1826. Adjourned Sittings in London, after Easter Term, 1826. May 23d. In assumpsit on an agree ment to transfer a public-house, and assign the licences, the parties binding themselves in a penalty for the performance of the terms, if the vendor could not assign the licences, and the vendee had not the money ready at an appointment to settle the business, the penalty cannot be recovered; but if the vendee has paid a deposit, it may be recovered back. A cheque upon a brewer's house is not suf ficient in such a CLARKE v. KING. ASSUMPSIT; with a special count on an agreement, and the money counts. The agreement was for the transfer by the defendant to the plaintiff of a public-house, together with the lease, and also for assignment of the licences. A deposit of 401. had been paid by the plaintiff, and both parties bound themselves in the sum of 100%. each for the performance of the agreement. An appointment was made to settle the business, which was attended by a clerk of Messrs. Combe and Co., the brewers, who had agreed to advance a part of the purchase-money to the plaintiff: but he had not with him the sum required in cash, but only a cheque on the house. It was stated, that this was the practice in almost every instance, in order to prevent robbery, as the business was usually transacted at very late hours. BEST, C, J.-If it was necessary that the plaintiff should if tendered have the money ready, I am clearly of opinion that the cheque of the most respectable house in London will not do. in payment, though it be proved to be the constant practice to use cheques instead of It appeared that the defendant was not in a condition to money, in order assign the licences to the plaintiff. to prevent rob bery, on account of the lateness of the hour at which settlements take place in the transfer of public-houses. Vaughan, Serjt., for the defendant, relied on the circumstance of the plaintiff's not being ready to pay in cash, as an answer to the action. Wilde, Serjt., contended, that as the defendant was not in a situation to assign the licences, it was not incumbent on the plaintiff to have the money ready, as it could never be deemed necessary for a party to do a nugatory act. BEST, C. J.-The question is, whether you can maintain your action for the penalty? I think you cannot, as you had not the money ready at the instant. Wilde, Serjt., submitted, that the plaintiff was entitled to recover back the deposit. Vaughan, Serjt., contended that he was not. BEST, C. J.-It appears to me, that neither plaintiff nor defendant were in a condition to perform the agreement. They have been making a bargain which could not be carried into effect without their doing more than either of them has done. I think, as the defendant was unable to perform that part of the agreement by which he undertook to assign the licences to the plaintiff, that the contract is at an end, and the plaintiff is entitled to recover his deposit. Verdict for the plaintiff-Damages 40%. Wilde, Serjt., and Patteson, for the plaintiff. Vaughan, Serjt., for the defendant. [Attornies-Vincent, and Parnell.] 1826. CLARKE บ. KING. 1826. COURT OF KING'S BENCH. Sittings at Westminster, after Trinity Term, 1826. BEFORE LORD CHIEF JUSTICE ABBOTT. June 15th. BOOTH V. HANLEY and Others. If a party be ASSAULT and false imprisonment. turning towards the wall in a street at night, for a particular occasion, a watchman is not laring him, to prevent his so doing. Plea-General issue. (There were also several justifications, but they were not proved). The defendant Hanley was a police officer; and it apjustified in col- peared, that at about half-past ten o'clock on the night of the 1st of October, 1825, the plaintiff was in Paul-street, Finsbury, and that he was turning to the wall for a particular occasion, when a watchman came up to him and collared him; and on this, a scuffle ensuing between the plaintiff and the watchman, the defendant Hanley came up, and (with the other defendants) took the plaintiff to the watch-house of St. Leonard, Shoreditch, where he was locked up. ABBOTT, C. J. (in summing up the case to the Jury)— The watchman certainly had no right to go up to a man and collar him for that which the plaintiff appears to have been doing. He might have gone up to him and remonstrated with him, or have asked him to go somewhere else; but he clearly had no right to assault him for that. Verdict for the plaintiff Damages 201. Scarlett, C. Phillips, and E. Quin, for the plaintiff. [Attornies-Harmer, and Amory & C.] DOE, on the demise of UBELE, v. Kilner. EJECTMENT for a small piece of land in the parish of Christ-church, Spitalfields. The lessor of the plaintiff claimed the land in question as part of his freehold, to which it adjoined. 1826. June 16th. An examined copy of the registry of a deea in the registry of the county of Middlesex, is admissible as se To shew his title, a clerk of the attorney for the lessor condary evidence of the plaintiff proved, that he had carefully searched among the deeds and papers of the lessor of the plaintiff, and could not find any deeds of lease and release of the dates of the 23d and 24th of May, 1735. The witness then produced an examined copy of the registry of those deeds, taken from the original registers of them in the registry-office in the county of Middlesex. These copies were put in and read as secondary evidence of the deeds. No objection being made to their admissibility on the part of the defendant. The case was referred. Denman and Carrington, for the lessor of the plaintiff. [Attornies-Murray & Son, and Harman.] Registers of all deeds, conveyances, and wills, affecting real property in the county of Middlesex, are made in pursuance of the stat. 7 Ann. c. 20; by the 1st section of which it is enacted, "That a memorial of all deeds and conveyances, which from and after the 29th day of September, in the year of our Lord, 1709, shall be made and executed, and of all wills and devises in writing, made or to be made and published, where the devisor or testatrix shall die after the said 29th day of September, of or concerning, and whereby any honors, manors, lands, tene- of its contents. 1826. DOE บ. KILNER. conveyance under which such subsequent purchaser or mortgagee shall claim; and that every such devise by will shall be adjudged fraudulent and void against any subsequent purchaser or mort gagee for valuable consideration, unless a memorial of such will be registred at such times and in such manner as is hereinafter directed." By the 5th and 6th sections of the same statute, it is enacted, "That all and every memorials, so to be entered and registred, shall be put into writing in vellum or parchment, and brought to the said office, and in case of deeds and conveyances shall be under the hand and seal of some or one of the grantors, or some or one of the grantees, his or their heirs, executors or administrators, guardians or trustees, attested by two witnesses, one whereof to be one of the witnesses to the execution of such deed or conveyance; which witness shall, upon his oath before one of the said registers, or masters, or before a Master in Chancery, ordinary or extraordinary, prove the signing and sealing of such memorial, and the execution of the deed or conveyance mentioned in such memorial; and in case of wills, the memorial shall be under the hand and seal of some or one of the devisees, his or their heirs, executors or administrators, guardians or trustees, attested by two witnesses, one whereof shall, upon his oath before the said registers or masters, or before such Master in Chancery as aforesaid, prove the signing and scaling of such memorial; which respective oaths the said registers or masters, and Masters in Chancery, are hereby empowered to administer, and shall indorse a certificate thereof on every such memorial, and sign the same.”— "That every memorial of any deed, conveyance, or will, shall contain the day of the month and the year when such deed, conveyance, or will bears date, and the names and additions of all the parties to such deed or conveyance, and of the devisor or testatrix of such will, and of all the witnesses to such deed, conveyance, or will, and the places of their abode, and shall express or mention the honors, manors, lands, tenements, and hereditaments contained in such deed, conveyance, or will, and the names of all the parishes, townships, hamlets, precincts, or extraparochial places within the said county, where any such honors, manors, lands, tenements, or hereditaments are lying or being, that are given, granted, conveyed, devised, or any way affected or charged by any such deed, conveyance, or will, in such manner as the same are expressed or mentioned in such deed, conveyance, or will, or to the same effect; and that every such deed, conveyance, and will, or probate of the same, of which such memorial is so to be registred as aforesaid, shall be produced to the said registers or masters at the time of entering such memorial, who shall îndorse a certificate on every such deed, conveyance, and will, or probate thereof, and therein mention the certain day, hour, and time on which such memorial is so entered or registred, expressing also in what book, page, and number the same is entered; and that the said |
