Sittings at Westm. after Mich. Term, 1826. BEFORE LORD CHIEF JUSTICE ABBOTT. 1826. COBBETT, Executor of BoxALL, v. CLUTTON and Another, Gents. two, &c. TROVER for a box and deeds. Plea-General issue. It appeared that the testatrix, Mrs. Boxall, died in the month of August, 1825, and that a box containing deeds and other papers belonging to the testatrix, was at the house of Mr. William Clutton, of Hartwood, a relation of the defendant Clutton. The box, with its contents, was sent by him to the office of the defendants to be delivered the plaintiff as her executor, on the plaintiff's giving schedule of the deeds contained in the box. It was proved that the plaintiff demanded the box and its contents of the defendants; but they refused to deliver it unless the plaintiff would give them a schedule of its tents. to a Dec. 5th. If A. has in his possession a box containing papers belonging to a person de ceased, and send the box with its contents to his solicitors, with directions to de liver the box and papers to the executor, on his giving an It was inventory of up, con Marryat, for the defendants.-The defendants received this box from Mr. William Clutton, as his agents; and they had it delivered to them, on the special trust to deliver it to the plaintiff on his giving an inventory. Now, if they had delivered the box over against their authority, they would have been doing wrong. A demand and refusal are evidence of a conversion, but if it appears that the refusal was on a fair ground, that is no conversion. William Clutton was interested in the property, and without an inventory he could have no check on the executor, who might do what he chose with the papers in the box. And further, it is the daily practice when papers are delivered up, for the party delivering them to take a receipt specifying what papers are delivered up. them, and a receipt: Held that trover lies against the solicitors, if they re fuse to deliver the box and pa pers to the exe- ing to give an though the soli citors offered to give them up if the executor would give an inventory and receipt. 1826. COBBETT V. CLUTTON. ABBOTT, C. J.-It is in evidence that Mr. William Clutton desired it; but I am of opinion that the defendants had no right to insist upon an inventory before they delivered up the box. The plaintiff, as executor, was entitled to the possession of the papers of the deceased, and that being so, he is entitled to recover in this action. Verdict for the plaintiff. Chitty and Pattison, for the plaintiff. Marryat and Comyn, for the defendants. [Attornies.-Faithfull, and Clutton & Carter.] Dec. 6th. tion of certain BILLARD and Another v. HAYDEN and Another. If the importa- ASSUMPSIT by the plaintiffs as indorsees, against the defendants as acceptors of a bill of exchange, drawn by a person named Fiestall, for 737. 10s. payable to the drawer's order, and by him indorsed to the plaintiffs. goods be pro- The defence was, that the bill had been indorsed to the plaintiffs for the price of a quantity of French silks, sold by them to Fiestall the drawer of the bill. This sale being antecedent to the stat. 6 Geo. 4, c. 111, which allows the importation of French silks, it was contended that it against the acceptor, although was void under the stat. 50 Geo. 3, c. 55, s. 1 (a). cannot recover on that bill there was no evidence that the plaintiff was the importer of the prohibited goods. (a) By the stat. 50 Geo. 3, c. 55, s. 1, it is enacted, "that no foreign silk, crapes, or tiffanies of any description whatever, (except of China or the East Indies, imported for exportation), shall, from and after the passing of this act, be imported, brought, or conveyed into the kingdom of Great Britain, or the islands of Guernsey, Jersey, Alderney, Sark or Man; and if any such foreign silk, crapes, or tiffanies, shall be found in the custody or possession of any person or persons in Great Britain, or the islands aforesaid, and which shall not have been imported, brought, or conveyed into the same respectively, and on which the proper duty of customs shall not have been paid before the passing of this act, the same shall be forfeited; and in case any such foreign silk, crapes, or tiffanies, shall, at the time of the importation, be mixed with, To prove this, the drawer stated that the plaintiffs were silk merchants, having a silk manufactory in Paris, and that he indorsed this bill to them in payment for a quantity of manufactured silk goods, which one of the plaintiffs stated to be French, though the witness could not positively swear that they were so. Comyn for the plaintiffs.-The stat. 50 Geo. 3, c. 55, only prohibits the importation of foreign silks, and it does not at all appear that the silks were imported by the plaintiffs. The statute does not make the sale of them void; and I would submit, that as there is no evidence that the plaintiffs imported them, they are still entitled to recover on the bill. ABBOTT, C. J.-This transaction arose before the late sewed, or made up in any apparel, garment, or furniture, or other materials, all such foreign silk, crapes, and tiffanies, and also the apparel, garment, or furniture, and other materials, in, with, or upon which the same shall be mixed, sewed, or made up, shall be forfeited, and the importer and importers, and the person and persons in whose custody or possession the said crapes, or tiffanies, or apparel, garment, or furniture, or other materials, shall be found; or who shall vend, utter, sell, or expose to sale, or otherwise dispose of any such crapes, or tiffanies, or apparel, garment, furniture, or other materials, or who shall sew, work, or make up any such crapes or tiffanies in Great Britain, or the islands aforesaid, for, or in, or upon any garment, or wearing apparel, shall be subject and liable to the like penal ties, to which the importers and person having in their custody or possession, or vending, uttering, selling, or exposing to sale, or otherwise disposing, or sewing, working, or making up any foreign wrought silks or velvets, are subject and liable by an act passed in the sixth year of the reign of his present Majesty, for prohibiting the importation of foreign wrought silks and velvets." But the prohibition contained in that section is repealed by the stat. 6 Geo. 4, c. 165, s. 277, and by the stat. 6 Geo. 4, c. 111, a duty is laid on the importation of foreign silks, which was altered in some respects by the stat. 7 Geo. 4, c. 63. Although this case is thus rendered less important as to foreign silks, it appears equally to apply to any other species of goods, the importation of which is prohibited. 1826. BILLARD บ. HAYDEN. 1826. BILLARD บ. HAYDEN. act. The stat. of the 50 Geo. 3, c. 55, prohibits the importation of all foreign silks, and I have no hesitation in saying that if these were foreign silks, and the bill was given in payment for them, the plaintiffs cannot recover. Verdict for the defendants. Comyn, for the plaintiffs. Chitty, for the defendants. [Attornies.-Griffen, and R. A. Cottle.] Dec. 7th. in an action of covenant the de claration state that the deed was made be tween the plain part; J. C. of the second part; and A. B. of the MAYELSTON v. Lord Viscount PALMERSTON. Variance. If COVENANT. The declaration stated, that on the 26th day of November, 1803, "by a certain indenture then and there made between the said plaintiff, (therein described), of the first part; James Cook and Hannah his tiff of the first wife, of the second part; and John Champain, (therein described), of the the third part; one part of which said indenture, sealed with the seal of the said John Champain, the said plaintiff now brings here into Court, the date whereof, &c. he the said plaintiff did demise and lease unto the said John Champain, &c. three several coach houses, &c. for twety-one years. It then stated covenants by Champain and his assigns to keep the premises in repair, and to give up the premises and fixtures at the end of the term; that Champain assigned the term to the decuted by G. C. fendant; and breaches were assigned, that the defendant did not keep the premises in repair, &c. Plea, non est factum; and special pleas traversing all the breaches. The execution of the lease was proved. third; and the deed, when produced, appear on the face of of it to be by the plaintiff as trustee of J. C. G. C. of the se cond; and A. B. of the third part; and the deed be exe This is a fatal variance, although the breaches assigned do not in any way affect the party who is intended to be described as of the second part. Marryat, for the defendant, (having looked at the deed), submitted that the plaintiff must be called. The lease is described in the declaration as an indenture of the plaintiff, of the first part; James Cook and Hannah his wife, of the second part; and John Champain, of the third part. Now, in point of fact, the deed itself states the plaintiff as the trustee of James Cook, and Hannah his wife, to be of the first part; and that George Cook and Hannah his wife are of the second part; and John Champain, of the third part; and the deed is executed by George Cook; so that he is called George in one part of the deed, James in another, and he executes as George. Now, I submit that in the declaration it should have been stated to be made by George Cook, because he executes it by that name; and if in the body of the deed he was called James, it should be stated to be made by George Cook, but purporting to be the deed of James. Praed, on the same side. The allegation, that the deed was made by certain parties, must be taken to mean, that it was executed by them; and in the case of Hall v. Cazehove, 4 Ea. 477, the correct form of declaring will be found (a). There the deed was sealed on a day different (a) In the case of Hall v. Cazehove, the declaration stated that, "whereas by a charter party of affreightment, purporting to be indented, made and concluded, in London, on the 6th of February, 1801, between the plaintiff as owner of the ship Argo, then lying in the River Thames, and bound for Demerara, on the one part; and the defendant and one J. B. of London, merchants, on the other part; but which charter party was in fact, first indented, made, and concluded after the 6th day of February, to wit, on the 15th of March, 1801, and not on the 6th of February, or at any time before, and was also in fact sealed and delivered by the plaintiff and defendant only, and not by the said J. B. one part of which charter party sealed, &c. the plaintiff now tiff. 1826. MAYELSTON v. PALMERSTON. |
