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at the time it was brought. (Lord Ellenborough, C. J. 1812. asked how that agreed with the case in Wilson?] He
Doe, said that was only an obiter dictum, without authority, Lessee of and not the point then decided, which was only that the BENNINGTON,
against land descended to the heir of the surrenderor, who had surrendered to the use of his will, and died, where the devisee was attainted and executed before admittance. The second resolution in Butler v. Baker (a) is, that relation helps acts in law, but not acts of the party: up to the time of admittance the surrenderor is legal tenant and owner to all purposes, and may treat the surrenderee as a trespasser. [Lord Ellenborough, C. J. That is only because courts of law will not look at the title of the surrenderee till admittance, but when he is admitted, all is perfected by the relation, and they will look at his real title. In Benson v. Scott (b), it was held that if the surrenderor die before the admittance of the surrenderee, yet, on his admission, his title relates back. The title under a bargain and sale, when enrolled, relates back.) A bargain and sale was a perfect conveyance in itself at common law; but by statute it must be enrolled within six months : and in the interim it is established by many cases that the estate is in the bargainee (c), which is essentially different from the case of surrender and surrenderee, where the estate is in the surrenderor till admittance of the surrenderee.
Lord ELLENBOROUGH, C. J. This is pushing too far the effect of the fictitious demise of the plaintiff in ejectment. We will not look at his title till admittance, but, when admitted, and his legal title perfected, we will look (a) 3 Rep. 29.
(6) Salk. 185. (c) Com. Dig. Bargain and Sale, B. 9.
181 2. to his real title derived from the act of the party surren
dering to him, which has been made perfect by the subDOE, sequent admittance.
The case in 2 Wilson, Vaughan v. DENNINGTON, Atkins (a), and Holdfast d. Woollams v. Clapham (b),
support the same principle.
The Court refused the rule upon both points.
(a) 6 Burr. 2764.
(0) 1 Term Rep. 600.
Monday, Nov. 9th.
Doe, Lessee of Parry, against JAMES. Though a pur. chaser for a
"HE lessor of the plaintiff having obtained a verdict,
THE valuable con:
in this ejectment, tried before Le Blanc, J. at sideration may recover in eject
Monmouth; ment against one who claims
Abbott moved, by leave, to set aside it and enter a only under a voluntary set
set- nonsuit, upon an objection taken at the trial. Both tlement of which such parties claimed under David Lewis; the defendant as purchaser had notice : yet it
heir of the body, under a prior marriage settlement, seeins that the made by Lewis; the plaintiff under a subsequent coninadequacy of consideration veyance from him in 1797, for a valuable consideration, for such purchase is ma
as he contended, which entitled him to claim against a tcrial if it extend so far as
voluntary settlement made after marriage, though he to shew that it
had notice of the settlement. The defendant contested was not made bona fide, but the adequacy of the consideration of this conveyance, merely colourably, to get rid and entered into evidence to shew it. The consideration of the first set- for it was 4001. of which 1001. only was paid at the tlement, and make another, time, according to the acknowledgment of David Lewis, in truth a vo- given in evidence, and the 3001. was to remain as a luntary settle
charge upon the estate. It also appeared that instructions ment. had been given about the same time by D. Lewis for
making his will, by which the 3001. was bequeathed to Mrs. Parry, the lessor's wife, and her son. He referred to Doe d. Watson v. Routledge (a).
DoE, Lessee of PARRY, against JAMES,
Lord ELLENBOROUGH, C. J. asked if it had been left to the jury whether the conveyance was made bonâ fide. To which Le Blanc, J. answered, that the case was not put upon that ground at the trial; but merely on the ground of the purchaser's notice of the settlement, and inadequacy of consideration; and the verdict was found under his direction in point of law, that notice of the settlement made no difference : and then the case rested upon the other question, whether adequacy of consideration was neces
essary to sustain it.
Lord ELLENBOROUGH, C. J. The defendant should at least have shewn such an inadequacy of consideration as amounted to evidence that it was not a bonâ fide conveyance, but colourable to get rid of the settlement. Was the estate shewn to be of the value of 40001. instead of 4001. ?
Abbott said that he had no such evidence, though it was certainly more than 4001.
Lord ELLENBOROUGH, C. J. Taking it then to have been conveyed for an adequate consideration, there is nothing to vary this from the common case of a purchaser claiming against a prior voluntary settlement. It is clear that notice of such a settlement cannot vary the question : it amounts only to notice of a settlement
(a) Cowp. 705.
DoE, Lessee of PARRY, against JAME.
which was void against a subsequent purchaser for a
Tuesday, Thompson against The Royal Exchange AsNov, 10th.
surance Company. Where the ship T HIS was an action upon a policy on goods (tobacco was wrecked, but the goods and sugar) on board the ship Jane, at and from were brought on shore, Heligoland to London, and the policy contained a clause though in a
making the underwriters free from particular average. very damaged state, so that
The ship, with her cargo on board, was driven from they became unprofitable to her anchor at Heligoland, and wrecked; but the goods the assured : Held that the
in question were afterwards got on shore and saved, on the goods, though in a very damaged and unprofitable state; and who were freed the ship was obliged to be broken up. The assured by the policy from particular gave immediate notice of abandonment. But Lord Elaverage, could not be made
lenborough, C. J. at the trial at Guildhall, nonsuited the liable as for a plaintiff upon the construction of the clause against partotal loss by a notice of abandonment.
Topping moved to set aside the nonsuit, and contended that this was a total loss, or a case of general and not of particular average. The sugars he said were mostly washed out of the hogsheads, and the tobacco was quite spoiled by the sea-water, and though brought to shore, yet it was in such a state that it was worth nothing to the assured, and he never received any thing. He referred to Anderson v. The Royal Exchange Assurance Com
pany (a), where he said that upon a loss similar to the present, the Court would have holden it a total loss if the assured had abandoned in due time.
against THE ROYAL EXCHANGE Assurance Company.
Lord ELLENBOROUGH, C. J. All the goods were got on shore and saved, though in a damaged state. If this can be converted into a total loss by a notice of abandonment, the clause excepting underwriters from particular average, may as well be struck out of the policy. We can only look to the time when the loss happened, and the goods were landed, and then it was not a total loss, however unprofitable they might afterwards be.
BAYLEY, J. The very object of the exception is to free the underwriters from liability for damaged goods. They say in effect that they will be liable if the goods are wholly lost, but not if they are only damaged. Per Curiam,
Rule refused. (a) 7 East, 38.
Roberts against Read and Others.
Tuesday, Nov. 10th.
IC N an action on the case, the plaintiff declared that on Though the the 1st of December 1809, at Penzance, in Cornwall, way act,
13 G. 3. s. 78. she was and still is seised for her life, of a garden, with
c. 81. directs the appurtenances, in which, until the grievance after- that actions
against any mentioned, there was a wall 200 feet long, &c. abutting persons for any
thing done or on a public street in Penzance; and that the defendants,
ance thereof, shall be commenced within three calendar months after the fact committed, and not afterwards; yet if surveyors of highways, in the execution of their office, undermine a wall adjoining to the highway, which does not fall till more than three months afterwards, they are subject to an action on the case, for the consequential injury within three months after the falling of the wall.