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versus ACK and

1806. This bill was regularly paid, when due, by Mr. De Bovil and

Beaume, who had received the amount of the policies Others of insurance from the underwriters. The bankrupt

returned to England in February, 1804, and, on the Another. 9th of March following, a commission of bankrupt was

issued against him, under which the plaintiff's were chosen assignees, and an assigoment to them was regularly executed. De Beaume retained from the plaintiffs, as assignees, out of the monies he had collected on the policies, the amount of the payment lie had made to the defendants. Wardell had been a bankrupt twice before, viz. once in the year 1789, 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 argument.

Lord ELLENBOROUGH, 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 owri 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 aduit 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. 1806.

him to give up a bill of exchange, and take another, she depositing these policies. This second will 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 DEPENDANT,

HUVIL and Others • versus

Pack and Another,

Wilson

LADY Wilson against Sir Francis Willes, Kat.

Jan. 24.
Several customs pleuded 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 und
fences of tenements belonging to the manor ; and further,
for the improvement of such lenements, not saying agri.
cultural 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 Middleser, for dig. ging up certain turf of the said plaintif 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 bath been, a certain large waste, situate within and parcel of the manor of Hampstead, within wbich 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

versus WILLIS,

1806.

WILSON $ versus WILLES.

said' manor, having a garden or gardens, part of the
same respectively, from time whereof, &c. have dug,
taken, andkarried away, and have been used to dig, &c.
in upon and from the said close, in which, &c. by them-
selves and their farmers and tenants, respectively,occu-
piers of such customary tenements, with the appurte-
nances 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 respec-
tively, 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 custo- .
mary 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 requir-
ed, 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 plo:s 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

1806.

Wilson

versus WILLES.

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 in prove. ment of the said gardens; also, a further justification, stating a custom that all and every the customary te. nants for the time being of all the customary te. nements 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 custo. mary tenements, for the purpose of making and repair. ing 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 tenanțs, 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 justification, and the defendant joined in demurrer.

NO, XXIX. N. S.

2

1806.

WILSON

versus WILLES.

Const, in support of the deinurrer ; “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 catile. That right could not exist concurrently with these customş. 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 cbuses 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 wbich are to be made, and therefore goes to the destruction of the whole of the grask. The third custoin, 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 ex• pressly 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. lu 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 wben 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.

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