been always ready and willing, and
offered to convey the lands to the
defendant, but that the defendant
did not pay the purchase-money;
and, on demurrer, held, That such
general allegation of title in the
plaintiff, and that his title was made
good and satisfactory to the defend-
ant, and that the plaintiff was ready
and willing, and offered to convey
to the defendant, were a sufficient
performance of the agreement on
his part to entitle him to recover
for a breach of the defendant's part
in not paying the purchase-money.
Martin v. Smith, T. 45 G. 3. 555
4. In declaring upon a contract, not
under seal, consisting of several
distinct parts and collateral provi-
sions, it is sufficient to state so much
of it as contains the entire consider-
ation for the act, and the entire act
or duty which is to be done (includ-
ing the time, manner, and other cir-
cumstances of its performance) in
virtue of such consideration; the
breach of which act or duty is con.-
plained of: but part of the contract,
which respects only the liquidation
of damages, after a right to them
has accrued by a breach of the con-
tract, is not necessary to be set
forth in the declaration, but is only
matter of evidence to be given to
the jury in reduction of damages.
Clarke v.
Gray, and Marsden v.
Gray. Trin. 45 G. 3.
5. Therefore, assumpsit may be main-
tained in the common form of de-
claring against a carrier for the loss
of goods, which were of above 5 l,
value, and were not in fact paid for
accordingly, although it were part
of the contract, proved by general
notice fixed up in the carrier's office,
and presumed to be known and as-
sented to by the plaintiff, That the
carrier would not be accountable for
more than 5 l. for goods, unless en-
tered as such, and paid for accord-
ingly.
The Court refused to proceed summa-
tily against a steward, who was an
attorney, to compel him to account
before the Master for receipts and
payments in respect of a mortgaged
estate, and to pay the balance to his
employer, and to deliver up upon
oath all deeds, writings, &c. relative
to the estate, this being the proper
subject of a bill in equity, and not
a case for a mandamus to compel a
steward of a manor to deliver up
court rolls, &c. in lieu of which
this summary mode of proceeding
has been adopted, where the steward
of the court is an attorney. Cocks
v. Harman, E. 45 G. 3.
An auctioneer was employed to sell an
estate, the lowest price of which
was fixed by the owner, and written
down by him on a piece of paper,
which was put under a candlestick
at the time of sale, with the privity
of the auctioneer, but not signed
by the owner, nor any notice in
writing given to the auctioneer of
the price so set down, nor had the
auctioneer given the previous no-
tice of the sale to the collector of
the duty, as required by the acts of
the 19 G. 3, c. 56, and 28 G. 3,
c. 37; but being asked at the sale,
Whether he had taken the proper
precautions to avoid the duty, in
case there were no sale? - he said,
That it was his mode to fix a price
under the candlestick; and if the
bidding did not come up to that
price, it was no sale or duty: held,
That the duty having attached, tho'
there were no sale, for want of tak-
ing the precautions required of the
owner by the statutes under such
circumstances, and the auctioneer
having been sued for the duty on his
bond to the crown, and compelled to
pay it, he could not recover it over
against the owner, he having in ef-
fect warranted that proper precau-
tion had been taken to prevent the
duty attaching in the event, though
both parties were mistaken in the
law. Capp v. Topham, E. 45 G. 3.
After an award made under the hand
of an umpire, and ready for deli-
very, pursuant to the terms of re-
ference, of which notice was given
to the parties, an alteration by the
umpire of the sum awarded, though
made on the same day, and before
delivery of the award, is void; but
the award is good for the original
sum awarded, which was still legi-
ble, the same as if such altera.
tion had been made by a mere
stranger, without the privity or con-
sent of the party interested. Hen-
free v.Bromley, E. 45 G. 3.
See Ship Register Acts, No. 1.
1. B. a trader in London, ordered
goods to be shipped to him by D.
and Co. his correspondents at Dant-
zick, who were to draw for the
amount on F. at Hamburgh (who
had agreed to accept the bills upon
receiving commission on the a-
mount); and the bills of lading and
invoices were to be transmitted by
D. and Co. from Dantzick to F. at
Hamburgh, who was to forward
them to B. in London; and F. ac-
cordingly accepted the bills of ex-
change drawn upon him; and, on
the receipt of the bills of lading,
transmitted the same (which were
made out to the order of the ship-
pers, and not indorsed) to B. in
London, who received them, toge-
ther with the invoices and letter of
advice, five days after an act of bank-
ruptcy committed by him.
also became bankrupt; and the bills
of exchange drawn on him by D.
and Co. were obliged to be taken
up and paid by themselves: held,
1st, That F. had no right to stop the
goods in transitu; being no more
than a surety for the price, and not
vendor or consignor;
2d!y, That
one, who was general agent of F.
in London, having obtained the bills
of lading from the bankrupt after
his bankruptcy, upon an agreement,
when the goods arrived, to dispose
of them, and to apply the net pro-
ceeds to the discharge of such bills
as had been drawn against the
goods, had no authority to retain
the proceeds against the assignees
of B. the bankrupt, either in re
spect of F. or in respect of a stop-
ping in transitu on behalf of D.
and Co. the shippers, who, after
his possession of them, and after
trover commenced by B.'s assignees
for the valuie, sent a letter to him,
approving of his having obtained
possession of the bills of lading and
the goods; for, at any rate, there
was no adverse stopping in transitù,
but the goods were obtained by
agreement with the vendee after
his bankruptcy, even if the defend-
ant could be considered as agent for
the shippers at the time by relation.
Siffken and Feize, Assignees of
Browne, a Bankrupt, v. Wray, E.
45 G. 3.
The general plea of bankruptcy,
and the certificate given by stat.
5 G. 2, c. 30, s. 7, may be pleaded,
without averring that the bank-
ruptcy happened before the com-
mencement of the suit: but if it
appeared at nisi prius that it hap-
pened after the action brought, it
seems that the defendant could not
avail himself of the defence under
such a general plea, which is only
given by the statute, in case any
bankrupt who has conformed to the
law shall afterwards be arrested or
impleaded for any debt due before-
such time as he became bankrupt.
Toger v. Cameron, E. 45 G. 3. 413
1. The stat. 6 G. 2, c. 31, only au-
thorizes parish-officers to take secu-
rity from the putative father of a
bastard child to indemnify the pa-
rish; and therefore where they had
taken a promissory note absolute
for a sum certain, to which there was
a plea of tender of a lesser sum to
the amount of the charge actually
sustained by the parish, which ten
der was found for the defendant:
held, That the plaintiffs could not
recover further upon the note. Cole
v. Gower, Hil. 45 G. 3.
110
2. And where, in an action on such a
promissory note, it appeared that
the parish had been indemnified:
held, That the defendant was enti-
tled to a verdict. Wild v. Griffin,
sittings after Trin. Term at West-
minster, cor.Ld.Ellenborough, C.J.
BEDFORD LEVEL
CORPORATION.
The stat. 13 Cur. 2, c. 17, creating
the corporation of the Bedford Le
vel, directs, That they shall appoint
a registrar, &c. and other officers at
their pleasure; the duty of which
registrar is to register titles to land
within the level; and he takes an
oath of office: held, 1st, That an
information in nature of quo war-
ranto does not lie against such an
officer, he being a mere servant of
the corporation, and his office not
affecting any franchise or other au-
thority holden under the crown;
and the corporation having at the
request of the registrar, elected a
deputy register, — held, 2dly, That
the latter officer must be considered
as much a deputy of the principal re-
gistrar as if nominated by him. ;
3dly, That, however such deputy
were properly or not constituted in
the first instance, yet his authority
necessarily expired on the death of
his principal;thly, That how-
ever the acts of a legal deputy to a
ministerial officer may be good f
ter the death of his principal, before
notice thereof to those who are in-
terested in his acts, as being done
under a colour of authority, yet that
the titles of land-owners within the
level, registered by the deputy after
the death of his principal was known,
were invalid;thly, That the
persons whose titles were so illegally
registered, had no authority under
the act of parliament to vote at the
election of a new registrar; — 6thly,
That upon affidavit that one of two
candidates for the office had a majo-
rity only by means of such illegal
votes, the Court granted a manda-
mus to the corporation to admit and
swear the other, who appeared upon
the affidavits to have the greater
number of legal votes; and this, al-
though the first was admitted and
sworn into the office, there being
no other specific, or at least no other
such convenient mode of trying the
right. Rex v. The Corporation of
the Bedford Level, E. 45 G. 3. 356
BILLS OF EXCHANGE, AND
PROMISSORY NOTES.
Where notice of the dishonour of a
bill of exchange, by the accptor in
London was sent by the post to the
holder in Manchester, where the let
ter was delivered out between eight
and nine o'clock in the morning, and
the post went out for Liverpool,
where the drawer lived, between 12
at noon and one, and the holder did
not send notice to the drawer by the
post either of the same day or the
next, but sent it in a letter by a pri-
vate person on the latter day, who
did not deliver it to the drawer till
two hours after the post delivery,
and only about one hour before the
post left Liverpool for London,
whereby the drawer was so agitated
that he could not write in time for
that day's post to London: held,
That at all events the holder had
made the bill his own by his laches;
for whether reasonable notice be
a question of law or fact, or whe-
ther the general rule of law require
notice of the dishonour of a bill to
be sent to a party living at another
place by the next post after it is re-
ceived (by which must be understood
the next practicable post in point of
time and distance); and whether
four hours between the coming in
and going out of the post be a suffi-
cient interval in point of practical
convenience to receive the notice
and to prepare a letter of advice to
the drawer; at all events, the holder
ought to have written by the past of
the next day after notice received
by him; and ought not to have de-
layed the receipt of notice by the
drawer until after the arrival of the
next post, by sending the letter by
a private hand. Darbishire and an-
other v. Parker, Hil. 45 G. 3.
2. Where a bill of exchange passed
through the hands of five persons,
all of whom lived in London or the
'neighbourhood, and the bill, when
due, being dishonoured, the holder
gave notice on the same day to the
5th indorser, and he, on the next
day, to the 4th, and he, on the next
day, to the 3d, and he, on the next
day, to the 2d, and he on the same
day to the 1st,
the Court were of
opinion, on a case of finding these
facts, That due diligence had been
used; and Lord Kenyon thought that
the question of due diligence was
proper to be left to the jury; on
which the other judges gave no
opinion. Hilton v. Shepherd, E.
36 G. 3.
3. Dubitatur by Lord Kenyon, Whe
ther the question of reasonable no-
tice, as to the dishonour of a bill of
exchange, be not a question of fact
to be submitted to the jury under
all the circumstances of the case?
But though the holder may have
lost his remedy by laches, in not
giving notice against the drawer (and
such notice given by the drawee to
the drawer the next day, will not
suffice for notice by the holder); yet
a subsequent promise to the holder
by the drawer, that he will see the
bill paid, will support an assumpsit.
Hopes v. Alder, M. 40 G. 3.
The stat. 6 Geo. 2, c. 31, only
authorizes parish-officers to take se-
curity from the putative father of a
bastard child to indemnify the pa-
rish; and therefore where they had
taken a promissory note absolute for
a sum certain, to which there was a
plea of tender of a lesser sum, as the
amount of the charge actually sus-
tained by the parish, which tender
was found for the defendant: held,
That the plaintiffs could not recover
further upon the note. Cole and
others v. Gower, H. 45 G. 3
5. And where the parish were entirely
indemnified, there was a verdict for
the defendant on such a note. Wild
v. Grigin, sittings after Trin. 1804,
cor. Lord Ellenborough, C. J. ib.
should continue to be employed, he
would justly account and obey
orders," &c. confines the obligation
to the period of 12 months named in
the recital. The Company of Pro-
prietors of the Liverpool Water-
works v. Atkinson and Harpley,
Trin. 45 G. 3.
2. A bond, conditioned for the pay-
ment of a certain sum by instal-
ments, is within the stat. 8 & 9
W. 3, c. 11, s. 8; and after judg.
ment obtained upon default of pay-
ment of one of the instalments, it a
subsequent instalment be in arrear,
the plaintiff cannot sue out execu-
tion for it, though within a year
after such judgment, without first
suing out a scire facias to revive it.
Willoughby v. Swinton, T. 45 G. 3.
550
3. In debt on bond, conditioned to
perform an award, the plaintiff must
assign a breach under the statute
8 & 9 W. 3, c. 11, and cannot have
judgment for the penalty, and take
out execution for the single sum
awarded, though the measure of da-
mages he ascertained by the award.
Welsh v. Ireland, T. 45 G. 3. 613
A. grants liberty, licence, power, and
authority to B. and his heirs to build
a bridge on his land, and B. cove-
nants to build the bridge for public
use, and to repair it, and not to
demand toll: the property in the
materials of the bridge, when built
and dedicated to the public, still
continues in B. subject to the right
of passage by the public; and when
severed and taken away by a wrong-
doer, he may maintain trespass for
the asportation. Harrison v. Par-
ker, H. 45 G. 3.
See Bills of Exchange, No. 6; Lease,
No.1; Ship Register Acts, No. 1.
CARRIER,
See Common Carrier.
CHARITABLE USES,
Bee Devise, No. 3.
CHASING,
See Insurance, No. 2.
CO-HEIRS,
See Entry, No. 3, 4.
COMMON CARRIER.
The lien of a common carrier for
his general balance, however it may
arise in point of law from an im-
plied agreement to be inferred from
a general usage of trade, proved by
clear and satisfactory instances suf-
ficiently numerous and general to
warrant so extensive a conclusion
affecting the custom of the realm;
yet it is not to be favoured, nor can
be supported by a few recent in-
stances of detention of goods by
four or five carriers for their general
balance but such a lien may be
inferred from evidence of the parti-
cular mode of dealing between the
respective parties. Rushforth and
Another, Assignees of B. and W.
Rushforth v. Iladfield, T. 45 G. 3.
2. Assumpsit may be maintained in
the common form of declaring
against a carrier for the loss of
goods, which were of above 5l.
value, and were not in fact paid for
accordingly, although it were part
of the contract, proved by general
notice fixed up in the carrier's office,
and presumed to be known and as-
sented to by the plaintiff, That the
carrier would not be accountable for
more than 51. for goods, unless en-
tered as such, and paid for accord-
ingly. Clarke v. Gray, and Mars-
den v. Gray, Trin. 45 G. 3.
Vide Pleading, No. 8.
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