Erch. of Pleas, a form of declaration is given against an innkeeper for re1841.

fusing to entertain a guest, and there the averment is, PICKFORD

“ that the plaintiff was then ready and willing, and offered
GRAND to pay the defendant a reasonable sum of money for such
RAILWAY Co. lodging.” In Rawson v. Johnson (a), which was an action

for the non-delivery of malt, which the defendant had
undertaken to deliver on request, at a certain price, it was
held sufficient for the plaintiffs in the declaration to aver
such request, and that they were ready and willing to re-
ceive the malt, and to pay for it according to the terms of
the sale, but that the defendant refused to deliver it, with-
out averring any actual tender of the price; and in that
case Lord Kenyon said, “Under this averment the plain-
tiffs must have proved that they were prepared to tender
and pay the money, if the defendant had been ready to
receive it, and to have delivered the goods; but it cannot
be necessary, in order to entitle them to maintain their
action, that they should have gone through the useless
ceremony of laying the money down, in order to take it up
again. It would be repugnant to common sense to require
it.” There, it is true, the duty was voluntarily imposed,
whereas in the case of carriers it is imposed by law;
but in both cases the principle is the same. [Parke,
B.- In this case the receipt of the goods, and the pay-
ment for the carriage, would be contemporaneous acts.]
The plaintiffs were not bound to pay the money until
the goods were received, and the price of the carriage
named; and they need not aver more than they are bound
to prove. In Wilks v. Atkinson (6), which was an action
for not delivering oil according to agreement, after de-
mand made, the declaration averred, "that the plaintiff,
on &c., requested the defendant to deliver it; but that
though the plaintiff was always ready and willing to ac-
cept it, and pay for the same on the terms agreed upon,

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yet the defendant would not deliver it,” &c. Gibbs, C. J., Exch. of Pleas,

1841. said, “that the delivery of the oil and the payment for it were to be concomitant acts; and that it was not necessary for the plaintiff to prove that he had offered the money to the defendant, till the defendant was ready to perform his RAILWAY Co. part of the contract by delivering the oil.Levy v. Lord Herbert(a), and Waterhouse v. Skinner (6), are authorities to the same effect. But it may well be questioned whether carriers are entitled to be paid in advance for the carriage of goods. The law casts upon them the duty of carrying the goods, and they must rely upon their lien as a security for the payment for the carriage.

Cowling replied.

Cur. adv. vult.

The judgment of the Court was now delivered by

PARKE, B. (After stating the pleadings, he continued): -It was admitted on the argument in this case, that the defendants, in their capacity of common carriers, are bound to carry all goods presented to them for the purpose, but it was contended that that is only on being paid in ready money: and the simple question is, whether, in order to support an action against them for refusing to carry, on the offer of a reasonable sum, it is necessary that the plaintiffs should have made what the law terms a strict tender, in the form required by law. Now the Court think that this is not like the case of a strictly legal tender, a term which is only applicable where an absolute duty, such as the payment of an antecedent debt, is imposed on the party making it, in which case the tender stands in the place of payment, and is in fact a payment, so far as it is in the power of the party tendering to make it one, but which remains incomplete only

(a) 7 Taunt. 314; 1 Moore, 56.

(6) 2 Bos. & Pul. 447.

Exch. of Pleas, because the party to whom the money is offered refuses to 1841.

accept it. Such a tender we consider to be altogether unPICKFORD

necessary in the present case; the acts to be done by both
GRAND parties, namely, the receipt of the goods, and the payment
RAILWAY Co. of a reasonable sum for their carriage, being contempo-

raneous acts; the carrier being bound to receive the goods
on the money being paid or tendered, and the bailor to pay
the reasonable amount demanded, on the carrier's taking
charge of the goods. The case of Rawson v. Johnson, and the
other cases cited by Mr. Martin, clearly shew, that whenever
a duty is cast on a party in consequence of a contempora-
neous act of payment to be done by another, it is sufficient
if the latter pay, or be ready to pay, the money, when the
other is ready to undertake the duty. Here the acts
to be done by the plaintiffs and defendants are altogether
contemporaneous. The money is not required to be paid
down by the plaintiffs, until the carrier receives the
goods, which he is bound to carry. Our judgment,
therefore, must be for the plaintiffs; but as there are some
other questions pending between the parties, which they
are desirous of having decided in the present action, the
defendants may have until the first day in next term to
apply at chambers for leave to amend, on payment of costs.

ALDERSON, B.-In cases of this nature, it is enough if the party be ready and willing to deal for ready money, and notify that readiness and willingness to the other side.

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Exch. of Pleas,

1841. SHARP v. KEY.

May 11. COVENANT on an indenture of lease, by lessor against Where rent beassignee of lessee, for a quarter's rent due the 29th of came due after

the delivery of September, 1840.

a writ of elegit

to the sheriff, The defendant pleaded that, before the rent became due, but before the

inquisition was one W. Sage, in the Court of Exchequer, recovered a judg- taken thereon: ment against the plaintiff for a certain debt and damages;

-Held, that the

execution crethat the debt and damages remaining unsatisfied, W. Sage, ditor was not

entitled to the before the said rent became in arrear, for obtaining satisfac- rent. tion, sued out a writ of elegit, and delivered it to the sheriff of Middlesex, indorsed to levy 271. 168.; that W. Sage then gave notice to the defendant to pay all future sums of the rent to accrue and become due to him, W. Sage: by virtue of which writ of elegit, afterwards, a certain inquisition was had and taken at the sheriff's office, to wit, on the 16th of October, 1840, and by adjournment on the 23rd day of October, 1840, by which inquisition it was found that the plaintiff, on the 3rd day of July, 1838, was seised in his demesne as of fee of and in certain premises, &c.; that those premises, with their appurtenances, the sheriff caused to be delivered to W. Sage, to hold until the debt and interest should be levied ; that the said premises are the same as in the indenture in the declaration mentioned, and that the said judgment was in full force, and the debt and damages unpaid, at the time when the rent aforesaid became due, and at the time of the commencement of this suit; and the said W. Sage, by means of the premises, thereby then became and was entitled to demand of and from the defendant the said rent, and therefore, before the commencement of this suit, demanded and claimed the same, &c.— Verification.

Special demurrer, assigning for causes, that the delivery of the premises under the writ and inquisition are a symbolical and not an actual delivery, and it does not appear in the

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Exch. of Pleas, plea that W. Sage evicted or ejected the defendant, with1841.

out which he was not of right entitled to receive the rents ; Sharp

nor is it stated that the defendant, before the rent accrued KEY. due, attorned to W. Sage; that it does not appear that the

rent was due after the taking of the inquisition, or after the delivery of the premises to W. Sage; that it does not appear what the nature of the plaintiff's estate was, or whether the same was capable of being extended under an elegit; and that it is not averred that the defendant paid the rent to W. Sage.

Cresswell, in support of the demurrer, was stopped by the Court.

Bramwell, in support of the plea.—The pleadings shew that the writ of elegit was delivered to the sheriff before the rent became due, although the inquisition was not taken until after. The question is, whether the inquisition had relation back to the time of the delivery of the writ to the sheriff, so as to entitle the execution creditor to the rent. Taking it to be realty, it would be bound from the time of the judgment; taking it to be personalty, from the time of the delivery of the writ to the sheriff. It is clear that the rent is a part of the reversion. [Parke, B. -The rent in arrear is no part of the reversion; it is a mere chose in action. Is there any authority to shew that the execution creditor is entitled to it?] There is no express authority.


Judgment for the plaintiff.


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