He 1812. DoE, Lessee of against HALL. at the time it was brought. [Lord Ellenborough, C. J. asked how that agreed with the case in Wilson?] said that was only an obiter dictum, without authority, and not the point then decided, which was only that the BENNINGTON, 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 ejectWe will not look at his title till admittance, but, when admitted, and his legal title perfected, we will look (b) Salk. 185. ment. (a) 3 Rep. 29. to 1812. DOE, Lessee of BENNINGTON, against HALL. to his real title derived from the act of the party surrendering to him, which has been made perfect by the subsequent admittance. The case in 2 Wilson, Vaughan v. Atkins (a), and Holdfast d. Woollams v. Clapham (b), support the same principle. The Court refused the rule upon both points. (a) 5 Burr. 2764. (b) 1 Term Rep. 600. Monday, Nov. 9th. Though a purchaser for a valuable con sideration may recover in ejectment against one who claims only under a voluntary set tlement of which such purchaser had notice : yet it seems that the inadequacy of consideration for such purchase is material if it extend so far as to shew that it was not made bonâ fide, but merely colourably, to get rid of the first set tlement, and make another, which was also in truth a voluntary settle ment. DoE, Lessee of PARRY, against James. THE HE lessor of the plaintiff having obtained a verdict, in this ejectment, tried before Le Blanc, J. at Monmouth; Both Abbott moved, by leave, to set aside it and enter a nonsuit, upon an objection taken at the trial. parties claimed under David Lewis; the defendant as heir of the body, under a prior marriage settlement, made by Lewis; the plaintiff under a subsequent conveyance from him in 1797, for a valuable consideration, as he contended, which entitled him to claim against a voluntary settlement made after marriage, though he had notice of the settlement. The defendant contested the adequacy of the consideration of this conveyance, and entered into evidence to shew it. The consideration for it was 4007. of which 1007. only was paid at the time, according to the acknowledgment of David Lewis, given in evidence, and the 300l. was to remain as a charge upon the estate. It also appeared that instructions had been given about the same time by D. Lewis for making making his will, by which the 3007. was bequeathed to Mrs. Parry, the lessor's wife, and her son. He referred to Doe d. Watson v. Routledge (a). 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 necessary 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 40007. instead of 4007.? Abbott said that he had no such evidence, though it was certainly more than 4007. 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 question it amounts only to notice of a settlement : the 1812. DoE, Lessee of PARRY, against JAMES. VOL. XVI. (a) Cowp. 705. Q which 1812. DOE, Lessee of PARRY, against JAMES. which was void against a subsequent purchaser for a valuable consideration. Nor can the giving the 3007. back by the will to the purchaser's family make a difference; for that might have been altered. Per Curiam, Rule refused. Tuesday, Nov. 10th. Where the ship was wrecked, but the goods were brought on shore, though in a state, so that they became the assured: THOMPSON against The ROYAL EXCHANGE AS surance Company. HIS was an action upon a policy on goods (tobacco THIS and sugar) on board the ship Jane, at and from Heligoland to London, and the policy contained a clause very damaged making the underwriters free from particular average. The ship, with her cargo on board, was driven from unprofitable to her anchor at Heligoland, and wrecked; but the goods in question were afterwards got on shore and saved, though in a very damaged and unprofitable state; and the ship was obliged to be broken up. The assured from particular gave immediate notice of abandonment. But Lord Elaverage, could lenborough, C. J. at the trial at Guildhall, nonsuited the liable as for a plaintiff upon the construction of the clause against par Held that the underwriters on the goods, who were freed by the policy not be made total loss by a notice of abandonment. ticular average. 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), 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. 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. 1812. THOMPSON against THE ROYAL EXCHANGE Assurance Company. Per Curiam, (a) 7 East, 38. Rule refused. ROBERTS against READ and Others. Tuesday, Nov. 10th. IN an action on the case, the plaintiff declared that on Though the the 1st of December 1809, at Penzance, in Cornwall, she was and still is seised for her life, of a garden, with the appurtenances, in which, until the grievance aftermentioned, there was a wall 200 feet long, &c. abutting on a public street in Penzance; and that the defendants, general highway act, 13 G. 3. s. 78. c. 81. directs that actions against any persons for any thing done or acted in pursu 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. |