ABBOTT, C. J. It appears that, by the usage of the place, the buyer had a right to inspect the wheat in bulk; which is so reasonable, that, without any such usage, the law would give him that right. Here, on the 19th of September, the buyer desired to see the whole of the wheat in bulk, but the seller refused to show it; upon that refusal, the request haying been made at [*3 a proper and convenient time, the buyer was entitled to rescind the con⚫ tract. If this were not so, a man might bargain to deliver corn not then in his possession, and rely upon making a future purchase in time to fulfil his undertaking; but that is a mode of dealing.not to be encouraged. BAYLEY, J. I am of the same opinion, HOLROYD, J. The buyer had a right to inspect the wheat in bulk, in order to ascertain whether it corresponded with the sample, and might have insisted upon having it delivered immediately upon tendering a banker's bill for the price. The seller not being ready to complete his part of the contract on the 19th of September, when he was requested to show the wheat, cannot afterwards insist upon performance by the buyer. BEST, J. concurred, Rule refused. DYER v. ASHTON. Where two breaches were assigned in one count of a declaration, upon a contract, and the defendant paid money into court upon one of them: Held, that he thereby admitted the whole contract as set out in that count. THE second count of the declaration stated, that in consideration that the defendant at his special instance and request, had become tenant of certain premises, as tenant from year to year, to the plaintiff, at a certain rent payable at the times therein mentioned, the defendant undertook, &c. to keep the premises in repair during the tenancy, and pay the rent on the days specified in that behalf; breach-first, that the defendant did not keep the premises in repair, and 2ndly, that he *did not pay the rent. Defendant pleaded the general issue, and paid money into court on the second [*4 breach, for non-payment of rent. At the trial before Richards, C. B. at the last Summer assizes at Guildford, the plaintiff proved the payment of money into court, and that the premises were out of repair; but did not prove that any contract had been made between himself and the defendant. The Lord Chief Baron thought that the payment of money into court upon the second count, admitted the contract as there stated, and the plaintiff accordingly had a verdict for 887. on the first breach. And now, Taddy, Serjt. moved for a new trial. It must be conceded, that where money is paid into court generally upon any count of a declaration, the contract stated in the count is thereby admitted, Cox v. Brain, 3 Taunt, 95.— Mellish v. Allnutt, 2 M. & S. 106.-Stoveld v. Brewin, 2 B. & A. 116. But this case is very distinguishable from those, for here the payment is, by the rule of court, limited to the second breach in the second count; the admission, therefore, does not extend beyond that breach. Per Curiam. The effect upon all the cases upon this subject is, that payment of money into court admits every thing which the plaintiff would be obliged to prove, in order to recover that money. Now in the present case, the plaintiff could not upon the second count of his declaration, have recovered the money paid in, without proving the contract as there stated; that contract was therefore admitted, and the plaintiff was entitled to a verdict for the amount which he proved. Rule refused. MOORE, Assignee of W. BARTHROP the elder and W. BARTHROP the younger, Bankrupts, v. J. BARTHROP. Where the defendant having agreed to lend to two persons, who afterwards became bank. rupts, 2001., to be applied to a specific purpose, drew a cheque on his banker for that sum and delivered it to them before their bankruptcy; and they not having used the cheque returned it to the lender after having committed an act of bankruptcy: Held, that their assignee could not maintain trover for the cheque. TROVER for goods, bills of exchange, &c. Plea, general issue. At the trial before Holroyd, J. at the last summer assizes for Lincoln, these facts were proved. The bankrupts carried on the business of wool-merchants in partnership, W. Barthrop the elder residing at Lincoln, and W. Barthrop, the younger at Bradford in Yorkshire. On the 15th of June, 1821, the bankrupts were indebted to Ellison, Moore & Co., bankers at Lincoln, in the sum of 13007. who refused to give them any further credit until that balance was liquidated. In order to effect this, application was made to the defendant, who agreed to advance 2001. for that purpose, and accordingly drew a cheque on his banker for that sum, and delivered it to W. Barthrop the son, on the 18th of June. On the 20th of June, W. Barthrop the father committed an act of bankruptcy, and on the evening of the same day received a letter from his son, containing the cheque in question, together with several bills of exchange, which the son had collected in payment of outstanding debts. W. Barthrop the father did not open this letter, but carried it back the same night to his son's house at Bradford; and on the following day, the cheque, all the bills, and goods to a considerable amount, were delivered over to the defendant, in payment of a debt due to him. A short time after *wards, W. Barthrop the younger committed an act of bankruptcy, and 6*] a joint commission was issued against him and his father, under which the plaintiff was chosen sole assignee. Under these circumstances the learned judge thought that the plaintiff was not entitled to recover the amount of the cheque, and the jury accordingly found a verdict for the plaintiff for 1016/., being the value of the remainder of the property delivered over to the defendant. And now, Vaughan, Serjt. moved to add 2001. to the damages found, and contended, that the defendant intended to give the bankrupts a general control over the cheque; the restoration of it to the drawer was therefore a fraudulent preference, and entitled the plaintiff to recover the amount in this action. But, Per Curiam. This was a draft upon the defendant's banker, and not money, and the evidence shows that it was given for the specific purpose of being paid into the bank of Ellison, Moore, & Co., in reduction of the balance due to them from the bankrupts. Now if a cheque be placed, for a specific purpose, in the hands of a person who gives no value for it, and that person becomes bankrupt before he has used the cheque; if the drawer gives his banker orders not to pay the money, the assignees of the bankrupt cannot maintain an action to recover it. The bankrupt certainly could not do so, and his assignees must, in this respect, stand in the same situation; the direction of the learned judge was therefore right, and the damages ought not o be increased. Rule refused. HOFFMAN et al. v. HEYMAN. 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. ASSUMPSIT by vendor against vendee upon a special contract for the sale of tobacco. Plea, general issue. At the trial before Abbott, C. J. at the London sittings, after last Trinity term, it appeared that the plaintiffs, in the month of July, 1820, sold to the defendant a quantity of tobacco under the following contract: " Bought of Messrs. W. & J. Hoffman, for account of Messrs. Heyman, Welk & Co., about 641 hhds. of tobacco, being the cargo of the Ulysses, from Georgetown, America, and now on her voyage to Bremen, at 58s. 6d. per cwt. manifest weight, payable one-fifth in money on or before Sunday, 5th of August, and for the other four-fifths the sellers are to look to their correspondents, Messrs. Delius of Bremen, to whom the property goes consigned. It is nevertheless understood between the parties, that interest is to be calculated as if the sale was made at two months from final delivery. The buyers to have the benefit of the sellers' policy in case of average." The defendant paid one-fifth of the price at the time specified; and the consignees duly accounted to the plaintiffs for the whole of the proceeds of the cargo when sold at Bremen; but those proceeds fell considerably short of the remaining four-fifths of the price at which the tobacco was sold to the defendant. Under these circumstances, the jury, by the direction of the Lord Chief Justice, found a verdict for the plaintiffs for 3000l., the amount of the deficiency. And now, *Marryat moved for a new trial, and contended that, by the terms of the contract, the defendant, who had paid one-fifth of the price, was not to [*8 be further responsible. Here the plaintiffs were to look to their consignees for the remaining four-fifths, and if a loss was incurred on the sale at Bremen, it must fall upon the vendors, and not on the defendant. Per Curiam. By the language used in the first part of the contract, this appears to be a common sale of a quantity of tobacco, at a price specified. The subsequent part of it might, perhaps, have made the sellers responsible, in case of the failure of their consignees at Bremen, for all the proceeds which came to the hands of the latter; but, at all events, the defendant must be liable for the excess of the price stated in the contract, beyond the fifth, which he has already paid, and the amount of the proceeds of the goods when sold at Bremen. The verdict is therefore right. Rule refused. PROUD v. HOLLIS. A plea of a right of way, stated a surrender to defendant of a copyhold with all ways, then used by the tenants and occupiers thereof; that defendant was admitted and continued seised, and being so seised, and having occasion to use the way, committed the trespass. New assignment that defendant used the way for other purposes, &c: Held, that the defendant, being landlord, had a right, while 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. TRESPASS for breaking and entering plaintiff's close on different days and times. Plea, that on the 21st September, 1808, a copyhold tenement was surrendered to defendant, with all ways then used by the tenants and occupiers of the said tenement; that the *surrenderor was then seized in fee, of the locus in quo, according to the custom of the manor, and that a way [*9 was then used by the tenants and occupiers of the surrendered tenement, from thence over the locus in quo to a public street; that the defendant was admitted, and continued seised, and being so seised, and having occasion to use the way, he committed the supposed trespasses. Replication traversed the way being used at the time of the surrender; and there was a new assign ment that defendant at other times, and on other occasions, and for other purposes than those mentioned in the plea, trespassed on the close. Plea to new assignment, not guilty. At the trial, the right of way was established, but it appeared that when the trespass was committed, the tenement in respect of which the way was claimed, was in possession of a tenant, and that the defendant, as landlord, went over the locus in quo to assert a right to the way, which had been obstructed. There was a verdict for the defendant generally, with leave to move to enter a verdict on the new assignment for the plaintiff, with 18. damages. Campbell now moved accordingly. There is no authority to show that the landlord of a tenement, to which a right of way is appurtenant, may, while it is in the occupation of a tenant, lawfully use the way to remove an obstruction, and to assert the right of way, or for any other purpose. There fore, non-user of the way during the lease would be no bar to the landlord's right to the way when the lease expires. But supposing that a landlord has the right contended for, this is not the right which he alleges that he exercised in his plea. The words "being so seised, and having occasion to use the said way," must mean that he was then possessed of the *tenement, *10] and that he used the way for the ordinary purposes of an occupier in passing over the locus in quo in going to and from the tenement. But, in fact he was not the occupier, but landlord, at the time he used the way, and he used it for the purpose of asserting his right in that character. The occasion on which he used it therefore is different from that alleged in the plea, and the new assignment is supported. But, Per Curiam. While the tenement is occupied by a tenant, the landlord may use the way to view waste, or demand rent, or to remove an obstruction; the language of the plea comprehends all the purposes for which a person seised of the tenement may lawfully use the way; the new assignment meant that the defendant had trespassed on the close for some purpose unconnected with the use of the way claimed in the plea, and the defendant is therefore entitled to a general verdict on the whole record. Rule refused. HOLBROW et al. v. WILKINS. The plaintiffs sold goods to C. and P., and took their acceptance for the amount, half of which was guarantied by the defendant. Before the bill became due, C. and P. became insolvent, of which the defendant was then informed, and also that the plaintiff's looked to him for the sum which he had guarantied: Held, that, under these circumstances, it was unnecessary for the plaintiffs to present the bill when due, or give the defendant notice of the non-payment of it. ASSUMPSIT on a guaranty. Plea, general issue. At the trial before Abbott, C. J. at the London sittings after last Trinity term, the following facts appeared. The plaintiffs were merchants residing at Stroud in Gloucestershire. The defendant was a commission-broker in the city of London. In the month of *February, 1818, the latter sold wools for the plaintiffs to 11] Messrs. Carver and Peat, to the value of 11227. 12s. for which they accepted a bill payable at eight months, and the defendant agreed to guarantee half the amount for an allowance of 17. per cent. The bill became due on the 29th of October, 1818. About the 4th of September in the same year, Carver and Peat became insolvent, and on the 22d of that month the plaintiffs wrote to the defendant requesting him to accept a bill at one month for the sum guarantied by him, which he refused to do. The bill accepted by Carver and Peat was not presented when due, nor was any notice of the non-payment given to the defendant. The bill would not have been paid if presented, and it did not appear that the defendant sustained any damage by reason of the want of presentment and notice. A verdict was found for the plaintiffs, which Denman now moved to set aside and enter a nonsuit. According to Phillips v. Astling, 2 Taunt, 206., where a guaranty is given for the price of goods which are to be paid for by bill, due notice of the dishonor must be given to the surety; and the present case is distinguishable from Murray v. King, 5 B. & A. 165., which was an action on a bond. And to have held the want of notice a sufficient plea, in that case, would have been adding a new term to the condition of the bond. ABBOTT, C. J. The case of Phillips v. Astling differs very materially from this. The insolvency in that case did not happen until after the bill became due. *In the present instance, so early as the 22d of September, the defendant had notice that Carver and Peat were insolvent, and that the plaintiffs would look to him for payment. [*12 BAYLEY, J. Here the defendant was not a party to the bill; the case of Swinyard v. Bowes, 5 M. & S. 62., is, therefore, precisely in point against him. HOLROYD and BEST, Justices, concurred. Rule refused. PRESTIDGE v. WOODMAN et al. Where a magistrate acts upon a subject matter of complaint, over which he has authority, but which arises out of his jurisdiction, he is entitled to notice of action under 24 G. 2. c. 44. s. 1. ACTION for false imprisonment. Plea, not guilty. At the trial before Garrow, B. at the last summer assizes for Oxfordshire, it appeared, that in the month of August, 1820, the defendant, Woodman, a magistrate of the borough of Chipping Norton in that county, issued a warrant in pursuance of the statute 1 G. 4. c. 56., for the commitment of the plaintiff to the house of correction for that county, for wilfully damaging a wall; and that, in obedience to the warrant, the other defendants, officers of the same borough, conveyed the plaintiff to the house of correction. There was no proof that any notice of action had been given to the defendant Woodman, as required by 24 G. 2. c. 44. s. 1., and the plaintiff was thereupon nonsuited. *Jervis now moved to set aside the nonsuit, upon affidavits, stating that the wall damaged by the plaintiff was not within the borough of [*13 Chipping Norton, and contended, that the magistrate was acting out of his jurisdiction, and consequently, was not entitled to notice under 24 G. 2. c. and for this he cited Blatcher v. Kemp, 1 H. Bl. 15. n. 44. 8. 1. Per Curiam. That case is very different from the present; that was the case of a constable, this of a magistrate. A constable is not protected, unless he acts in obedience to a warrant; but a magistrate is protected in all cases where he acts in execution of his office. The distinction between the magistrate and the officer, in this respect, is settled in the case of Money v. Leach, 3 Burr. 1742. In the case of Weller v. Toke, 9 East, 364., it was held, that where one magistrate had acted alone, in a matter which required the concurrence of two, still he was acting in execution of his office, and was entitled to notice, under the 24. G. 2. c. 44. s. 1. Here the magistrate had authority to act upon the subject matter of the complaint brought before him, |