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1859.

[671]

[*672 ]

ARNOLD . WALKER.

(1 F. & F. 671-672.)

In an action for the balance due under a building contract, under seal, with a plea of set-off for penalties incurred by reason di delay, and a replication of hindrance and exoneration on the part the defendant, evidence of such hindrance and exoneration admitted but the certificate of defendant's architect that the balance was due held conclusive, and a verdict for the plaintiff directed. ACTION for work and labour.

Plea: Set-off under an agreement to complete the building of a house by the 17th November, 1858, or pay a penalty of 51. a week. Averment of non-completion until fourteen weeks after that date, whereby 701. became due to the defendant in respect of the penalties.

Replication. 1. That before the 17th of November, 1858. the plaintiff was exonerated from completing the contract.

2. That before the 17th of November, 1858, he was hindered by the defendant from completing the contract. Issue.

The contract was made (not under seal) in August, 1858, and was to erect and complete buildings as described in certain plans (numbered) to the satisfaction of C., the architect, for the sum of 4301., to be paid by instalments: the balance, one month after the completion, was certified *by the architect. There was then a stipulation for completion by the 17th November, under the penalty stated. The old materials were to be used so far as fit.

The work was not completed in November, 1858. The first certificate was in February, 1859, for work "executed as per agreement," showing a balance of 1351.

On the 25th March the defendant wrote to his architect, "Send your certificate, as Arnold is coming for the money."

On the 31st March, the architect gave a certificate of the completion of the works to his satisfaction, and that he was entitled to the balance, and soon after 641. was paid, leaving the remainder, which the defendant had more than once

to pay.

promised

Edwin James, for the plaintiff, tendered evidence of hindrance and exoneration by the defendant before the 17th November, 1858, which was admitted.

The evidence was, that the defendant took away old materials fit for use, and left some matters undecided which he was to settle, and it delayed the work.

CROWDER, J., was of opinion that the certificate concluded the question of penalties, and directed a verdict for the plaintiff.

REG. v. INHABITANTS OF HIGH HALDEN (1). (1 F. & F. 678-679.)

A parish bound to repair a road must make it reasonably passable at all times of the year.

THE defendants were indicted for the negligent repair of a high road. It appeared in evidence that the road was, particularly in wet weather, and in the winter months, in a very bad, soft and quite impassable state, that the ruts were in most places fourteen and sixteen inches deep, and formed in fact the water courses of the road. The road was an old soft road formed of Weald of Kent clay, and had never been repaired by them with hard substances. The defence set up was, that the parish was not bound to make the road a hard road, and that they had sufficiently repaired it by picking in the ruts as had been before the custom.

C. J. Addison and F. J. Smith, for the prosecution, referred to Reg. v. Claxby (2).

Hawkins, Q.C., and Barrow, for defendants.

BLACKBURN, J., told the jury, that the parish was not bound to make the road hard, or bring stone or other hard substances to repair the road; but they were bound in some way, by stone or other hard substances, if necessary, to put the road in such repair so as to be reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year.

Verdict of Guilty.

MINISTER v. PRICE.

(1 F. & F. 686-688.)

Want of registration of a bill of sale does not nullify it, if the goods were in the actual possession of the assignee at the time of the execution.

INTERPLEADER issue, whether certain goods seized in a house at Pope's Grove, Middlesex, under a fi. fa. on the 20th July last, at the suit of the now defendant, in an action against Thomas Litchfield, were the property of the now plaintiffs as against the now defendant.

On the 16th October, 1858, Thomas Litchfield, in consideration of 350l. assigned to the plaintiff the goods in *question, with a proviso for redemption on payment on the 16th October, 1860; and a provisc for sale on default of payment of principal or interest.

The plaintiff Minister, stated that he had employed one Gayler
(1) Att.-Gen. Scott [1905] 2 (2) 101 R. R. 900 (24 L. J. Q. B.
K. B. 160, 74 L. J. K. B. 803, 93 223).
L. T. 249.

V.

1859.

[678]

1859.

[ 686 ]

[ *687 ]

[merged small][ocr errors][merged small]

to take possession of the goods and convey them to a house! his at Pope's Grove.

The judgment was recovered on the 15th, and the goods were seized on the 20th of July last.

Petersdorff, Serjt., for the defendant, objected that the registration of the bill of sale ought to be proved as part of the case for the claimants.

WILLES, J.:

By the statute it is only void, in default of registration, so far as regards the property in any chattels comprised in the bill of sale which at the time of executing the process shall be in the possession, or apparent possession, of the person making the bill of sale. The goods here were in the plaintiff's house at Pope's Grove, and not at all in the possession of the assignor.

1859.

[ 693 ]

JOHNSON v. WESTON.

(1 F. & F. 693–694.)

In an action by a builder for extras, it appearing that the defendant had agreed to some supposed alterations, but not that she understood that they were so, or that they would involve extra expense, the contract providing that the works should be completed to the satisfaction of the defendant or her surveyor, and no expressed satisfaction with the completion of the contract being proved, the plaintiff was nonsuited.

ACTION for work and labour, &c.

Plea: except as to 351. Never indebted; as to 311. payment into Court. Issue on first plea; and as to the other, denying the sufficiency of the amount.

The particulars claimed 106l. balance of 2911. for the erection of a house. There had been a written contract between the parties (not under seal), dated 24th Nov., 1858, by which the plaintiff agreed to "do all the works necessary for the erection of the house, agreeable to the specification and designs, for 2201.; the whole to be finished on the 30th of May, 1859." Then the specification described the works in the usual way; and, it was added, "the whole of the work to be done to the satisfaction of the said R. Weston, or her surveyor; and the premises to be put in a finished state fit for occupation." (There was nothing in the contract as to extras.)

The particulars delivered under Judge's order were a detailed account of the work as actually done, made out by measure and value, bringing out a total of 2911., giving credit for 1851. paid, and showing the balance of 106l.

The claim was for extras: and it was shown that the plain

WESTON.

tiff had suggested, or mentioned, to the defendant (a lady) JOHNSON cortain alleged alterations, but the question was as to whether there was any agreement or liability to pay extra charges for such alterations; and it did not appear clearly in some instances (as, for example, the supposed substitution of better bricks, &c.), that they were, or were understood to be, any alterations at all.

The house was finished, and the defendant took possession on the 30th May, 1859. But there was no *evidence of express declaration of satisfaction on the part of the defendant or her surveyor. The surveyor, however, had seen the works going on, and had made no objection. The plaintiff admitted that the defendant had not at any time agreed to pay by measure and value; nor could he state distinctly that the defendant had agreed to pay extra for the alleged alterations, though some loose and slight evidence was offered on that head. And they had been partly suggested by himself, and were, for the most part, such as that unskilled persons would not know that they would necessarily cause an increase of expense, or were not included in the specification, the expressions being often quite technical, and, to unskilled persons, not intelligible. At the close of the plaintiff's case,

Henry James, for the defendant, submitted: 1. That she was not liable for extras: Lovelock v. King (1). 2. That the plaintiff was bound to prove the expressed satisfaction of defendant or her surveyor (2).

MARTIN, B., was of that opinion, and directed a nonsuit (3).

RAYNER v. GERMAN.

(1 F. & F. 700--702.)

It is doubtful whether in an action for false imprisonment, mere personal resemblance between the plaintiff and the person who had committed a felony can afford reasonable ground of suspicion, justifying an arrest on the part of a private person without warrant. But at all events the plea will fail unless either the defendant himself saw the felony committed, or unless the person who saw it, and on whose information he acted, spoke positively to the identity. TRESPASS for false imprisonment.

Pleas: 1. That the plaintiff had feloniously stolen the defendant's goods.

(1) 42 R. R. 674 (1 Moo. & Rob. 60). (2) Morgan v. Birnie, 35 R. R. 653 (9 Bing. 672).

(3) Digby Seymour moved, but without taking anything; and per CURIAM: The condition as to satisfaction clearly applies to the alleged extras, and it is plain that it is peculiarly important with respect to such addi

tions to the contract price, that the
employer should be satisfied that they
are in respect to matters not included
in the specification. For instance, with
respect to the bricks-how could it be
known that they were of better quality
than those originally stipulated for,
without knowing they had been in the
bargain to pay extra?

[ *694 ]

1859.

[700]

[ *702 ]

RAYNER
GERMAN.

[ *701 ]

2. That, shortly before the trespass, a pair of boots were feloniously stolen from the defendant, and because he who had seen the person by whom the felony was committed pursued, and the fact was and is, that the plaintiff at the time when, &c. exactly resembled the person by whom the felony was committed, in features, person and general appearance, and was of the same height, and was similarly dressed, and because a person whose experience the defendant had frequently proved and reasonably had *confidence therein, and who had been an eye-witness to the commission of the felony, and who had a full opportunity of seeing and had seen the person, features and clothes of the person committing the same, before and at the said time when, &c., solemnly affirmed that the plaintiff was the person who had committed the same, the defendant at the said time when, &c., suspected and verily believed that the defendant was the person who committed the felony.

Keane and F. Lawrence for the plaintiff.

Digby Seymour for the defendant.

The person mentioned in the second plea as having seen the robbery was the defendant's shop-boy, who saw a youth take the pair of boots from his master's shop about 9 in the morning. and told his master, who ran after him but lost him. Another person met the thief running away, and saw him throw the boots down. The plaintiff lived not far off and was passing the shop between 11 and 12 the same day, when the defendant saw him and gave him into custody as the thief. The firstmentioned witness, however, would not swear to him; and though the latter did, he also stated that he had seen him so suddenly that he did not observe what he had thrown away. The defendant did not see the robbery, and only saw the back of the thief with a momentary glimpse of him as he turned round to look at his pursuers. The magistrate finding that the plaintiff was of a respectable family residing in the neighbourhood, and not of bad character, dismissed the charge.

POLLOCK, C. B., doubted if the second plea was good, thinking that a mere resemblance was no reasonable ground for giving into custody a person not connected by other circumstances with the felony. Here from the interval of time which had elapsed, and the fact that the thief had thrown away the article, so that nothing was or *could be traced to the plaintiff, there were no circumstances to connect him with the scene or the act of stealing. So that there was only a mere bare idea of identity, an error as to which certainly did not excuse a in executing a ca. sa., and did not afford (as it appeared to

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