EDWARDS- 2. MAJORI- [ *810] to a purchaser of land over which, after the purchase, it was discovered that some third person had a right of sporting. Mr. Bacon and Mr. Arthur Hobhouse, for the respondents, were not called on. THE LORD CHANCELLOR (LORD CAMPBELL): My Lords, this case has been very ably argued by both the learned counsel who have addressed us on behalf of the appellant, but they have not succeeded in showing that the judgment of the two Courts below is erroneous. The advowson here was first put up to public sale, but it was afterwards sold by private contract. It is not alleged that there was any misrepresentation or concealment on the part of the vendor. Silence alone is relied on. Now, I apprehend, that in this case the maxim, Caveat emptor, applies. This was the sale of an advowson. *An advowson may be had by a purchaser, but he must take it tale quale. There is no charge whatsoever upon this advowson, but a transaction took place here which has become very common of late years; a sum of money was borrowed for the rebuilding of the parsonage house, and that was charged upon the living. But that did not affect the advowson; in reality, it does not at all diminish the value of the advowson, because the living is more valuable when the house is put in repair, or when a new house is built, there being none before, than it was previously to that outlay. There is then a charge upon the living, but not upon the advowson. This is entirely different from the charge mentioned in Burnell v. Brown (1). The charge there, a right of sporting, was a charge upon that which was sold, viz., the land. Now, although it was not adjudged there that that would have been any ground for compensation to the party who had purchased the land, ignorant of the existence of that charge, it was admitted that it was so, and I think it would have been so adjudged if there had not been a waiver on his part. But a right of sporting is a profit à prendre. It is like a right of common of pasture, or a right of common of turbary or estovers. It is a charge upon that which is actually sold, and it diminishes the value of that which is sold; and that which was professed to be sold, namely, the land, is not ready to be transferred, but only the land minus a portion of the inheritance. But here the advowson was ready to be transferred to the purchaser; there was no charge whatever upon the advowson. I say that, under these circumstances, there (1) 21 R. R. 136 (1 J. & W. 168). having been no misrepresentation or concealment by the vendor, it was the duty of the purchaser to make himself acquainted *with every circumstance that might add to the value or detract from the value of the advowson, and it is not open to him afterwards to come and say that he has discovered something which makes the advowson of less value, and claim compensation on that account. It seems to me, that the reasons given by Lord Justice KNIGHT BRUCE, in which Lord Justice TURNER says he entirely concurs, are quite conclusive in this case. And I abstain, therefore, from saying anything more, than that I advise your Lordships that this appeal be dismissed with costs. LORD CRANWORTH: My Lords, I concur with my noble and learned friend in thinking that this is an appeal totally unwarranted. It is founded upon an agreement whereby the trustees, at his request, agreed to sell, and the appellant agreed to purchase, the advowson to the rectory and parish church of Haseley, for the sum of 2,800l. They can make a perfect title to that which they agreed to sell; and the ground of complaint on the part of the purchaser is, that the next presentation to the living is less valuable than the appellant had a right to suppose it would be, by reason of there having been a charge created under the statute for building or materially repairing parsonage houses. That is a matter upon which no representation one way or the other, is made by a vendor when he is selling an advowson. Before the law was altered as to tithes, if the vendor of an advowson knew that there was a modus affecting a particular farm, I very much question whether he was bound to say anything about it. Undoubtedly the purchaser of the advowson gets the right, be it more or less valuable, of presenting to the living in all time to come. If there was any mistake upon the subject of the purchase, *anybody in the position of Sir Edmund Antrobus would naturally do that which he did. He said, If there has been any mistake about it, do not consider yourself bound by what has passed, let the contract be cancelled. The purchaser, however, does not choose to do that. And it appears to me that the proposition for which he now contends is perfectly monstrous; because he says, not that the advowson is of less value, for he cannot pretend that that is the case, but he wants to parcel out the advowson into different portions, and to sell the next presentation, and that he says will be less valuable by reason of this charge to which the living will be subject; and therefore he ought to EDWARDS- ፖ. MAJORI BANKS. [ *811] [ *812 ] EDWARDS- ፖ. MAJORI- have compensation. But if he is right in saying that the next presentation will be less valuable, the whole advowson is not less valuable, and the subsequent presentations, therefore, will be more valuable. It appears to me that this complaint is utterly without foundation. The appeal must be dismissed with costs. Lord WENSLEYDALE and Lord KINGSDOWN concurred. Decretal order and order affirmed, and appeal dismissed with costs. IN THE COURT OF EXCHEQUER. FANSHAWE v. PEET, PUBLIC OFFICER, &c. (2 H. & N. 1—4; S. C. 26 L. J. Ex. 314; nom. Fanshaw v. Heath, 5 W. R. 489.) Upon a bill dated September 8, 1856, drawn on B. & Co., payable in London at four months after date, an acceptance was written as follows: Accepted. Payable at Messrs. Overend, Gurney & Co., London. No. 1756. Due 11 Decr. 1856. B. & Co." The words before the signature were written in red ink and in a hand different from the signature: Held, that if it was a question of law the bill must be taken to have been accepted according to its tenor; and that if it was a question of fact, there was evidence that the words "Due 11 Decr. 1856" were not intended to qualify the acceptance. ACTION against the defendant as the public officer of the Union Bank of Manchester for money lent and money had and received. Plea,-that the plaintiff before and at the commencement of the suit was and still is indebted to the Bank in an amount equal to the plaintiff's claim which the Bank offers to set off, on a bill of exchange for 391. 1s. 7d., drawn by the plaintiff, payable four months after date, on Begbie, Wiseman & Co., accepted by them, and indorsed by the plaintiff to the Bank: that Begbie, Wiseman & Co. did not pay the bill when due, though the same was duly presented to them for payment, of which the plaintiff had notice. Issue thereon. At the trial before Martin, B., at the last Liverpool Assizes, without a jury, it was admitted that the plaintiff had an account with the Union Bank of Manchester as his bankers, in respect of which the Bank owed him *391l. 1s. 7d., subject to any right of set-off on a bill of exchange which was as follows: at Mes & Co." MANCHESTER, 8th September, 1856. "Four months after date pay to the order of myself Three hundred ninety-one pounded value received. The signature of the acceptors was in a different hand from the words written above it, the whole of which were in red ink. The bill was indorsed by the plaintiff to the Union Bank several days before the 11th of December, 1856, but was not presented for payment till the 10th of January, 1857, the 11th being Sunday. It was admitted that on the 11th of December 1857. April 15, 17. [1] [2] FANSHAWE Overend, Gurney & Co. had in their hands funds of Begbie, Wiseman & Co. to an amount exceeding the sum mentioned in the bill. PEET. [3] Upon these facts the defendant contended that the Bank, not having presented the bill on the 11th of December, had made it their own by laches. The learned Judge directed a verdict for the defendant, giving leave to the plaintiff to move to enter a verdict for him. Hugh Hill now moved accordingly: This bill was accepted, payable on the 11th December. The drawee of a bill of exchange is at liberty to qualify his acceptance, as by annexing a condition, or by enlarging or diminishing the time of payment: per RICHARDSON, J., Rowe v. Young (1). That case shows that in ascertaining what the *contract of the acceptor really is, no words written above the signature of the acceptor can be rejected. (BRAMWELL, B.: If a four months bill is drawn it is clearly a dishonour of the bill to accept it as a three months bill.) POLLOCK, C. B.: The words "No. 1756. Due 11 Decr. 1856," appear to be the mere memorandum of the clerk, who prepared the bill for the acceptor's signature, as to the time at which it would become payable. The bill purports to be accepted according to its tenor; then there is something which is said to be inconsistent with that. The case was before my brother MARTIN, who had the powers of a jury, and I think that he was right in deciding that the bill was accepted according to its tenor. There will, therefore, be no rule. BRAMWELL, B.: I am of the same opinion. The question is, what is the meaning of the acceptance. After the words "accepted, payable at Messrs. Overend, Gurney & Co., bankers, London," the words "No. 1756. Due 11 Decr. 1856" occur. Does that mean accepted to be due on the 11th of December? I think that the number refers to the number of the bill in the book of the drawee, and if this is a matter of law I have no difficulty in deciding that the time of payment mentioned is not a qualification of the acceptance, but simply an untrue description of the bill. CHANNELL, B.: I also think that there should be no rule. The matter was (1) 21 R. R. 91 (2 Brod. & B. 165). |