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1819.

Cosser against Dicaons.

same time denied, as he had a right to do by the statute. It would be attended with great inconvenience and waste of time at the assizes, where the first issue' which disposed of the cause was found for the plaintiff or the defendant, if the jury were afterwards required to go on and try other points, which, by their first finding, had become immaterial: as where in an action of trespass, for breaking and entering the plaintiff's close, upon a plea of not guilty, and a right of common, or a right of way, the jury found that the close was not the plaintiff's, it would be absurd to go on and to try whether the defendant had a right of common, or a right of way upon it, which would occupy many hours. So here, to require the jury, after they had found that no such rent as is mentioned in the avowries ever existed, to find that so much of the very same rent was due and in arrear, would be calling upon them to stultify themselves. The finding of the jury upon these latter pleas was wrong in every way, for they had found not that 361., which is half a year of the rent mentioned in the avowries, but that 361. 4s. 6d. for half a year's rent, which is another and different rent, was in arrear, which was in effect a finding for the plaintiff; if then the defendant was entitled to a verdict upon such a finding as this, it would follow that she might, under the statute 17 Car. 2. c. 7., have proved the value of the goods distrained, and have had execution against the plaintiff, though the cause was determined in his favour for rent she had never avowed for, and which was never in question upon the pleadings.

GRAHAM B. upon the first point said, that he re-
tained the opinion he had expressed at the trial, that
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the

1819.

COSSEY against DIGGONS.

the exact amount of the rent must be proved, and cited Bristow v. Wright (a), where, though it was not necessary for the plaintiff to state the particulars of the demise, yet, having stated them, the Court held, that he was bound to prove them exactly as laid. Upon the second finding, he said, he thought that the finding was substantially in favour of the plaintiff upon the last pleas also, and accordingly directed the verdict to be entered for the plaintiff upon all the issues.

(a) Dougl. 665.

Monday,

The King against FLETCHER Rigge, Esq.

May 10th.

It is a good

E. ALDERSON moved for a mandamus to be dicustom in a manor that the

rected to the defendant, as learned steward of steward or his deputy should the manor of Osmotherly, in the North Riding of the have the sole right of pre

county of York, commanding him to receive and examine paring all the

a surrender of a copyhold tenement within that manor. surrenders of copyhold tene- The defendant had, on application, refused to receive it, ments within the manor. on the sole ground, that the surrender had not been

prepared by the deputy-steward of the manor (there being a custom to that effect), but by the attorney for the parties. All the requisite fees, &c. had been tendered, It was now contended, that this was a bad custom, being in restraint of common right. Every one has a right to choose such legal adviser as he may think proper, and in whom he may have confidence. And, supposing that the deputy-steward was, as he might be, incompetent to the office, it would be hard to prohibit the copyholders from other assistance. · The nearest cases to this, are those of the mill and bakehouse, in

1819.

The King

against RIGGE.

which it has been held not to be a bad custom, that all the copyholders should grind at the lord's mill, and bake at his bakehouse. But the ground for this is said in 1 Rolle, 559. pl. 40., to be that possibly there was an express agreement to that effect between the lord and his tenants on the erection of the mill or bakehouse at the expense of the lord. No similar ground can be laid for the origin of this custom, which is therefore bad, as not having had a reasonable commencement. Com. Dig. Copyhold, S. 10.

Per Curiam. In former times the tenant would have come into court, and verbally surrendered to the steward, who would then have recorded the surrender, and given to him a copy of it. The tenant can only alien his property by custom, and by custom there may be this qualification of his right to alien, that the surrender be prepared by the steward or his deputy; and the custom is advantageous to the tenant, for the steward is bound to prepare the surrender for a fixed fee, and is likely to be better acquainted with the different customary tenements than any stranger can be.

Rule refused.

3

Irons against SMALLPIECE.

Tuesday,

May 11th. TROVER for two colts.

Plea, not guilty. The A verbal gift

of a chattel, defendant was the executrix and residuary legatee without actua. of the plaintiff's father, and the plaintiff claimed delivery, does the colts, under a verbal gift made to bim by the testa- property to the tor twelve months before his death. The colts, however, continued to remain in possession of the father until his death. It appeared, further, that about six months before the father's death, the son having been

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1819.

IRONS

against SMALLPIECE.

to a neighbouring market for the purpose of purchasing hay for the colts, and finding the price of that article very high, mentioned the circumstance to his father; and that the latter agreed to furnish for the colts any hay they might want at a stipulated price, to be paid by the son. None, however, was furnished to them till within three or four days before the testator's death. Upon these facts, Abbott C. J. was of opinion, that the possession of the colts never having been delivered to the plaintiff, the property therein had not vested in him by the gift; but that it continued in the testator at the time of his death, and consequently that it passed to his executrix under the will; and the plaintiff was therefore nonsuited.

Gurney now moved to set aside this nonsuit. By the gift, the property of the colts passed to the son without any actual delivery. In Wortes v. Clifton (a), it is laid down by Coke C. J., that, by the civil law, a gift of goods is not good without delivery; but, in our law, it is otherwise ; and this is recognized in Shepherd's Touchstone, tit. Gift, 226. Here, too, from the time of the contract by the father to furnish hay for the colts at the son's expense, the father became a mere bailee, and his possession was the possession of the son ; and an action might now be maintained by the defendant, in her character of executrix, upon that contract, for the price of the hay actually provided.

ABBOTT C. J. I am of opinion, that by the law of England, in order to transfer property by gift there must either be a deed or instrument of gift, or there must be an actual delivery of the thing to the donee.

(n) Roll, Rep. 61.

Here

1819.

IRONS

against SMALLPIECE.

Here the gift is merely verbal, and differs from a donatio mortis causâ only in this respect, that the latter is subject to a condition, that if the donor live the thing shall be restored to him. Now, it is a well established rule of law, that a donatio mortis causâ does not transfer the property without an actual delivery. The possession must be transferred, in point of fact; and the late case of Bunn v. Markham (a), where all the former authorities were considered, is a very strong authority upon that subject. There Sir G. Clifton had written upon the parcels containing the property the names of the parties for whom they were intended, and had requested his natural son to see the property delivered to the donees. It was therefore manifestly his intention that the property should pass to the donees; yet, as there was no actual delivery, the Court of Common Pleas held that it was not a valid gift. I cannot distinguish that case from the present, and therefore think that this property in the colts did not pass to the son by the verbal gift: and I cannot agree that the son can be charged with the hay which was provided for these colts three or four days before the father's death ; for I cannot think that that tardy supply can be referred to the contract which was made so many months before.

HOLROYD J. (6) I am also of the same opinion. In order to change the property by a gift of this description, there must be a change. of possession : here there has been no change of possession. If, indeed, it could be made out that the son was chargeable for the hay provided for the colts, then the possession of the

(a) 2 Marsh, 532.

(6) Bayley J. was in the Bail Court.

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