1844. COOKE v. RIDDELIEN. lowance in respect of such imperfection, provided the goods were kept. The clerk, however, stated, in reply to this offer, that he was not authorized to enter into such an arrangement. Subsequently to this, and before the defendant returned, the plaintiff called several times at his place of business, and on one of these occasions the defendant's clerk again stated that he had examined the goods and found that they did not correspond with the sample. To this the plaintiff replied, that the goods must be taken with an allowance, or returned. The clerk, however, said that he had no authority to do either, but that, if the plaintiff would give him a written memorandum, he would return the goods on his own responsibility. This the plaintiff refused to do. It appeared further, that, after the complaint had been made as to the inferiority of the goods, the defendant accepted, on two several occasions, the remainder of the goods which he had ordered from the plaintiff, and that no part of the goods had ever been returned. The point now made on behalf of the defendant was, that he was still entitled to an allowance from the plaintiff on account of the inferiority of the goods; and, in order to prove the custom of the trade in this behalf, a witness was called, who stated, first, the mode in which, in cases like the present, it was usual for parties to ascertain whether the bulk of the goods agreed with the sample; he next stated, that such of the goods as did not agree with the sample were set aside under the name of "rejects;" and he was then asked to state what was the custom of the trade with reference to making an allowance for or returning such "rejects." Martin, for the plaintiff, objected to the question, on the ground that no such custom could be engrafted on a contract for the sale of goods by sample. CRESSWELL, J., however, admitted the evidence. Martin, in his reply, then contended, that, as the defendant, although he had notice that the goods were not according to the contract, did not return such goods within a reasonable time, but retained them, he was bound to pay for them. :— CRESSWELL, J., in summing up, said: It may be a question whether the vendee is bound to pay according to the contract price of the goods, or whether he should pay according to their reduced value only. Under ordinary circumstances, a person who buys goods by sample may return them if they do not answer the sample, but he must do this within a reasonable time; and if, after objecting to the goods, he still retains them, he is bound to pay for them, making such a deduction as he may be entitled to by reason of their reduced value (a). Here, however, a special custom has been proved with reference to the return of, or the allowance which should have been made for these goods; and it is, therefore, for you to say, whether the defendant, within a reasonable time, made his election whether to accept the goods entirely, or to retair them with the usual allowance. Verdict for t' platiff. Martin and Crompton, for the plaintiff. W. H. Watson and Atherton, for the defendant. [Attornies-Blair, and Cooper.] (a) See Street v. Blay, 2 B. & Ad. 456, 463. 1844. COOKE v. RIDDELIEN. 1844. August 19th. In assumpsit against an at gence, the fact of his having been retained as an attorney is put in issue by the plea of non assumpsit. ALDIS v. GARDNER. ASSUMPSIT. The declaration stated in substance, that torney for negli- the plaintiff, at the request of the defendant, had retained and employed the defendant as an attorney, for fees and reward to him in that behalf, to lay out a certain sum of money, to wit, the sum of £300 on good security, and that, in consideration thereof, the defendant had promised the plaintiff to use due and proper care and diligence in and about the laying out of the said money. The declaration further alleged the receipt of the money by the defendant; and it then stated, that the defendant, not regarding his duty in that behalf, nor his said promise, did not nor would take due and proper care in and about the laying out of the said money, but, on the contrary, lent it to one B., who was insolvent. The defendant pleaded, 1st, non assumpsit; 2ndly, that he did not receive the money; 3rdly, that he laid out the money properly; and, lastly, a set-off. A variety of evidence was given for the purpose of shewing, that, at the time the money was lent, B. was well known to be in insolvent circumstances; and some letters were then read, in order to prove the retainer of the defendant by the plaintiff. From one of these letters it appeared, that, after the plaintiff had determined on investing his money, the defendant had requested him to pay it in to his account with the Lancaster Bank; and another was read in which, after acknowledging that the money had been paid in, he engaged to get the plaintiff £3 per cent. for it. From the whole tenor of the correspondence, it was evident, that the plaintiff and the defendant had been well acquainted, and that the latter had been on very friendly terms with his client. Knowles, accordingly, in addressing the jury for the defendant, observed, that it was a question for them, whether the plaintiff and defendant did or did not stand to each other in the relation of attorney and client in the transaction in question; and that, if they were of opinion that they did not stand to each other in that relation, the defendant would then be entitled to their verdict, provided they found that he had used as much diligence and care in laying out the plaintiff's money as he would have used had it been his own. CRESSWELL, J.-Can that question arise? The defendant is stated in the declaration to have been retained as an attorney, and that allegation is not traversed. Knowles submitted, that the allegation, that "the plaintiff, at the request of the defendant, retained and employed the defendant as an attorney," formed part of the consideration for the defendant's promise, and that it was, therefore, put in issue by the plea of non assumpsit. And CRESSWELL, J., in summing up, left it to the jury to say, first, whether the defendant was employed by the plaintiff as an attorney; and, secondly, whether, if he was, he exercised that degree of care which, as a professional man, the law imposed upon him, namely, a reasonable degree of skill, and proper diligence and attention, in order to discover the solvency of the party to whom the money was lent (a). (a) With reference to the point decided in the above case, see Reg. Gen. H. T., 4 Will. 4. The first of those rules states, that "in all actions of assumpsit, except on bills of exchange and promissory notes, the plea of non assumpsit shall operate only as a denial in fact of the express contract or promise alleged;" and, as an example of the Verdict for the plaintiff. operation of this rule, the following 1844. ALDIS v. GARDNER. 1844. ALDIS v. GARDNER. Martin and Robinson, for the plaintiff. Knowles, W. H. Watson, and Cowling, for the defendant. [Attornies-Dearden, and Haydock & Son.] ment or employment as would raise would raise a promise in law to the effect alleged," so it would seem to follow, that, in the present case, the plea must have the like effect; and that, therefore, the fact of the defendant being an attorney-that being the employment which raises the promise in law with the breach of which he is charged-is put in issue thereby. August 19th. The statute 3 & 4 Will. 4, c. 27, s. 12, operates to make the possession of tenants in common a separate possession, from the time they first became tenants in common, and not merely from the time of the passing of that statute. THIS DOE d. HOLT v. HORROCKS. and HIS was an action of ejectment brought to recover possession of an undivided moiety of certain messuages premises situate at Chesham, in the county of Lancaster. It appeared that one Robert Holt, by his will dated the 10th day of March, 1797, devised certain property (of which the premises in question formed part) to his wife for life, remainder to his sons John and Francis as tenants in common in fee. It appeared further, that, in the year 1819, and after the death of the wife of the devisor, the said John and Francis had entered into possession of the said premises; that John (who was the lessor of the plaintiff in this action) had continued in such possession until the present time; that Francis had continued in possession until the year 1826, when he died; and that the widow of Francis had remained in possession after his death, and had married Horrocks, the present defendant, who was now in possession of the said premises. Under this state of facts, it was contended, by |