REPORTS of CASES ARGUED and DETERMINED of in the COURT of KING'S BENCH. By RICHARD VAUGHAN BARNEWALL, Lincoln's Inn, and CRESSWELL CRESSWELL, of the Inner Temple, Esqrs. Barristers at Law. Vol. I. Containing the Cases of Michaelmas, Hilary, and Easter Terms, in the 3d and 4th Years of GEORGE IV. 1822, 1823. [1] CASES ARGUED AND DETERMINED IN THE COURT OF KING'S BENCH, IN MICHAELMAS TERM, IN THE THIRD YEAR OF THE REIGN OF GEORGE IV. LORYMER against SMITH. Friday, November 8th, 1822. The buyer of a parcel of wheat, by sample, has a right to inspect the whole in bulk, at any proper and convenient time; and if the seller refuses to shew it, the buyer may rescind the contract. [S. C. 2 D. & R. 23. Dictum disapproved, Hibblewhite v. M'Morine, 1839, 5 M. & W. 467. Distinguished, Pettitt v. Mitchell, 1842, 4 Man. & G. 836.] Assumpsit for not accepting two parcels of wheat, one containing 700, the other 1400 bushels. Plea, general issue. At the trial before Bayley J. at the last Summer Assizes for Gloucester, it was proved that on the 11th of September, 1821, a contract for the wheat was made between the parties at Bristol, and bought and sold notes were exchanged. They were in the following terms, "Bought of James Lorymer, 700 bushels of wheat, 1400 ditto, ditto, at 9s. 6d. per bushel, according to samples, banker's bill if required." By the usage of the place the buyer had a right to inspect the wheat in bulk. On the 19th of September the defendant went to the plaintiff's warehouse and desired to see the wheat; the parcel [2] containing 700 bushels was shewn to him, but the remaining 1400 bushels were not in the plaintiff's warehouse. Plaintiff offered to send a load to the defendant for his inspection, or to send for a bushel at that time, but declined shewing the whole, saying that he did not choose to let defendant into his connexions. The latter replied, that under those circumstances he would not have the wheat; a banker's bill was not at that time tendered or demanded. A few days afterwards defendant having sent to the plaintiff respecting some oats, the latter informed the messenger that the 1400 bushels of wheat were then in his lofts, and might be inspected; and that the whole was ready, and would be delivered upon banker's bills being given for the price. The learned Judge thought that the plaintiff had put an end to the contract, by refusing to shew the wheat in bulk when requested to do so on the 19th of September, and by his direction a verdict was found for the defendant. And now, W. E. Taunton moved for a new trial, and contended, that the plaintiff did not put an end to the contract by refusing to shew the wheat in bulk on the 19th of September, for the defendant did not at that time tender a banker's bill for the price, nor demand to have the wheat delivered; and before he had done either of those K. B. XXXVI.-1 things, the plaintiff offered to shew the wheat to the defendant's agent, when he called respecting the oats. Abbott C.J. It appears that, by the usage of the place, the buyer had a right to inspect the wheat in bulk; which is so reasonable, that, without any such usage, the law would give him that right. Here, on the 19th of September, the buyer desired to see the whole of the wheat in bulk, but the seller refused to shew it; upon [3] that refusal, the request having been made at a proper and convenient time, the buyer was entitled to rescind the contract. If this were not so, a man might bargain to deliver corn not then in his possession, and rely upon making a future purchase in time to fulfil his undertaking; but that is a mode of dealing not to be encouraged. Bayley J. I am of the same opinion. Holroyd J. The buyer had a right to inspect the wheat in bulk, in order to ascertain whether it corresponded with the sample, and might have insisted upon having it delivered immediately upon tendering a banker's bill for the price. The seller not being ready to complete his part of the contract on the 19th of September, when he was requested to shew the wheat, cannot afterwards insist upon performance by the buyer. Best J. concurred. Rule refused. DYER against ASHTON. Friday, November 8th, 1822. Where two breaches were assigned in one count of a declaration, upon a contract, and the defendant paid money into Court upon one of them: Held, that he thereby admitted the whole contract as set out in that count. The second count of the declaration stated, that in consideration that the defendant at his special instance and request, had become tenant of certain premises, as tenant from year to year, to the plaintiff, at a certain rent payable at the times therein mentioned the defendant undertook, &c. to keep the premises in repair during the tenancy, and pay the rent on the days specified in that behalf; breach-first, that the defendant did not keep the premises in repair, and 2ndly, that he [4] did not pay the rent. Defendant pleaded the general issue, and paid money into Court on the second breach, for non-payment of rent. At the trial before Richards C.B. at the last Summer Assizes at Guildford, the plaintiff proved the payment of money into Court, and that the premises were out of repair; but did not prove that any contract had been made between himself and the defendant. The Lord Chief Baron thought that the payment of money into Court upon the second count, admitted the contract as there stated, and the plaintiff accordingly had a verdict for 881. on the first breach. And now, Taddy, Serjt. moved for a new trial. It must be conceded, that where money is paid into Court generally upon any count of a declaration, the contract stated in that count is thereby admitted, Cox v. Brain (3 Taunt. 95), Mellish v. Allnutt (2 M. & S. 106), Stoveld v. Brewin (2 B. & A. 116). But this case is very distinguishable from those, for here the payment is, by the rule of Court, limited to the second breach in the second count; the admission, therefore, does not extend beyond that breach. Per Curiam. The effect of all the cases upon this subject is, that payment of money into Court admits every thing which the plaintiff would be obliged to prove, in order to recover that money. Now in the present case, the plaintiff could not upon the second count of his declaration, have recovered the money paid in, without proving the contract as there stated; that contract was therefore admitted, and the plaintiff was entitled to a verdict for the amount which he proved. Rule refused. [5] MOORE, Assignee of W. Barthrop the Elder and W. Barthrop the Younger, Bankrupts, against J. BARTHROP. Friday, November 8th, 1822. Where the defendant having agreed to lend to two persons, who afterwards became bankrupts, 2001., to be applied to a specific purpose, drew a cheque on his banker for that sum, and delivered it to them before their bankruptcy; and they not having used the cheque, returned it to the lender after having committed an act of bankruptcy: Held, that their assignee could not maintain trover for the cheque. Trover for goods, bills of exchange, &c. Plea, general issue. At the trial before Holroyd J. at the last Summer Assizes for Lincoln, these facts were proved. The bankrupts carried on the business of wool-merchants in partnership, W. Barthrop the Elder residing at Lincoln, and W. Barthrop the Younger at Bradford in Yorkshire. On the 15th of June, 1821, the bankrupts were indebted to Ellison, Moore and Co., bankers at Lincoln, in the sum of 13001. who refused to give them any further credit until that balance was liquidated. In order to effect this, application was made to the defendant, who agreed to advance 2001. for that purpose, and accordingly drew a cheque on his banker for that sum, and delivered it to W. Barthrop the son, on the 18th of June. On the 20th of June, W. Barthrop the father committed an act of bankruptcy, and on the evening of the same day received a letter from his son, containing the cheque in question, together with several bills of exchange, which the son had collected in payment of outstanding debts. W. Barthrop the father did not open this letter, but carried it back the same night to his son's house at Bradford; and on the following day the cheque, all the bills, and goods to a considerable amount, were delivered over to the defendant, in payment of a debt due to him. A short time after-[6]-wards, W. Barthrop the Younger committed an act of bankruptcy, and a joint commission was issued against him and his father, under which the plaintiff was chosen sole assignee. Under these circumstances the learned Judge thought that the plaintiff was not entitled to recover the amount of the cheque, and the jury accordingly found a verdict for the plaintiff for 10161., being the value of the remainder of the property delivered over to the defendant. And now, Vaughan Serjt. moved to add 2001. to the damages found, and contended, that the defendant intended to give the bankrupts a general control over the cheque; the restoration of it to the drawer was therefore a fraudulent preference, and entitled the plaintiff to recover the amount in this action. But, Per Curiam. This was a draft upon the defendant's banker, and not money, and the evidence shews that it was given for the specific purpose of being paid into the bank of Ellison, Moore, and Co. in reduction of the balance due to them from the bankrupts. Now if a cheque be placed, for a specific purpose, in the hands of a person who gives no value for it, and that person becomes bankrupt before he has used the cheque; if the drawer gives his banker orders not to pay the money, the assignees of the bankrupt cannot maintain an action to recover it. The bankrupt certainly could not do so, and his assignees must, in this respect, stand in the same situation; the direction of the learned Judge was therefore right, and the damages ought not to be increased. Rule refused. [7] HOFFMAN AND ANOTHER against HEYMAN. Friday, November 8th, 1822. Where the defendant bought of the plaintiffs a quantity of tobacco, upon a contract to pay one-fifth of the price at a day specified, and that the seller should look to his agent abroad, to whom the tobacco was consigned, for the remainder; the tobacco having been sold by the consignee at a considerable loss, the buyer was held liable for the difference between the proceeds and the four-fifths of the price stated in the contract, which remained unpaid. [S. C. 2 D. & R. 74; 1 L. J. K. B. O. S. 3.] Assumpsit by vendor against vendee upon a special contract for the sale of tobacco. Plea, general issue. At the trial before Abbott C.J. at the London sittings, after last Trinity term, it appeared that the plaintiffs, in the month of July, 1820, sold to the defendant a quantity of tobacco under the following contract: "Bought of Messrs. W. and J. Hoffman, for account of Messrs. Heyman, Welk, and Co., about 641 hhds. of tobacco, being the cargo of the Ulysses,' from George Town, America, and now on her voyage to Bremen, at 58s. 6d. per cwt. manifest weight, payable one-fifth in money on or before Sunday, 5th of August, and for the other four-fifths the sellers are to look to their correspondents, Messrs. Delius of Bremen, to whom the property goes consigned. It is nevertheless understood between the parties, that interest is to be calculated as if the sale was made at two months from final delivery. The buyers to have the benefit of the sellers' policy in case of average." The defendant paid onefifth of the price at the time specified; and the consignees duly accounted to the plaintiffs for the whole of the proceeds of the cargo when sold at Bremen ; but those proceeds fell considerably short of the remaining four-fifths of the price at which the things, the plaintiff offered to shew the wheat to the defendant' respecting the oats. Abbott C.J. It appears that, by the usage of the place, inspect the wheat in bulk; which is so reasonable, that, wi law would give him that right. Here, on the 19th of S to see the whole of the wheat in bulk, but the seller that refusal, the request having been made at a pro buyer was entitled to rescind the contract. If this w to deliver corn not then in his possession, and rely time to fulfil his undertaking; but that is a mode Bayley J. I am of the same opinion. Holroyd J. The buyer had a right to ins ascertain whether it corresponded with the having it delivered immediately upon tende, seller not being ready to complete his part when he was requested to shew the wheat, ested to show the wa by the buyer. Younger at Bradford in Yor s of ne price. amount of t right. ju or 2. A plea of a right with all ways, then used as admitted and continued the way, committed the tr y for other purposes, &c. Hel while the copyhold was in the o move an obstruction; and that the comprehend all the purposes for wh entering plaintiff's close on different days and t ember, 1808, a copyhold tenement was surrendere hen used by the tenants and occupiers of the said tenem or was then seised in fee, of the locus in quo, according to or, and that a way was then used by the tenants and occupier tenement, from thence over the locus in quo to a public street; t admitted, and continued seised, and being so seised, and hav use the way, he committed the supposed trespasses. Replication traver dedant at other times, and on other occasions, and for other purposes th mentioned in the plea, trespassed on the close. Plea to new assignment, n At the trial, the right of way was established, but it appeared that when t committed, the tenement in respect of which the way was claimed, was of a tenant, and that the defendant, as landlord, went over the locus used at the time of the surrender; and there was a new assignme the defendant generally, with leave to move to enter a verdict on the new assignmen que to assert a right to the way, which had been obstructed. There was a verdict fo Campbell now moved accordingly. There is no authority to shew that the landlord of a tenement, to which a right of way is appurtenant, may, while it is in the occupation of a tenant, lawfully use the way to remove an obstruction, and to assert the right of way, or for any other purpose. Therefore, non-user of the way during the lease would be no bar to the landlord's right to the way when the lease expires. But supposing that a landlord has the right contended for, this is not the right which he alleges that he exercised in his plea. The words "being so seised, and having occasion to use the said way," must mean that he was then possessed of the [10] tenement, and that he used the way for the ordinary purposes of an occupier in passing over the locus in quo in going to and from the tenement. But, in fact, he was not the occupier, but landlord, at the time he used the way, and he used it for the purpose of asserting his right in that character. The occasion on which he used it therefore is different from that alleged in the plea, and the new assignment is supported. But, o Per Curiam. While the tenement is occupied by a tenant, the landlord may use |