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veyors were directed to preserve, and prevented *the repair of the highway, which it was their duty to superintend.

PARKE, J. I can find no provision in the act of parliament, authorizing the surveyors to remove a building or house erected upon the highway. They are empowered by section 12, to remove any nuisances, encroachments, obstructions, or annoyances, made, committed, or permitted contrary to the directions of that act. By section 9, persons laying any stone, timber, &c. upon the highway are subjected to a penalty; and, by section 10, after notice by the surveyor, stone, timber, &c. laid within fifteen feet of the centre of the highway, may be removed by the owner of the adjacent lands, or any other person, by order of a justice of peace. But there is no clause which authorizes the removal of a building by the surveyors. The making of this watch-house, therefore, was not a thing done contrary to the directions of that act, within the twelfth section; and the pulling of it down was not a thing done in pursuance of the act, within the eighty-second section; the defendants, therefore, could not give it in evidence under the general issue.

TAUNTON, J. concurred.

PATTESON, J. Section 7, compels the possessors of land to lop the trees in a particular manner; and if they omit to do so after notice, two justices may order them to be cut. This seems to show that it was not intended, by that act, to give the surveyors a power of removing things fixed to the freehold.

Rule refused.

*72]

*BAXTER v. TAYLOR. Nov. 3.

A reversioner cannot maintain an action on the case against a stranger for merely entering upon his land held by a tenant on lease, though the entry be made in exercise of an alleged right of way; such an act during the tenancy not being necessarily injurious to the reversion.

DECLARATION stated that a certain close called Stoney Butts Lane, situate in the parish of Halifax in the county of York, was in the possession and occupation of J. H., J. E., and J. A., as tenants thereof to the plaintiff, the reversion thereof then and still belonging to the plaintiff; yet the defendant, well knowing the premises, but contriving to prejudice and aggrieve the plaintiff in his reversionary estate and interest, whilst the said close was in the possession of the said J. H., J. E., and J. A., to wit, on, &c. wrongfully and unjustly, and without the leave and license, and against the will of the plaintiff, put and placed upon the said close divers large quantities of stones, and continued the same for a long space of time, to wit, from thence hitherto; and also with the feet of horses, and the wheels of carriages, spoiled and destroyed divers parts of the said close, whereby the plaintiff was greatly injured in his reversionary estate and interest therein. Plea, not guilty. At the trial before Parke, J. at the last assizes for the county of York, it appeared that the plaintiff was seised in fee of the closes mentioned in the declaration, which he had demised to tenants; that the defendant had with his horses and cart entered upon the close called Stoney Butts Lane; and that after notice had been given him by the plaintiff to discontinue so doing, he claimed to do so in exercise of a right of way. The learned Judge was of opinion, that although that might be good ground for an action of trespass by the occupier of [*73 the plaintiff's farm, *it was not evidence of any injury to the reversionary estate, and therefore that the action was not maintainable; and he nonsuited the plaintiff, but reserved liberty to him to move to enter a verdict.

F. Pollock now moved accordingly Although the plaintiff had demised his land to tenants, yet this action is maintainable for the injury to the reversion. The defendant claimed a right of way, and persisted in going on the land after

notice. The trespass, having been commited for the purpose of asserting a right, was calculated to weaken the evidence ofthe plaintiff's title. [PARKE, J. The tenant might have maintained trespass.] The landlord could not compel his tenant to bring an action; and, therefore, unless he has a remedy in this form of action, he has none; and he ought to have some. It is undoubtedly true that he could not maintain this action for a mere trespass, unaccompanied by any permanent injury or any claim of right; but it is different where the act is done to assert a right, and might be evidence of a right of way. [PARKE, J. Such an act done while the premises were out on lease, would not be evidence of any right as against the reversioner.] In Young v. Spencer, 10 B. & C. 145. which was case by the owner of a house against his lessee for years for opening a new door, whereby the house was weakened and injured, and the plaintiff prejudiced in his reversionary estate and interest in the premises, the facts were, that the lessee did open the door without leave, but the house was not in any respect weakened or injured by it: and it was held that it ought to be [*74 left to the jury to say whether there was not an injury to the plaintiff's reversionary right. And Lord Tenterden, C. J. said, that it seemed to be clearly established, that if any thing be done to destroy the evidence of title, an action is maintainable by the reversioner. Here then it ought to have been left to the jury, whether the acts done by the defendant under a claim of right were not injurious to the plaintiff's reversionary interest, inasmuch as they were calculated to weaken his evidence of title.

TAUNTON, J. I think there should be no rule in this case. Young v. Spencer, 10 B. & C. 145, is not in point. That was an action on the case in the nature of waste by a lessor against his own lessee. Here the action is by a reversioner against a mere stranger, and a very different rule is applicable to an action on the case in the nature of waste brought by a landlord against his tenant, and to an action brought for an injury to the reversion against a stranger. Jackson v. Pesked, 1 M. & S. 234, shews, that if a plaintiff declare as reversioner, for an injury done to his reversion, the declaration must allege it to have been done to the damage of his reversion, or must state an injury of such permanent nature as to be necessarily prejudicial thereto, and the want of such an allegation is cause for arresting the judgment. If such an allegation must be inserted in a count, it is material, and must be proved. Here the evidence was, that the defendant went with carts over the close in question, and a temporary impression was made on the soil by the horses and wheels; that damage was not of a permanent but of a transient *nature; it was not therefore necessarily an injury to the plaintiff's reversionary interest. Then it is said that the act being accompanied with [* 75 a claim of right, will be evidence of a right as against the plaintiff, in case of dispute hereafter. But acts of that sort could not operate as evidence of right against the plaintiff, so long as the land was demised to tenants, because, during that time he had no present remedy by which he could obtain redress for such He could not maintain an action of trespass in his own name, because he was not in possession of the land, nor an action on the case for injury to the reversion, because in point of fact there was no such permenant injury as would be necessarily prejudicial to it; as therefore, he had no remedy by law for the wrongful acts done by the defendant, the acts done by him or any other stranger would be no other evidence of right as against the plaintiff, so long as the land was in possession of a lessee. In Wood v. Veal, 5 B. & A. 454, it was held, that there could not be a dedication of a way to the public by a tenant for ninety-nine years, without consent of the owner of the fee, and that permission by such tenant would not bind the landlord after the term expired. I think there fore that the plaintiff cannot maintain the present action; and there is not doubt sufficient to induce me to think that there ought to be a rule nisi for a new trial.

an act.

PATTESON, J. I am of opinion that the nonsuit was right. Young v. Spencer, 10 B. & C. 145, was not an action by the reversioner against a stranger,

but by a landlord against his tenant. It was an action on the case in the nature *of waste to entitle a reversioner to maintain an action on the case *76] against a stranger, he must allege in his count, and prove at the trial an actual injury to his reversionary interest. It is said that this action is maintainable because the plaintiff's title may be prejudiced by a trespass committed under a claim of right; but then for such an injury the action must be brought in the name of the tenant, who is the person in the actual possession of the land. It is true the landlord cannot bring an action in the tenant's name without his assent; but that generally speaking, would be obtained without difficulty, and may be always made matter of arrangement between the landlord and his tenant. The landlord may even provide by covenant in his lease that he shall be allowed to sue in his tenant's name for any trespass committed on the land.

PARKE, J. I am clearly of opinion that there was no injury the plaintiff's reversionary interest; and to entitle him to maintain this action it was necessary for him to allege and prove that the act complained of was injurious to his reversionary interest, or that it should appear to be of such a permanent nature as to be necessarily injurious. A simple trespass, even accompanied with a claim of right is not necessarily injurious to the reversionary estate, and what Lord Tenterden said in Young v. Spencer, 10 B. & C. 145, must be construed with reference to the subject-matter then under consideration, an action on the case in the natures of waste by a reversioner against his tenant. Rule refused.

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ROOTS v. LORD DORMER.

Nov. 3.

Where several lots are knocked down to a bidder at an auction, and his name marked against them in the catalogue, a distinct contract arises for each lot; and a memorandum signed afterwards by the bidder, stating that he agrees to become the purchaser of the several lots set against his name, does not require a stamp, though the aggregate exceed 201. in value, no single lot being of that price.

CASE by the plaintiff as purchaser of growing crops sold under a fi. fa., for distraining and converting the said crops. Plea, the general issue. At the trial before Gaselee, J., at the Buckinghamshire Summer assizes, 1832, it appeared that the crops were sold by auction under certain conditions, which were in writing. The sixth condition stated that the crops, lots 57, 58, &c., (to 67, inclusive), would be sold, subject to the covenants contained in a certain indenture of lease therein recited. The eighth condition was, "cach purchaser of the crops to sign an agreement to fulfil, so far as they legally ought to do, the said covenants." Four lots were knocked down to the plaintiff at prices below 207. respectively, but amounting in the whole to 387.; and on the same day he, and three other purchasers, subscribed the following acknowledgment at the foot of the conditions:-"We do hereby consent and agree to become the purchasers of the lot or lots specified in the annexed catalogue of sale, set against our names respectively, according to the terms mentioned in the foregoing conditions. Witness our hands this 8th of March, 1830.

No stamp was affixed.

(Signed)

W. Roots, lots 57, 59, 60, 66.
Thomas Jones, lot 62.

Charles Bush, lots 58, and 63.
Thomas Miller, lot, &c.

A verdict was found for the plaintiff, and leave given to move for a nonsuit on a point which it is unnecessary to state, and on which the Court refused a rule.

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Storks, Serjt., in making this application, contended *that the defendant was at all events entitled to a new trial, as the acknowledgment subscribed to the conditions was an agreement for the purchase of an interest in lands, to the value of more than 207.; and, therefore, ought not to have been received in evidence without a stamp. The lots were, indeed, knocked down separately; but the agreement for them, as afterwards reduced into writing, was for the purchase of all in the aggregate.

PARKE, J. I think this was a separate agreement for each lot. There was a distinct contract as each lot was knocked down. No stamp, therefore, was requisite.

TAUNTON, J., concurred.

PATTESON, J. I am of the same opinion. Suppose the plaintiff had complied with the conditions of sale as to three lots, and not as to the fourth. In declaring against him, must the agreement have been stated as to one entire contract for all the four lots? Rule refused. (a),

HORN v. ION. Nov. 5.

It is a good answer to a plea of bankruptcy, that the certificate was obtained by fraud, though the enactment to that effect in 5 G. 2, c. 30, s. 7, is not repeated in 6 G. 4, c. 16.

THIS was an action on a promissory note for 487., payable on demand. Plea, first, the general issue; secondly, a general plea of bankruptcy; and thirdly, a *special plea of bankruptcy. Replication to the last plea that the supposed certificate in that plea mentioned was had and obtained [*79 by the defendant unfairly and by fraud, and upon this issue was joined. At the trial before PARKE, J., at the Summer assizes for Westmoreland, 1831, evidence was given to prove, and the jury found, that the defendant had promised to pay Thomas Allen, one of the creditors who signed the certificate, in full, and that Allen was thereby induced to sign it. It was objected that under the 6 G. 4, c. 16, s. 121, it was not competent to the plaintiff to insist on a trial at nisi prius that a certificate was void on the ground of fraud. The learned Judge reserved liberty to the defendant to move to enter a nonsuit. A rule nisi having been obtained for entering a nonsuit upon the objection made at the trial,

John Williams and Archbold in last Trinity term shewed cause, before Lord Tenterden, C. J., Littledale, Parke, and Taunton, Js. Wherever any one of the creditors is induced by money given by the bankrupt or by a third person, to sign the certificate, it is void on the ground of fraud generally, though there be no express provision in the 6 G. 4, c. 16, to that effect; first, because it contravenes the general spirit of the bankrupt laws, which is, that all the creditors should be placed on an equal footing, and that no one should have an advantage over another: secondly, because, as some creditors may be induced to sign because others have done so before, whom they suppose to be on a par with themselves, if the first creditors be in reality paid for signing, it will be a fraud on those who have received nothing, and who have been induced to sign by seeing the previous signatures. Robson v. Calze, Doug. 228, Holland v. Palmer, 1 Bos. & P. 95. [PARKE, [*80 J. The question is, whether since the late statute 6 G. 4, c. 16, a plaintiff is at liberty to show at nisi prius that the certificate was obtained by fraud, or whether that be only a ground for an application to the Lord Chancellor to set it aside.] It is actually void at common law, because fraud vitiates

(a) See Emmerson v. Heelis, 2 Taunt. 38, and the notice of it by Best, J., in Baldey v. Parker, 2 B. & C. 44.

every transaction. It is true that the 5 G. 2, c. 30, s. 7, enacts that in case any bankrupt shall be impleaded for any debt due before he became bankrupt, he may plead the general plea of bankruptcy, and the certificate shall be evidence of all prior proceedings, and a verdict shall thereupon pass for the defendant, unless the plaintiff in such action can prove that the certificate was obtained unfairly and by fraud; and this latter provision is not re-enacted by 6 G. 4, c. 16; but as a certificate so obtained would be void at common law, the latter part of the enactment was unnecessary, and the omission of it therefore in the present statute is wholly immaterial.

T. Clarkson, contrà. Robson v. Calze, Doug. 228, and Holland v. Palmer. 1 Bos. & P. 95, were decided when the 5 G. 2, c. 30, was in force. The replication is clearly bad. By section 121, of the 6 G. 4, c. 16, every bankrupt is discharged from all debts, &c., in case he shall obtain his certificate of conformity, signed and allowed, and subject to such provision as is thereinafter directed. Now here the certificate has been signed and allowed as directed. Section 130, enacts, that any certificate obtained shall be void in certain cases: *81] viz., if the bankrupt shall have lost *by gaming in one day 207., or within a year before his bankruptcy 2007., by gaming or stock-jobbing, or if he shall have destroyed books, &c. If it had been intended to make a certificate void in other instances, that intention would equally have been expressed. The very omission of the enactment contained in the previous statute, as to a certificate obtained unfairly or by fraud, shows, evidently, a change of intention by the legislature. Cur, adv. vult.

PARKE, J. now delievered the judgment of the Court.

The question in this case was, whether, under the 6 G. 4, c. 16. s. 121, it is competent for the plaintiff, on the trial of a cause, to insist on the objection to a certificate, that one of the creditors had been induced to sign it by a promise made by the bankrupt, that he would pay him in full; and that point was reserved for the consideration of the Court. A rule nisi was granted; and cause has been since shewn. We have considered the case, and are of opinion that it is competent for the plaintiff on these pleadings to take this objection, and that it must prevail. The question arises entirely from the difference in the language of the 5 G. 2, c. 30, s. 7, and 12, and the 6 G. 4, c. 16, s. 126, and 130. The former act, s. 7, after providing that the general plea of bankruptcy may be pleaded, and that the certificate shall be evidence of all prior proceedings, goes on to enact that a verdict shall thereupon pass for the defendant, "unless the plaintiff can prove that the certificate was obtained unfairly and by fraud, or unless the plaintiff can make appear any concealment by the bankrupt to the value of 107."

But in the new bankrupt act, in the section (126,) which gives the

*82] general plea of bankruptcy, and makes the certificate evidence, there is no

condition inserted; and in the 130th section, which enacts in what cases the bankrupt's certificate shall be void, the case of its being obtained unfairly or by fraud is not mentioned. And the point to be decided is whether the intention of the legislature in making this omission, was to prevent a certificate being thereafter impeached on the ground of fraud or not. Now if the former bankrupt act had never existed, and the present statute alone been enacted, we conceive that there is no doubt but that under this statute a certificate obtained by fraud would have been void; on the general principle, that fraud vitiates all contracts and instruments. It is only from the comparison between the language of the repealed and the existing statute, that the argument of intention is derived. But that difference may be explained without resorting to the supposition of a change of intention. The provisions of the new law are differently arranged, and in making that new arrangement, the clause in the old act may have been omitted simply on the ground that it was unnecessary to introduce an express enactment of that which the law implies. And indeed, when it is considered how imporant such an alteration is, and what serious consequences to the honest creditor

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