, for which 
he alone and not the defendant was responsible. 

Lord Tentekden C. J. The goods were originally deposited with 
Tatlock and the defendant, and they continued to be identified with re- 
sj)ect to those goods from that time down to the time of the sale. The 
plaintiffs, therefore, are entitled to retain the verdict. 

Rule discharged. 



EDMONDS V. LOWE.— p. 407. 

In an action by the indorsee against the drawer of a bill, it appeared by the 
jjlaintiff' s case that he had received it from the acceptor in dischars^e of a debt 
clue from him. For the defendant, it was stated that the bill was accepted in 
discharge of part of a debt due fi'om the acceptor to the drawer; that it was 
indorsed and delivered to the acceptor, in order that he might get it discount- 
ed, and that he delivered it to the plaintiff, upon condition, that if. he pro- 
cured cash for it, he might retain out of it the amount of the debt due to him 
from the acceptor, but that he never did get cash for the bill : Held, that the 
acceptor could not be examined to prove these facts; for although he was unin- 
terested as to the amount sought to be recovered on the bill, he was interested 
as to the costs against which he would have to indemnify the defendant, if the 
plaintiff obtained a verdict. 

Assumpsit by the indorsee of a bill of exchange for 198/., drawn by 
the defendant upon one Benzeville, and accepted by him, and indorsed 
by the defendant. Plea, the general issue. At the trial before Lord 
Ttnterden C. J., at the London sittings, after last Michaelmas term, 
the plaintiff proved the acceptance, indorsement, and dishonour of the 
bill. On cross examination of his witness it appeared that he before 
held a check for 70/., drawn by Benzeville, which had been dishon- 
oured, and that Benzeville brought the bill in question, and asked the 
plaintiff to exchange drafts with him, which was done. For the de- 
fendant it was stated, that Benzeville being indebted to the defendant 
in the sum of 350/., the bill in question was accepted by him for a part 
of that debt, and he offered to get it discounted. In order that he might 
do so, the defendant indorsed the bill, and delivered it to Benzeville, 
who carried it to the plaintiff (a bill broker), and told him, that the de- 
fendant wanted cash for it, and that if he would procure cash for it, he 
might retain out of the proceeds 70/., which Benzeville owed him. The 
plaintiff took the bill upon those terms, but never got it discounted, 
and never gave any value for it. Benzeville was called as a witness to 
prove these facts, but was objected to on the ground of interest, and re- 
jected, whereupon the plaintiff obtained a verdict. In Hilary term a 
rule nisi for a new trial was obtained; and now 

S\t J. Scarlett and Patleson shewed cause. Benzeville was inter- 
ested in the event of the cause. The plaintiff was, according to his own 
case, entitled to recover 70/. on the bill; as to that sum the acceptor 
was, perhaps, indifferent, but if the plaintiff recovered, he would be 
liable over to the defendant, not only for the amount of the verdict, but 



8 Bahnevvall & Cresswell, 407. 251 

for the costs also, whereas, if the defendant succeeded, he (Benzeville) 
would only be liable to the plaintiff for the 70/. 

Denman and Chitty contra. Benzeville, in his negotiation with the 
plaintiff for the discount of this bill, acted as agent for the defendant. 
Now the servants of tradesmen who deliver goods, and other agents 
who alone have knowledge of the transactions in dispute, are constantly 
admitted to give evidence ex necessitate, although, strictly speaking, 
they are interested in the result of the action. 

Lord Tenterden C. J. I am of opinion that the testimony of Benze- 
ville was properly rejected. It appeared by the statement of the de- 
fendant's counsel that Benzeville was answerable for the payment of the 
hill by himself, and there was an implied undertaking by him to indem- 
nify Lowe. He was, therefore, interested in the result of the action, 
inasmuch as the costs, if the plaintiff succeeded, would ultimately fall 
upon himself But it has been argued, that he was excepted out of the 
general rule by reason of his employment as agent for Lowe; that, 
liowever, applies only to agents employed in the ordinary transactions 
of commerce, then they are, ex necessitate, excepted out of the rule, 
and admitted to give evidence, but here Benzeville's only connexion 
with or agency for Lowe, arose out of the transaction in question; he 
was not, therefore, competent to give evidence. 

The rule for a new trial was ultimately made absolute, upon 
reading certain affidavits put in by the defendant. 



Ex parte GREGORY.— p. 409. 

Balguy moved for leave to enter up judgment on an old warrant of 
attorney, given as a collateral security, together with a mortgage. The 
affidavit on which the motion was founded was entitled "In the King's 
Bench," but not in any cause. 

Per Curiam. As there is not, in fact, any cause in court, the title 
of the affidavit is sulficient. 

^lotion granted. 



COLEctUx. V. ROBERT EAGLE and Others.— p. 10!). 

Tlic 8tat. 8 H. fi. c. 9. s. 6., which gives treble damajjcs to the party grievci!, 
by a forcilile entry atid cxijiilsion, a])plies only to persons having the freehold, 
for the remedy is givf n against tlie disseisor. 

'1'kf.spass for breaking and entering the dwelling house of the wife 
lUnn sola, and cxj)clling her therefrom. The hrst count wa.s framed on 
the Stat. S H. 6. c. 9., and stated that the wife *' was po.sscsscd of the 
dwelling house, as tenant thereof to T. K. Eagle, for so long a timens 
ihey should respectively please," that derondanls, with a strong hntid, 
entered the house, and expelled her. 'I'hcre were other counts in tres- 
])ass in the ordinary form. The dcfcndanls pleaded the goiierai issue. 
At the trial a verdict was found for the |)Iaintins, with .O/. damages, and 
judgment was entered up generally fur that sum and treble costs, which 
were allowed by the Master on the ground that the jjlaintiffs were ci'ii- 



4J)i 



Rex v. Sutton. T. T. 182S. 



tied to them iMider the S H. G. c. 9. s. (}. A rule nisi for a review of 
t!ie iSIa.skM\s taxation having been ohtained, 

/'. Kvlly shewed cause. liy 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 man- 
ner, may have assise of novel disseisin, or a writ of trespass, and if the 
party recover, he shall have treble damages against the defendant. Hero 
then the j^iaintifls were entitled to treble damages, and, consequently, 
to treble costs, FilfoUrs case, 10 Co. IIG. It is true that judgment 
has been entered up for single damages only, and the plainlifi's may bo 
considered as having waived the treble damages, but that does not de- 
prive them of their right to treble costs. 

jyightman 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 tiian single costs; for 
they can only have treble costs as incident to treble damages. But, 
supposing that not to be a sufficient answer, the statute 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. 

iiAYLEY J. The case of Eex v. Dormy, 1 Ld. Raym. 610, shews 
that a party is not witiiin the statute, unless he has the freehold. 

Rule absolute {a). 

(a) See Fitz. N. B. 560. 8th edit. Dalaber v. J.yster, 2 Dyer, 142. Jnomj- 
Hious, Say. 68. pi. 141. JiiOfiymous, 1 \i:ntr. 306. .'i Bulstr. 71. Rex v. Ifan- 
vo/i^ Say. 142. 



MAGRAVE V. WHITE.— p. 412. 

Where the speaker of tlic House of Commons "certified that a certain sum was 
due to A. B. , "a witness summoned by and on behalf of C. D., one of the 
sitting; meml)ers for Dublin, to i^ive evidence before an election committee," 
the Court ordered judi^mcnt lo be entered up against C. 1). for that sum as 
n])on a warrant of attorney, the certificate being held conclusive as to the fact 
of the witness having been summoned, and the stat. 5i (?. 3. c. 71. being held 
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. 

.Micnegp is a ground of challenge to a juror; and if the party has an opportunity 
of making his challenge, and neglects it, lie cannot afterwards make the ob- 
iertion. Semble, That since the V fi. 4. c. ^0, s. 27. alienage is not a ground 
even of challenge to a special jnror. 



8 Barnewall & Chess WELL, 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, others 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 fron^ 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. Tlie subse- 
quent provisions as to special juries do not introduce any new descrip- 
tion of persons as qualified to servjc, but relate only to the mode of se- 
lecting special jurors out of the general description before given. [^Bay- 
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, Bex v. Tremearne^ 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 jiersons 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 jjropter defectum patriae. 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 the party had an opportunity of making his chal- 
lenge. In the case cited, no such opportunity had been nflbrdcd. We 
ought to be very carcfid in giving way to such an application, for if wo 
must grant a new trial at the instance of a defendunt after conviction, 
wc must, also, do it at the instance of a prosecutor, when there has been 
an acquittal; and it seems to mc that, without a precedent, wo ought 
not to intcrlcre in this late stage of the proceedings. Tlu' proviso also, 
at the end of the iiTlh section, appears to have the ellcct of taking away 
even this right of challenge in the case of a special juror; proi)al)ly be- 
cause the party has had an earlier opportunity of making the objection. 

Rule refused. 



The KING V. RICIL\RI)S and Others.— p. 420. 

Tlic Stat. 7 (». 4. c. 7\. s. 2'?., wliicli provifl<'s fnr llir allowance of costs to prn-^ 
sccutors and witnesses in r.crtain cases nf niisdenjcanor, does not apply where 
the indictment han been removed into K. H. hv (.ertioiviii. 



254 MuuuAY V. Uekyes. T. T. 1828. 



MOSES V. RICHARDSON.— p. 421. 

The ilcfciulaiit, who was a married woman at the time when this ac- 
tion was hrought, heing sued as a feme sole, had suffered judgment to 
go by default, and had been taken in execution. 

%^rchbold 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 plaintiff 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 
l)e discharged out of custody; and having been Ijrought uj) 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 that B. should. 
be 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 Tenlerden 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 268G/. 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 w^as remanded on the 21st 
of July. Before that day the following agreement (for the breach of 
wliicii 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 
as vesting in the insolvent in rigiit 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 
ihe consideration was void, it being contrary to the policy of the bank- 
rupt laws. Lord Tenlerden 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 10.5/., with liberty to 
the defendant to move to enter a nonsuit. A rule nisi having been 
obtained for that purpose, 

Campbell and fVi/bo7'n on a former day in this term shewed cause, 
citing Aero/ v. IVallace, 3 T. K. 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 lor 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 plaintifl' should, as assignee, receive a sum of 90/. or 100/. out of the 
insolvent's estate within three weeks fi'om his appointment as assignee, 
he taking the steps that the defendant should point out to him, and also 
to guarantee a sum of 40/. in lieu of the furniture and efl'ccts 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 jiolicy of this part of 
the law, and conscf[uently 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 debtor, 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 to the debts 
of other creditors, will, in many cases, be rendered riucstionable; and 
if the imprisonment be under the seventeenth section, for fraudulent con- 
cealment, it will probably be lost. Whereiis if the opposition made by 
one creditor be withdrawn, and no other creditor takes up the proceed- 
ing, the debtor may obtain the full benefit of the statute, without 
making that disclosure which the statute retjuires; and where one cre- 
ditor ha.s begun an opposition and withdraws it, other creditors may 
lose the opportunity of o|)posing, or may abstain from doing so under an 
opinion that the debtor has done all that the law ref|uires of him. The 
law recpiires that the debtor shall nuike a fidl disclosiire, and that ho 
shall do so in the first instance by his scln^dule; a kno\vle«l;;e that the 
effect of concealment may he obviated by Hubsequeut bargaiiiiug, may 
operate as an inducement to concealment in the first instance, which 
ought to be discouraged by all practicable means. Bargains like the pre- 
sent may also, in some cases, if allowed, operate to the prejudice of an 



256 SoiTM Cakolixa T^ank v. Cask. T. T. 1828. 

honest doblor, wliose fricmls may l>e willing to n)nkc some sacrifice in 
order to relieve him from a vcxalious, though, perhaps, groundless op- 
position. 

For these reasons, we think that the rule to enter a nonsuit should he 
ir.ude ahsolute. 

Rule ahsolute. 



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, 
Assignees of the Estate and Eilects of THOMAS CROWDER and 
HENRY THOMAS PERFECT, Bankrupts.— p. 427. 

A., B , and C. carried on bus'ncss 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, dii-ected by the Vice-Chancellor, to try whether 
Thomas 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 plaintifl's 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 Hicl/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- 



8 Barnevvall & CuESSWELL, 427. 257 

son or persons whomsoever dining the 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 9th 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 the}' 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 sta)' in America on the partnership account ; and he 
<^gain 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 time mutually agree upon, for that term; and that Clough 
should succeed Perfect: and a supplementary agreement wasentered in- 
to, bearing date the 27th of October 1821, upon the like terms as the 
lormei- articles, except as tiicrcby 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 tlie 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 ttie future conducting of business. In the instructions are the 
following paragraplis: — *' No shipments to be made solely on our account, 
but the above price to regulate shipments 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 l)e hoped, however, that there will be no 
necessity to extend this sort of business, and that it will be as much 
avoided as possible. Our main object is coiisignnients, either of ships or 
produce, and with a view to secure such, should we l)e inducy^d to risk a 
share of shipments, (if such can be 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 lime, in such pailicipalions; and tlu; result of these 
shipments ought to he known, or safely calcidaled on, by advices from 
home, before any new arrangements are formed. It is understood that 
our names are not to appear on cither bills or notes for the accommodation 
of others; and that they should appear as little as|)ossibIe on paper at all, 
and then only as regards direct transactions with the house here." The 
business of Crowder, Perfect, and ('louifji was that of factors or commis- 
sion-mcrrhanls for principals trading between (Ireat Pirilain and the 
I'nited Stales, 'i'hcir business in this coiujlry consisletl princi[)ally in 
the .sale and purchase of good.'*, and the ctdleclion of freights for princi- 
VOL. XV. JJ 



2v58 Soi'Tif Cakolina Bank v. Case. T. T. 1828. 

|)als ill tho I'liiteil States on commission. Their business in the Uiiilecl 
States consisted in the sale and purchase of goods, and in the collection 
of freights for their principals in England, on commission, and occasion- 
ally 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 naine 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 
J. 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 
Orowder, Clough, and Co., and indorsed by him, and sold, and the pro- 
-■fjds advanced to the consignors; fourthly, In other cases, J. B. Clough 
uicd 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 
bought 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. 
C''>ugh, were very considerable, amounting in 1822 to 1377/., in 182.3 to 
£700/., in 1S21 to 5000/., but in 1825 there wasaloss. Proper partncr- 
s.hip books were kept: the bankrupts entering in their books all the deal- 
ings 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 
England and in the United States was divided between the partners. 
Clough during the whole time that he was in the United States, viz. from 
' i' ' to the bankruptcy, never traded or drew, indorsed, accepted, or 
7 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 Barnewall & Chess WELL, 427. 259 

tlie 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. lie had no individual 
business whatever, and the name of J. B. Clough Was never used by 
him 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 
be 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, ef 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 tlic credit of the consignments. Four bills were accordingly drawn 
by Weyman on Coffin and Weyman for 40,000 dollars, payable to J. B. 
dough or order, and being indorsed "J. B. Clough," were discounted 
by the plaintifis, who arc 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 should draw other bills on 
Crowder, Clough, and Co., in order to [)rovide 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 proccctls 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 bills were misap- 
plied; and Crowder, Clough, and Co. soon afterwards failing, the bills 
wpon them were not paid. All the consignments, however, agreed to bo 
made by «T. T. Weyman to the house in Englnntl wr-re made, and receiv- 
ed by the Knglish house, anrl disposed of by them. Hills on lOngland are 
not, in general, negotiable in Charleston, this was the cause of the ar- 
rangement for drawing bills in the first instance nn Coffin and Weyman. 
The bills in question were duly presented to f'offin ami Co. at maturity, 
and dishonoured, and due notice given to J. B. Cloujih in America. The 
value of the bills in question, in Lnglish money, is .S333/. Cs. Sr/. These 
particular bills were not ontered bv.I. B. Clougli in the books kept by him, 
i>pransp the agreement with ,1. T. ^V'r•vn1;ul ua- that liills were to he 



•/^(>0 tiiBuiNs V. Phillips. T. T. 1828. 

fliawn on Crowdcr, Clough, and Co. to such an amount as precisely to 

raise the 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. B. Clough or his partners from tlie 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/. 

I3.y., the amount of the debt due from Crowder, Perfect, and Clough 

being 8333/. 6*. 8^/. ; if not, a nonsuit is to be entered. 

Parke for the j)laintiffs, referred to Ex parte Emit/, 1 Rose, 61 j Emly 

V. Lye, 15 East, 7; Ex jmrte Bolitho, Buck. 100. 

Patteson contra. „ , ,. 

(Jur. 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 the 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 plaintiffs. 



GIBBINS and Another, Assignees, v. PHILLIPS.— p» 437. 

After a verdict for a (lefendant, tlic Court made a rule absolute for a new trial, 
and ordered that tlie 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 remanct. It was tried a second time at the Summer assizes, 
when a verdi(?t 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. 

Triis cause was tried at the Summer assizes for the county of Stafford 
182G, when a verdict was found for the defendant. The Court ordered 
that that verdict should be set aside, and a new trial had between the 
parties, and that the 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. Hally 
Sayer, 272; Sadler v. Evans, 4 Burr. 1984. 

Barstow 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 sherifT 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. 



B/VILEY, surviving Assignee of W. IIALLIVVELL, a Bankrupt, v. 
CULVERWELL, BROOKS, and CARROLL (c/).— p. 448. 

A. and Co., as brokers for B., sold goods, then in their possession, to C, wliich 
were paid for by a l)ill 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 cer- 
tain profit. Before the bill became due D. failed, and A. and C!o. applied to 
C. for security for tlie bill ; whcrcvipon he gave them an order to sell the goods 
and apply the ])rocecds in jjaymcnt of the 1)111. ('. afterwards, and before the 
goods were sold, Ix-canie banknipt. A. and Co. handed over the goods to B. 
at his request, but he afterwards returned ihcni, 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 tlic goods and ajiply the proceeds in payment of the bill, they re- 
mained in their hands subject to that charge, because A. and Co. must be pre- 
sumed to have asked security as agents for B., whose ratification of their act 
for his benefit might also be inferred. 

(a) The Jtidgcs of this court sat, as on foinier occasions, from I liday the Q7tli 
of June to Wednesday the id of July inclusive; and from Monday the '27lh of 
October to Wednesday the /ith of November inclusive, wlien this and the follow- 
ing cases were argued and determined. 



362 Bailey r. CuLvjiRWELL. T. T. 182H. 

TuovER brought by the plaintifl'aiul Richard Emett, since deccaseif, 
as assignees of William Ilalliwell, a bankrupt, to recover 424 beaver 
skins. Pica, not guilty. At the trial before Lord Tenterden C. J., at 
the London sittings after Hilary term 1827, a verdict was found for the 
plaintifls for 1000/., subject to the following case: — 

Tiie 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*. 4d. to balance for the beaver, and if you can ob- 
tain 2^. 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. tiie 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 agtiinst the bankrupt on the 4th of 
June 1824, which was opened on the 11th of June, on an act of bank- 
ruptcy committed on the 21st of May preceding; and the plaintiff and 
one Richard 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-th 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 Barnewall & Cresswell, 448. 263 

-•jlh of November 1824, Carroll gave an order to the otlier defendants to 
receive back the skins, 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 ihat 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/ce (or the plaintifl', cited Scott v. Porcher, 3 Mer. 652; JVilliams 
V. Everett, 14 East, 5S2; Yates v. Bell, 3 B.& A. 643 j Solhj v. Rath- 
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 Halliwell 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 Halliwell, 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)ulated for a bill; when it was found that the bill would probably 
he 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 
cstai)lishing that the subsefpient 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, hut might 
l)e beneficial to him; and the presumption is, that a party will adopt acts 
done for his benefit. Now the order by Halliwell to Culverwell to sell 
tlie goods and pay Carroll, was given on the 16th of March, and, by re- 
lation, Carroll's adoption would make it binding from that time. At 
that time Halliwell 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 S'cott v. Pnrc/icr is altogether different. There the order was 
given by a principal 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 Halliwell only, but for Carroll also. It has 
been urged, that if after the order was given the goods had been destroy- 
c<l by fire, the debt to ('arroll would have remained, but that is the case 
with respect to every drbt wIut'- good^ upon which there is a lien for 



264 Bailey v. Culveuwell. T. T. 1828. 

It arc acciilciilally destroyed. The debt remains although the lien is 
lost IIps any thing been done by Carroll to reject tlie arrangement 
made between Halliwell and Culverwell? It appears that an attachment 
was issued by him, but what became of it is not stated. That proceed- 
ing did not necessarily repudiate the benefit ol' Ilallivvell's order. Per- 
liaps 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 
Culverwell 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. Culverwell, 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 wasnoevidence of his'having'ratified the act of Culverwell, 
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. liathbone; 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 the demand was made. The 
rule for entering a nonsuit must, therefore, be absolute. 

Rule absolute. 



SWANN V. The Earl of FALMOUTH and JENNINGS.~p. 156. 

Where a landlord's agent uent upon the tenant's premises, walked round tlicm, 
and gave a written notice that he liad distrained certain goods lying 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 that this was a sufficient seizure to give 



8 Barnewall & Cress WELL; 456. 265 

Viie 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 Gaselee J., at the last Spring assizes for Cornwall, it appeared that 
the plaintiff 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 Januar)'^ 
there was an arrear of rent amounting to 262/. lOy. due to the earl, and 
on that day the other defendant (clerk to the earl's attorney) went to 
the plaintiff's premises and inquired of his clerk whether the plaintiff 
Avas 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, aquantity ot 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. Datcfl 
8th January 1827." Defendant Jennings and the steward then went 
away, and did not leave any person in possession of tlie goods seized, 
which were worth more than 1000/. On the 12th of January, the plain- 
tiff requested 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 paid 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 Hicts, it was contended for the 
defendants, that the mere walking round the premises, without marking 
or even touching the goods, or leaving any person tlierc to keep pos- 
session, did not amount to a seizure, and that, conscqueiUly, tlio action 
was not maintainable. The learned Judge overruled the objection, and 
left the case to the jury, who found a verdict for the plaintill with '10/. 
damages. In Easter term a rule nisi for a new trial was obtained, on 
the grounds that no seizure was in fact proved, an<l that ihe'damagejj 
were excessive: and now the Court called u|joii 

Follvtt tostqiport the rule on the first ground, who referred (o Fitz. N. 
11. 102, (l'\); Dud v. M(tns;n', 6 Mod. 215; lUtidcsv. ^ilrunddle, 1 M. 
&. S. 711. (lJ|)nn a suggestion from the Court, the plaintiff's counsel 
consented that the damages should be reduced to 20/.) 

Havley J. This is not a question bctwron the l.-indlord and a lliiid 
person, but between him an<l hi-i tenant; and liinpo'nt^ lo he fonsid'jicd 
VOL. XV. .'M 



266 Elsmoul v. St. Buiavells. T. T. 1828. 

are, whether, as hctwcen them, tliere ever was a seizure, and whether 
there was such an ahandonmcnt of the distress hy the landlord as could 
liave deprived him of the right to treat the tenant as a wrong-doer, had 
lie taken away the goods. The agents of Lord Falmouth went upon the 
premises for the purpose of distraining, and afterwards sent written no- 
lice of what they had heen doing. That is evidence against the landlord 
that they had actually made a distress. Then, was the distress abandon- 
ed .■* If it w'as, 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. Moiif^er 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. 

HoLUOYD J. The tenant, by asking indulgence, recognized that which 
had 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 
reasonable notice of it. The rule for a new trial must, therefore, be dis- 
charged. 

Rule discharged. 

Erski7ie and C'olcridt^r \vorc 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 the hundred for an injury sustained by him in consequence of 
malicious setting fire to the same. 



SBaunewall & Cresswell, 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 : — "1 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 the 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, 
1S2S, 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 Searell, 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 he had I)ecomc tenant to the plaintiffs, llicy as se- 
questrators having no legal estate in the premises could not maintain this 
action, 'i'he learned Judge reserved tlu; |)oinl. The plaititills then 
called a witness, who slated that he, on the part of the plaintills, had, in 
May 1S2G, apjilied to the defendant for payment of rent, but tiie lattci' 
refused to f)ay, and in fact never bad p;iid rent to the plaintills. The 
defendant then put in an indenture of lease, dated in June 1816, where- 
by Allen Searell, the father of the defendant, demised to him the pre- 
mises in question for twenty-one years, at the reiit 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 under 
it, and, therefore, thnt be w;is lial)le not to lln* plaiiitifls, but to the les- 
sor for rent. The plaintiffs ob)rolcd that the delcndant having attorned, 
could not dispntc their title. 'I'o that it was answered, tli.il that was 
the rub; where the tenant attorned li> a person deriving title from iIk^ 
original landlord. Here the plaintills were strangers, and had no leg.d 
ti(U< »n (||c 1,111(1, f)i i() te'-i'ive 111'- rent. The juiv found lor tbe plain- 



2r)8 Co KM SI I V. Skauim.i.. T. T. 1828. 

lifl's, aiul tliat there was no ap])licalion for rent in INIay l.S'2G. A rule 
nisi for entering a nonsuit having been obtained by IVi/de Serjt. in last 
Easter term, 

]Me7'cicether Serjt. and R. Bayly now shewed cause. They cited Grey 
V. Smith, 1 Campb. 3S7; IVatkins v. Hewlett, 1 Brod. &13. Ij Drant 
V. Broivn, 3 B. & C. 665. 

Bayley J. I think that the plaintiffs are not entitled to recover. 
On the 1st of January 1S26, the defendant held the premises in ques- 
tion under a lease granted by his fatiicr, Allen Searcll, 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 3lst 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 plaintiffs 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 been 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 offered 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- 
f|uestrators, 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, 
'i Taunt. 202, and Gravener v. JVoodhouse, 1 Bingh. 38, the distinction 
is pointed out between the case where a person has actually received 
])ossession 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, hut not a legal one. And as it appears on the Aice of 
the instru.ment, which the plaintiffs rely upon in support of their claim, 
that 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 
ti.'inecessary, however, to decide the case on that ground. I am of 
opinion, firft, that the instrument was not admissible in evidence for 
waul of a btanipj and, secondly, that as there is no ground for inferring 



8 Barxewall & Cresswell, 471. 269 

tliat Ihc 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 the 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 occupation of the premises by the defendant. In Ft^on- 
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 
plaintiffs, 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 doc^not 
recognize the title of the plaintifls as individuals, but as sequestrators. In 
that character they can have no legal title to the renl; at all 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 third person. 

Rule absolute. 



PHILLIPS v. ALLAN. --p. 477. 

A discharge of an insolvent dcl)tor upon a cc-ssio hononnn !))■ tlic* court of ses- 
sion in Scotland, is no answer to an action bronj^lit by an I-'.n.i^lish subjec t in 
a court in this country to recover a debt contracted in l-ji^iland, allbou^h 
it ai)i)earcd that the ijlainlifT opposed the discharge of the (UiVii<laiil in tht; 
Scotch court. 

Senible, That it would have been an answer to the action if the plaintifT had 
claimed to have the i)enefit of the Scotch law, and to take a distrii)utive share 
of the property of the insolvent. 

Declaration by the plainlifl', aa drawer, against the defendant, as 
acceptor of a bill of exchange for lOyA, dated London, I7th day ol 
December 1S2I, payable two month." after date. Plea, that after the 



270 Phillips v. Allan. T. T. 1828. 

accruinj; of the several causes of action in tlic declaration mentioned, and 
before the coniniencement of tliis suit, to wit, on the 4th of July 182b', 
the defendant was a prisoner for debt, at the suit of one John Sim, in a 
certain prison called thcToibooth 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 pefition, 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- 
n>ing, among others, the plaintiff,) 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 de!)ts 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 
baifkrupts, by any law or practice, or otherwise, after the form and 
tenour of tiic laws and 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 jjlaintiff, 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, &.C., at, &c., the subject- 
matter of the pefition was heard before the Lords, &c., and certain 
creditors of defendant (and among others the plaintiff) appeared by coun- 
sel, and were heard in opjwsition 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, aiul also made oath, in terms of the acts of sederunt, an<l 
thereupon became entitled to be discharged, and was then discharged ou? 



8 Barxewall 6i Cress WELL, 477. 271 

of custody. Averment, that from tlie time of the imprisonniciU to the time 
of the discharge from custody, the plaintiff had no cause of action or de- 
mand whatsoever against the defendant, except the 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 the effect of the aforesaid laws, he, the de- 
fendant, had become absolutely discharged, in respect of his person, 
lands, goods, and chattels from the several causes of action aforesaid, 
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. 

Akhrson contra was stopped by the Court. 

Bayley 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 contracted 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, Lewisx. 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 phiintiff is an 
English subject, and sues in respect of a debt contracted in England. 
Prima facie, therefore, he is not bound by the judgtncnt of a 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 by the 
law of Scotland, and, consequently, that 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 the Scotch 
court. The plea states that the defend. mt, being incarcerated in the 
Tolhooth, presented to the Lords of session a |)Clition, stating that the 
plaintiff, among others, was one of his creditors, and that the <Ufeiidant 
had offered to convey liis effects to his creditors, and that they (including 
the plaintiff) had refused to accept such conveyance; and then the pray- 
er was, that he, the defendant, should bo set at liberty upon his granting 
a disposition of al! his goods in favour of his creditors, and that in future 



272 riiii.Lii's V. Allan. T. T. 1828. 

lie should not 1)0 incorccrated or tiouhled for payment of any debts due 
lo the |)crson,s named in tlic j)elition. The object of the j)elition, there- 
fore, was, that he should be free from restraint in Scotland in resj)cct of 
those debts. The plea then states, that it was ordered that notice should 
be given to the creditors named in the petition, and, among others, 
to the plaintilT, to comjjear. 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 thcsubject- 
inatter of the petition was heard, that the j)laintiira|)peared by counsel, 
and was heard in opposition to the defendant in respect of the petition. 
It has been insiste*.! tliat the fact of the plaintilf's having appeared in the 
Scotch court, and tiiere opposed the granting of the prayer of tiie pe- 
tition, distinguishes this case from thai o( Smilh v. Buchanan, 1 Kast, 
G, but I tiiink it docs not. The plea does not shew that the plaintiff 
<lesired 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 plaintiflf might 
liave 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 plaintiflf 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 plaintiflf, an 
English creditor, is not prevented from enforcing payment of it in an 
Knglish court of justice. 

HoLROYD J. This case falls clearly within the principle 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 plaintiflf 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 law 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 liaving appeared in that court makes no diflfer- 
ence in this case. If he had asked relief from the Scotch court, and 
sought to have the benefit of the law of Scotland by taking a share of 
ihe defendant's property, that might have made a diflference. 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 saine manner as a party, who has appeared in 
the spiritual court, may insist that the judgment of that couit 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 plaintiflf appeared 



8 Barnewall & Cresswell, 477. 273 

in the court in Scotland : but I think that docs 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 Scotch 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 sought 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 plaintitf. 

Judgment for the plaintiff. 



PAUL and Others v. ELIZABETH NURSE and EDMUND 

NURSE.— p. 480. 

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 
tliereby demised without the consent of the lessor, and that no consent was 
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 that one R. Cheatle, 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 1816, at, &.C., by a certain indenture then made 
between Cheatle of the one part, and one Co])cland of the other part, 
Cheatle, for the considerations therein mentioned, granted and demised 
to Copcland certain-premises, with the ajipurtcnants. Habendum from 
the 11th October 1813, for the term of twenty-one years, at a rent of 
SO/., payable half-yearly. Covenants by Copcland, for payment of 
rent. Averment, that all the estate, right, title, and interest of Copc- 
land, by assignment vested in the defendants, whereby they, as assignees 
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 r(;version belonging to Chca- 
iIp, he, on the 27th .March 182.3, by will, devised the reversion to the 
plaintiffs, their heirs, &c., and died on the 8th September 1820. Breach, 
non-payment 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 demised [)remtses to Edmund Nurse, the 
elder. Replication, that in and by the indenture of lease Cnpeland for 
himself, his executors, administrators, and assigns covenanted that he, 
Cnpeland, his executors or administrators, should not assign, underlease, 
dispose of, or grant any part of the prfrni'^rs thereby demised, to any 

vol.. XV. 30 



274 Pace v. Newman. T. T. 1828. 

person, uillioiit the consent of Clicatlc, his licirs, ora.ssiii;ns; lliat neither 
Cheallc, in his lifetime, nor the plaintifl's, since his death, had given 
any such consent. General demurrer. 

Kelly for the plaintiffs, referred to Dumpor^s case, 4 Coke, 119; 
Doe d. Boscawen v. Bliss, 4 Taunt. 735. 

Bavlet J. This action being founded on privity of estate, the ob- 
ligation of the defendants to perform the covenant arose only from their 
filling the particular 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, {a) 

(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 1S14. Plea, that the causes of action mentioned in the de- 
claration did not accrue within six years next before the exhibiting the 
plaintiff's 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 the 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 
pica and bill aforesaid; and the sheriff of Kent did not send the last- 
mentioned 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 plaintiff, for recovery of his damages by him sustained by rca- 



8 Barxewall & CitESSWELL, 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 
JNIiddlesex, 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 plaintifl' 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 plaintift' 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 miglit, upon 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 plaintiff against the defendant, as in the replication 
was mentioned. And this, ike. Demurrei*. 

Header for the plaintiff, cited Co/es v. Sibsf/e, Styles, 156; Daveyy. 
Clinch, I Sid. 53; Culliford v. Bhnidford, Carth. 233; Brown v. 
Babington, SLd.-Raym. 882; Wood v. Newton, 1 Wils. 141; Fos- 
ter V. Bonner, Covvp. 451; Price v. Jackson, 1 M. & S, 442; Kar- 
verv. James, Willes, 255; Lord Middteton v. Forbes, Willes, 259 n. 
Comyn contra. 

Bayley 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 tiie county where 
it sit.M, 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 oIIut county. The latitat issues, therefore, 
on the supposition that a bill of Middlesex has previously becui issued, 
and tli.il tlic defendant has not been foiuid in that comity. 'I'lie rci)Ii- 
cation in this case set otit a latitat, whereby (after reciting that a bill of 
Middlesex had issued, whereby the sheriff of that county was command- 
ed to take the defendant, &.c. &c. to answer the |)lainii(f in a plea of tres- 
pass, and to a bill to be exhibited against him,) the King commanderl the 
sheriff of Kent to take the defendant, &c,, to answ<:r the plaint iff in the plea 
and bill aforosnid; and by the latitat subsef|ucntly issued from term to term, 
and the bill of Miildb^sox issucij in Kastcrlerm l.SJfJ, the defendant is call- 
ed upon to answer the plaintiff in the plea and the bill aforesaid. 'I'he last 
])rocess, therefore, issm-d to compel the defend;uit to answer the [)laintiff in 
the same plea, and to llin same bill, which he was called upon to answer by 
lli<: l.tlital which wis fii^i bucl out. So 'lial, upon the lace of the piu- 



276 Doii (1. BuuNK V. Mautyn. T. T. 1828. 

cess itself, the bill of Middlesex would rather appear to have Ijccn issued 
in the same suit. But the |)laiiitiir then avers, that the said several writs, 
and the said last-mentioned precept respectively, were so sued out hy 
the plaintiir against the defenchint with intent to implead the defendant 
upon the several causes of action in the declaration mentioned. It must 
be taken, that the hill of Middlesex and the latitat were issued with the 
intent to prosecute the same causes of action. The defendant hy the 
rejoinder, alleges, that no bill of Middlesex was sued out by the plaintifl' 
beiore 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 INliddlesex, 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 hill 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 plaintifT, 



HUBBARD V. WILKINSON.— p. 496. 

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 application of tlie defendant, allowed the plaintiff 
. to take out of court a given jjortion of the sum paid into court, and unless he 
consented 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. 



1)0E on the several demises of CHARLES PRIDEAUX BRUNE 
and EDWARD COODE, v. WILLIAM MARTYN the younger, 
p. 497. 

By marriage settlements between W. M. and T. M., son and heir apparent of 
W. 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 Niimisses and Sandry'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. 
upon 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 life of T, M. upon trust to preserve contingent remainders, with lemaindcr 
to tin: first and othf-r suns of 1". M. by M. H. successively in tail male, with 
itmaind'.r t'.the use of the right heirs male of '1". M. 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 andCrugmere 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. Avho 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 April 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 tlieir 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. 

Ejectme.vt for the recovery of certain lands in the pari.sh of Pad- 
stow, in the county of Cornwall. At the trial before Burrovgh J., 
at the Lent assizes for that county in 1S25, a verdict was found for 
the plaintiffs, subject to the opinion of this Court on the following 
case: — 

By indentures of lease and release, dated the 5th and nth of Novcm- 
Ijer 1722, the release hein^ tripartite;, and made between William IMar- 
tyn, Gent, and Thomas JNIarlyn, (lent, sun and ln.ir apparent of the 
.said \V. iMartyn, of the first part, Jenefer Hooper, widow, and Martha 
Hooper, her (laiijj;liter, of the second part, and Lawrence Grovvden, 
Gent, and John Hooper, Gent, of the third part, in consideration of a 
marriage then intended between said Thomas Martyn, and said Martha 
Hooper, and of the marriage portion of Martha Hooper, and for se- 
curing to her a comj)etcnt jointure, and for limiting the said heredita- 
ments, thereinafter mentioned; and in consideration of lO.y., W. Mar- 
tyn and T. Martyn did grant, bargain, sell, alien and enfeoff, re- 
mise, release, ronvey, senire and roidirni unlo the said L. Growdeu 
and John Hooper one field failed Niinii.'-se-, in the village of Trclof; 



278 Doe d. Buune v. Martyn. T. T. 1828. 

in Pailstow, two fields called Sandry's Fields, lying in the village and 
fields of Crugmcre, in Pndstow, and divers other fields, amongst which 
were some called the Varwell Closes in Crugmere, in Padstow, all 
>vhich said premises were then in the possession of the said W. Martyn 
and T. Martyn, 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. 
(irowden and John Hooper, and their heirs during the life of said W. 
INIartyn, 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 
lime 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 advance<l 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 payment 
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 tlie sum and sums of money as aforesaid to and for the main- 
tenance and education and portion to, lor, and with such daughter and 



8 Barnewall & CiiESSWELL, 497. 279 

Jaughters as aforesaid, or for default of issue female, to the use and 
behoof of the right heirs male of the said Thomas Martyn for ever, 
and so that all and singular the thereby granted and conveyed premises, 
with the appurtenances, should go, descend, and be in the blood, 
name, and family of Thomas Martyn and his heirs and assigns for 
ever. 

William Martyn, one of the settlors, died in the year 1722, and Tho- 
mas Martyn, the other settlor, died in 1740, leaving issue two sons, 
William, his eldest son and heir, and Hooper. William, the eldest son, 
entered into the estates in question, and died without issue, in 1779, 
leaving Hooper, his brother and heir, and he, after the death of his bro- 
ther William, entered into the premises and continued in possession of 
them till 1795, when he died, leaving no issue. The only other issue of 
Thomas Martyn, the settlor, were Martha Martyn and Grace Martyn. 
Martha died in 1793, unmarried, and without issue. Grace married 
James Elliott, who died in 17G1, leaving the following issue: — 1st, Tho- 
mas Elliott ; 2d, Richard Elliott, who married Agnes Best ; 3d, Martha 
Elliott, who married Parnall. Richard Elliott had three children: 1st, 
W. M. Elliott ; 2d, Agnes Elliott, who married Joseph Martin ; 3d, 
Grace Elliott. Martha Parnall had several children: 1st, William Par- 
nall; 2d, Andrew Parnall; 3d, John Parnall; 4th, Grace Parnall, who 
married Samuel Thomas; 5th, Edward Parnall; 6th, Mary Parnall. On 
the 2 6th September 1795, Hooper Martyn made his will in writing, duly 
executed according to the statute of frauds, bearing date the day and year 
last aforesaid, by which he devised all the premises in question to his 
wife Peggy (afterwards, by her second marriage, called Peggy Hoblyn) 
for life, with remainder to all and every the son and sons, daughter and 
daughters, of his nephew Richard Elliott, and of his niece Martha Par- 
nall, who should be living at the time of the decease of his said wife, 
share and share alike, as tenants in common, and not as joint-tenants, 
and to their heirs and assigns for ever. Peggy Hoblyn died 12th March 
1S24, and at the time of her death the issue of Richard Ellliott and Mar- 
tha Parnall then alive and entitled (if by law they mij^ht be so entitled) 
to take under Hooper Marlyn's will, were the several persons above nam- 
ed. No evidence was given of the actual raising of tlie sums directed to 
be raised by the settlement of 1722 for tiie benefit of the female issue, 
and charged on part of the premises in question, but on the death 
of Hooper Martyn, his widow and devisee as aforesaid took possession of 
all the premises, and continued in the enjoyment of them from that time 
without interruption, except as hereinafter mentioned. For sometime 
previously to Michaelmas 1S22, one Hawken had been tenant, to Mr. 
and Mrs. Hoblyn, of the closes calhxl Ninnisses and Saiidry's I'^iclds, but 
his tenancy ended at that time; and shortly before- lie(|uittc(l possession 
he was served with (he following notice, signed by the (Iffendanl's father: 
— ** Whereas I claim to be owner and proprietor of all those fields called 
Sanders or Sandry's Fields, and Ninnisses Park, situate within the parish 
of Padstow, in the county of Cornwall, which you now occupy at an an- 
nual rent: now I do hercl)y give you notice, that I intend to institute le- 
gal proceedings for the recovery thereof; and further, that you arc not 
to pay any rent which now is, or hereafter may accrue, diir, forthcsan)e 
to any person or persons whomsoever, without my knowlrtlge and con- 
sent. Dated this 3d day of June 1822." Shortly after Hawken had quit- 
led these premises the defendant's fathrr went to all the closes, claiming 



280 DoD d. BuuNE v. Martyn. T. T. 1828. 

to enter as lawful heir, to take possession, and eut a turf, in the several 
closes, l)ii( he tlid not keep or continue in possession. Mr. Iloblyn rc- 
ccivcil the rent due at Michaelmas 1S22: he could not then get another 
tenant, biif he afterwards let the premi3cs to one lletallick. At Michael- 
mas 1823 tlie ilcfLMidant, with his father, went again to the several closes, 
and turned out the cattle then therein; and in April 1S24 they went again, 
and began to plough the fields, which was objected to on the part of Mr. 
I^rune, but the defendant persisted, and has kept possession since that 
time. After Michaelmas 1S24 the defendant paid the reeve of the manor 
of Trevose, one year's chief rent for Sandry's Fields and the VarvvelPs 
parcel of the premises in question due to the said manor. 

15y indentures of lease and release, bearing date the fJth and 7th of 
May 1S2-J, the children of Richard Elliott and Martha Parnall living at 
the lime of Peggy Iloblyn's death, (the husbands of the married female 
children being parties to the deeds,) conveyed their interest to the lessors 
of the plaintiir. These deeds recited several former conveyances, and, 
amongst others, deeds of lease and release, and a fine sur conusance de 
droit, &c. by Joseph Martyn and Agnes his wife, formerly Agnes Elli- 
ott, unto Edward Coodc and his heirs, of Michaelmas term, 48 G. 3., 
and lease and release and a fine sur conusance de droit comme ceo by 
Samuel Thomas and Grace his wife, formerly Grace Parnall, to the said 
Edward Coode, of Trinity term, 54 G. 3. 

In Trinity term 1S24 a fine was levied in pursuance of a warrant con- 
tained in the deed of May lS24;and the third proclamation was in Hila- 
ry term 1S25. 

The declaration contained two demises of the same date, viz. the 1st 
of September 1824, the first by C. P. Brune, and the second by Edward 
Coode, and the premises sought to be recovered were Ninnisses, Sandry's 
Fields, and the Wirwell Closes in Crugmere. This case was argued at 
the sittings in banc, after last Easter term, by 

Preslon for the lessors of the plaintiff, who cited the rule in Shelly's 
case, 1 Co. 93; Lord Osmlsfo7i's case, 3 Salk. 336. II Mod. ISO; Daives 
V. Ferrers, 2 P. Wms. 1 ; Helps v. Hereford, 2 R. & A. 242. 

Farrjuhnr Fraser, contra, cited Fearne's Contin. Rem. 148. 0th ed. 
JraAer v. Snoiue, Palmer, 359; Lisle v. Gray, 2 Lev. 223; Purefoy 
V. Rogers, 2 Saund. 381; Doe v. IVillnn, 2 B. & A. 84; /)oe v, Pas- 
siyisrhcnji, G B.&. C. 305; Lampet's case, 10 Co. 46. et ib. note (D); Doe 
V. Tomkhison, 2 M. & S. 165; Buckler's case, 2 Co. 56. 6th resolution; 
// cnle V. Lower, Pollexf. 51; Vick v. Edwards, 3 P. Wms. 372; Helps 
y. Hereford, 2 B. & A. 242; Davies v. Bush, M'Cleland & Younge, 58; 
Tyrrel v. Marsh, 3 Bingh. 31; Goodright v. Forrester, 8 East, 552; 
Co. Lit. 49 a. ; Butcher v. Butcher, 7 B. & C. 399. 

Preston in reply, referred to Connden v. Gierke, Hob. 29; Jemmott 
V. Conley, 1 Lev. 170; Leake v. Robinson, 2 Mer. 363; Jee v. AudleVn 
1 Cox, 324; March, 66. ^ ^ 

Cur. adv. vult. 

Baylky J. now delivered the judgment of the Court; and after stat- 
mg the facts of the case, proceeded as follows: The first question in this 
case IS, What is the effect of the limitation to the use of the right heirs 
male of Thomas Martin.? whether those words are words of limitation 
or words of purchase? It was conceded, and rightly, by Mr. Fraser, that 
they were to be taken as words of limitation, unless a contrary intention 
^vas manifc.<'t. But he contended that a contrarv intention was manifest. 



S Barnewall & Chesswell, 497. 281 

snd th::t the limitations looked to such person as should be heir male of 
Thomas JMartyn at the time the preceding estates should fail. I cannot 
see any such contrary intention. Were I at liberty to conjecture, the 
opinion I should form would be, not that the settlor was looking to any 
particular individual, or meant to make an object of his bounty any in- 
dividual who at a distant indefinite time might fill the character of heir 
male, but that he meant to create a general estate in tail male in himself, and 
that he unintentionally omitted the words to shew of whose body they 
were to be heirs male. The consequence of this would be, that the^e 
would be words of limitation, that the word "male" must be rejected, 
and that under these words Thomas took immediately the ultimate re- 
mainder in fee. 

But suppose these to be words of purchase, would it bar the lessors of 
the plaintiff? Upon the execution of the deed this would be a contingent 
remainder, because nemo est hasres viventis, and during the life of 
Thomas Martyn, no one could be his heir or heir male. But why should 
it not vest the instant Thomas Martyn died? The law leans to the 
vesting of estates; and as soon as a person comes in esse who fills the 
character to which a given remainder looks, that remainder vests, unless 
there is something to shew an intention that it should not then vest. Is 
there any thing to shew such an intention here? The limitation is not 
specially to the then, right heirs male of Thomas Martyn, or to such per- 
sons as shall then be such heirs male, but generally, to the right heirs 
male of Thomas Martyn. As soon, then, as any person filled that 
character, and answered that description, that remainder vested in inter- 
est. Upon the death of Thomas Martyn in 1740, the remainder vested 
in William, who was then his heir, and on William's death in 1779, the 
remainder descended in fee upon Hooper, and he had therefore power to 
make a will. 

The next question applies, not to the whole estate, but to that pro- 
perty only which is included in the second branch of the settlement, viz. 
the Varwell Closes and t!ie property in Crugmere. This question is, whe- 
ther the limitation to the trustees to the use of the issues female of Thomas 
Martyn vests the whole fee in the trustees so as to prevent the persons 
who claim under the ultimate remainder from having any claim at law. 
The limitation is, that for want of issue male of Thomas Martyn by 
Martha Hooj)cr, or if such issue should die without issue male, anti 
Thomas Martyn should have a daughter or daughters by Martha Hooper 
jiving at his death, then the truiitees, their heirs and assigns, should 
stand seised to the use and behoof of the issue female f)f Thomas Martyn 
by Martha Hooper, for raising out of the rents, issues, and profits 
of the estate, fJOO/. if there were only one daughter, and 800/. if thero 
were more, to be paid to them at twenty-one; and if such sum could not ' 
be raised out of the profits by the time of payment, then the premises 
should stand charged with those sums till they could be raised out of the 
rents, issues, and profits. 'I'ill twenty-one (i. c. until the daughters at- 
tained twenty-one), the trustees and their heirs were to raise such main- 
tenance for the daughters as they should think meet. The trustees, 
therefore, have no express power given thcui over the rents except 
<luring the infancy of the daughters. Upon the daughters attaining 
twenty-one, the use seems executed in the daughters, and it is to them, 
and to them only, the rontrol appears to be given over the rents, issues, 
and profits. Suppose, however, that the legal estate vested in the trus- 

VOL. XV. ?y>') 



282 Dob d. Buune v. Martvn. T. T. 1828. 

tcc8, niul that tlic CO(l. or 800/. in tlio events which happened were to 
have been raised, and that the trustees were tlic persons to have raised 
them, and that they took a fee, it is impossible to say they took more 
than a limited tec, a fee which must determine when the GOO/, or 800/. 
should have been raised, and the ulterior right expectant upon the deter- 
mination of that limited fee must at law have been in the heir of the 
settlor, not by way of limiting a fee upon a fee, but because it was part 
of the old right; and upon failure of the estates which were limited by 
the settlement it returned back to the settlor. The doctrine applicable 
to this part of the subject is to be found in Co. Litt. 191 a. n. 1. Con- 
sidering, then, that no claim appears to have been made by the trustees, 
that nearly twenty years of a possession adverse to their claim had oc- 
curred at the time this ejectment was brought, and that much more than 
the full term of twenty years' adverse possession is since completed, (for 
the defendant's possession not being shewn to be under them, or on their 
behalf, must be taken to be adverse to their claim,) and that up to the 
present time they appear to have made no claim, can the defendant avail 
himself of this supposed right in the trustees? The presumj)tion at this 
distance of time is, either that it was released or satisfied; and we think 
it too doubtful and too distant to be a defence in the mouth of a stranger. 
The next point I shall consider is, Whether the conveyance of the 
6th and 7th of May 1824, passed any interest to the lessors of the plain- 
tifl'; and upon that I cannot bring my mind to doubt. The objection is, 
that the remainder-men (the grantors) had not entered at the time the 
deeds were executed, and that the defendant had. First, was an entry 
by the remainder-men necessary ? It is conceded, that in ordinary 
cases it would not be. But it is said, that this is to be treated not as an or- 
dinary case, because the defendant had entered. There is no authority 
to shew such a conveyance to be inoperative. In Co. Litt. 49 a. it is 
said, ''If the feoffor be out of possession, a fine, recovery, indenture of 
bargain and sale enrolled, or other conveyance, does not avoid an estate 
by wrong." It does not say that the conveyance is void. But what 
estate had the defendant here ? The remainder-men were entitled to 
treat him as having an estate by intrusion, for the sake of the remedy; 
but it does not lie in his mouth, as against them, to say he had any 
estate. What are the facts ? On the 12th of March 1824 Peggy Marty n, 
the tenant for life, died. Was any one then in possession ? The case 
docs not state the fact. Did any of the remainder-men enter, or any 
person on their behalf? The case as to that is silent. Some time in 
April, non constat when, the defendant entered, and began to plough 
the fields. This was objected to on the part of Brune, but not by the 
persons in whom the legal estate was vested. But did Brune know it? 
Did Coodeor any one of the remainder-men know it? Non constat 
that they did; and on the 7lh of May the conveyance was made. Had 
the sale been of a pretended title only, the case would have been within 
the operation of the 32 H. 8. c. 9. But to bring a case within that statute, 
the seller must have a pretended right only, and the information must 
aver that it is a pretended right only, for that is the point of the action, 
Rex y . Barnes, Cro. Car. 233. 1 Hawk. c. 8G. s. 10. Dy. 74. This 
was a sale not of a pretended but of a valid title, where the possession 
had gone with that title till within two months of the sale, and there 
had been no act of dispossession (if there ever was one) till within a much 
shorter period. It has been argued, that the conduct of the defendant 
amounted to what the law considers an intrusion, and that at the time 



8 Barnewall & Cresswell, 497. 283 

of the conveyance of May 1S24, the defendant was in 'the land as an in- 
truder. But what does the law consider an intrusion ? Not a mere 
wronojful entry into possession (unless the rightful owner chooses so to 
consider it), but a wrongful possession of the freehold; and what Lord 
Ellenborough lays down in fFi/liam v. Thomas, 12 East, 155, as to 
disseisin, applies also to the case of intrusion, both equally ousting the 
right owner, not from the possession merely, but from the possession of 
the freehold. He there says, " Disseisin was formerly a notorious act, 
when the disseisor put himself in the place of the disseisee as tenant of 
the freehold, and performed the acts of the freeholder, and appeared in 
that character in the lords' court." But what act of notoriety is here 
stated to have been done by the defendant as claiming to put himself in 
the place of the rightful freeholder ? At most, he was only in posses- 
sion six weeks. It appears to me, that he had no such estate by wrong 
as to prevent the remainder-men from making a valid conveyance. • 

The last objection applies to two shares only, those of Agnes Martyn 
and Grace Thomas, and tiie foundation of the objection is this, — that 
before Peggy Martyn's death and whilst their estates were contingent, 
tliey levied fines sur conusance de droit come ceo, and that all right as to 
their shares was thereby elfectually extinguished and destroyed. These 
fines were not produced in evidence at the time of the trial, and do not 
constitute part of this special case; but as they are stated in the deeds of 
6lh and 7tli May 1824, we are bound to assume there were such fines; 
and if such fines had the effect supposed, those deeds are upon the face 
of them bad as to these two shares. The fines are described in the 
release, as stated in this case, not as fines sur concessit (which if for years 
only would have worked no destruction or extinguishment), but the one 
as a fine sur conusance de droit, &c. and the other as a fine sur conusance 
de droit come ceo. Upon the question as to the effect of such a fine 
upon a contingent remainder, the authorities and opinions of text wri- 
ters are contradictory. The effect of a fine in fee on a contingent re- 
mainder is considered by Mr. Preston in the first volume of his Treatise 
on Conveyancing, p. 209, and he seems to think that the fine will in all 
cases have the eUectof destroying the contingent remainder. Mr. Fcarne 
thinks otherwise. 

A contingent remainder cannot he passed or transferred by a con- 
veyance at law. ]iut in equity it may. In fVhilficld v. Fawcetl, 1 
Ves. 391, on a marriage settlement, a rent was created to the use and in- 
tent that the heirs of the body of the wife and their heirs should receive 
Hurli rent, and subject thereto the land was limited to the husband and 
his heirs. There were two sons of the marriage, and tliey, in the life 
of the father and mother, sold this rent to the plaintiff without fine. 
'I'he estate was the father's. Lord llardw'ickc held that the sons had 
not an actual possibility at the time tliL-y sold; the rent might never 
arise, or if it did, the sons migiitnot be lieirs of the mother's body at her 
death. Nothing, therefore, passed by that conveyance in |)oint of law, 
it being by deed, and not by fine, which, had it been levied of this rent, 
and they had survived their mother, would have opf rated as against them 
by estoj)pel, binding them and their heirs. In lVrrj;hl v. IVrighl, 1 
Ves. 411, testator devised in fee lo his two daughters, Init that if cither 
ilied unmarried, his son Robert slioidd take the estate in fee, paying the 
other daughter 500/. Testator dicil. Kol)etf, in eonsitleralion ot 
natural lov, coMvy'.-cl tht l.t:id and all his 'jlarm and right therein Iw hi;* 



284 DoL d. Brune v. Martyn. T. T. 1828. 

voiinpcr son {looi«;o in fee. Robert died. One daughter died unmar- 
ried. Hobcrt's elder sou fded a l)ill, olaimiiin; the estate on paying the 
other daughter 500/. Tlie question was, Whether the conveyance to 
Geor'^e was a bar to the claim of the elder son; and Lord Hardwicke 
held it was, for though the limitation to Robert was by way of excutory 
devise, and therefore a possibility only, which the law will not permit 
to be granted, yet it may be disposed of in equity to a stranger, and the 
bill \vas dismissed with costs. 

But, although a contingent remainder cannot be conveyed at law, it 
may be extinguished: and the question is. Whether a fine in fee of ne- 
cessity extinguishes it. It ma}' be conceded that a fine, if so intended, 
will have that eflect, and as far as this case is concerned, that such shall 
prima facie be taken to be the intention; but the question is. Whether it 
shall so enure where a contrary intention is apparent. Mr. Preston, in 
hfs Treatise on Conveyancing, seems to think it shall. I do not cite 
this book as an authority, though from the learning, research, experience, 
and discrimination of the author, it is extra-jiidicially entitled to great 
weight; but I refer to it because it states the doctrine concisely, and the 
reason of it, and gives a reference to all the authorities. The passage to 
Avhich I refer is to be found in p. 209; and is as follows: "A persoa 
who has merely a right of action or of entry, or a contingent remain- 
der, or other future or executory interest, which does not give a vest- 
ed estate, should cautiously avoid levying this species of fine, (i. e. a 
fine sur conusance de droit come ceo,) unless he means to extinguish, 
his interest; for as rights of action, &c. fof course xnoXndin^ contingent 
remainders) cannot be transferred, the conusee in the fine cannot derive 
any advantage from the fine. On the other hand, strangers to the finCy 
that is, persons not parties to it, may avail themselves of it, to preclude 
the title of the conusor, and a party will not be allowed, in opposition 
to his own fine, to assert a title to the land. The consequence is, the 
fine enures to the benefit of the persons to whom the right might have 
been released, exactly the same as if the fine had been a release." The 
opinion here expressed by Mr. Preston is at variance with that of Mr. 
Fearne. In the Essay on Contingent Remainders, p. 289, he says, 
<'That a contingent estate cannot be passed or transferred by a convey- 
ance at law, before the contingency happens, otherwise than by way of 
estoppel by fine (or recovery), appears by IVeale v. Lower, and Vick 
V. Edw'irds. In the seventh edition of that work by Mr. Butler, 360", 
this position is stated in a note. [A contingent remainder may before 
it vests, be passed by way of estoppel, so as to bind the interest which 
shall afterwards accrue by the contingenc}'^,] but upon this head see Mr. 
Preston's Treatise on Conveyancing. The part witiiin the brackets is 
in the text of Fearne, and it is introduced in the note as the legal posi- 
tion established by the section to which it applies. In the same edition, 
366, it is said, that a contingent remainder cannot bo passed or trans- 
ferred by a conveyance at law before the contingency happens, other- 
wise than by way of estoppel by fine or by recovery where the contin- 
gent remainder-man comes in by voucher, appears by Weale v. Lower 
and Vick v. Edwards; but contingent estates it seems are assignable in 
equity. In the edition of Gilbert on Uses, by Sugdfen, p. 124, there is 
the following note by the editor: It should seem that it may still be con- 
sidered clear that a fine in fee of a contingent estate will operate to pass 
il to the conusee by estoppel. '^ 



8 BAiiNEwALL & Cresswell, 497. 285 

The opinions of text writers being so much at variance, it becomes 
necessary to examine the authorities on which they severally rely in 
support of those opinions. JSIr. Preston relies on Weale v. //0«6'e;% and 
upon what he calls the sixth resolution in Buckler's case, 2 Co. 56 a. 
But this should rather be called an extra-judicial dictum; for it was not 
one of the points resolved, nor did the facts of the case raise it. It is as 
follows: "Sixthly, it was said if disseisee levy a tine to a stranger, that 
in this case the disseisors shall retain the land forever; for the disseisee 
against his own fine cannot claim the land, and the conusee cannot enter; 
for the right which the conusor had cannot be transferred to him; but 
by the fine the right is extinct, whereof the disseisor shall take advan- 
tage. In Weale v. Lower, Pollexf. 54, the same doctrine is held by 
Lord Hale; but the case there in judgment did not fall within it. There 
a contingent remainder-man in tail, who had also the remainder in fee, 
levied a fine to the use of J. S. for 500 years, and died before the con- 
tingency happened : upon his death the remainder in fee descended 
upon his heir, and whether J. S. had right for the 500 years against such 
heir was the question. Tliis depended upon the point whether the fine 
destroyed the contingent remainder; and it was held that it did not, be- 
cause the fine was for years only; but Hale C. J. said, had the fine been 
levied in fee, it would have destroyed the contins;ent nse, barred the 
heir, and enured and operated to the benefit of the possessor (Fearne, 
366), as the fine of the disseisee fo a stranger; but he had the case debated 
again. Those authorities are relied upon to shew that a fine in fee de- 
stroys a contingent remainder; but there are authorities the other way. 
March, 105, pi. 180, is at variance with the dictum in Buckler's case. 
(Tr. 17 Car. 1.) The case is as follows: " Disseisee levieth a fine; by 
Reeve and Crawley it shall not give right to the disseisor, because this 
fine shall enure merely by way of estoppel, and estoppels bind only 
privies to them, and not a stranger, and therefore the disseisor shall not 
take benefit of it, and therefore they did conceive 2 Co. 56 a. to bo no 
law." If a disseisin be unknown to disseisee, a fine by him shall not 
enure to the benefit of the disseisor. In Filzherbert v. Filzherbcrtj 
Cro. Car. 484, it was moved if disseisee, not knowing of the disseisin, 
had levied a fine to a stranger, whether that should have barred his 
right, and enured to the benefit of the disseisor, according to 2 Co. 56 a., 
Buckler''s case, which if ailmitted would be of very mischievous conse- 
quence? But herein the Court delivered no opinion; but Bra?}iston 
C. J. and myself (6'roAT) conceived it should not enure to (he benefit of 
the disseisor, but to the use of the conusor himself; for otherwise a dis- 
ficisin being secret may be the cause of disinherison of any one who in- 
tends to levy a fine for his own benefit, for assurance of his lands uj)on 
hi.s wife and children, or otherwise." The doctrine whether a fine by 
disseisee shall enure to the benefit of the disseisor is adverted lo and 
considered questionable in Co. Litt. 40a. n. 4; Goulds. 162; 1 Roll. 
Abr. Estoppel (E), pi. 3, and fVillifi77is v. Thomas, 12 East, 141. In 
note 320, to Co. Lilt. 49 a. n. 4, Jiackler'» case is refi'rred to, and it 
is said, "fine by disseisee exlingiiishes his right, ;uid shall enure to (ho 
disseisor. Hut see this denied, M. 13 Car. IJ. H. (^rook, n. 7; Fitzher- 
l)cri\'i case, Hal. MSS." In (iouldsborougb, 162, Coke, attorney-gene- 
ral, demanded this question of the Court, — if there be disseisor and dis- 
seisee, ant! during the disseisin the disseisee, when he has nothing but a 
right, levies a fine to a stranger, if by this fine the right of disseisee be 



28G Duii d. Drune v. Martyn. T. T. 1828. 

^onc, and if llic disseisor shall take advantage thereof? Pupluwi and 
(iaicdy. ^AS, truly." In Roll. Abr. Estoppel (E), pi. 3, this is laid 

down, "if disseisee suQcrs recovery to the use of D., this shall be a 

good recovery by tstoppel to bind disseisee and his heirs." If baron 
and feme be tenants in special tail, husband discontinues and dies, and 
the w lie levy a fine without entering, the fine fortifies the discontinuance, 
and the wife cannot enter to be remitted, for the statute 32 H. 8. only 
avoids the discontinuance by the wife's entry, Moore's case. Palmer, 
365; 2 Roll. 312. In Wright v. Wright, 1 Ves. 412, Lord Hardwicke 
lays it down that in law an heir may levy a fine in the life of his ances- 
tor, which will bind by estoppel after descent to him. In the same case 
Lord Hiirc/u'icke says, "The reasons of the law's not allowing such a 
disposition which this court (a court of equity) will, are mostly very 
refined," and Lord Cowper says in Thomas v. Freeman, 2 Vernon, 
5Cy'3, such notions would not have prevailed now. In Williams v. Tho- 
mas, whether a fine by disseisee should enure to the use of the disseisor 
was raised as a question in argument; but the question was not decided, 
because the court thought that there had been no disseisin; and Lord 
Ellenborovgh discusses the point what is a disseisin, and what he says 
as to disseisin is equally applicable to a case of intrusion or abatement. 
The true principle seems to be laid down in The Earl of Peterborough, 
v. Bludworth, 1 Lev. 128. There in ejectment before Bridgman C. 
J. it appeared that disseisee levied a fine, and declared the use by deed 
to conusee. Bridgman held this should not enure to the use of the dis- 
seisor; but had no use been declared, it should have enured to the use 
of the disseisor, and should have extinguished the right of the disseisee, 
and this was intended to have been found specially; but the jury gave 
their verdict at large against the direction of the court. Bridgman, 
therefore, was of opinion, that if no use had been declared, the fine would 
have enured to the use of the disseisor, and extinguish the right of the 
disseisee; but the use being declared, shewed the intent that it should 
not enure to the use of the disseisor. And this agrees with Vick v. Ed- 
wards and Davies v. Bush. In Vick v. Edivards, 3 P. Wms. 372, 
lands were devised to two trustees, and the survivor of them, and the 
heirs of such survivor, in trust to sell; and upon its being objected that 
the parties could not make a good title, because the fee-simple was not in 
the trustees, but was limited to the survivor, and it was uncertain who 
would be the survivor, Lord Talbot held that the trustees, joining in a 
fine, would pass a good title to purchaser by way of estoppel; that the 
fee was in abeyance, and it was certain that one of the two trustees must 
be the survivor, and entitled to this future interest, consequently his 
heirs would be estopped by reason of the fine levied by their ancestor, to 
sny, "partes finis nihil habuerunt," although he that levied the fine had 
no interest. Lord Talbot, therefore was of opinion that the trustees who 
had a contingent remainder might transfer that remainder, and make a 
good title by the operation of a fine. 

In Davies \. Bush, 1 M'Clelland & Younge, 5S, A. was tenant for 
life under a settlement, remainder to his wife for life, remainder to their 
children, with ultimate remainder to the survivor of them in fee : they 
mortgaged in fee to L. and R., and levied a fine to the use of the mortga- 
gee and his lieirs during the lives of A. and wife and the survivor, re- 
mainder to tiic uses mentioned in the settlement, remainder to the mort- 
c=«Koc in fee. It was decided, that the contingmt remainder in the sur- 



8 Barnewall & Cresswell, 497. 287 

rivor was not destroyed by tlie fine, because it was controlled and limit- 
ed by the deed which led the uses, which shewed unequivocally that the 
parties only meant to give the mortgagee a security, and had no inten- 
tion to affect any of the limitations in the original settlement; but that the 
fine uncontrolled by the deed, would have destroyed them. These au- 
thorities shew, that a fine in fee will not extinguish a contingent remain- 
der, when a contrary intention is apparent. 

The contrary opinion proceeds on the doctrine of estoppel. Co. Litt. 
352 a. shews, that every estoppel must be reciprocal that is to bind both 
parties, and that is the reason that, regularly, a stranger shall neither take 
advantage of, nor be bound by, the estoppel; but privies in blood, as the 
heir, and privies in estate, as the feoffee, lessee, &c. ; privies in law, as 
the lord by escheat, tenant by the curtesy, tenant in dower, the incum- 
bent of a benefice, and others that come in under by act in law, or in the 
post, shall be bound by and take advantage of estoppels: and Coke, in his 
twenty-first reading on fines, says, " Estoppel is reciprocal on both sides; 
for he that shall not be concluded by a record or other matter of estop- 
pel, shall not conclude another by it; and yet, in our books the king es- 
tops the successor from saying that M. had nothing in the land, by rea- 
son that M. held of the king, and levied a fine to his predecessor sur 
conusance de droit come ceo quil ad de son don, and though the king 
were a stranger to it, and had nothing but this seigniory out of the land, 
yet the king took advantage of this estoppel. The reason for this seems 
to be the prerogative of the king, whereof I shall not speak; but other- 
wise it is in the case of a common person, as 22 Ed. 3. 17. and 40 Ed. 
3. 30. are agreed. See 41 Ed. 3. by Finch, that a stranger shall be con- 
cluded by a fine levied sur conusance de droit come ceo quil ad de son 
don." But this seems a mistake in Co., for I find no case of the kind ; 
and in 40 Ed. 3. 30., where it was argued that a fine should not bar, be- 
cau.se the person against whom it was urged was a stranger to the person 
who levied the fine, Finchdeii says, <' Certainly he may well counter- 
plead against the fine, because he is not privy to the fine. At the end 
of the report is a note *a stranger to a fine, or other matter of record, 
shall not i)C estopped.'" Concordat An. 38 Ed. 3. fo. 28. 12 Ed. 4. 13. 
per Fairfax. 11 H. 4. 1. 82. 42Ed. 3. fo. 20. And in lirook. Abr. Es- 
toppel, 2 If), it is said, a stranger to a fine shall not plead it for estoppel. 

If the fines by Agnes and Oracc destroyed their remainders (it being 
uncertain, when their fines were levied, whether they would ever be en- 
titled to any thing in this estate), it must be upon technical reasoning and 
technical grounds only ; and let us see, then, whether technical reasoning 
and technical grounds, as well as .sound sense and correct legal j)riiici- 
ples, do not lead to a contrary conclusion. Upon the death of Peggy 
Hoblyn, the only possible claimants would be the luir-ut-lawof Hno[)er 
Martyn (Thomas Elliott) or Agnes and (Irace, or the persons claiminj^ 
under their fines. The heir-at-law would be met by Hooper Martyn's 
will, because that gives away the whole estate to the surviving cliiidren 
of Elliott and Parnall. lie must then rely upon the fines of Agnes and 
(Irace, and then he is met by this dilemma: those fines cither did operate, 
or they did not ; they either passed the rights of Agnes and (Irace, or 
they did not. If the fines operated and passed the rights, the rights are 
in the persons claiming under those fines; if they did not operate and pass 
thf^ rights, the rights still remained in Agnes antl flracc. To extricate 
himself from this dilemma, the heir must insi'»t that Agnes and Clrace 



288 I)i)K tl. liuuxE V. Maktyx. T. T. 1828. 

arc estopped from saying that tlicir fines did not opernte, and thatnotliing 
passed, l>iit unless he is estopped, he eannot say they are eslojiped, he- 
i-aiise rstoppels are reci|)rocal. And if he lie estopped from saying that 
the fines did not pass the right to llie connsees, the persons claiming nn- 
«!t'r the fines of Agnes and Grace are entitled against him. But is it true 
tliat Agnes and Grace are estopped as against him ? A fine bars by es- 
toppel parties and privies, and parties and privies may avail themselves 
of such estoppel: but can a stranger insist upon it ? and the heir-at-law is 
a stranger to this fine. As against the parties claiming under their fines, 
Agnes and (irace may be estopped; but it does not follow that they are 
estopped as to strangers; and Co. Litt. 352. is an authority that they are 
not. 

The heir-at-law, therefore, would, as it seems to me, be barred by the 
subsisting riglU of Agnes and Grace, and would be unable to resist a 
claim in their names. Suppose a claim to have been made upon Peggy's 
death in the names of Agnes and Grace, could that have been resisted by 
a stranger ? According to the true slate of the case, the Veritas facli, the 
right would have been in them: their fines had not passed it from them. 
Had their claim been resisted by the persons claiming under the fines, 
they miglit have been estopped as against them; but their claim would 
have been defeated, not because the right was not in them, but because 
they were estopped by their own fines, as against the parties and privies 
to those fines, from saying they had not passed away the right. Upon a 
resistance to their claim by a person not entitled to insist upon the estop- 
pel, it seems to me their claim must have prevailed. The true state of 
the law upon this point I take to be this, — that a fine by a contingent re- 
mainder-man passes nothing, but leaves the right as it found it; that it is, 
therefore, no bar when the contingency happens, in the mouth of a 
stranger to that fine, against a claim in the name of such remainder-man; 
that it operates by estoppel, and by estoppel only, and that parties or pri- 
vies may avail themselves of that estoppel, but parties or privies only. 
That being the case, the lessors of the plaintiffs are entitled to recover the 
two-ninths which belong to Agnes and Grace, as well as the remaining 
seven-ninths of the estate. 

Poslea to the plaintiff. 



GIBBS V. SAMUEL STEAD and W. REED— p. 528. 

The statute 38 G. 3. c. 5. s. 9. enacts, that the collectors of the land-tax shall 
levy and collect the rates assessed, according to the intent of that act; and they 
are requh-ed to demand all sums of money taxed and assessed of the parties 
themselves, as the same shall become due, if they can be found, or else at the 
place of their last abode, or upon the premises charged with the assessment. 
Sect. 17. enacts, that if any person shall refuse or neglect to pay any sum of 
money whereat he shall be assessed upon demand by the collector, it shall be 
lawful for the collector to distrain, Sec. A collector having made a demand of 
the land-tax upon the premises charged at a time when the party liable to pay 
was absent from home, and not u])on the party himself, and distrained imme- 
diately after making such demand, the distress was held to be unlawful; for 
that before he distrained he was bound to allow a reasonable time to elapse 
after the demand made, in order that the party liable to pay the tax might have 
an opportunity of complying with the demand. 

By sect. 2., the sum therein mentioned is to be levied within the year; and by 
»^ct 12 it is enacted, that the fourth part of that sum, for the first quarterly 



8 Barnewall & Cress WELL, 537. 289 

payment, shall be levied on or before the 24th day of June 1798; that the same 
sum, for the second quarterly payment, shall be levied before the 29th of 
September 1798; the like sum, for the third quarterly payment, on or before 
the 25th day of December 1798; and tlie like sum, for the last of the quar- 
terly payments, on or before the 2oth day of March 1799. Semble, That the 
sums due for the last quarterly payment may be levied by the collector at any 
time during the current quarter. 



CHARLES BROOKE v. THOMAS NOAKES— p. 537. 

In an action founded on the statute 11 G. 2. c 19. s. 3. against a party for aid- 
ing and assisting the tenant in the fraudulent removal of his goods, with in- 
tent to prevent the landlord from distraining them, it is incumbent on the land- 
lord not only to prove that the defendant assisted the tenant in such fraudu- 
lent removal, but also that he was privy to the fraudulent intent of the tenant. 

Semble, That the statute is so far penal, tliat it is incumbent, in an action by the 
landlord against a third party, for assisting the tenant in such fraudulent re- 
moval, to bring the case by strict proof within the words of the first section. 

Declaration in debt on the statute 11 G. 2. c. 19. stated, that on 
the 29th September 1S22, the plaintiff demised to one G. Meers a 
messuage or tenement, with the appurtenances, and also certain closes 
of land in the county of Kent, habendum from year to year at a yearly 
rent; that 735/. 2s. 9d. of the rent was in arrear; that certain cattle, 
goods, and chattels of Meers being upon the premises, and liable to be 
distrained for the said arrears of rent, Meers fraudulently removed and 
carried away the cattle, &c. from off the demised premises, with intent 
to prevent the plaintiff from distraining the same for the rent aforesaid; 
and that the defendant unlawfully and knowingly aided and assisted 
Meers in the said fraudulent carrying away and removing of the said 
cattle, &c., and in keeping and continuing the said cattle, &c. so con- 
veyed away and removed away as aforesaid, with intent to prevent the 
same from being distrained for the said rent so being due, payable, and 
in arrear, contrary to the statute. Averment, that the cattle were of 
the value of 1000/., whercl)y and by force of the statute an action had 
accrued to the plaintiff to demand, from the defendant 2000/., being 
double the value of the said cattle, &c. Plea, nil debet. At the trial 
before linrrom^h J., at the spring assizes for the county of Kent 1S28, 
it was proved that Meers was tenant to the plaintiff of the premises 
mentioned in the declaration, and that the rent was in arrear; that in 
August lS2n, the rent charged in tiic declaration was due to the plaintiff 
from Meers, that he then had upon the farm five cows (which were 
usually milked by his wife), and u[)war;Is of 200 sheep. On Saturday, 
the 2d of Septemijcr, the plaintiff called on Meors, and pressed him 
for payment f»f the rent. Meers on that occasion said thai the defend- 
ant would take his slock at a fair valualioii. The defendant's farm was 
at a distance of two miles from that of iM(;ers. On Siinilay, the 3d of 
September, the cows, sheep, and goods of Meers were removed from 
his farm. The cows were driven by one Rickwood, who married the 
defendant's sister, and lived upon his farm with him. The marks on 
Meers's sheep were O. M. ; but after they were removed to the defend- 
ant's premises, they were marktMl T. N. On the 8th of Sfptcmbcr the 
wife of Meers was seen milking his cows upon the defendant's pre- 
mises. The learned .Fudgf told the jury, that ihero was decisive cvi- 

voL. XV. 37 



ocK> (iiM rii.Li) i\ Vaukeu. T. T. 1828. 

denoc to hl.cw that Mecrs li;ul Iravululcntly removed liis stock and gootls 
with intent to prevent the laiuUord iVom distraining the same; but that 
it was incunihcnt on the plaintilV to prove that the defendant aided and 
assisted ISIccrs with that intent. There was no evidence of any act 
done by the defendant with that intent. It was not even proved that 
he had ever seen Mcers's cattle upon his premises; nor was there any 
evidence that he knew that the cattle had been removed to his premises 
for the purpose of preventing the landlord from distraining them. The 
jury having found a verdict for the defendant, a rule nisi was obtained 
for a new trial, upon the ground that the verdict was against evidence. 
Lister y. Brown, 3 D. & R. 501, and Stanlei/ v. Wharton, 9 Price, 
301, were cited. 

Thesiger now shewed cause, and referred to Bach v. Meats, 5 M. 
& S. 200; Lister v. Brown, 3 D. & R. 501. Carr. & Payne, N. P. C. 
121; Stanley \. Wharton, 9 Price, 301. 10 Price, 138. 

Bolland and C. Law contra, cited Woodgate v. Knatchbull, 2 T. 
R. 148. 

Bayley J. I think that the verdict in this case was right. The 
statute 11 G. 2. c. 9. s. 3. is remedial as well as penal. It is remedial 
so far as it enlarges the remedy which the landlord had against his te- 
nant; but it is so far penal that the landlord who seeks to visit a third 
party with the penal consequences of the act, must bring the case, by 
strict proof, within the words of the enacting clause. It ought to have 
been proved, therefore, not only that the defendant assisted in the re- 
moval or concealment of the goods, but that he gave assistance with the 
intent to prevent the landlord from distraining. Now here there was 
no evidence which ought to have satisfied the jury that the defendant 
assisted in the removal of the cattle. If the fact were so, it might 
have been proved by Rickwood; but the plaintiff did not call him. But, 
independently of that, I think that the defendant ought not to be visited 
with the penal consequences of tliis act of parliament, unless it be dis- 
tinctly shewn that he was privy to the fraudulent intent with which the 
tenant's cattle were removed. Assuming, therefore, that the defendant 
assisted in the removal or concealment of the property, there was no 
evidence that he did it with the fraudulent intent to prevent the land- 
lord from distraining. Upon this evidence the verdict was properly 
found for the defendant. The rule for a new trial must, therefore, be 
discharged. 

HoLROYD and riiTTLEDAi.E Js. concurpcd. 

Rub' discharged. 



rilATFlELI) V. PARKER and COTTERELL.— p. 543. 

Trespass for mesne profits. Plea, a judgment recovered by defendant in 1822 
against A.; an eleu;it sued out thereon; an inquisition lield, whereby it was 
found that A., at the time when the judgment was recovered, was seised for 
life of (inter alia) the premises mentioned in the declaration, and that the she- 
riff 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 the plaintiff: tliat he entered and continued in possession until 
the committing of the trespasses. The defendant craved oyer of the inden- 
ture; and it thereby appeared, that for the purpose of securing an annuity to 
B., A. in 1«19 had conveyed the premises in the declaration mentioned to B. 



8 Barnewall & Cresswell, 543. 291 

for 100 years, and that subject thereto he conveyed them to the plaintiff for 
better securing a second annuity granted by the deed. Upon demurrer, the 
replication 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 the 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. 

Trespass for breaking and entering the manors of Budbrooke and 
Keckthorne, and ten messuages, &.c. in the county of Warwick, and 
ejecting and expelling the plaintiff from his possession and occupa- 
tion thereof, and keeping possession and taking the issues and profits. 
Plea, as to entering the tenements in the declaration mentioned, and eject- 
ing, expelling, and amoving the plaintiff from his possession of a moiety 
of the said tenements; that Parker, in Hilary term 1822, recovered a 
judgment in the King's Bench against the Right Honourable John Eve- 
lyn Pierrepoint Dormer, Lord Dormer, for 400/.; and that the defendant 
Parker, for obtaining execution of the said judgment, sued out of the 
King's Bench an elegit upon the judgment, directed to the sheriff of 
Warwickshire; that by an inquisition held on, &c. , at, &c., it was found 
that Lord Dormer was seised in his demesne for his life of (inter alia) the 
premises in the declaration mentioned, which, together with other land 
in the inquisition mentioned, were a moiety of the lands of the said 
John E. P. Lord Dormer, in the sheriff's bailiwick, which said 
moiety the sheriff caused to be delivered to the defendant Parker, to 
holtl as his free tenements. The plea then stated, that in due execu- 
tion of the writ sued out by Parker, the other defendant, Cottereli, in 
aid and assistance of the sheriff, and as his bailiff, and by his command, 
on tfie said 13th of June 1823, entered the tenements in the declara- 
tion mentioned, and ejected and expelled the phiintifl", and put Parker 
into, and Parker accordingly took possession of a moiety thereof, the 
same being part of the tenements in the inquisition mentioned, and kept 
and continued the ])laintiff .so expelled, &ic. as was lawful for the cause 
aforesaid. Replication, tliat the said Lord Dormer being ?cised in his 
(leniesne for his life of and in the tenements, with the appurtenances in 
the declaration mentioned, before the day of giving judgment in the 
plea mentioned, to wit, on the 14th of March 1820, by an indenture 
then made between the said Lord Dormer of the first part, ^V. S. and 
J. C. of the second pari, .ind the jjlaintilf of the thin! part, gianlcd, 
bargained, sold, and demised to the plaintiff, hi.s executors, &c. amongst 
other things the [iremi.scs mentioiKHJ in tin? declaration; habendum to 
the plaintiff, his executors. &.c. fur the term of J 00 years from the day 
next before the date of the indenture; that the plaintiff entered and be- 
«:amc possessed for the said term, and continued so possessed thereof 
until the defendants entered under colour of the elegit. 

The defendants first craved oyer of the indenture (which was set 
out), and by that indenture it af)poareil that it w;is made between 
the Higlit Honourable Kvelvn Pierrrpoint, Lord Dormer, Baion 
Dormer, of Wenze, in the county of iiucl<int!,li.iin, of the fir-^t part, 
VV. S. of St. Andrew's Hill, I^ondon, and J. ("uoijc, of Osbornc- 
^tr^et, in the county of Middlesex, two of the directors of a society 
called the Pelican [.ile Iiisui.iixt ("oiiipanv, and acting on the part 
of the same society, oi ibe sncnnd p.tii, ;iiiil Charles (-'hatfield (the 
plaintiff), of Angelmurt, of the lliii(i jmiI. It llieii recited, that by 
an indenture of the l>^th June I'-l'', iiiad<- brfwcr-n the .said Evelyn 



292 CiiATHLLij I'. I'arklk. T. T. 1828. 

Pierrepoinf, Lord Dormer, of the fust part; W. S. and J. C. of Ihe 
second pari; and T. Dawes of the third part, in consideration of 
14,!)PS/. paid to the said E. P. Lord Dormer out of the funds, and on 
belialf of the society or j)artnersliip in manner therein mentioned, he the 
said K. P. Jjord Dormer did grant, &c. unto the said VV. S. and J. C, 
tlicir executors, &.c. an annuity of 1725/. to be paid and payable fornine- 
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 chargeable 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 tlie 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 
tlie 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 SOO/., 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 ileciaration. "^I'he 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 tlie 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 tlien 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 Chatfield the premises mentioned in the declaration, 
which were 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 date 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 shorkl so long live. 

The defendant then demurred specially to the replication. 

Serjt. JE. Lawcs in support of the demurrer, cited Co. Litt. 303 b. 
Field V. fVinlow, Cro. Ehz. S97; Cole v. Himlson, 6 T. R. 234; Shad- 
gett V. Clipson, S East, 32S; and Evans v. King, 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 plea? 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. The 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 1S23. 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, does 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 
the suit in which judgnuMit was oijtaincd 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 shews that the 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 declara- 
tion, and he granted, bargained, anil demised those premises unto H. 
Dawes, habendum for 100 years. It then recites, that he had agreed to 
sell another annuity of 800/. for ninety-nine years, and he confirms the 
annuity of 1723/., ami subject thereto rhargos ihf* premises in the decla- 
ration with thf annuitv <»f 800/. ; and for better securing the regular pay- 
ujont of that, annuity, liarg^in^, sells, and demises unto the plainlifl 



294 CilATFiELU V. Paukeu. T. T. 1828. 

(amonc, others) tlic premises mentioned in the declaration, for 200 years. 
It appears, tlierefbre, 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 
plaintitr was subject to the right of Dawes. But Dawes was not bound to 
enter; and if hedid not enter, the plaintiO' had the riglit. 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 claimsundera judgment obtain- 
ed against Lord Dormer in 1823, 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, &c. ; and they intimated that the plaintiff had better amend, 
by making Chatfield the plaintiff on the record instead of John Doc, and the 
amendment was made accordingly. 



KND OF I KINI lY 1 F.UM. 



CASES 

ARGUED AND DETERMINED 

IN THE 

COURT OF KING'S BENCH, 

IN 

]\nCHAELMAS 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. 

Ihc statute 58 C;. 3. c. 75. prohibits the buying of {jhcasants in all cases, and 
therefore by a contract for the sale of live pheasants, no property passes to the 
purchaser. 



WHITNASH and Another v. II. (JEORGE and H. GIFFORI).— 

p. 55G. 

In an action upon a bond j^ivcn to bankers, conditioned for the fidelity c)f a clerk, 
entries of the receipt of sums of money made by tlie clerk in Ijooks kept by him 
in the discharge of his duty as clerk, are. after his death, evidence aj^ainst his 
sureties of the fact of the receipt of the money. 

Debt on bond, dated the Glh of October 182 1. Thn defendant 
George suffered judgment by default. Tiic defendant Gifford craved 
oyer of the bond and condition. The condition, after reciting that the 
plaintifls had talu-n oiu- S;imuel Pitman into their service a.-i a clerk, and 
that II. (icorge and H. (lifTord bad ngrced to onlcr into tlio bond for his 
fidelity iti the .said rinplny, wa.s that Pitman should from time to time. 



296 Whitnash v. Geouge. M. T. 1828. 

anil at all times, so long as he should l)e in the service of tlic plainlills, 
well anil truly and faithl'ully account for, pay over, and deliver unto the 
plaintilVs, 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 ^Qr]\.. now moved accordingly, citing Cutler v. Newlin, 
Mann. Dig. 137; Goss v. Watliugton, 3 Brod. & Bingli. 132. 

Lord Tenterden C. J. It appears by the recital in the condition of 
the bond, that the plamtiffs 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 defendants plead general performance. 
The plaintiffs reply, that Pitman, as such clerk, had received, for and on 
account of 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 tiie 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 ia 
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. IVatlingtoriy 
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 an.l Another, Assignees of SCOTT, a Bankrujit, v. SU- 

GRUE.— p. 501. 

Where a vessel insured in a valued policy at 2000/. received damaj^e l)y perils 
of the sea wliich could have been re])a'ired for 1450/, but the jury found that 
the vessel was not worth repairing : 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. 

Assumpsit against the secretary of the St. Patrick's Assurance Compa- 
ny on a policy effected by the bankrupt on the ship Benson, valued at 
2000/., for twelve months from the Jd of December 1825, averring a 

VOL. XV, 3^ 



298 Allen v. MonnisoN. M. T. 1828. 

total loss by prrils of the sea. The dcfciulants paid money into coirrt 
to cover an average loss, and pleaded the general issue. At the trial 
before liaj/leij J. at the last Summer assizes for Newcastle-upon-Tyne^ 
it was proved that the policy was duly executed, and that the Benson 
was afterwards stranded at the entrance of the Hull dock. That it 
would have cost about 1450/. to repair her, and that when repaired she 
would not have been worth that sum. For the defendant it was con- 
tended, that the plaintiffs could not recover for a total loss; as in that 
case they would receive 2000/., whereas the cost of repairing the da- 
mage done to tlie ship would not be more than 1450/., and that, as suf- 
ficient was paid into court to recover a loss of 1450/., the plaintiffs must 
be nonsuited. The learned Judge reserved the point, and left it to the 
jury to say whether the ship was worth repairing, and they found that 
she was not, and a verdict was entered for the plaintiffs for a total loss. 
In jNIichaelmas term, 

F. Pollock moved for a rule nisi to enter a nonsuit. 

Lord Tenterden C. J. I am of opinion that the question, whether 
the loss sustained is a partial or total loss, is precisely the same where 
the value of the ship has been mentioned in the policy, and where that 
has been left open. If the value has not been mentioned, it must be 
ascertained by evidence; if it has been mentioned, then all further in- 
quiry is unnecesary, as the parties have agreed as to what shall in the 
event of loss be considered the value. If underwriters find by experi- 
ence that the practice of entering into valued policies is injurious to them, 
they may very easily avoid it for the future. Then, was this a total 
loss ? The jury have found that the ship was so much damaged as not 
to be worth repairing, or, in other words, that although the materials 
of the ship remained, the ship itself did not. That in my mind con- 
stitutes a total loss; and it would be strange if this were otherwise, for 
the ship ceased to exist for any useful purposes as a ship. A total loss 
of the ship ought, therefore, to be paid for, and that is the sum agreed 
upon as the estimated value of the ship, minus the value of the mate- 
rials saved. 

Bayley J. I think that the question whether a loss is total or not 
depends upon the facts of the case, and the nature and extent of the da- 
mage done to the ship; and not upon the nature of the policy effected 
upon her. Whether that is valued or open cannot alter the nature of 
the loss. The only difference between them is, that in one case the as- 
sured must prove the value of the thing insured ; in the other he need 
not. 

Rule refused. 



ALLEN and Another, Assignees of SCOTT, a Bankrupt, v. MORRI- 
SON.— p. 5Q5. 

Where the members of a mutual insurance club all executed the same power 
of attorney, severally authorizing the persons therein named to sign the club 
policies for them, held, that it required only one stamp. 



8 Barnewall & Cresswell, 568. 299 

H. B. COLES, Administrator of C. COLES, v. HULME.— p. 568. 

The condition of a bond recited that A. was indebted to B. in various sums of 
money, which were all stated in pounds sterling, and money of a smaller de- 
nomination, and that the bond was given to secure payment of those suras. lu 
the obligatory part of the bond the word /lounds was omitted; it merely stated 
that the obligor became bound in 7700, without stating what description of 
money: Held, that from the condition the intent manifestly was, that the obligor 
should become bound in 7700 ftounds, and that the word /loimds might there- 
fore be supplied. 

Declaration by the plaintiff, as administrator of Catherine Coles 
deceased, on a bond bearing date the 1st of June ISOS, for 7700/. Plea, 
after craving oyer of the bond and condition, non est factum. At the 
trial before Lord Tenterden C. J. at the London sittings after last term, 
it appeared upon the production of this bond, that the word ''pounds'* 
in the obligatory part of the bond had been omitted. The penalty was 
merely described as 7700, without any species of money being men- 
tioned. The condition of the bond recited an indenture of the 5th of 
January 1807, whereby P. Coles and J. C. Burckhardt agreed to become 
partners in trade for seven years, with a stipulation, that if either party 
should happen to die before the expiration of that time, the survivor 
should for two years afterwards carry on the trade for the benefit of the 
survivor and the executors of the deceased partner, on the same terms as 
if both were living, and at tlie end of the term of two years the survivor 
should take the whole stock, and should pay the value of a moiety of 
such stock to the executor of the deceased partner; and for better securing 
payment of the said sums, the surviving partner should, within three 
months after the end of the said term of two years after the decease of 
his co-partner, become bound to the executors of that partner in a 
bond conditioned for payment of the money, and for indemnifying the 
executors of the deceased partner from all debts; and upon executing 
such bond the executors of the deceased partner were to assign to the 
surviving partner all the joint property in the stock in trade. It then 
recited that P. Coles died on the l!Jlh of September ISOS, and appointed 
Catherine Coles his executrix; and that P. Coles had during his lifetime 
advanced to the joint trade 1500/., exclusive of 1000/. advanced to lUirck- 
hardt, and secured to P. Coles by the bond, and that those sums were 
still due; and that C. Coles and Burckhardt had, in lieu of carrying on 
the trade in partnership for two years, agreed to dissolve the same im- 
mediately; and that, in lieu of the profits of the moiety of the business 
for those two years, Piurckbardt should pay C. Coles 1000/. in the man- 
ner tliercinafter menlioiicd, ns a full compcnsalion to her for all the 
profits which she would have been entitled to if the trnde had been car- 
ried on for the spnce of two years. It thou recited, that the co-partner- 
ship properly had been valued at -1718/. 2s. l(f., and that C. Coles had 
assigned to Burckhardt her moiety in the stock in trade, and that the 
latter had indemnified C. Coles against all claims arising out of the co- 
partnership; and that it had Ix^en agreed that iiurckhardt and the defend- 
ant should enter into the bond for securing to C. Coles, her executors. 
&c. the payment of the several sums of 1000/. and 1500/. so advanced by 
P. Coles lo the joint trade, and of the sum t»f '33.5?^/. l.v. \i\<l., I)«'ing one; 
moiety of 1718/, 2v. Id., the value of the p.irlu(rrship eirerts. The con- 
dition of the bonil then vv.is, that if Muirldiardl sluudd ])ty to C. C-oIcs 
'ho full sum of lOOO/, will) Mitcr';kll)y inslalmcnls a> (hciciii mentioned; 



300 Coles v. Hulme. M. T. 1828. 

and also llic 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/. \0s. lid., being one moiety of 
the sum of 235D/. Is. 3^d., the moiety of the value of the partnership 
efl'ects; 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., 
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 in 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 Jafnes 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- 
tion (B), 3; Loggias v, Titherton, Yelv. 225; Com. Dig. Obligation, 
(B) 5; Partrose^s case, cited in Hills v. Cooper, Cro. Jac. 603; RolVs 
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, Whether from the other parts of the in- 
.*itrument 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 
•ivcre the intention, then the bond ought to be read as if the \\oxi}i pounds 
were inserted in it. 

Bayley 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 the learned judge was, probably, that of Lloyd v. 
Lord Say and Selr, 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 tluit Lord Say was the grantor; 
and the judgment of the Court of K. B. was afterwards affirmed in the House of 
Lords, 1 Brown's Parliamentary Cases, 379. In Lmigdon 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 alio Uvcdnlr \\ Halfjirnny, 2 P. Wms. 151 ; Ex parte Symonds, 1 Cox, 
200; Eif,hr,fi v. Church, 2 Vcs. Sen. 100. 3/1; Targns v. Puger,'2 Vcs. 194, and 
Cholmondehj v. Clinton, 2 Jac. & 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 to be made by two appraisers, 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 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 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 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 Tenierden 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 uni[)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 jilaintiff agreed to accept the said house and pre- 
mises as tenant at will, and j)ay the sum of 2fi2/. good will, and to pur- 
chase the household furniture, goods, fixtures, slock, 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 25th of March 1828, and as earnest of the 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 CAurENTEU V. Blandfoud. M. T. 1828. 

naul as a deposit was to bcconie foiTcitcd; and it was further agreed, tliat 
cither of ihcni not performing all and every part of the agreement, the 
])arty ilofaulting shouUl pay to the other 100/. as liquidated damages; 
and further, that should Messrs. Calvert and Co. refuse to accept the 
plaintill'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 s& 
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 verdictfor 
the plaintiff. 

^\t 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. Yoinig, 2 Esp. G40; Lloyd v. 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 25 th 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 vahiation until the day following at three o'clock; to which