« ForrigeFortsett »
Lane against Cobham and Another.—Nov. 8.
Where several districts of a parish lying in several counties, Fa0T ^*t**. by agreement, unite in appointing overseers for upwards'; c. g: use i*. of 30 years, a rate made for the tehole parish tsilt be t.U, %tu xalid, they having substantially the benejit of the 43 Eliz. rui!c«. c. 2.
•J"HIS was an action of trespass tried at Salisbury, ll05.
last summer assizes, before Graham, B. when a'
verdict was had for the defendants. Tlie whole case ttrm
turned upon the validity of a rate for the relief of the CoTM** , «nd anollnr.
poor of the parish of W okingham, which was made generally for the whole of the parish, and whether such rate was valid for the town and parish of Wokingham, Berks and Wilts; it being contended that the Wiltshire liberty should be rated separately. From time whereof, &c. until the year 1772, the parish of Wokingham consisted of three parts; the one part being the rill or borough, the other that part of the parish of Wokingham which lies in the county of Berks, and the third, that part which lips in the county of Wilts. Up to 1773, there were four overseers, and four constables, for the distinct parts, and the rates also were distinct. In 1773, two parts came to a resolution to imite4 no. xxiv. s. *V if
namely, that part of the town of Wokingham which lies in Berkshire, and that part of the parish which is in ft ills. These united together, and made one general rate for the two parts, and also desired the third part to join, but the inhabitants thereof refused to do so until the jear 1775; when in consequence of a mandamus to elect overseers for the whole parish they complied; but this mandamus was obtained upon consent or fraudulent collusion, without cause shewn, and was not deemed material by the learned judge. The counsel for the plaintiff' contended that the agreement entered into by the three districts of the par rish, could not alter the ancient, constitution of the parish. And it was shewn, that the town, and the Berkshire district, in alternate years, elected two overseers out of their separate districts.
The learned judge said, that he thought the agreement between the districts was binding upon the whole parish as it brought back the parishes upon the ancient law of the 4S.fi/i2. c.2; and the jury thereupon found a verdict for the defendants.
Lens, Seijt. and East was with him, moved for a rule to shew cause why there should not be a new trial on the ground of a misdirection of the judge, in this respect, and contended, that the stat. 13 and 14 Car. II. C. % 21, was imperative, that " where by
reasomof the largeness of the parishes, the inhabitants cannot have the benefit of the 43 of Eliz. all and every the poor within every township or village shall be maintained within the several townships and villages where they shall inhabit, or wherein they were last lawfully settled, and there shall be yearly chosen two or more overseers within every of the said townships ox villages respectively.*"
Lord Ellenborough, C. J. "The learned judg« did not probably state his direction without some qua
lification,* and it appears they have had, and, therefore, ifjo.v conldhave the benefit of the 43 Eliz. in the best manner possible, by electing overseers alternately for the whole parish. If I saw that they could not have the lnd^"u*r. benefit of that act in any substantial manner, I should lay hold of something in order to continue or revive the old constitution of the parish; but from the year J775, 1 think they have had the benefit of the 4 i of Eliz. c. 2, and therefore I do not think that the verdict should be disturbed,"
Rule to shew cause refused.
M'combie against Davies.—Nov. 11.
Where a factor, having a lien upon goods, pledges them to his
Semble aliler, if the lien is expressly transferred to the
HPHIS case was before the c»urt on a former occa sion, when a new trial was granted upon the following case :*. Datim,
This action was tried at Guildhall, in the sittings after Michaelmas term, 1804, the plain I iff was nonsuited by direction of the Lord Chief Justice, who tried the cause, on the ground that there was no conversion
* By the brief for th« plaintiff, it appears that Graham E. relied on the circumstance of the usage for 30 years, (hewing that the parish could have the benefit of the 43 Eliz. c. 2. But it was also there stated, that the defendant admitted" that the several overseers now act separately for their separate districts only. The jury found expressly, that until 1773 and 1775 each division maintained its poor separately. * See Smith's Riports, Vol. 2. p. 557.
1805. i by Ibe defendant; a motion was made in Hilary term last to set aside the nonsuit, and for a new trial, and the opinion of the court was reserved upon the following facts;
That the plaintiff was a merchant in Aberdeen, and had employed a Mr. James Rowland Coddan, an accredited broker in the tobacco trade, and a dealer in tobacco on his own account, to purchase him some tobacco, which he accordingly did; that the tobacco, the subject of the action, was part of that tobacco; but the defendant had no knowledge of the transaction between the plaintiff and Coddan. That Coddan the broker, bought the tobacco in his own name, and whilst it was in the king's warehouses, and had it transferred to him, in his own name, in the king's warehouses, where it remained subject to the payment of the duties, as is usual, till the tobacco it actually delivered out of the warehouses. That Coddan, being in want of money, pledged the tobacco in his own name with the defendant, for a sum of money, and transferred it into the defendant's, name in the king'* warehouses.
Afterwards an application was made to the defendant on the partof the plaintiff, for a delivery of the tobacco in question; the defendant's answer was, that he bad advanced money to Coddan thereon, that he did not know M'Combie, and could not transfer them but to Coddan & order, and_ not till his advances were paid. That on the 6th and 7th of November, the following orders were addressed to the deftndant.
"B. A.—237—L. 649—597—659—508. "Mr. DavisS,
"Sir-f-Please to deliver to the order of Mr. Thomat M'Combie, the above five hogsheads of tobacco, his property.
Your most obedient servant.
James Rowland Cobdan."
u Mr. Soiomon Datiii,—Sir— 1 have to request you will immediately deliver to me five hogsheads of tobacco, marked it05. and numbered as below, the same being my property, and ■■ placed in sour hands by my broker, James liox/and Coddan, ^'f?*^* whose order for their delivery I now hand you, and have to Dim*, observe, that if you do not deliver them over to me, I shall be t :ider the necessity of entering an action against you to enforce their delivery. I am Sir, your obedient servant,
Tiiomas M'combik. B. A.—No. 237—L. 649—597—659—508." That the defendant received the said orders; but said, that he should not deliver the tobacco, until he was paid the money thai he advanced to Coddan; that the tohacco still remains in the king's warehouses, the duties not yet being paid thereon, entered in the books at the king's warehouse in the name of the defendant.
This case was accordingly tried again, at the sittings after last Trinity term, before Lord EllenBorough, C. J. in London; when it appeared that Coddan, the factor, who had pledged the tobacco to the defendant, had a lien on the goods for 301. for money due to him. It was therefore contended that Coddan having transferred his right to the defendant, the plaintiff was notentitled to recover without having previously paid or tendered the 301. the subject of Coddon's lien; but his lordship held, that the factor could pot transfer the lien by the tortious act °f Paging.
The Solicitor General now moved for a nevr trial upon the ground that the possession of Davies was the possession of Coddan, and that the same lien which Coddan had, the defendant might have also; for this purpose he cited Daubigny v, Duval, 5 T. Rep. 504.
Lord Ellenborough, G. J. "Lord Keni/on said, in the case of Street v. Pym, 1 East 4, that the right of lien has never been carried further than while the goods are in the possession of the person who is entitled to the original lien, in the possession of the pax