ship of it?]-He may, if he appears to all the world to be working up his King's Bench. own stock, and thereby acquires a credit. W. H. Watson, in reply.-The words of Lord Tenterden are exactly applicable to this case. He says (a), "The payment of these instalments appears to us to appropriate specifically to the defendant the very ship so in progress." -[Coleridge, J.-The decision, however, there was on the ground that the property passed at a subsequent period.-Patteson, J.-Lord Tenterden merely meant that the party, by the payment of the money, was entitled to the particular thing for which he had agreed and paid.]-The property here passed, and if the ship had been burnt after the payment of the second instalment, the plaintiff could not have recovered back the money paid. As to this being a tenancy in common between the plaintiffs and the bankrupt, the argument is not that each part vested on each payment, but that on the first payment being made the property vested in the purchaser, not only as to what was done, but what was to be done.-[Patteson, J.-My observation only applied to the supposition that you maintained the former argument.]-Rugg v. Minet and Simmons v. Swift are cases of specific appropriation by the act of the parties, and therefore do not apply to the present. There is nothing here to prevent the property vesting in the plaintiffs. PATTESON, J.-The facts in Woods v. Russell are somewhat different from those in this case, and there are expressions there which require consideration. On the last day of Hilary Term, 1836, the judgment of the Court was delivered by WILLIAMS, J.-This case was argued in Michaelmas Term last, by Mr. Watson for the plaintiffs, and Mr. Coltman for the defendants, before my brothers Patteson and Coleridge, and myself. The principal question that was raised was, in whom, under the special terms of the contract entered into between the plaintiffs and the bankrupt, John Brunton, the general property, in so much of the vessel as had been put together at the time of the bankruptcy, was vested? All consideration of any special property that might be in the bankrupt, by reason of the lien for monies expended on the vessel, according to the doctrine laid down in Woods v. Russell, was removed out of the case by the tender of the amount of all such monies which had been made by the plaintiffs; and we desire it to be understood, that in the judgment we are about to pronounce, we give no opinion whatever as to the soundness of that doctrine; it was not denied in argument, nor could it be, according to decided cases and known principles of law, that in general, under a contract for the building of a vessel, or making any other thing, not existing in specie at the time of the contract, no property vests in the party, -whom for distinction we will call the purchaser,-during the progress of the work, nor until the vessel or thing is finished or delivered, or at least ready for delivery and approval by the purchaser; and that in cases where the contract contains a stipulation for the completion of particular portions of (a) Woods v. Russell, 5 Barn. & Ald. 946. CLARKE and another v. SPENCE and another. CLARKE and another King's Bench. the vessel or other thing, and fixes the time and precise mode of payment, as each portion is completed, the general property in all the timber and other materials used in the progress of the work, vests in the purchaser at the time then they are put to the fabric under the approval of the superintendant, or, at all events, as soon as the first instalment is paid. Mr. and another. Justice Bayley, in the case of Atkinson v. Bell, says, "Where goods are v. SPENCE ordered to be made, while they are in progress the materials belong to the maker. The property does not vest in the party who gives the order until the thing ordered is completed; and although, while the goods are in progress, the maker may intend them for the person ordering them, still he may afterwards deliver them to another, and thereby vest the property in that other. Although the maker may thereby render himself liable to an action for so doing, still a good title is given to the party to whom they are delivered." So that it appears that the builder or maker is not bound to deliver to the purchaser the identical vessel or thing which is in progress, but he may dispose of that to some other person, and deliver to the purchaser another vessel or thing, provided it answers the specification contained in that contract. But it was urged, on the authority of the case of Woods v. Russell, that when the contract provides (as that in question does) that where a vessel should be built under the superintendance of a person appointed by the purchaser, and also fixes the payment to be made by instalments, regulated by particular stages in the progress of the work, the general property in the planks and other things vests in the purchaser when these things are put in the power of the superintendant, or as soon as the first instalment is paid. The facts in the case of Woods v. Russell did not make it necessary to determine this point; neither did the decision of the Court proceed ultimately upon any such point, but on the ground that the vessel, by virtue of the certificate of the builder, had been registered in the name of the purchaser, and that the builder had, by his own act, declared the general property to be in that purchaser. That appears both by the judgment itself, and by the notice taken of it by Lord Tenterden, in the last edition of his book upon Shipping, p. 44; but there is one passage in the course of that judgment which seems to us to establish the point contended for by the counsel for the plaintiffs; and although the opinion expressed in that passage be extra-judicial, yet, considering that time was taken before the judgment was pronounced, and the great learning of those by whom it was pronounced, we should hesitate long before we came to any conclusion contrary to that opinion. The passage is as follows:-" This ship is built upon a special contract; and it is part of the terms of that contract, that given portions of the price shall be paid according to the progress of the work; part when the keel is laid,-part when they are at the light plank. The payment of those instalments appears to us to appropriate specifically to the defendant the very ship so in progress, and to vest in the defendant a property in that ship; and that, as between him and the builder, he is entitled to insist on the completion of that very ship, and that the builder is not entitled to require him to accept any other.' It seems to be perfectly clear, that as by the contract the vessel was to be built under the superintendant appointed by the purchaser, the builder could not compel the purchaser to accept any vessel not constructed of materials approved by that superintendant; and, on the other hand, that the purchaser could not refuse CLARKE and another บ. SPENCE and another. any vessel which had been so approved. It follows, that as soon as any King's Bench. materials have been approved by the superintendant, and used in the progress of the work, the fabric consisting of such materials is appropriated to the purchaser, otherwise the superintendant might be called upon when the one vessel had been already completed, or nearly so, to begin the work de novo, and superintend the building of a second; and, upon this point, the appointment of a superintendant by the contractor appears to be of considerable importance. As soon as the last of the necessary materials is approved and added to the vessel, and the fabric of the vessel is complete, the appropriation is complete; and assuredly, the general property in the vessel must vest in the purchaser, nothing remaining to be done prior to the delivery; and this is agreeable to the current of all the authorities, most of which have been alluded to above. Until, however, the last of the materials be added, the vessel is not complete; the thing contracted for is not in existence; for the contract is for a complete vessel, not for a part of a vessel; and we have not been able to find any authority for saying that, whilst the thing contracted for is not in existence as a whole, and is incomplete, the general property in such parts of it as are from time to time constructed, shall vest in the purchaser, except the above passage in the case of Woods v. Russell, is to be considered sufficient for that purpose. It is quite clear, and indeed will sufficiently appear from some of the foregoing observations, that there are reasons, and those not unimportant, which lead to the conclusion, that, notwithstanding some of the stipulations, the property in the ship under this contract did not vest in the purchaser (as for the purpose of brevity we have designated him), until completion and delivery or acceptance by him; yet we equally feel that the view taken of the contract by the Court, in the case of Woods v. Russell, may be supported, because the intention there supposed is not in any respect inconsistent with that which is above suggested. Both might well exist at the same time, for if it was the intention of the contracting parties that the general property should vest in the manner sup posed, such intention might have been expressed in less ambiguous terms; but if it can be fairly collected from those that have been used, there is nothing which in principle or practice is to prevent the Court from carrying it into effect; on the contrary, we think, that as such a construction has been put upon a similar contract by so high an authority in Woods v. Russell, which has, as to this point in particular, been subsequently recognized; and as that kind of contract has been probably acted upon since that decision by persons engaged in ship-building, we feel we ought not to depart from such construction, or to unsettle the law upon this subject; and we adopt the opinion of the Court in Woods v. Russell, though with some hesitation, for the reasons above assigned. Another point was raised on the statute of the 6 Geo. 4, c. 16, s. 72, with respect to reputed ownership in cases of bankruptcy; as to which, it is sufficient to say, that this case is plainly not within the statute, because, although the plaintiffs were the true owners of the vessel, yet, as it was not in the possession, order, or disposition of the bankrupt, within the meaning of that section, any more than a vessel, or any other article sent to a builder or manufacturer to be repaired, is within that section, we think that evidence, as to reputed ownership, was properly rejected. Upon the whole we are of opinion, that the plaintiffs are entitled to maintain King's Bench. this action of trover, and that the verdict must be entered for them for the sum stated in the case, viz. 10027. 11s. CLARKE and another 2. SPENCE and another. Judgment for the plaintiffs. PEARCE V. CHESLYN (a). a lease which was not stamped, demised to J. IV. He afterwards, by an agreement stamped with a lease stamp, but which did not contain words of demise, though it referred to the lease, let the same premises to the plaintiff Held, that the in, and formed part The defendant, by REPLEVIN. Avowry, as for a distress for rent in arrear for a year and one quarter, ending June 24th, 1834. Plea: non tenuit. At the trial before Vaughan, B., at the Summer Assizes, 1835, for Leicestershire, it appeared, that by a memorandum of agreement made on the 29th January, 1833, the defendant agreed to set and to farm let to John Webberley, and John Webberley agreed to take and become tenant of the premises in question to hold from the 25th day of March then next ensuing, for one year, and after the expiration thereof, until six months should have elapsed from the day of the decease of J. Webberley, or until six months after notice to quit, yielding and paying 2291. 5s., payable by equal quarterly instalments. terms of the lease This agreement contained a variety of farming covenants. It was executed were incorporated by Webberley and the defendant, but was not stamped. After the execution of the agreement; of this agreement, upon some dispute arising between these parties, that and that the for lease was given up, and the plaintiff took the premises under the following memorandum of agreement, which was annexed to the one between the defendant and Webberley :-" Memorandum of agreement. Whereas the within-named John Webberley and Richard Cheslyn having agreed to abandon the annexed contract, &c.; we, W. Pearce, of &c., and the said Richard Cheslyn, do agree, the former to take and become tenant, and the latter to let and to farm set the therein farm, &c., the said rent to be annually paid by quarterly payments, and to be in amount 2201.; and we further bind ourselves to the other, to execute a similar agreement to the one recited and referred to." This memorandum had a proper lease stamp upon it. The first agreement was received in evidence to show the terms upon which the plaintiff held the premises. A verdict was found for the defendant. mer was admissi ble in evidence, though it was not stamped-Held, also, that both together amount ed to a lease at a specific rent, for which the defend ant had a right to distrain. G. T. White moved for a new trial, on the ground of the improper reception of the first agreement in evidence, there being no stamp upon it; and secondly, that the second agreement only amounted to an agreement for a lease, and therefore did not authorize a distress, and support the avowry. He distinguished Poole v. Bentley (b) and Staniforth v. Fox (c), because, in these cases, the judges relied upon the possibility of collecting from the instrument itself all the requisites of a demise, which could not be done here. Reference must be made to another instrument which could not be received in evidence for want of a stamp. Lord DENMAN, C. J.-Suppose one party agrees to grant a lease, and another to take, according to the terms of a memorandum contained in the book called "The Attorney's Pocket-Book," which contains numerous pre cedents of leases, do not those terms compose part of the agreement between King's Bench. the parties? COLERIDGE, J.-Taking the first and the second agreement together, you have all the stipulations of a perfect lease. PATTESON, J.-All these questions, whether a lease, or an agreement for a lease, must depend upon the terms contained in the instrument itself under consideration. Cur. adv. vult. Lord DENMAN, C. J., afterwards (17th November) gave judgment.—The questions in this case were, whether a particular instrument was properly received in evidence by the learned judge at the trial; and whether an instrument which was stamped with a lease stamp and given in evidence, was such as to enable the defendant to levy a distress for rent accruing under it. It was argued, that as the second instrument referred to a lease which was not stamped, the lease which it referred to could not be read in evidence. We are of opinion, however, that that argument is not well founded, as the first instrument was incorporated with, and became part of the second instrument, which was stamped with a lease stamp. On the second point, the original lease being incorporated with the subsequent agreement, there is no doubt that, as that first instrument contained words of present demise, there was a sufficient lease to entitle the defendant to distrain. Rule refused. PEARCE v. CHESLYN. TICKLE V. BROWN. a 1. Issue joined on general traverse under 2 & 3 Will. 4, c. 71, of a right of right for forty years:--Held, of way enjoyed as that evidence of a parol agreement for permission to payment of a sum of money, made use the way on within the forty TRESPASS. First count, for assaulting and imprisoning W. Coombe, the servant of the plaintiff, per quod servitium amisit. Second count, for ill-treating and detaining the plaintiff's horse. Third count, de bonis (harness, corn, &c.) asportatis. Pleas: first, not guilty to the whole declaration; secondly, to the first count, that the defendant was possessed of a close, and that he committed the assault in defence of his possession; thirdly, to the second count, the same justification. Replications to each justification, that the plaintiff had a right of way through the close, which had been enjoyed as of right for forty years. Rejoinder to the replication to the second plea, that the plaintiff and divers others, occupiers for the time being, whilst they were so, and during the said period of forty years, to wit, on &c., and divers others &c., were respectively interrupted in the use and enjoyment as of right of the said way; and that the said parties, so respectively interrupted, origin of a right submitted to and acquiesced in those interruptions for the space of one year claimed, need and more after the same parties respectively had had notice thereof, and of only be specially the persons respectively making the same; and whilst the parties so interrupted were respectively the occupiers of the said lands, and whilst the parties so interrupting them were respectively the occupiers of the lands over which they respectively interrupted them in the use of the said way. years, was admissible on this issue. agreement in writ 2. A deed or iug, showing the pleaded under 2 & 3 Will. 4, c. 71, deed or agreement was made mencement of the s. 5, when the before the com period of years for which the right is claimed. |