LAVERY

v.

TURLEY.

[240]

causes of action in the declaration mentioned. That the plaintiff in pursuance of the agreement paid the 100l., and the defendant then quitted the house and gave up possession of the stock.

Issue thereon.

At the trial before Wilde, B., at the last Summer Assizes at Liverpool, the facts stated in the plea were proved by the evidence of the witnesses for the defence; but the agreement did not appear to have been reduced to writing. The jury found a verdict for the defendant, leave being reserved to the plaintiff to move to enter a verdict for him if the agreement relied upon by the defendant ought to have been in writing.

S. Temple now moved to enter the verdict accordingly: The agreement was a contract for an interest in or concerning land, and therefore one which by the 29 Car. II. c. 3, s. 4, is required to be in writing: Smart v. Harding (1).

POLLOCK, C. B.:

We are all of opinion that there ought to be no rule. The objection is that the agreement is one which, by the Statute of Frauds, is required to be in writing; and that would be so if it were sought to enforce it as an agreement. But it is pleaded as a fact that the defendant performed the agreement, and the plaintiff accepted such performance in satisfaction. The objection that the agreement was not in writing is got rid of. The 4th section of the Statute of Frauds does not exclude unwritten proof in the case of executed contracts. A familiar instance is that of letting land for a period longer than three years, where, if the premises have been occupied, evidence may be given of the terms of the holding.

BRAMWELL, B.:

I am of the same opinion. I think the plea is a good plea at common law.

CHANNELL, B.:

I think there is an accord and satisfaction, and the defence might have been so pleaded. This case is distinguishable from Smart v. Harding (1), because in that case there was no right of action unless the contract was proved.

WILDE, B., concurred.

(1) 100 R. R. 530:(15 C. B. 652).

Rule refused.

BAYLEY v. THE WOLVERHAMPTON WATER

WORKS COMPANY.

(6 H. & N. 241-245; S. C. 30 L. J. Ex. 57.)

By the 8 & 9 Vict. c. cxxxv., s. 53, the Wolverhampton Waterworks Company, at the request of the Commissioners under an Act for improving the town, were required to fix proper fire plugs in the main and other pipes belonging to the Company. By the 54th section," the Company shall, at the cost and charges of the said Commissioners, from time to time, repair, renew and keep in proper order every such fire plug." By the 55th section, "the costs of such fire plugs and the expense of fixing, placing and maintaining the same in repair shall be defrayed by the Commissioners." The Company having put down plugs in the streets the Commissioners paid for them; and by the 54 Geo. III. c. cvi., and subsequent Acts the plugs became the property of the local board of health. A horse was injured by getting its foot into one of the plugs, the cap of which was broken: Held, that the Company and not the local board was liable to an action for the neglect to repair.

DECLARATION. That the defendants (were possessed of and) wrongfully, negligently and carelessly kept and maintained a water plug or fire plug in a certain highway unprotected, and without any cover or lid or stop thereto over the hollow thereof, and in an insufficient and insecure state, so as to be, and the same then was, dangerous and likely to cause injury to horses lawfully passing in and along and using the said highway, by reason whereof a horse of the plaintiff, which he was lawfully driving along the highway, put one of his feet therein, and the foot became fastened therein, and the horse in endeavouring to release itself was injured, &c.

Pleas. First: Not guilty. Secondly. That the defendants were not possessed of the plug as alleged. Whereupon issues were joined.

At the trial, before Byles, J., at the last Staffordshire Summer Assizes the plaintiff proved that in February, 1860, as he was driving a horse and cart through Bilston Street in the town of Wolverhampton, his horse got his foot in a plug hole, whereby the hoof was seriously injured and the horse was rendered useless. It was further proved that the cap of the plug had been broken for a considerable time. The plug was used for the purpose of watering the roads. The defendants were incorporated in 1855, and in *1856 had purchased the works and plant of a former Company, which had been incorporated in 1845. The plug in question had been put down by the old Company in 1846. At that time an Act (54 Geo. III. c. cvi.) "for improving the town of Wolverhampton, in the county of Stafford, and for removing and regulating the markets in the said town," was in force, by which certain Commissioners were appointed for the purpose of putting the Act into execution; and by the 14th section it was enacted, that "the property of and in the

1860.

Nor. 5.

[241]

[ *242 ]

BAYLEY

WOL

WORKS

COMPANY.

several streets, &c., within the said town of Wolverhampton, &c., and all materials, implements and other things thereto belongVERHAMPTON ing, or which shall be purchased or provided by virtue or for WATER- the purposes of this Act, shall belong to and be the property of and are hereby vested in the said Commissioners." By "The Wolverhampton Waterworks Act, 1845" (8 & 9 Vict. c. cxxxv.), the Wolverhampton Waterworks Company was incorporated, and by the 53rd section it was enacted, "That the Company, at the request of the Commissioners acting under the 54 Geo. III. c. cvi., shall and they are hereby required to fix proper fire plugs into the main and other pipes belonging to the Company, &c., at such places as may be considered most proper and necessary for the supply of water in extinguishing fire." By the 54th section, "the Company shall at the cost and charges of the said Commissioners, &c., from time to time repair, renew, and keep in proper order every such fire plug; and as soon as any such fire plug shall have been completed, the said Company shall deposit a key thereof at each place within the limits of this Act, where any public fire engine shall be kept," &c. By the 55th section, "the cost of such fire plugs and the expense of fixing, placing, and maintaining the same in repair, and of providing such keys as aforesaid, &c., shall be defrayed by the Commissioners."

[243]

The Commissioners paid to the Company 71. each for the pipes and plugs put down. In 1847, the town of Wolverhampton obtained a charter of incorporation, which was confirmed by the 11 & 12 Vict. c. 93, and the whole of the powers vested in the town Commissioners by their special Act were transferred to the corporation. By the 13 & 14 Vict. c. 90, a provisional order for the application of "The Public Health Act, 1848" (11 & 12 Vict. c. 63), was confirmed, and by the provisional order so confirmed the mayor, aldermen, and burgesses of the borough of Wolverhampton, by the council of the said borough, were constituted the local board of health for the borough (1). By the 68th section of "The Public Health Act, 1848," the streets" and the pavements, stones and other materials thereof, and all buildings, implements and other things provided for the purposes thereof by any surveyor of highways, or by any person serving the office of surveyor of highways, shall vest in and be under the management and control of the local board of health." By "The Wolverhampton Improvement Act, 1853" (16 Vict. c. xxviii.), the 54 Geo. III. c. cvi., was repealed; and by section 10 it was enacted, "that notwithstanding the repeal of that

(1) The copy of this order is given at length in Schedule (I.) of the 16 Vict. c. xxviii,

BAYLEY ተ.

WOL

WATERWORKS COMPANY.

Act, the corporation and local board respectively shall by virtue of this Act be and remain seised and possessed of and entitled to all the buildings, &c., property, effects, &c., to which the VERHAMPTON corporation or the local board are respectively by virtue of that Act, and for any of the purposes of that Act," entitled. By the '18 & 19 Vict. c. cli., which embodies in it the Waterworks Clauses Act, (10 & 11 Vict. c. 17), in 1855, the defendants were incorporated. In 1856, under the 19 & 20 Vict. c. lvii., they obtained a transfer of the old Wolverhampton Waterworks, and took possession thereof. The 16th section of the last-mentioned *Act enacts that "the new Company shall be subject to and perform all duties, obligations, and liabilities to which the old Company' were subject. It was proved that the Company was in the habit of keeping the plugs in repair, but that they did not repair until after notice by the local board.

Upon these facts, it was objected that the defendants were not possessed of the plug, and that the action should have been brought against the local board of health and not against the defendants. The learned Judge ordered the declaration to be amended by striking out the allegation that the defendants were possessed of the plug; and a verdict was found for the plaintiff, leave being reserved to the defendants to move to enter the verdict for them, if the Court should be of opinion that the action should have been brought against the local board.

Phipson now moved accordingly:

The property in the plug was vested in the Commissioners, who are now represented by the local board of health. By the 54th section of the 8 & 9 Vict. c. cxxxv., the Company are 'to repair at the cost and charge of the Commissioners, that is at their request. It was not shown that the local board had requested the Company to repair. The repairing is a duty as between the defendants and the local board, not as between the defendants and the public. It is merely to keep the plugs in repair as fire plugs capable of supplying water. The plugs were the property of the local board, in their possession, and used by them for their own purposes.

POLLOCK, C. B.:

The 54th section of "The Wolverhampton Waterworks Act, 1845," casts on the defendants the burden of repairing, renewing and keeping the fire plugs in proper order, though not at their own expense. Therefore I am of opinion that the defendants are responsible.

BRAMWELL, B.:

I understand that it is admitted that an action lies either

[ *244]

[245]

BAYLEY

WOL

WATER

WORKS COMPANY.

against the local board or the Company. But the local board would say, "We have no right to repair the plugs though we VERHAMPTON pay for the repairs." Mr. Phipson, for the defendants, would contend that the property in the plugs is in the local board, and that if the defendants made default in repairing, they might do the repairs themselves. The only doubt in my mind was, whether, as the property in the plugs is in the Commissioners, they are not responsible for their condition. But I think that the Act creates a duty as between the defendants and the public. CHANNELL, B.:

I am of the same opinion. It is conceded that the plaintiff has a right to maintain an action against somebody, either the local board or the Company. Now the duty of keeping the fire plugs in repair is cast by the Act upon the defendants. They have a right of direct and immediate interference with the plugs so far as regards repairing, renewing and keeping them in order. WILDE, B., concurred.

Rule refused.

1860. Nov. 5.

[245]

[ *246 ]

FANNY DAVIS v. BOMFORD.

(6 H. & N. 245—249; S. C. 30 L. J. Ex. 139; 3 L. T. N. S. 279.) In an action for breach of promise of marriage, it was proved that the defendant, having written a letter to the plaintiff desiring to terminate the engagement, called at her father's house, and a conversation took place respecting the return of letters. The defendant returned the plaintiff's letters; the plaintiff said "No, I can't give up your letters, it would be like giving you up altogether." The plaintiff left her home and went to reside with an aunt for a long period, and no correspondence took place between the parties for a period of two years Held, that this was evidence from which the jury might infer that the plaintiff had exonerated the defendant from his promise before any breach.

DECLARATION. That the plaintiff and the defendant agreed to marry one another, and a reasonable time for such marriage had elapsed; that the plaintiff had always been ready and willing to marry the defendant until the *defendant married another woman; yet the defendant made default, and married another

woman.

Plea. That, after the agreement and before breach, the defendant exonerated and discharged the defendant from the agree ment and the performance thereof.

At the trial, before Hill, J., at the last Worcester Assizes, it was proved that in 1857 the defendant was in the habit of visiting the house of the plaintiff's father at Worcester as an accepted suitor. In the month of September of that year the defendant wrote to the plaintiff stating his desire to put an end to the engagement. He called at the house of the plaintiff, and