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1799. lord having claimed a specific thing, if not entitled to that must

fail in his avowry. (a)

EYRE Ch. J. Had I been in the place of the learned Judge, RADCLIITE. I am not quite certain that I should have rejected the evidence;

but had I received it I should have found myself obliged to turn the applieation of it againft the Defendant. The entries in queftion tend to fhew, that no heriot in kind is due even in the case of descent, but a pecuniary payment only. Whether the jury in estimating the sum to be paid refer to the value of the best chattel, or whether they afless a sum in gross, it is equally clear that the lord receives nothing in fpecie. The right of the tenant to have a fum afseffed in lieu of the chattel is inseparable (6) from the right of the lord: the right of the latter therefore is not an absolute right to the chattel, but to something to be commuted for it by the jury.

Cockell took nothing by his motion.

(a) On a justification by the lord of the (6) Vid Gray's cale, 5 Co. 78.b. in which manor, under a cufiom, that the lord should it was held, that where a party preferibes have the best beast on the tenant's death absolutely, and the evidence is of a prethe custom proved was, that the lordi theuld fcription under a condition or limitation, if have the beat beast or good &c. and the such condition or limitation be parcel of the whole Court of C. B. held the variance fa prescription, it is a variance : fecùs if not tal. Adderiey v. Hart, T. 4 Geo.d. paicel.

award cannot issue before a

pay the

the money

April 12th.

BRANDON V. BRANDON. An attachment for not p'yinga IV ILLIAMS Serjt. in the course of laft term shewed cause slim of money

against a rule obtained by Marshall Serjt. for an attachpursuant to an ment for not paying a sum of money pursuant to an award, and

contended, that though it was awarded that the party should personal demand has been made;

money at a particular time and place, viz. between the even though the hours of 10 and 12 on a certain day, at the Baptist-head Coffeetime and place house, yet that a personal demand and tender of a release, which for payment of

were necessary, not having been made, the attachment could awarded be spe- not iffue. cified in the award.

EYRE Ch. J. The reason for naming a particular time and place is, to supersede the necessity of a personal demand, and I know of no authority that in such case any demand need be made.

Rooke J. This objection would afford no answer to an action on the award, but I think it was held in the time of Mr. Justice Gould, that a personal demand must be fhewn in applications to the summary jurisdiction of the Court.




It having been also suggested at the bar that such a practice had prevailed, the case was ordered to stand over till the bench should be full.

On this day the case was again mentioned, when the Court declared themselves of opinion, that a personal demand was necessary to warrant the issuing of the attachment, but

Eyre Ch. J. said, that though he submitted to the practice, he continued to think that on principle a personal demand was unneceflary.

Rule discharged without costs. (a) (a) Vid. 12 Mod. 257. Anon. C. B. where time, because it brings the party into conit is laid by the Court, that there must be tempt. Vid. etiam King v. Tosicy, 12 Mod. a positive affidavit of personal notice of award and demand of the money all at one

312. K. B.

fame year.

Sir Harry GORIng Bart. v. WELLES, Clerk.

April 12th. The Defendant having granted several annuities which he was Wife veral persone

unable to pay, on the 3d of September 1798 entered into an chaled annuities agreement to give up to the Plaintiff and several other annuity of A. agree to creditors 8ool. in cash, and a bond for 10201. with interest from nuities on receivthe 14th December 1798, payable to the Defendant on the 14th. ing a certain fum June 1799, to be divided amongst them on the ist July in the bond payable at

The bond was to be placed in a banker's hands as a future day, the property of the annuity creditors, they being at liberty to their annuity rehold the securities for their respective annuities till the time of curities till the payment, and figning an undertaking to make void and deliver payable, the up the securities at such time of payment. Among these secu- Court cannot rities was a warrant of attorney to confess judgment given by 17 Geo. 3. 6. 26. the Defendant to the Plaintiff, for the purpose of securing an order any of the annuity of rool.

A rule having been obtained in the last term, calling on the livered up, aby Plaintiff to fhew cause why this warrant of attorney should not be void. At be delivered up to be cancelled; ift, Because at the time when least not unless

the creditors atthe Defendant executed it he was not aware that it was a secu- tempt to fet rity for an annuity; 2dly, Because the confideration for the an

them up again as

annviry securinuity had never been paid;

Shepherd Serjt. now shewed cause, and urged that as the annuity pulated fum or had been put an end to by the agreement between the Defendant the bond's prov. and his creditors, the warrant of attorney now ftood as a security "That after pay.

ment of the money and delivery of the bond to the creditors, their debt is satisked whether the bond prove good or bad.

tained to be de

ties on non-pay

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for the money actually advanced, and consequently could not be affected by the provisions of the annuity act. He added, that a case under the same circumstances had been before the King's Bench on that day, in which the rule was discharged.

Le Blanc Serjt. in fupport of the rule contended, that in case a dividend should not be made among the creditors on the ift of July according to the agreement, the warrant of attorney would remain in full force as a security for the annuity, and execution might be taken out upon it: and that being defective within the provisions of the annuity act, the Court ought not to suffer it to continue in the Plaintiff's hands.

EYRE Ch. J. It is one thing, whether the Court ought to set aside these securities, confidered as fecurities for a fubfifting annuity, and another, whether it ought to entertain this application, after the annuity has been abandoned and a new agreement entered into for the repayment to the grantee of the principal fum. In the former case the objections now made might have prevailed; but in my apprehension, this motion has been made in breach of good faith, and in contravention of that new agreement between the parties, to insure the performance of which the annuity securities were to remain in the hands of the grantees. It is true that it may be urged as an argument, that the grantee, in case the stipulated payments fhall not be duly made on the ift of July, will attempt to refort to the securities as annuity securities : but should he do so it will then be time to apply to the Court to interfere as in the case of a fubfifting annuity. Here the annuity having been abandoned, the motion now before the Court is made for a purpose quite collateral to 17 Geo. 3. c. 26. The construction put upon that act has never been carried to the length of saying that the grantee shall not get back his money.

BULLER J. I think it perfectly clear that the warrant of attorney was objectionable at the time when the annuity was granted: but the question is, whether any thing has fince been done to wave the objections? Unquestionably the grantee may wave them if he thinks fit. Here a new agreement has been entered into, by which the annuity was turned into a money debt. This amounted to a waver of the objections. The argument in support of the rule proceeds on the supposition of a cafe which never occurred, nor do I think that it ever could occur. It having been settled that the warrant of attorney should remain as a security for the new agreement, it must fo remain; nor can it ever be resorted to again to





enforce the annuity. From the moment that the 800l. was paid over and the bond delivered into the banker's hands, there was an end of the whole debt, and the creditors were to run the risk of the bond being good or bad. It is true that there can be no use in leaving the warrant of attorney in the hands of the party, but the Court cannot order it to be delivered

up. The Court were inclined to discharge the rule with costs, but finding that the Court of King's Bench had not done so in the cafe alluded to,

Discharged the rule without costs.

should have a


April 12th.

6 Edf,607. | NDEBITATUS affumpfit

. The first count of the declaration 4. agreed with was " for 201. for the moieties of divers crops of wheat and land rent-free on cole-feed, by the Plaintiff before that time fold to the Defendant, condition that A. and by the Defendant in consequence of such fale before then

moiety of the had reaped and taken to and for his own use and benefit.” The crops ; while the ad count was on a quantum meruit, “ for that the Plaintiff had crop was on the

ground it was appermitted and suffered the Defendant to depasture, eat up, and praised for both

parties; A. deconsume with his cattle the moiety of a certain other crop of

clared in indebie cole-seed.” There was also a count for money had and received. tatus allumpfit

for a moiety of Plea. General issue.

the value of the The cause was tried before Amhurst, J. at the last Cambridge crop fold to B. Spring Aflizes, when it appeared that the Plaintiff being pofseffed the special agreeof certain pieces of fenn-land which he was defirous of having ment; and held put into a state of cultivation, made a verbal agreement to let well do fo, as the them to the Defendant without rent, who was to plough, dress special agree. and fow them for two successive crops, and in lieu of rent to al- cuted hy the aplow the Plaintiff a moiety of the crops. While the crops of the praisement and second year were on the ground, an appraisement of them was out of something taken for both parties, and the value ascertained. The Defen- collateral

to it.

Semb. That such dant having afterwards refused to pay a moiety of the value, an agreement this action was brought. It was contended at the trial, that a

need not be in

writing under the special agreement for a moiety of the crops having been proved, statute of frauds. this action of indebitatus affumpft, for a moiety of the value, could not be supported: and also that the agreement itself was within the statute of frauds: first, because it related to land; and secondly, because it was not to be executed within a year ; and that it ought therefore to have been in writing. A verdiet



1799. was found for the Plaintiff, subject to the opinion of the Court

on the first objection.

Accordingly, Sellon Serjt. now moved for a rule to shew cause KILLINGEICK. why this verdict should not be set aside and a nonsuit be entered.

Erre Ch.J. The circumstance of the appraisement seems to put an end to this point. It is true that as the case originally Itood the Plaintiff had a claim to a moiety of the produce of the land under a special agreement; but that special agreement was executed by the appraisement. It had been agreed that the moiety of the crops was the property of the Plaintiff; but he being willing that the Defendant should keep them, a surveyor was appointed to settle the price between them. The circumftance of the appraisement affords clear proof that the plaintiff fold what the Defendant had agreed was his: and the price being ascertained, brings this to the case of an action for goods fold and delivered (a). It is unnecessary to state a special agreement, which has been executed, where the action arises out of fomething collateral to it.

BULLER J. If no appraisement had taken place, the objection to the action in this form must have prevailed. But that circumstance is decisive. With respect to the point made at the trial, on the statute of frauds, this agreement does not relate to any interest in the land, which remains altogether unaltered by the arrangement concerning the crops.

Sellon took nothing by his motion. (a) An agreement executed often amounts to a bargain and sale. Com. Dig. tit. Agreement (A2). Dia.

April 17th. Roberts and Others, Affignees of Horsman a Bank

rupt, v. Eden. A note payable CTION by the assignees of the indorfee of a promiffory note

A on demand with interest drawn

against the drawer: the note was for 400l. dated the 20th by A. in favour of April 1792, and made payable to one Hunt on demand, with rity for a debt, lawful interest, and had been indorsed by him to the bankrupt, was by him in- Horfman. dorsed to C. for the same pur

It appeared at the trial before Rooke J. at the Guildhall Sittings pose;

after the in this term, that the note in question was given by the Defendindorsement it palled backwards and forwards between B. and C. several times, and previous to its being ukimately deposited with C. he received an intimation from B. not to negotiate it as he thould want it when he lettled accounts with A.; held that C. could not, after a settlement of accounts between A. and Bi without a re-delivery of the note, secover on it againtt A.


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