1806. Others Versus Another. This bill was regularly paid, when due, by Mr. De HOVIL and Beaume, who had received the amount of the policies of insurance from the underwriters. The bankrupt PACK and returned to England in February, 1804, and, on the 9th of March following, a commission of bankrupt was issued against him, under which the plaintiffs were chosen assignees, and an assignment to them was regularly executed. De Beaume retained from the plaintiff's, as assignees, out of the monies he had collected on the policies, the amount of the payment he had made to the defendants. Wardell had been a bankrupt twice before, viz. once in the year 1788, and had obtained his certificate, under each of those commissions; but had not paid a dividend of 15s. in the pound under the last, and his creditors at that time still remain unsatisfied. Question, Whether the plaintiff's are entitled to recover? After the judgment in the former case, without argu ment. Lord ELLEN BOROUGH, C. J." Here you get the policies out of the hands of the defendant, with whom they were pledged for the purpose of getting payment upon them, upon the faith of a bill drawn by De Beaume. After that he receives the money on the policies, and pays his own bill. He is the agent of the assignees for one purpose, and they must consider him as such throughout. This action is not indeed, brought against the insurance broker, but, against the person who receives the money of him. This man is appointed originally by the wife; and, if you admit the act of De Beaume, under the directions of the wife, you must admit altogether; if you take the benefit of the agency, you must take it cum onere also. He is the last receiver of the money, paid over originally wrong. The facts are simply these. Pack having a demand on the bankrupt, the wife procured him to give up a bill of exchange, and take another, she depositing these policies. This second bill not being paid, he refuses to give up the policies to the broker, unless he gives another bill, and the broker out of that money, pays the bill." JUDGMENT for the DEFENDANT, LADY WILSON against Sir FRANCIS WILLES, Knt. Jan. 24. Several customs pleaded for all tenants of a manor, their farm. ers and occupiers of tenements of the manor, having gardens, to take soil covered with grass, on a common, for making and repairing grass plots in gardens for the improvement thereof; and for the improvement of the gardens; and further, for the making and repairing of banks and mounds for the hedges and fences of tenements belonging to the manor; and further, for the improvement of such tenements, not saying agricultural improvement; held, each, to be too large and uncertain, and to be destructive of the right of common, and therefore bud. THE plaintiff declared in trespass, quare clausum fregit, on Hampstead Heath, in Middlesex, for dig, ging up certain turf of the said plaintiff there being, covered with grass, fit for the pasture of cattle, &c. The defendant peaded the general issue, as to the force and arms, &c. and as to the residue actio. non because the said close in which, &c. is, and at the said time, &c. was, and from time immemorial hath been, a certain large waste, situate within and parcel of the manor of Hampstead, within which there are and have been, &c. divers customary tenements demised and demiseable, &c. and that there now is, and from time immemorial hath been, a certain ancient and laudable custom, that all and every the customary tenants for the time being, of all and every the aforesaid customary tenements, parcel of the 1806. HUVIL and Others versus PACK and Another. WILSON versus WILLES. 1806. WILSON versus WILLES. said manor, having a garden or gardens, part of the same respectively, from time whereof, &c. have dug, taken, and carried away, and have been used to dig, &c. in upon and from the said close, in which, &c. by themselves and their farmers and tenants, respectively,occupiers of such customary tenements, with the appurtenances respectively for the time being, and by and with their servants, cattle, and carriages to be used and spent in and upon their said customary tenements respectively, for the purpose of making and repairing grass plots in the gardens, parcels of the same respectively, for the improvement thereof, such turf covered with grass, fit for the pasture of cattle, as hath been fit and proper to be so used and spent, every year, at all times in the year, and as often, and in such quantity as occasion hath required, as to their said customary tenements, with the appurtenances respectively belonging. The plea then set out a demise by copy of court roll by a former lord of the said manor of a certain tenement and garden, and certain pieces or parcels of ground with the appurtenances, in and parcel of the said manor, to the defendant, in fee, and that the defendant was thereby seised in fee, at the will of lord, &c. and being so seised, the defendant, at the said times when, &c. being times when occasion required, entered into the locus in quo and dug, and took away the said turf in the declaration mentioned, to be and which was used and spent in and upon his said customary tenements; for the purpose of making divers, to wit, two grass plots in the said garden, parcel of the same as aforesaid, for the improvement thereof, the same turf, being then and there fit and proper to be so used and spent, and being such quantity as the occasion required, as he lawfully might,&c.: and sojustified under the above custom. The defendant pleaded a further justification under a custom, that all the customary tenants for the time being of all customary tenements of the manor having a garden, have been used to dig, and carry away by themselves, and their farmers and tenants, occupiers of the said tenements, to be used and spent upon the said customary tenements for the improvement of the gardens, parcels of the same; such turf covered with grass fit for the pasture of cattle, as hath been fit and proper to be soused, at all times of the year, and so justified digging the turf, &c. for the improvement of the said gardens; also, a further justification, stating a custom that all and every the customary tenants for the time being of all the customary tenements of the said manor, have dug and carried away from the locus in quo, by themselves and their farmers and tenants respectively, occupiers of such tenements, &c. to be used and spent in and upon the said customary tenements, for the purpose of making and repairing the banks and mounds in and for the hedges and fences thereof respectively, such turf covered with grass fit for the pasture of cattle as hath been fit and proper to be so used and spent, every year at all times of the year, as often and in such quantity as occasion hath required, as to their customary tenements with their appurtenances belonging; and so justified, under the said custom, for the purpose of making divers, to wit, two banks and two mounds, and repairing divers, to wit, two banks and two mounds in and upon the hedges and fences of the said last mentioned customary tenement, the said turf being then and there fit and proper to be so used and spent, and being such quantity as the occasion required, &c. And lastly, a custom that the tenants of customary tenements within the manor, have dug and taken away from the locus in quo by themselves and their farmers, and tenants, occupiers, &c. to be used and spent, in and upon the said customary tenements for the improvement thereof, such turf covered with grass fit for the pasture of cattle, as hath been fit and proper to be so used and spent. The plaintiff demurred to the said pleas in justifica tion, and the defendant joined in demurrer. NO. XXIX. N. S. 1806. WILSON "ersus WILLES. 1806. WILSON versus WILLES. CONST, in support of the demurrer; "The custom here pleaded is altogether repugnant to law. The title of the tenant to the use of the common is merely to take the grass by the mouths of his caule. That right could not exist concurrently with these customs. The first plea is not confined to ancient gardens, but is claimed for gardens generally; so that any person who has 20 acres of pasture, which he chuses to convert into a garden, may claim a right to cover that garden with turf from the common. The custom here stated is also too large and uncertain; for it is not only claimed for the tenant, but for the farmers, servants, and occupiers. Nor does it state any limitation to the improvements which are to be made, and therefore goes to the destruction of the whole of the grass. The third custom, also, is not confined to the banks and mounds of the land held of the manor, nor to the ancient banks and mounds, nor even to such only as apper. tain to the customary tenements. There are no cases expressly in point, but there are cases which shew that the tenant cannot claim by custom a right to the soil, for that is wholly inconsistent with his tenure. In the Dean and Chapter of Ely v. Warren,* there was a bill to prevent waste in digging the soil: and Lord Hardwicke says, the custom here is to dig up the lord's soil for turf, which is a very odd custom, and, applied to any other place, would be bad. But marshy lands are often covered with water, and are of no profit to the tenant. And, therefore, after the time when the soil is left on the land, custom might give a right to take that soil, as a common of turbary is given. A common of turbary is a thing very well known; the tenants can only have a right to take turfs which are not fit for pasture, but for burning only. The customs here set out are entire, and, on the ground of unreasonableness, are bad, for they go to the destruction of the common 2 Atkins, 189. |