850 CONTRACT OF SALE. COMMON. Approvement. Erection of Houses for Beast-keeper and Woodward. An owner pur autre vie of a common may approve under the statutes 20 H.3, c. 4, and 13 Ed. 1, st. 1, c. 46. The owner of a common may erect thereon a house necessary for the habitation of beast-keepers for the care of the cattle, of himself and the other persons having rights of common there. So he may erect a house necessary for the habitation of a woodward, to protect the woods and the underwoods on the common. A plea justifying the erection of a house for such beast-keepers need not state the names of the other commoners, nor that they assented to the appointment of beast-keepers. To an action on the case for a continuing disturbance of common, the defendant pleaded an apportionment of the locus in quo, "leaving sufficient common of pasture for the said plain tiff and all other persons entitled thereto, together with sufficient ingress and egress to and from the same, according to the form of the statute, &c.:"-Held, that the plea sufficiently shewed that enough of common was left at the time of the approvement, and in the place where the plaintiff was entitled to enjoy it. Patrick v. Stubbs, 830 COMPOSITION DEED. See DEBTOR AND CREDITOR. CONTRACT OF SALE. 1. Right of Purchaser to shew Defects in Quality of. The plaintiffs agreed with the defendants to manufacture for them certain locomotive engines, under the CONTRACT OF SALE. following contract: "Each engine and tender to be subject to a performance of a distance of 1,000 miles, with proper loads; during which trial Messrs. S. & Co. (the plaintiffs) are to be liable to any breakage which may occur, if arising from defective materials or workmanship; but they are not to be responsible for nor liable to the repair of any breakage or damage, whether resulting from collision, neglect, or mismanagement of any of the company's servants, or any other circumstances, save and except defective materials or workmanship. The performance to which each engine is to be subjected, to take place within one month from the day on which the engine is reported ready to start; in default of which, Messrs. S. & Co. shall forthwith be released from any responsibility in respect of the said engine; the balance to be paid on the satisfactory completion of the trial, and release of Messrs. S. & Co. from fur ther responsibility in respect of such engine." It was also agreed, that the fire-boxes should be made of copper, of the thickness of 7-16ths of an inch (and they were accordingly so made); and that the best materials and workmanship were to be used. The engines fendants, and performed the distance were accordingly delivered to the deof 1,000 miles within the month of trial, but nine months afterwards the fire-box of one of them burst, when it was discovered that the copper had been considerably reduced in thickness:-Held, in an action against the defendants for the balance due from them, that they could not give evidence of an inherent defect in the copper (no fraud being alleged), since, by the terms of the contract, the month's trial, if satisfactory, was to release the plaintiffs from all responsibility in respect of bad materials and bad workmanship. Sharp v. The Great Western Railway Company, 7 2. "To arrive," Construction of. The defendant, by a bought and sold note, agreed to sell the plaintiffs "100 tons of nitrate of soda, at 188. per cwt., to arrive ex Daniel Grant, to be taken from the quay at landing weights," &c.; and below the signature of the brokers there was the following memorandum : "Should the vessel be lost, this contract to be void: " -Held, that the contract did not amount to a warranty on the part of the seller, that the nitrate of soda should arrive if the vessel arrived, but to a contract for the sale of goods at a future period, subject to the double condition, of the arrival of the vessel, with the specified cargo on board. Johnson v. Macdonald, 600 3. Memorandum in Broker's Book, when Evidence of. Assumpsit for goods sold and delivered. It appeared at the trial that a broker, employed by the plaintiffs to sell 200 casks of tallow, sold 50 to the defendant, and the remainder to two other parties to be delivered some months subsequently to the sale. In the bought note he described the transaction as a purchase of 50 casks for "his principals," i. e. the buyers; and in the sold note, as a sale of 200 casks sold to his principals. In his book he stated the defendant as the purchaser of 50 casks, and the two other parties as purchasers of the remainder. There was no disclosure of the principals on either side. About the time appointed for the delivery, the broker urged the defendant to buy 100 other casks of a third person, and on the latter objecting to do so, on the ground that the 50 casks already contracted for by him would soon be delivered, offered to "put off" those casks. The 50 casks were never actually delivered to the defendant. VOL. IX. It was objected, on this evidence, that the plaintiffs ought to be nonsuited on two grounds: first, that inasmuch as there was a variance between the bought and sold notes, the broker's tract, there was no valid contract; sebook not being evidence of the concondly, that there was nothing to shew any delivery of the 50 casks to the defendant. The learned Judge being of that opinion nonsuited the plaintiffs:-Held, that the nonsuit was wrong on the second ground, it being a question for the jury, whether the words "put off" meant a sale of the goods to a third person by the broker on account of the defendant, or a postponement of the delivery with or without the consent of the plaintiff. Quære, whether the memorandum of a sale in the broker's book, signed by him, is admissible as evidence of the contract, to satisfy the Statute of Frauds, in cases where there is no other contract, or where the bought and sold notes disagree. Thornton v. Charles, 802 COPYRIGHT. Of Engraving. ing an engraving, brought under the In an action on the case, for piratstat. 17 Geo. 3, c. 57, which gives a right of action against any one who shall copy any print "in the whole or in part, by varying, adding to, or diminishing from, the main design," the judge directed the jury to consider whether the defendant's engraving tiff's: -Held, that this direction was was substantially a copy of the plaincorrect. Moore v. Clarke, 692 CORONER. Office of, by what Words granted — Construction of Charter-Evidence. By charter of the 23 Edw. 3, the LLL King granted to the Earl (afterwards Duke) of Lancaster (inter alia), that he might have the return of all writs of the King and his heirs, and summons of the Exchequer, and the attachment as well of pleas of the Crown [attachiamenta de placitis coronæ] as of other pleas whatsoever, in all his lands and fees, so that no sheriff or other bailiff or minister of the King, or his heirs, might enter those lands or fees to execute the same writs and summons, or to make attachment of pleas of the Crown, or other pleas aforesaid, or to do any other office there, unless in default of the same Earl and his bailiffs and ministers in his lands and fees aforesaid:-Held, that thereby the right to appoint coroners within the Duchy of Lancaster was granted, and that such right was an exclusive one: that, therefore, notwithstanding modern usage to the contrary, the county coroner had no authority to exercise the office within any of the possessions of the duchy, concurrently with the duchy coroners, nor unless in default of their performance of the office. Upon a question whether the Crown, in right of the Duchy of Lancaster, had the exclusive right, under the above grant, of appointing a coroner within the honour of Pontefract, evidence of appointments of coroners, and of their acting, in other parts of the duchy, out of the honour of Pontefract, was held admissible. By an order made in 1670, by the Chancellor and Council of the Duchy of Lancaster, after reciting that the Court was informed that the coroner within the honour of Pontefract, parcel of the duchy, had usually returned their inquests to the Crown Office, without taking notice therein that they arose within the liberties of the duchy, it was ordered that the coroners should thenceforward specify in their A party who proposes to adduce in evidence a document at the trial, is bound in every case, in order to entitle himself to the costs of proving it, to give a notice to admit, under R. 20 of H. T. 4 Will. 4, to afford the other party an opportunity of admitting it, notwithstanding the document is put in issue on the pleadings, and although, on application to the attor ney on the other side, he had refused to make the admission on the ground that the document was a forgery. Spencer v. Barough, 425 (4). On Reference, after new Trial granted. After a verdict for the plaintiff, the defendant obtained a rule for a new trial, which was made absolute, no mention being made of costs. The parties then agreed to a reference, and the order of reference stipulated that the costs were to abide the event. The arbitrator having decided the cause in favour of the defendant:Held, that the defendant was not entitled to the costs of the trial. Thomas v. Hawkes, (5). In Trespass. Operation of 4 & 5 Vict. c. 28. 53 (6). When taxable on higher Scale. In an action of debt, in which the writ of summons was indorsed for £57, the defendant pleaded, as to all but £19, payment; as to the £19, payment into Court. At the trial he proved payment to the plaintiff of all the debt beyond the £19; but it appeared that a sum of £13 was paid after action brought. The verdict was thereupon entered for £13, the plaintiff undertaking to sue out execution for the costs only:- Held, that the plaintiff was entitled to costs to be taxed on the scale applicable to a recovery of a sum above £20. Fewster v. Boggett, 20 (7). Under Court of Requests' Act. Where an action was brought for a sum of 51. 128., and the defendant paid into Court the sum of 47. 188.6d., which the plaintiff took out in full satisfaction of his demand, and entered a nolle prosequi as to the resi due:-Held, that the acceptance by the plaintiff of the smaller sum was not of itself sufficient evidence that no more was due, so as to entitle the defendant to enter a suggestion under a Court of Requests' Act, giving jurisdiction over debts to the amount of £5. The form of the plea of payment of money into Court does not preclude a defendant from applying to enter a suggestion to deprive the plaintiff of costs. Jorden v. Berwick, COURT OF REQUESTS. See COSTS, (7). 3 MUNICIPAL CORPORATION ACT. The sheriff or other inferior judge to whom a writ of trial is directed out of a superior court has no authority to certify, under the Tower Hamlets Court of Requests' Act, 23 Geo. 2, c. 30, s. 8, that there was a probable and reasonable cause of action for 40s. or more. A party who sues in a superior court a defendant residing within the jurisdiction of the Tower Hamlets Court of Requests' Act, for a debt being the balance of account on a demand originally exceeding £5, but reduced below that amount by payments before action brought, is not liable to costs, though he recover less than 408. Elsley v. Kirby, 536 COVENANT. Construction of- Condition-Precedent. In covenant, the declaration stated, that it was covenanted and agreed between the plaintiff as lessor, and the defendants as lessees, of certain coal mines, that the plaintiff should, when he thought fit, employ a fit and proper person at each machine for weighing the coals, who should weigh the LLL 2 same and keep the accounts, and that his wages should be paid by the defendants; but that in case such person should not duly attend at the machine, and duly keep the necessary accounts, the defendants were authorized to discharge him. It then averred that the plaintiff appointed J. H., being a fit and proper person, and alleged as a breach, that the defendants refused to pay him his wages. The defendants pleaded, that J. H. was not a fit and proper person, that he had not duly attended to the machine, and had not duly kept the necessary accounts. At the trial, it was proved that J. H. had been appointed, and had attended for three months, after which period he was dismissed as incompetent by the defendants :-Held, that the plaintiff was not entitled to judgment non obstante veredicto: the appointment of a fit and proper person being a condition precedent to the defendants' liability to pay wages. Lawton v. Sutton, COVENANT TO REPAIR. 795 By agreement, dated 20th October, 1824, reciting a former agreement in 1819, for the grant of a lease of copyhold premises to A. B. for twenty-one years, from the 25th of March, 1820, and that A. B. had requested, and the plaintiff had agreed, that the defendant should be accepted as tenant, and a lease should be granted to him instead of to A. B., on the same terms; and that the plaintiff was desirous to let the premises to the defendant so soon as a good license for that purpose should be granted to him by the lord of the manor, but not before : the plaintiff, in consideration of the covenants and agreements thereinafter contained on the part of the defendant, covenanted that he would, so soon as a good license for that purpose should have been procured by him from the lord, at the defendant's expense, lease the premises to the defendant for all the residue then unexpired of the term of twenty-one years from the 25th of March, 1820, &c.: and the defendant thereby covenanted, from thenceforth yearly during the remainder to come of the said term, to pay the plaintiff the rent, and also that he would from time to time during the term to be granted as aforesaid, keep the premises in repair, &c. &c. The agreement contained also a covenant by the plaintiff for quiet enjoyment during the remainder of the term, on payment of the rent and performance of the covenants. The defendant entered upon the premises, and occupied them until the expiration of twenty-one years from the 25th of March, 1820 :— Held, that he was liable on the covenant for repair, although no lease had ever been made to him pursuant to the agreement, nor any license obtained from the lord for that purpose. Pistor v. Cater, CURATE. 315 Appointed during Vacancy of Benefice, Payment of. Where a curate is appointed by the special sequestrators of the bishop of the diocese, to serve the cure of a benefice during the vacation between the death of the last and the appointment of the next incumbent, he may, although not licensed by the bishop, and notwithstanding the stat. 1 & 2 Vict. c. 106, recover his reasonable stipend in an action of debt under 28 Hen. 8, c. 11, from the next incumbent; the tithes which accrued during the interval not being sufficient to pay him a reasonable stipend. Dakins v. Sea777 man, |