" had been made, by which all the land used for the purposes of the navigation by the proprietors thereof had been sold to them by the land-owners. A rule having been obtained for a new trial, the Court held, first, that by virtue of the provisions of this act of the 16 & 17 Car. 2., the proprietors of the navigation did not necessarily acquire such an interest in the soil in a bank adjoining to and formed out of the earth excavated from a ... new channel, made for the first 1 time under the act, as would enable them to maintain trespass; secondly, that as the purchase of the soil was not necessary for any of the purposes of the act, it was to be inferred that no such purchase had actually been made; and that the improbability of any such purchase ought to have been presented to the jury. Hollis v. Goldfinch and Others, H. 3 & 4 G.4. Page 205 3. Where in an action of trespass the lord of a manor set out various burthens borne by him, and then prescribed, not by reason of those burthens but generally as lord of the manor, for a toll upon all goods bought and delivered, or bought elsewhere, and brought into and delivered in a town within the ....manor, which from time immemorial had been parcel of the manor: Held, after verdict, that this was good as a claim of toll traverse, although the burthens set out did not constitute a sufficient consideration for a toll thorough. *tia Firs and larches planted with oaks for the purpose of sheltering the latter, and cut from time to time, as the oaks grew larger and required more space, but when once cut, not growing again, and some of them yielding a profit by sale, are not saleable underwoods within the 43 Eliz., the primary object of 3 H 2 planting וי the evidence proved the substitution of a new contract to procure a lease from A. B. to the defendant in lieu of the original contract, and that there was not any variance. Boone v. Mitchell, M.3G.4. Page 18 3. Where a count stated that A. B. supplied the poor of the parish of W. and other parishes in a workhouse: Held, first, that it was no variance, the proof being larger than the allegation. Secondly, that the objection as to a variance between the allegation of a supply of the poor and the proof of a supply of the poor in the workhouse, not being taken at Nisi Prius, could not be afterwards available. West v. Andrews, M. 3 G. 4. 4. 1. Declaration stated that the defendant, at Dublin, made a promissory note, and thereby promised to pay the same at Dublin, without alleging it to be at Dublin in Ireland: Held, that upon this declar77 ation the promissory note must be Where the declaration stated that taken to have been drawn in Eng- a bill of exchange was indorsed by land for English money, and, there- certain persons trading under the fore, that proof of a note made, firm of H. and F., by procuration and payable at Dublin in Ireland, of J. D.: Held, that this allegafor the same sum in Irish money, tion was supported by evidence of did not support the declaration. J. D.'s hand-writing; and that he Sprowle v. Legge, M. 3 G. 4. 16 being the managing partner in a 2. Declaration, in consideration that firm which carried on all business plaintiff would procure A. B. to of buying and selling, under the grant a lease to defendant; the designation of H. and Co., was in latter promised to pay the plaintiff the habit of indorsing bills in the 170. The proof was, that A. B. manner above stated; although having agreed to grant a lease to there was no such person as F. in the plaintiff, the latter undertook, the firm of H. and Co., and no originally, to assign it to the de- direct proof that J. D.'s partners fendant for the consideration menwere privy to those transactions. tioned; but that afterwards a lease, One partner may act for the whole to which plaintiff was a party, and firm by procuration. Williamson assented, was granted immediately v. Johnson, H. 3 & 4 G. 4. 146 by A. B. to the defendant. The 5. The defendant's attorney, upon consideration to be paid by the the taxation of costs, stated, that defendant to the plaintiff was not there was error upon the record, mentioned in that lease: Held, viz. a variance between the affifirst, that the lease was not void on davit to hold to bail and the deaccount of this omission, the ad claration. He had previously told valorem duty imposed by the the plaintiff that he would never 50 G. 3. c. 184, applying only to recover the fruits of his judgment, considerations passing between les-as the defendant was not in a situsor and lessee; and, secondly, thatation to pay, he never having paid him any thing on account of costs: the plaintiff having been served with the allowance of a writ of error, and the defendant having disclosed no other ground of error by his affidavit, the Court refused to set aside an execution issued after the allowance of a writ of error. Eicke v. Sowerby, H. 3 & 4 G. 4. Page 287 6. Where a declaration states that, by a certain indenture, "It is witnessed, &c.," and sets out the very words of the deed, there is no variance, although the legal effect of the whole deed may be different from that which the part set out imports. Where the defendant sets out on oyer a deed upon which the 1. 2. greatest proportion or share in the profits of the navigation: Held, by this deed it appeared, that the grantor had not the power of granting the privilege of which the deed, as set out in the declaration purported to be a grant, and, therefore, that there was a variance. Held, also, that the deed shewed that the assignee of the grantee was not bound by the covenants, inasmuch as it appeared that the grantors had not any legal or equitable estate in a real hereditament. Earl of Portmore v. Bunn, E. 4 G. 4. Page 694 VERDICT. VENDOR AND VENDEE. 1 The buyer of a parcel of wheat, by sample, has a right to inspect the whole in bulk, at any proper and convenient time; and if the seller refuses to shew it, the buyer may rescind the contract, Lorymer v. Smith, M. 3 G. 4. Where the defendant bought of the plaintiffs a quantity of tobacco, upon a contract to pay one-fifth of the price at a day specified, and that the seller should look to his agent abroad, to whom the tobacco was consigned, for the remainder; the tobacco having been sold by the consignee at a considerable loss, the buyer was held liable for the difference between the proceeds and the four-fifths of the price stated in the contract, which remained unpaid. Hoffman v. Heyman, M. 3 G. 4. declaration is framed, he cannot, See PLEADING, 15. PRACTICE, 7. on demurrer, take advantage of a variance in an immaterial part between the deed as stated in the declaration and as set out on oyer. Ross, Administrator de bonis non, v. Parker, H. 3 & 4 G. 4 358 7. Covenant by the reversioner against the assignee of the grantee. Declaration stated that A. and B. did grant licence for a term of years to C. to continue a channel open through the bank of a navigation, in order that the waste water might pass through the channel to the mills of C., the latter paying a certain annual sum therein mentioned. Breach, nonpayment of that annual sum. Semble, That upon the facts of the declaration A. and B. must be considered as having the sole ownership of the navigation, and the sole power of granting this privilege; and, in that case, that the deed would operate as the grant of an interest in an hereditament, and that the assignee of the grantee would be liable to an action by the reversioner within the statute 32 Hen. 8. By the deed produced in evidence, A. and B. were described as persons having the 3. 943 56 7 The traveller of A. and Co. in London having called upon B. in the country for orders, B. gave an absolute order for a quantity of 'cream of tartar, and offered to take a quantity of lac dye at a certain price; price; the traveller said the price was too low, but that he would write to his principals, and if B. did not hear from them in one or -two days, he might consider that Page 156 his offer was accepted. A. and Co. never wrote to B. but sent all the goods: Held, that this was not a joint order for them all, so as to make the acceptance of the cream of tartar the acceptance of the lac dye also, within 29 Car. 2. c. 3. s. 17. Price and Others v. Lea, H. 3 & 4 G. 4. 4. A. delivered a quantity of iron to a carrier, to be conveyed by the latter to B., the vendee in the country. The carrier having reached B.'s premises, landed a part of the iron on his wharf, and then finding that B. had stopped payment, reloaded the same on board his barge, and took the whole of the iron to his own premises: Held, that there was no delivery of any part of the iron so as to divest the consignor of his right to stop in transitu; the special property remaining in the carrier until the freight for the whole cargo was either tendered or paid, or until he had done some act shewing that he assented to part with the possession of the goods without receiving his freight. Crawshay and Others v. Eades, H. 3 & 4 G. 4. 181 5. An executory agreement to transfer a share of a vessel is void by the 34 G. 3. c. 68. s. 14., unless it contains a recital of the certificate of registry. Biddell v. Leeder and Pulham, H. 3 & 4 G. 4. 317 6. By a contract of sale, the property sold was to be paid for by ready money. The vendee induced the servant of the vendor to deliver it for a check upon a banker, by representing it to be as good as money; in fact he had overdrawn his account for many months, and when the check was presented, payment was refused. On the same day that the goods were purchased, the vendee gave a warrant of attorney to a creditor, under which judgment was immediately entered up, and execution issued, and the property in question seised by the bailiff of a liberty. While it was in his custody, the original owner rescued it: Held, in an action brought against the latter by the bailiff of the liberty for the rescue, that the question whether the contract of sale was so vitiated by fraud as to prevent the property in the goods passing to the vendee, depended upon a question of fact, which ought to have been submitted to the jury, viz. whether the vendee had obtained possession of the goods with a preconceived design not to pay for them. Earl of Bristol v. Wilsmore, E. 4G. 4. Page 514 1 4 the copyhold was in the occupation of the tenant, to use the way to remove an obstruction; and that the words of the plea were sufficiently large to comprehend all the purposes for which a person seised might lawfully use the way. Proud v. Hollis, M. 3 G. 4. Page 8 2. A private act of parliament for. inclosing the waste lands of a manor, reserved to the lord and his assigns all mines, &c. together with all convenient and necessary ways, &c. then already made, or thereafter to be made, and liberty of laying waggon-ways, &c. at his and their free will and pleasure, and to do all such other works, acts, and things as might be necessary or convenient for the full and complete enjoyment thereof, in as full, ample, and beneficial a manner as if that act had not been made. An action of trespass having 4 been brought against the lord's assignee for laying a waggon-way over one of the allotments in an improper direction and manner : it was held, that the real question to be decided by the jury was, END OF THE FIRST VOLUME. |