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1812.

SJOERDS

against LUSCOMBE,

trine of the case cited, give it the legal effect contended for. Supposing all the facts stated appeared upon the record, the restraint of the government would not operate as an excuse for the freighter, who was to load the goods on board at all events, even if by the law of the country it could not be done, but only for the shipowner, who covenanted with that exception. I assume the fact that nothing but the embargo prevented the loading of the cargo : but the result of Blight v. Page is, that if the freighter undertake what he cannot perform, he shall answer for it to the person with whom he undertakes. If then the plaintiff had exhibited his case properly on the record, there could have been no doubt ; my only embarrassment at present is upon the mode in which this record is shaped : It is averred in the 8th plea that the defendant offered to send the cargo alongside the ship; but that the plaintiff refused to receive it from the defendant alongside the ship, and discharged the defendant from sending it alongside : to which the plaintiff replies that the defendant did not provide the loading, and offer to send it alongside in manner and form. But the answer is that the

paper

does not sustain that allegation, and therefore does not sustain the terms of the issue.

The rest of the Court concurred in discharging the rule on that ground: and Le Blanc, J., at the conclusion of the argument, observed that the paper amounted to no more than this, that the captain had agreed to admit that but for the embargo the defendant would have loaded the cargo, &c.; and then if by law that would relieve him from the obligation of

the

the charter-party, he would not have the benefit of the 1812. admission; but it was no agreement to abandon the

SJOERDS charter-party.

against Rule discharged. Luscombe.

7

such indenture

the note fail

Grant against WELCHMAN.

Monday,

Nov. 9th, PELL, Serjt., moved to enter a nonsuit or for a new It is no objec

tion to an trial in this case, which was tried before Graham, B.

action on a at Wells. It was an action on a note of hand for 6l. given promissory

note, that it by the defendant to the plaintiff, three years ago, in part was given

as of an apprentice-fee, on his taking the defendant's son. sideration of an

indenture of apThe entire fee was 121, of which the note in question wreet

prenticeship was taken in part, the remainder being paid at the time. for less than

years, by heThe plaintiff recovered a verdict by the direction of the ing antedated; learned Judge. The objections made at the trial, and being only now renewed, were, Ist, that the apprentice went into voidable. Nor

does the conhis master's service on the 29th of March 1809, but sideration of the indenture, which purported to be for seven years, because the was not executed till the 27th of May following, and apprentice was then it was made to commence from the 25th of March a magistrate

after two years 1809, which it was contended made it void by the statute on account of of Elizabeth, being for less than seven years by four ing enticed him days, in consequence of the antedating. And Jackson felony, partiv. Warwick (a) was cited.

cularly when the apprenticefee was to be

paid in the first But The Court said that an indenture of an apprentice- instance, ship for less than seven years had lately (b) been held to though in be voidable and not void.

defendant a

for part of it Secondly, it was objected, that at the end of two payable at a

distant day. years from the execution of the indenture, the apprentice

the master bay.

note was taken

(u) 7 Term Rep. 121.

(6) 16 East, 13. Gray v. Cookson.

on

1812.

GRANT

against WELCHMAN,

on the application of his father, was discharged from the indenture by a magistrate, on proof that the master had enticed the apprentice to commit felony. But no notice was taken at the time of this note. On this it was contended that the consideration of the note had failed; but the learned Judge thought that the consideration was executed, and that the only remedy was by counteraction against the master.

Lord ELLENBOROUGH, C. J. having first asked how the consideration-money for the apprentice was reserved, and being answered that the 121. was all to be paid at the time, but that the defendant's note for 61. was taken as an indulgence to him, said that that made a great difference in the question ; for that now it must be taken that the whole consideration was then payable, though out of indulgence to the defendant, the note was taken

for part.

Per Curiam,

Rule refused.

Monday, Doe, Lessee of BENNINGTON, against Hall.

Nov. 9th. A surrender of and admittance

N ejectment for a copyhold, which was tried before

IN to a copy hold Mansfield, C. J. at the last summer assizes at Cammay be proved bridge, the demise was laid on the 5th of March 1812, by the original entries on the and the lessor of the plaintiff made title by shewing a court-rolls, without shew. surrender to him on the 26th of April 1808, but no ing a copy stamped as re- admittance under it till the 18th of July 1812, which quired by st. 48

was within a week before the trial, and consequently G. 3. c. 149. An admit

after the day of the demise and action brought. The tance of the surrenderee before trial will maintain ejectment brought by bim before admittance upon a demise laid be. tween the time of surrender and admittance.

defendant

Lessee of

HALL.

defendant was a stranger to the title, and not the surren 1812. deror. This raised one objection to the recovery of the

Loe, plaintiff, who had obtained a verdict at the trial. Another objection was that no stamped copy of court-roll BENNINGTON,

against was given in evidence, to prove the surrender and admittance; but the steward of the manor merely produced the original books containing the entries of them; which it was contended was not sufficient since the stat. 48 G. 3. c. 149. (page 613-14), under title copyhold, which imposes a stamp of not less than 5s. on any admittance or copies of court-roll of any admittance in

court, &c.

Blosset, Serjt. on moving for a new trial, stated these facts and objections to the Court. He enforced the objection upon the stamp act by urging that if the evidence of the original entry on the court-roll could be received, the stamp would be always evaded. But Lord Ellenborough, C. J. answered, and The Court agreed, that the statute not having required a stamp upon the original court-roll itself, but only on the copy, it would not be deemed an evasion, and the Court could not supply it. It was not necessary for the tenant to produce his' copy, if he chooses to risk the evidence of his title in not taking a copy.

The original order-book for granting administration is evidence (a) of administration granted; though the letters of administration issued thereon are the more useful evidence of it. How can a copy be evidence unless the original be evidence ?

Upon the other point, his Lordship referred to the case of Holdfast d. Woollams v. Clapham (b), to shew the (a) Elden v. Keddell, 8 East, 187.

(6) | Term Rep. 600.

relation

1812.

Doe, Lessee of BENNINGTON,

against HALL.

relation of the admittance, when made, to the surrender; to which Blosset answered that in that case the Court had only refused to permit the legal title to be set up by the surrenderor against the surrenderee, for whom he held the legal estate in trust; against a principle, which was at that period much relaxed, but cannot now be questioned, that in a court of law the legal title must prevail, and no notice can be taken of the trust. And since that time this Court in Tofield v. Tofield (a) have held that a surrenderee before admittance cannot surrender to the use of his will. [Bayley, J. thought that this point as to the relation had been settled by a case in the Common Pleas a few years ago; and Lord Ellenborough, C. J. referred Blosset, Serjt. to the case of Roe d. Jeffereys v. Hicks (b), where it had been laid down that the tenant might maintain an action for mesne profits from the time of the surrender after admittance; and desired him to mention this case again the next day. With respect to Tofield v. Tofield, his Lordship observed that admittance being the surrenderee's own act, he could not assume as a tenant to make a new surrender before he had done that which was necessary for him to do, in order to perfect his title as tenant.] On the next day Blosset again mentioned this point, said he had looked into the case in Wilson, and had not found any authority for sustaining an ejectment upon such a relation. He contended that the doctrine of relation did not apply at all to the case of a stranger, as this defendant was, or to torts and trespasses, on which the action of ejectment was founded; or in any case to confirm an action brought by a person, who had no right of action in him

(a) 11 East, 246.

(6) 2 Wils. 15.

at

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