1823.

EPISKARS against NEW

Penfold and Penfold; for although all the notes were received by the plaintiffs, after the dissolution of partnership between Messrs. Penfold and Springet, yet it is not found that they were re-issued by the Kentish bank after that period.

BAYLEY J. The question before the Court is not for what amount judgment is to be entered, but whether there ought to be a new trial. I think it quite clear, that the nonsuit must be set aside. At the time when the Kentish bank failed they had securities against the Maidstone bank, and vice versa. Upon the balance of all those accounts, considering the firm of the Kentish bank the same throughout, there was a balance of 221. in favour of the Maidstone bank. The defendant was provisional assignee of the Kentish bank, and in that capacity had their rights only. Now, under the 5 G. 2. c. 30., the balance of the accounts between these two banks constituted the real debt, and, therefore, if there had been only one account on each side, no debt

would have been due from the Maidstone to the Kentish bank, but from the latter to the former. That being so, the defendant obtained from the managing clerk of the Kentish bank the securities which they held against the Maidstone bank, and was at the same time informed, that the latter had a counter claim to nearly the same amount. Notwithstanding this communication, the defendant obtained payment of part of those securities from the Maidstone bank, and of part from Sir P, Pole and Co., their agents in London. In so doing, he certainly exceeded the rights vested in him as provisional assignee. It has been contended, that this should have been an action upon

the

the case, and not for money had and received, or that, at all events, the plaintiffs, before they commenced their action, should have returned to the defendant the securities which they hold against the Kentish bank. But the plaintiffs certainly were at liberty to waive the tort, and were not bound to return the securities; for the defendant was never entitled to receive the money in question, and therefore cannot, by obtaining it in the manner described in this case, be placed in a better situation than before. The balance of the accounts, and that only, was the real debt between the two banks. The defendant was bound to know that, and ought not to have obtained a larger sum by the manoeuvre to which he resorted. This nonsuit must, therefore, be set aside; and if there be different claims against the Kentish bank before and after Springet quitted the concern, different accounts may be stated.

HOLROYD and BEST JS. concurred.

A canal act di

rected that no boat navigating thereon of less burthen than twenty tons, or which should not have a loading of

Company of Proprietors of the LEEDS and
LIVERPOOL Canal against JOHn Hustler.

ASSUMPSIT for tolls. Plea, general issue. At the trial before Bayley J., at the Lancaster Spring assizes, 1820, a special verdict was found by the direction of the learned Judge. The facts stated in the special verdict raised the same question that was discussed in Hollinshead v. Liverpool and Leeds Canal Company. (a) The case was now argued by Tindal for the any of the locks plaintiffs, and Hollinshead for the defendants. In addition to the arguments urged for the plaintiffs on the former occasion, it was now observed for the defendants,

twenty tons on board, should be allowed to pass through

unless on pay

ment of tonnage equal to a boat of twenty tons: Held, that this clause did not impose a toll upon empty boats.

that if the 23 G. 3. c. 47. be so construed as to render

empty boats liable to the toll, it will have the effect of creating a new toll; but, if its operation be confined to such boats as have some cargo, but less than 20 tons, it will merely enlarge a toll before imposed.

BAYLEY J. The clause in the 10 G. 3. c. 114, enacting that no boat of less burthen than 20 tons should pass any of the locks without paying tonnage equal to a boat of 20 tons, did not impose any toll upon empty boats. It was merely intended to put smaller boats upon the same footing as those of 20 tons burthen, and before that time, the latter, if empty, were not liable to toll. It was afterwards found that boats of greater bur

then than 20 tons sometimes navigated with less than that

(a) 2 B. & 4. 65.

quantity

quantity of cargo, by which the company were deprived of part of that benefit which the legislature intended to confer by passing the former act; and, therefore, the 23 G. 3. c. 47. put boats of greater burthen than 20 tons, but carrying less than that quantity of cargo, upon the same footing as boats of 20 tons. Still, no toll was expressly imposed upon empty boats of the latter, or any other description, and we are called upon to say, that such a toll was imposed by inference. Those who seek to impose a burthen upon the public should take care that their claim rests upon plain and unambiguous language. Here, the claim of the plaintiffs is by no means clear; I am, therefore, inclined to think, that the judgment of this Court on the former occasion was incorrect, and that the defendant is entitled to have judg ment in his favour.

HOLROYD and BEST JS. concurred, and said that the defendant's counsel had satisfied them that the former decision was wrong.

Judgment for the defendant. (a)

(a) This case has been thus briefly noticed, as the question is no longer of public importance; the 59 G. 3. c. 105. having imposed a simple lockage duty of 5s. upon empty boats.

-1

1828.A

་

liament tenant

for life was empowered to

grant leases for

DOE on the demise of Sir R. SUTTON, Bart., against P. F. HARVEY, Esq., Executor of A. D. O'KELLY, Esq.

By act of par- EJECTMENT to recover possession of five houses situate in Half-Moon Street, Piccadilly, in the county of Middlesex. At the trial before Abbott C. J., at the Westminister sittings after Hilary term, 1822, a verdict was found for the lessor of the plaintiff, subject to the opinion of the Court on the following case:

any term not exceeding ninety-nine years, so as

every such lease or leases be made to take effect either in

possession, or immediately after the deter

mination of the

leases then sub-
sisting thereof
respectively,
and so as
in every such

By an act of parliament of the 23 G. 3., entitled "An act for enabling William Pulteney, Esquire, to grant leases of certain estates in the county of Middlesex and city of London:" the following leasing power was given, "That it should and might be lawful to and for the said William Pulteney, from time to time, by indenture duly executed, &c. to lease unto any person or persons able during the whatsoever all or any part of the said premises therein. mentioned; to hold the said premises unto the persons unto whom or for whose benefit such lease should be

lease there be reserved, pay

continuance of

the term and

estate thereby to be granted, the best and most beneficial yearly rent or rents. Part of the estate being let upon leases which, in due course, would expire on the 10th October, 1791, the tenant for life, in consequence of one bargain, executed at the same time two leases of that part of the estate, one bearing date the 4th May, 1787, for the term of thirty years, to commence on the 10th October, 1791, and the other bearing date 4th June, 1787, for the term of sixty-three years, to commence 10th October, 1821: Held, that this latter lease was void, inasmuch as it was not to take effect immediately after the determination of the subsisting lease.

The first of these two leases reserved a rent of 270., the second reserved only 120l. By a clause in the second lease the tenant was bound to rebuild either before the expiration of the term granted by the first lease, or within the first year of the term granted by the second. Semble. That although the rents reserved by the two leases might be the most beneficial as between the lessor and lessee, yet they were not so between the tenant for life and the reversioner, and that, upon that account also, the second lease was void.

made,