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1819.

RICKETTS

against SALWEY.

of a messuage and 150 acres of land, with the appurténants, and by reason thereof, was entitled to common of pasture for sheep, levant and couchant, on the said messuage, &c. at all times of the year, upon a certain common called Wheat Common." But there are not the words "thereto belonging," or any others of the like import, so as to connect the messuage and the land together. Had there been such words of connexion, I should have thought that the plaintiff was not entitled to recover. But this is not the case; and the messuage and lands are not connected together as one entire tenement. I think, therefore, that these are not words of description; but that this allegation is divisible, and that it may be considered as stating that the plaintiff was possessed of a house, and also that he was possessed of land, and that in respect of both or either he was entitled to the right of common in question. That being the case, the plaintiff, who has proved an injury done to the right claimed in respect of the land, is entitled to a verdict. The rule, therefore, for entering a nonsuit must be discharged. The defendant, however, is entitled to have the verdict entered specially, according to the evidence at the trial, and then this objection, if it be valid, may be taken advantage of upon the record.

BAYLEY J. I think that this allegation is not entire, but divisible; and that if the plaintiff proves a part only, and that he has been injured in respect of that part, it is sufficient. The allegation is, that the plaintiff was possessed of a certain messuage and 150 acres of land, and that in respect of them he was entitled to the right of common in question. Now I think that that is in legal effect a claim of a

right of

common

common either in respect of the whole or a part, and that the plaintiff is not bound to prove his right in respect of the whole. There is one mode of putting this case which will make it more intelligible. Suppose that the right had originally existed, both in respect of the messuage and also of the land, would it be an answer to an action for the disturbance of that right to shew that the right had been extinguished in some part of the land. It is true that that is only putting this very case in a different light; but it shews that the Court have come to a right conclusion. In this case it appears that the plaintiff has been injured, supposing him to be able to shew that he has a right of common, either in respect of the messuage or any part of the land. A difficulty may be suggested, that if this were held sufficient, it would follow that it would be competent for him to prove his right in respect of five acres here and five acres there; but that is not so. For by this declaration there is only one right claimed. The plaintiff, therefore, could not prove distinct rights belonging to unconnected portions of land. Then the case of Yarly v. Turnock is a strong authority to shew that the present decision of the Court is right.

There the declar

ation stated the plaintiff's claim in respect of 60 acres pasture, 60 acres meadow, and 80 acres arable land, and the verdict found a right in respect of 90 acres arable, meadow, and pasture; and as to the residue, that the plaintiff was not entitled to it. Now there the plaintiff must have failed if it had been necessary to have proved the whole allegation. It is said that he there failed only as to quantity; but that here he has failed as to quality, not having proved a right in respect of any messuage at all. But there is no found

1819.

RICKETTS

against SALWEY.

1819.

RICKETTS against SALWEY.

ation for such a distinction; and I am, therefore, of opinion that the verdict is right.

HOLROYD J. I am of the same opinion, that the allegation in this case has been sufficiently proved. It is quite enough in cases of tort if you prove the same ground of action laid in the declaration, although not to the extent there stated. And in such cases the Court will give judgment as if the declaration had been originally confined to the ground of action proved. In the cases of contract and prescription it is different; for in the former, if all that is stated in the declaration be not proved, it is a proof of a different contract, and a different ground of action. The party, therefore, cannot be entitled to the judgment of the Court. In the latter case, where a prescription is alleged in bar, it is one entire thing, and must be proved as laid. In the present case the declaration does not allege any prescription, but states that the plaintiff was possessed of a messuage and land, and that he ought in respect of them to have a right of common. Now the proof given is not of a different allegation, but of the same allegation in part, and that is sufficient. It is admitted, that if the allegation had been of a right in respect of a certain quantity of land only, and the proof had been of a right in respect of a part of that land, it would be sufficient. Then how can it be contended that it makes any difference that the premises in respect of which the right is not proved are of a different description from those in respect of which it is proved. If it be sufficient to prove part of an allegation claiming a right in respect of land only, there is no principle

of

of law which shews that the same rule does not apply to an allegation claiming such a right in respect of a messuage and land. For these reasons, I am of opinion that the verdict is right.

BEST J. In cases of contract and prescription the allegation must be proved as laid; but that rule is not applicable to cases of tort, where the right is merely the inducement to the action. In this case, the plaintiff is entitled to our judgment, if he has a right of common, and that right has been disturbed by the defendant. Now he has stated a right in his declaration, and has proved the same right in part by his evidence; and I think that is sufficient to entitle him to damages pro tanto. The rule, therefore, must be discharged. Rule discharged.

1819.

RICKETTS

against SALWEY.

DOE, dem. ROBERTS, against ROBERTS, Widow.

EJECTMENT for certain premises situate in the county of Worcester. At the trial at the last as sizes for that county, before Garrow B., the plaintiff rested his case on a deed, executed August 1st, 1817, by which George Roberts, the husband of the defendant, had conveyed the premises in question to him; and the only question was, as to the validity of this deed. solicitor who had prepared the deed proved its cution. On his cross-examination, he said he received instructions from both parties, who were brothers, to prepare it. That the avowed object was to give the present plaintiff a colourable qualification to kill game, and to get rid of an information then pending against him. That he told George that it was

No man can be lege his own

allowed to al

fraud to avoid

his own deed; and, therefore,

where a deed

of conveyance from one bro

of an estate

The

exe

ther to another
was executed
to give the lat-
ter a colourable

had

qualification to kill game:

a

dan

Held that, as against the parties to the deed,

it was valid,

and was sufficient to support for the pre

an ejectment

mises.

1819.

DOE, dem
ROBERTS,
against
ROBERTS.

dangerous deed for him to execute, but he said he could trust his brother. The title deeds were retained by George in his own possession. It was objected, that this evidence was not receivable; that a party could not avoid his own deed by shewing fraud, to which he was himself a party. The learned Judge received the evidence, and the defendant had a verdict. A rule nisi having been obtained in last Michaelmas term for setting aside this verdict,

Puller and Campbell now shewed cause. They relied on the case of Platamone v. Staple (a), where an injunction was obtained to restrain the defendant from suing on a rent charge, granted for the purpose of a qualification to sit in parliament. In Birch v. Blagrave (b), the conveyance was to avoid being sheriff of London; and it was held, that it was wholly inoperative: and Ward v. Lants (c) is to the same effect.

Jervis and Peake, contrà, were stopped by the Court.

ABBOTT C. J. There is no doubt in this case. The plaintiff, at the trial, produced a proper deed of conveyance, and proved its execution, and by that he established his title to the premises. The defendant endeavoured to defeat this, by shewing that the deed was delivered for the fraudulent purpose of giving to the plaintiff a colourable qualification to kill game; but in the case of Montefiori v. Montefiori (a), Lord Mansfield expressly said, "that no man shall set up his own iniquity as a defence, any more than as a cause of action." Here that is attempted to be done; but the

(a) Cooper. Cas. in Chan. 250.
(c) Prec. in Ch. 182,

(b) Amb. 264.
(d) 1 Black. 565.
defendant

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