1819. SMITH against CHANCE. hay remained upon the land till about a month afterwards, when an arrangement having been come to between the plaintiff and Phillips, the latter then consented to the hay being carried off the premises. In the interval, however, the hay had been spoiled by exposure to the weather, &c. and the defendant then refused either to take or to pay for it. The learned Judge thought that, inasmuch as the bringing on the manure was not a condition precedent to carrying off the hay, the defendant was entitled, notwithstanding the refusal of Phillips, to have taken the hay after he had purchased it, and that he might, if necessary, have brought trover for it; and that he could not, therefore, resist the demand made by the plaintiff for the payment of the stipulated price. The jury accordingly found a verdict for the plaintiff. A rule nisi having been obtained by Russell, in last Easter term, for setting aside this verdict, Puller shewed cause. The bringing on the manure was no condition precedent to the removal of the hay by the plaintiff or his vendee; Phillips, therefore, was wholly unjustifiable in his refusal, and the defendant ought not to have acquiesced in it, but might have maintained trover. At all events, the defendant ought to have repudiated the contract sooner, and not have proceeded to cut the hay into trusses, for it will be hard upon the plaintiff, who has lost his hay by the defendant's neglect, if he cannot now recover the price. Jervis and Russell, contrà, were stopped by the Court. ABBOTT C. J. I think that the learned Judge was mistaken in the view which he took of this case. For I am of opinion that neither Smith nor Chance could, without Phillips's permission, have removed this hay from the premises. That permission, as it appears from the evidence, was given sub modo; for Phillips only consented that the hay should be taken away, provided Smith fulfilled his agreement with the landlord. The learned Judge thought that by that agreement the plaintiff was not bound to bring on the manure till after the hay had been removed. That was so during the possession of the land by the plaintiff, but after the expiration of the plaintiff's tenancy the succeeding tenant might then refuse to permit the plaintiff to carry away the hay till after the manure was brought on. I think, therefore, that the learned Judge was wrong, and that a satisfactory defence was made out in evidence. BAYLEY J. The circumstances in which this hay was placed ought to have been communicated to the defendant at the time of the sale. He would naturally suppose that the plaintiff had a right to deliver the hay, whereas the contrary turns out to be the fact. HOLROYD J. I am of the same opinion. A party cannot maintain an action for the price of goods sold and delivered until he has either delivered them or done something equivalent to delivery; as for instance, if he has put it in the vendee's power to take away the goods himself. But here the defendant was prevented from carrying away the hay by Phillips, on whose premises it was standing. And it was incumbent on the plaintiff to have removed that obstacle previously to the sale. BEST J. concurred. Rule absolute for a new trial. is19. SMITH against CHANCE. 1819. Monday, Declaration stated that de. fendant went before one R.C. Baron Water park, of Waterfork, in the county, &c. and the proof was that he went be fore R.C. Baron Waterpark, of Waterpark, in the county, &c.: Held that the allegation in the declaration was a description of a name of dig nity, and therefore that this was a fatal vari for slander: WALTERS against MACE. DECLARATION stated that the defendant went before Richard Cavendish, Baron Waterpark of Waterfork, in the county of Cork, one of the justices, &c. for the county of Stafford, and falsely and maliciously, and without any probable cause, charged the plaintiff with felony, and obtained a warrant to search his house, &c. There was also a count for slander, and the words laid in that count were these, "this is my [defendant's] umbrella, and he [plaintiff] stole it from my [defendant's] back door." Plea not guilty. At the trial before Garrow, Baron, at the last assizes for the county of Stafford, it appeared in evidence, that the charge was made beance. In a count fore Richard Cavendish, Baron Waterpark, of Waterpark, in the kingdom of Ireland, a justice of peace for the county of Stafford; that the defendant obtained a stole it from my search warrant, under the authority of which he went to the words were, "This is my umbrella: he back-door.' The words proved were, It is my umbrella, &c." And it appeared that these words were not spoken in the house where the um Held that the the plaintiff's house, and, upon seeing an umbrella, said it was his, but would not swear to it; that he then returned home, and there said, in the presence of a constable, "It is my umbrella, and he stole it from my back-door." Jervis, for the defendant, objected, that brella then was: the two first counts could not be supported, upon the ground of the variance between the description of the not support the title of Lord Waterpark in the declaration and proof, and as to the third count, that it was not supported in point of proof, the words being "It is my umbrella," evidence did declaration, inasmuch as the words laid imported to be spoken con cerning a thing and the words laid in the declaration being, "This is my umbrella;" which purported to be spoken of something then present, and the words given in evi. dence were actually spoken concerning a thing not present at the time. present. present. The learned judge thought both these objections fatal, and nonsuited the plaintiff. A rule nisi for setting aside the nonsuit was obtained in last Easter term, against which rule Jervis and Puller were about to shew cause, but the Court called upon W. E. Taunton, contrà, in support of the rule. The variance here is immaterial, because the averment does not profess to set out the title of Lord Waterpark, but only his name and the place of his residence, which latter may be rejected as surplusage. The averment itself is immaterial, for it would have been sufficient to state that he appeared before Lord Waterpark, one of the justices, &c. In Purcell v. McNamara (a) it was held not to be necessary to prove the exact day of the plaintiff's acquittal in the declaration, the day not being laid as part of the description of the record of acquittal, and in The King v. Lookup, there cited, where an indictment for perjury, stated the bill in Chancery, to have been directed to Robert Lord Henley, &c., and it was directed to Sir Robert Henley, Knight, it was held sufficient. [Holroyd J. He was both Lord Henley at the time of the indictment, although only Sir Robert Henley at the time when the bill was filed. It was therefore true that the bill had been directed to Robert Lord Henley, though by another name. That is the way in which I have always understood the case.] As to the second point there is no substantial difference between "This is my umbrella," and "It is, &c." and the exact words need not be proved. VOL. II. (a) 9 East, 157. 3 D ABBOTT 1819. WALTERS against MACE. 1819. WALTERS against MACE. ABBOTT C. J. I think the nonsuit was right upon both grounds. The allegation in the declaration must be understood, as containing the description of the name of dignity of Lord Waterpark, before whom the party went, and if so, it must be proved as laid. For non constat, but that a different person may have the title mentioned in this declaration. Upon the second point, I also think the nonsuit right. It certainly is not necesary to prove the exact words laid in the declaration; it is sufficient to prove the substance of them: here the words laid in the declaration are, "this is my umbrella," by which the party speaking must be understood to be speaking of something present. The word "it" is ambiguous, and imports to be spoken either of a thing present or absent; and if it had been shewn that the umbrella, the subject of the conversation, was present at the time, I should have thought that the nonsuit was wrong, but it was in evidence, that the umbrella was in the plaintiff's house, and that the conversation was in the defendant's; the allegation, therefore, was of something absent. This is, therefore, a variance: the words in the declaration purporting to be concerning something present, and the words proved importing to be concerning something absent. I think therefore that the nonsuit was right on both grounds. HOLROYD J. I am also of opinion that this nonsuit was right. The plaintiff, by making the allegation that he appeared before a particular person, obliges himself to prove that he appeared before the person described in the declaration. The allegation is, that he appeared before Baron Waterpark, of Waterfork; the proof is, that he appeared before Baron Waterpark, of Waterpark, and non constat |