tunc would give them a retrospective effect, contrary to the provisions of s. 7. of the statute 1 & 2 W. 4. c. 58. which requires the true date of the entry to be expressed in the margin of the record. Spankie said he desired only a judgment upon which the applicants could issue a scire facias. But The Court held that the statute having required that the date of the entry should be expressed, they had no power to give effect to a judgment by relation. 1835. LAMBIRTH V. BARRINGTON. Rule discharged. TANSLEY V. TURNER and Another. June 15. Plaintiff sold to J. trees lying on land occupied by B., and J. THIS was to have power of re moving them pleased. The trees having been marked by the purchaser, the with 207. damages, to be reduced to 1s. on delivery up of the timber, subject to the opinion of the Court upon the following case: The Plaintiff having purchased from a Mr. Buckley cubical cona quantity of growing timber then standing on his tents of each land at Garmelow in Staffordshire, had it all felled; and some of and, after it was felled, entered into a contract for the them having sale of a portion of the trees to one George Jenkins. been taken away, Held, that the ascertained, transfer of the whole was complete, and that upon J.'s bankruptcy the Plaintiff could not enforce any lien on the trees notwithstanding they remained on the land of B., and the sum total of the cubical contents had not been ascertained. 1835. TANSLEY บ. TURNER. Sale notes, of which the following was a copy, were George Jenkins." Six or eight of the trees were measured on the 27th of December, and taken away by Jenkins. Some time after the whole of the remainder of the trees were marked and measured, and the length and girth of the several trees having been taken by the servants of the Plaintiff and Jenkins, the cubic feet were then taken, and the figures put down on paper, by the Plaintiff's The cubic contents were not then ascertained, but the Plaintiff said he would make the statement out and send it to Jenkins. This, however, he never did. Jenkins afterwards drew many trees away; he took them from all parts of the ground. servant. On On the 15th of April, Jenkins became insolvent. that day the Plaintiff told the servant of Jenkins not to remove any more of the timber till he knew who was to pay him; the servant mentioned that to Jenkins, who told him not to go on drawing the timber until he had settled with the Plaintiff. Jenkins did not afterwards take any but on the 9th of May a fiat of bankruptcy was issued against him, under which the Defendant, Turner, was appointed assignee. In June the Plaintiff caused the remainder of the ash timber, which was still lying in the hedges as it had been felled, to be carried to his own saw-pits: and on the 15th of September the Defendants went and took away about two loads from the pits to a timber-yard, after notice not to take it: this was the trespass complained of by the Plaintiff. The question for the opinion of the Court (who were authorised to draw such inferences from the above facts as a jury would have done) was, whether the assignee had a right to the possession of the timber? If that should be the opinion of the Court, then a nonsuit was to be entered; otherwise the verdict was to stand. Lumley for the Plaintiff. The verdict in this case is right. First, the property in the trees never passed to Jenkins, because the measurement was incomplete. The girth and length of the trees had been taken, it is true, but the total cubic contents had not been ascertained; and until that had been done, there was still something remaining to be executed which required the seller to retain the trees. And, therefore, this case falls within the principle of Hanson v. Meyer (a), and Zagury v. Furnell (b), and is almost the same as Simmons v. Swift. (c) Secondly, though the property may have passed, yet the Plaintiff had not parted with the possession of the timber, and therefore had a lien upon it for the price. It is true that it was sold on credit, and the time of credit had not expired when the Defendants came for it; yet as it is clear that Jenkins was insolvent, the vendor is entitled to retain; as is to be inferred from the observations of Bayley B. in Miles v. Gorton. (d) As to the effect of the part delivery, that is only evidence from which it may or may not be inferred that the seller intended to relinquish his lien on the whole; Bunny v. Poyntz (e), Dixon v. Yates (g); and there is nothing in the facts of this case to warrant the Court, who are to act as a jury by the agreement of the parties, (a) 6 East, 614. (d) 2 Cr. & M. 512. 1835. TANSLEY v. TURNER. (b) 2 Campb. 240. (e) 4 B. & Adol. 568. (c) 5 B. & C. 857. (g) 5 B. & Adol. 313. 1835. TANSLEY บ. TURNER. in finding such an intent. On the contrary, the Plaintiff continued to exercise acts of ownership over the property long after the measurement of the trees. Thirdly, the Court will infer an abandonment of the contract by Jenkins when his servant was prevented from taking the trees, and he acquiesced: if so, his assignee, who is one of the Defendants, cannot avail himself of the contract. Whately, contrà, was stopped by the Court. TINDAL C. J. Under the circumstances of this case, I think there was a complete delivery to the purchaser. The trees, which were on the land of Buckley, were sold at so much a cubic foot; the purchaser to have the power of entering to remove them when he pleased. I agree that if any thing had remained to be done by the seller, the property had not passed. But when I find that all that remained was to ascertain the total number of cubical feet, and that the number for each tree had been ascertained, the mere adding up the whole is too trifling an incident to authorise us to say the measurement was not complete. Then comes the question, whether the vendor had a lien for the whole of the price upon the remainder of the trees not taken away. Undoubtedly he had such a right if the delivery was not complete; but the trees were on Buckley's land; the purchaser was to enter when he pleased, for the purpose of removing them; and what is that but making the land the warehouse of the purchaser? Now Jenkins took some of the trees immediately, and marked all the others; that shews that no property was meant to be retained by the seller. The case, therefore, stands clear of the authorities cited, and there must be judgment of nonsuit. PARK J. I am of the same opinion. Every thing to be done by the seller was done here; the number of cubic feet in each tree ascertained, and the trees marked so as to shew they belonged to the purchaser. It is objected that, because the several sums were not added into a total, there was no measurement. But no case warrants the objection; and the trees being on Buckley's land was the same thing in effect, as if they had been in the warehouse of the purchaser, for he was to enter the land when he pleased to take them away. GASELEE J. The only thing that seems to stay the purchase is the Plaintiff's telling the purchaser's servant not to proceed with the removal of the trees. But by that time it was too late for the seller to interfere, for the purchaser had become insolvent, and a fiat of bankruptcy had issued; and even if it were otherwise, there was no circumstance which could authorise the seller to rescind the contract. VAUGHAN J. This is not a case where any thing remained to be done by the seller; and as the purchaser had licence to enter when he pleased the land where the trees were, which was not the Plaintiff's land, the trees could not be said to remain in the Plaintiff's possession. Judgment of nonsuit. 1835. TANSLEY บ. TURNER. |