« ForrigeFortsett »
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
for the non-delivery of malt, which the defendant had
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.
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
raneous acts; the carrier being bound to receive the goods
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.
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
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.
END OF EASTER TERM.