1854.]

dated the 26th day of April 1593, and to the decree of Lord Nottingham, made on the 3rd day of November in the thirty-second year of the reign of Charles II.: and it is ordered that the further consideration of this cause be adjourned; and any of the parties are to be at liberty to apply to this court as there shall be

occasion."

W. M. James, Q.C. (with whom was the SolicitorGeneral) and Terrell appeared in support of the order of the M. R.

Lloyd, Q.C. and W. D. Lewis, for the mayor and corporation of Rochester; Roundell Palmer, Q.C. and G. M. Giffard, for the trustees; Roupell, Q.C. and Berir, for the parish of Chatham, expressed themselves satisfied with the decree of the M. R.

Campbell, Q.C. and Messiter, for the parish of St. Nicholas; Glasse, Q.C. and Heberden, for the parish of St. Margaret; and Vincent, for the parish of Stroud, were heard on behalf of the appeal from the Their arguments are suffidecision of the M. R. ciently stated in their Lordships's judgments. The following cases were cited and commented on:-The Attorney-General v. The Dropers' Company, 4 Beav. 67; The Attorney-General v. The Grocers' Company, 6 Beav. 526; and The Attorney-General v. The Corporation of Exeter, 2 Russ. 45.

Lord Justice KNIGHT BRUCE.-With the decree of the M.R. the Attorney-General, who had, and has, imnot dissatisfied; portant duties to perform in this suit, his reason probably being that there is no reference to a Master, and that the scheme will be settled by the judge before whom the cause was heard, and will be heard subsequently. The Corporation of Rochester The do not complain, nor do the charity trustees. appellants-doubtless very intelligent as well as worthy individuals—are nevertheless parish officer; and, being parish officers, have, by some process of reasoning that I am unable to understand or follow, persuaded themselves that the Attorney-General has obtained not less, but more than, as representing the rights of society and the public interest, he was entitled to claim. Let it, however, be assumed, though I am not giving an opinion, that at the time when the information was filed the rents of these charity estates were not in a course of application which, as to more than nine-tenths of them, was a course of misapplication. Let it be assumed, though I do not say that it could be right, that the bulk or any portion of the revenues of these estates should be received by parish officers, and by them be applied, with parish and borough rates, as parish and borough rates, for the ordinary purposes of parish and borough

the property which is in question, now of very large amount, has, for a great length of time, been applied in ease of the poor-rates; that income being, by the will and the deed which are the foundation of this charity, devoted to trusts which I shall presently have occasion to refer to. This matter having come before the M. R., he has, by his decrce, directed a scheme to be laid before the court for the application of the charity income, having regard to the will of the testator, to the deed which followed on that will, and also to certain decrees which have been made by this court; and this appeal comes before us from the decree so directing a scheme, having regard to the will, the deed, and the former decrces of the court. Now, in a case of that nature, I apprehend it rests upon the appellants to show that the administration of this charity in the mode in which it has been | administered is absolutely right and proper; or, at all events, that some qualification ought to be introduced into the decree as to any alterations which may be necessary to be made, or which may be intended to be made under the scheme which the court is about to carry out, because, unless the appellants satisfy us either that the administration is proper, or that there ought to be some qualification introduced as to the scheme, it is absolutely the duty of the court to take care that a proper scheme is laid down for the administration of the charity. Now, the appellants carry their argument to this extent. They say that the application of these funds in aid of the poor-rates is altogether a just and due application of the fands; and they justify that application upon three grounds upon the will of the testator, the decrees of the court, and the usage. The first instrument, therefore, which is to be looked at in the present case is the will of this testator. Now this testator by his will has devised certain property which he had called Satis, and other property connected with it, in trust to be sold, "and that the money thereof had and received shall be bestowed and applied to such uses, intents, and purposes, as hereafter shall be Then there comes a gift of 1007. "And expressed." to his brother; and then there comes, one stock and proportion of the residue, money to be made and contained in the mayor and citizens of Rochester, and the said mayor and citizens shall put the same to gain and profit, the same yearly profit to bestow and employ for and towards the perpetual relief, comfort, and sustentation of an almshouse, and such poor people as shall be hereafter limited, named, and expressed; that is to wit, first, that the almshouse already erected and Still it is impossible not to notice the striking standing beside the Market-cross within the city of disregard with which, notwithstanding the great in- Rochester aforesaid, which almshouse my will, purcrease in the produce of this property, the plainly-pose, and desire is, that there be re-edified, added, expressed wishes and intentions of the testator in his will, and of the consequent deed, with respect to an almshouse, have been treated. It is impossible not to disapprove and disavow the omission to increase the assistance which, by both the will and the deed, was directed to be given to needy wayfarers; as to whom, not only in number, but in the amount also of vialicum, the provision made in the sixteenth century has not been augmented, while the rents have since that time increased by thousands. In the face of all this, churchwardens and overscers have been found to contend that the justice of the country, apprised of these abuses, shall allow them to remain as they are-a contention which, the court being now possessed of the case, and having the power, if not to redress the past, to control the future, is scarcely a serious affair. But it is matter of regret, and something more, that, in a community on various grounds, civilly and ecclesiastically, so considerable as the city where this charity was founded, there should so long have been tolerated-nay, from reasons too obvious, I fear fostered and encouraged-a system of wrong which, viewed in the light most favourable towards the defendants, whether as a mere matter of money among the living, or as involving the spoliation of the dead, is, in point of law as well as morality, without apology and without excuse. At present it is not necessary that the court should do more than to dismiss these appeals with costs.

153

maintenance of the almshouse near the Corn-cross, at Rochester. And the first question that one has to ask on this decree is, whether it is a due administration of this trust that funds, which are in the first place subject to the maintenance of the almshouse which is at the Corn-cross at Rochester, should be applied and disposed of in ease of the poorrates falling on the parishes of Rochester. Why, of an almshouse, that trust over-rides all the subsequent course, if there be a trust here for the maintenance of trusts, and until that almshouse has been provided there must be a duty upon this court to take care that the funds be not applied for other purposes. a scheme for the application of the funds which are Then, can it be wrong for this court to have directed in the first place applicable towards the almshouse, different purpose? So much then as to the first trust. but which are in fact applied to another and a totally Now let us look a little at the subordinate trust. The subordinate trust is to provide flax, hemp, yarn, wool, to work according to the purview of the stat. of and other necessary stuff, to set the poor of the city 18 Eliz., and, as to the remainder, for the further relief It is argued on the of such as be poor and impotent, as the statutes of this realm will permit and allow. part of the churchwardens that, because that was the mode in which relief was administered to the poor at the time when the will was made by this testator, the income is now applicable to the relief of the poor according to the mode in which that relief is now Of course I do administered; and not only so, but that it is applicable to all purposes whatsoever to which the poorrates are by law now applicable. not mean now to decide that question. It may be very proper that some portions of these funds should in some manner be applied for the benefit of poor people receiving parish relief; but what the appellants have here to maintain is, that the whole of these funds are bodily to be paid over to the overseers of the parish for the purpose of being applied to poorrates, the purposes to which those rates are applied going far beyond the purposes which were prescribed by this testator; and in truth they are seeking to say the of to found upon a trust which, trust for the least of it, was in aid of the mode of relief at that time administered, a application of the funds for relief of the poor in another and a totally different mode. I think it is impossible here to say that the application of the whole of these funds, in the mode in which they have been applied in ease of the poor-rates, is an application consistent with the trusts declared by this will, looking at the question as standing on the will and the deed alone; and if not according to the will, then it is the duty of this court to send an inquiry, and unless the point has been precluded by decisions The next point thereand provided with such rooms as be there already pro-direct a scheme for the application of the funds, vided, six several rooms with chimneys, for the comfort, placing, and abiding, of the poor within the said already pronounced upon it. Now the city; and also to be made apt and convenient places fore upon which the appellants rely is this-they say therein for six good mattresses or flock beds, and that this has been decided by a decree pronounced by Lord Nottingham, as long ago as 1674. first thing to look at, when one examines that decree other good and sufficient furniture, to harbour or to see what has been decided, is, what was the nature lodge in poor travellers or wayfaring men, being no common rogues or proctors. And they the said wayfaring men to harbour and lodge therein no longer of that suit? That suit was instituted, if I recollect than one night, unless sickness be the further cause." | right, to extend the application of the funds, which Then they are to be maintained, and to have four- had been applied to different parishes, to two other pence a night given to them. Then the trusts follow, parishes. The prayer of the information was, that "And the yearly profits and rents of the said lands, an equal number of the poor of St. Margaret and shall be to the building, and re-edifying, and increas- Strood might be set on work with the parish of St. ing of the aforesaid almshouse or abiding house, near Nicholas, and that they might have an equal proporthe Corn-cross, in Rochester, aforesaid. And for the tion of the theu present and future revenues and improvision of flax, hemp, yarn, wool, and other neces-provements of the charity; the plaintiff praying sary stuff, to set the poor of the said city at work, according unto the purview of a certain statute made at Westminster, in the eighteenth year of the reign of our most gracious Queen, Elizabeth, touching an Act for the setting of the poor at work, and the avoiding of idleness; and for the further relief of such as be poor and impotent as the statutes of this realm will permit and allow." Then he states the amounts at which he has put down the yearly rents. Now the first trust therefore which is created by this will, is a trust for the maintenance at all events-whether for the benefit of the persons to live in the almshouse or Lord Justice TURNER.-In this case, the income of not, I do not say-but undoubtedly a trust for the

rates.

the assistance of the court for those purposes. The
question therefore which was raised in that suit was,
is this fund specifically devoted for the benefit of the
poor, in whatever mode that benefit may be ad-
ministered? is it devoted for the benefit of the poor
It is true that there is contained
of a particular parish, or does it extend to the benefit
of the poor of other parishes which are part of the
city of Rochester?
in this information a charge "that for several years
the parish of St. Nicholas has employed three parts
in four of all the rents, issues, profits, and of the im-
provements in defraying common charges which
ought to have been paid by the inhabitants of the

an end to any question on the deed as having created
a new bargain, if it was competent to the parties to
create a new bargain by arrangement made at the
time that deed was executed. I think that deed must
be considered to be merely in furtherance of the
original trust created by the will; and I think so, not
only upon my own examination of the deed, which I
have carefully read, but also upon the preface to this
decree; that is, that the court". upon reading the will
of Mr. Watts, and also of the quadrupartite indenture
aforesaid, which extends the charity to the poor of the
said city of Rochester, the liberties and precincts
thereof: " treating that deed therefore as a mere ex-
tension of the charity. Lord Nottingham, by this
decree, declares that these parishes "ought to have a
share and proportion as well of the work as of
the surplus of the charity devised and settled
as aforesaid, according to the present revenue thereof
and thereafter, according to such improvements as
shall at any time thereafter be made thereof." Then
he decreed that they should have it for ever, and he
referred it to Twisden, J., Sir Robert Barneham, and
other parties, that they "or any three of them should
set out such share and proportion of the said work,
and also of the surplusage of the money arising and
annually coming and remaining of and from the
rents and profits of the lands and tenements devised
and settled to and for the charitable use aforesaid,
over and besides what shall serve for ever the cha-
ritable uses in the said will expressed to be annually
paid and distributed for ever." So that this decree
keeps on foot the previous trust for the almshouse by
limiting the powers of the referees under the decree
to the surplus, after providing for the previous pur-
poses-a pretty strong inference that the present appli-
cation of the funds cannot be justified, even upon
Lord Nottingham's decree. That matter being re-
ferred, what is referred to them is, to set out the
share and proportion of the work and of the surplus-
age to which the several parishes are entitled. So
far, therefore, as they went beyond merely ascertain-
ing the proportions, they went beyond the authority
which was given to them by this decree. Accord-
ingly, in pursuance of the decree, they made an award,
by which they set out the different proportions which
the parishes were to take; and, in doing so, they seem
to me to have gone certainly, to some extent, con-
siderably beyond the authority which was given to
them by the decree; for they not only ascertained
the proportion which each of these parishes was to
take, but they boldly shifted the trust for the alms-
house upon the proportion which was allotted to one
parish-relieving therefore, or purporting to relieve
by their award, not in conformity with the decree or
the authority given to them by the decree-relieving
a portion of the charity fund which was given to the
two other parishes, from the trust to which that fund
was subjected by the will of the testator and the
deed which followed upon that will. Therefore, to
that extent, these arbitrators or referees clearly went
beyond their authority. And how was it that this court
confirmed and acted upon that award? Why, at the

provided. Then, let us see how it was that this award received the confirmation of the court. When you come to the order which confirms the award, you get this: "Upon opening of the matter this day unto this court by Mr. Bridges, being of the plaintiffs' counsel "

said parish of St. Nicholas, out of their own purses
and estates, towards the relief of the poor of the same
parish, to ease and free themselves and the rest of the
inhabitants of the parish from those charges, whereby
they themselves and the inhabitants were the only
partakers of the benefits of the charitable use, and
not the poor of the city." That, therefore, was the
charge that was made on the information: no relief
being prayed on that subject, but the relief prayed
being confined to a declaration that certain other
parishes might have an equal proportion of the then
present and future revenues and improvements. The
nature of the suit, therefore, was to have it deter-
mined whether the other parishes were entitled with
the parish of St. Nicholas to their share of the income
of the charity, but not specifically asking any decla-
ration or decision of the court upon the subject of
the application of the funds. I quite agree with Mr.
Heberden, and with the counsel who have argued on
the part of the appellants, that it was undoubtedly
within the power of the court-and perhaps I may go
further, and say that I think it was the duty of the
court, if it thought there was misapplication of the
charity appearing upon the record before it-to deal
with that misapplication, though there was no spe-
cific prayer for relief addressed to that subject; but
then let us see how the matter did, in truth, stand
before the court at the hearing of that information.
We must take that not merely from the allegation
which is contained in the bill, but from what appeared
in the answer of the defendants who were administer-
ing the charity at that time. That answer states
these facts-not that these funds were applied in aid of
the poor-rates, or in any ease of the poor-rates-but it
states that they had applied the funds in the mainte-
nance of the hospital or almshouse, the comfort and
relief of poor travellers, and setting the poor in or
about the said city on work, and the residue thereof
to the further relief of the said poor of the said city,
which did accidentally and in consequence redound to
the ease of the inhabitants of the said poor of St.
Nicholas in the charges and assessments towards the
relief of the poor, as was intended by the testator."
Then they went on to state the mode in which the
inhabitants were relieved. They confessed that "they
and their predecessors had employed and disposed of
the overplus of the rents and profits of the premises,
besides what was sufficient for the maintenance of the
said hospital and almshouse, for the relief of poor tra-
vellers, setting the poor to work (setting up, therefore,
that they had actually fulfilled all those purposes
by the maintenance of the almshouse and the
relief of the poor travellers, and also setting the
poor on work), relief of the poor of the said city by
way of weekly or monthly pensioned allowance to
divers of them, providing fuel and other necessaries for
them according to their necessities, and also to the
placing out of poor children, and otherwise to the relief
of the said poor of the said city as the mayor and
citizens of the said city from time to time thought
fit." Now, in that answer, therefore, there was not
an application of these funds in the mode in which,
at the present moment, they are admitted to be ap-foot of the award, you will find statements signed by
plied-in aid and in ease of the poor-rates; but there
was an administration of further relief to poor
people in the shape of weekly and monthly pensions
and allowances, provision of fuel, and placing out
their children in the character of apprentices. When,
therefore, we look at the decree which is made by
Lord Nottingham, we must of course take that decree
according to the circumstances as they stood before
him; and, upon the circumstances before him, I con-
fess I do not see that there was any breach of trust of
this charity, calling for a declaration of the court, on
the subject of the mode of application, so as to con-
trol the mode in which the charity was applied. The
charity, no doubt, might have been applied in some
other mode at that time than that which appeared on
the answer; but on the answer there were statements
of further relief administered to the poor beyond what
they could be entitled to receive under the provisions
of the Poor Law Act. Then look at the decree which
is made by Lord Nottingham. I do not comment
upon the deed that was executed between these
parties, because I think this decree has entirely put

the Attorney-General not appearing at all; and upon producing the award and reading the decree, "it was prayed that the said award, and all the matters and things therein contained, may stand confirmed by the decree of this court, the same being made by the submission and approbation of the parties concerned, signified by their hands thereto subscribed to the said award. Whereupon, and upon hearing of Mr. Gibbs, being of the defendants' counsel, who did admit the said award was made pursuant to the said order of reference, and the same is submitted to and subscribed by the parties concerned, and doth not oppose the absolute confirmation thereof; this court doth thereupon order that the said award, and all the matters and things therein contained, do stand ratified and confirmed by the authority and decree of this court." Now, therefore, when this matter of the award is investigated, it turns out that this, in truth, was an arrangement made between the mayor and corporation of Rochester, not under their common seal, and the minister and principal inhabitants of these parishes, for an application of this fund in the mode or rather in the proportions, for I do not think the mode was altered by the award-in the proportions prescribed by that award, and acted upon by this court, upon the consent of all the parties: the Attorney-General not having appeared on the case; and this being simply a matter of arrangement between parties, to dispose of funds, in one respect at least, in a manner directly contrary to the trusts created by the testator's will, I think, therefore, that Lord Nottingham's decree interposes no difficulty. Then there came afterwards a suit before Sir William Grant, in which a decree was made; and that, again, was a suit in the nature of a claim by another parish to be let into a share or proportion of the funds which had hitherto been distributed between the other parishes. No question appears to have been raised as to the application of the funds; and, in truth, it was the object of all parties, both the plaintiff and the defendant, that the funds should continue to be applied in the mode in which they had hitherto been applied, in ease of the parish poor-rates. I think, therefore, that none of these decrees interposes any difficulty in the way of a proper decree being made for the administration of this trust. But then it is said there is a usage. Undoubtedly, if an instrument be doubtful in its terms, it is to be interpreted by contemporaneous usage; and if there has been a long usage in the application of funds to purposes which may be warranted upon one construction of the instrument, but which may not be warranted upon another construction of the instrument, the court will lean to that construction of the instrument, provided it be doubtful, which will best correspond with the mode in which the funds have been for so long a period applied. But then that is the case where you have not the trust before you-or, at all events, where the trust, the mayor of Rochester and several of the corporation, if it is before you, is doubtful in its terms and interI suppose, of Rochester.-" We, the mayor and citi-pretation; and if you find a clear trust expressed on a zens of the city of Rochester do consent and agree that the several parishes of St. Margaret and Strood, before mentioned, shall have the several shares and proportions of the work and surplusage of the rents and charity before expressed, in such manner and form as is here before set forth and allotted;" and then you get like memorandums signed by the minister and principal inhabitants of the parish of Strood, and by the minister and principal inhabitants of the parish of St. Margaret. So that this award does not take effect by force of the award itself; but it was thought necessary, at the time when this award was made, that the consent of the several parties interested in the several parishes should be obtained, for the purpose of giving effect to that award; and the award, therefore, is nothing more than the agreement of the ministers and principal inhabitants of the parishes that these charity funds, which had been devoted by this testator to particular purposes, should be applied in another mode than that which the testator had

will, a deviation for no length of time from that trust can warrant this court, as I apprehend, in making a decree in contradiction to the trust which is expressly and clearly declared. But, if I am to resort to usage in the present case, I should be glad to know where the usage is to be found. Which usage is best, the earliest or the latest? If you take the usage in the present case, take it from the answer to the information which was filed in Lord Nottingham's time; and tell me whether the usage, as it is explained in that answer, is consistent with the present application of the charity funds. I am clearly of opinion that it is not; and I entertain no doubt, therefore, in concurrence with my learned brother, that these appeals must be dismissed, and dismissed with costs. I the more readily dismiss the appeals with costs, because I think that the waste of charity funds in this court has been most painful and distressing to everybody who has been called upon to administer them; and if there has been a reasonable decree, a proper decree,

made by this court, I never will countenance parties officer of the Scotch court, and the proper proceeding coming here for their own interests against charities must be taken there with reference to the administrain putting those charities to further expense, unless tion of the fund, and the proper parties to execute the there be substantial ground for the appeal. In the trust. His Honour thought there could be no doubt present case I think these parties had no substantial that the accumulations formed part of the fund appliground for the appeals. I think it is clear to demon-cable to build the bridge; he had no evidence as to stration that a scheme was necessary. I think that the terms of the decree, in saying that regard shall be had to the deed, the will, and the decree of Lord Nottingham, left open every point to the appellants which they could be entitled to insist on, and that these appeals, therefore, were perfectly groundless, and must be dismissed with costs.

Held, not a due execution of the award, and that the defendant was entitled to the verdict upon a plea of "no such award" to a declaration framed upon it. This was an action upon an award; to which the defendant had pleaded that there was no such award. At the trial before Wightman, J. during the Held, that the accumulations must be treated as forming sittings in term, a verdict was found for the plaintiff; part of the original bequest for the charitable object; but leave was given to the defendant to move to enter but, it for him. It appeared that, disputes having arisen Held, that the Court of Ch. in England had no jurisdic-between the plaintiff and defendant, an agreement tion to direct a scheme to carry into effect a charity in Scotland; and that proceedings must be taken in the courts there, with regard to the administration of the trust; and that the fund must be paid over to the proper officer of the Scotch court.

done. [MAULE, J.-Where the judge exercises the authority of the court, there his decision may be reviewed by the court. Here the action is in this court, and the judge in giving costs is acting as a judge of this court, and is therefore construed as exercising the jurisdiction of the court; and when he does that, the court may on appeal dispose of it.] 15 & 16 Vict. c. 54, s. 4, was referred to. [MAULE, J.-I think, under the Act for the abolition of arrest on mesne process, as it is cailed, that a judge at chambers may make an order to charge stock. I apprehend an order of that kind may be reviewed by the court. WILLIAMS, J., referred to Hopkins v. Salembier, 5 M. & W. 423. MAULE, J.-If we can review what the judge has done, we are bound to review it.] Our affidavit states that the cause of action did not, nor did any part thereof, arise within the jurisdiction of the court within which the defendant dwells or carries on his business; that his office for receiving rents was in Palace-yard, Westminster.

J. Brown then proceeded to show cause against the other part of the rule, but was stopped by JERVIS, C.J., who said that, as the suit was before the M. R., the application should have been made to the Court of Ch., in which the costs were taxed. Rule discharged.

BUSINESS.

Thursday, May 11.

JOHNSON C. RATHBONE-Byles, Serit. showed cause against a rule which had been obtained by Hawkins, calling upon the plaintiff to show cause why the judgment should not be set aside, and why he should not bring the record into court, that the defendant might enter a suggestion to deprive the plaintiff of costs. The action had been tried before the late Talfoard, J.; and a verdict had been found for the plaintiff, damages 217. 12. A summons had been taken out at chambers calling upon the plaintiff to show cause why the proceedings should not be stayed till the fifth day of this term, to enable the defendant to move to reduce the damages, and also to deprive the plaintiff of costs under the London Small Debts Act, 15 Vict, e. 77, s. 121. At the hearing the defendant abandoned the former part of the summons, and the judge said he had better get the opinion of the court upon the latter. JERVIS, C.J.-The difficulty is that you

can't now get the certificate of the judge, and in the absence
of it the Act is compulsory.
Rule absolute.

Statute of Frauds—Sale of goods-What constitutes a delivery and acceptance within the statute.

A. agreed to buy of B. fifteen head of cattle. A. was about to pay the purchase-money, but, not finding his cheque-book, offered B. to give him the cheque any time he would call for it. A. asked that the cattle might remain in B.'s field three days, and that his (A.'s) man might feed them with some hay there, to be supplied by B. This was done. A. afterwards refused to pay for them:

Held, that there was no evidence to go to the jury of an acceptance and actual receipt of the cattle within the Statute of Frauds, so as to bind the bargain.

The

be so. Here there was nothing to show the property closet fell, and the said dwelling-house and coal-
passed.
house sunk, and the several other walls thereof re-
PARKE, B.-I also think there was no reasonable spectively cracked, and the said dwelling-house and
evidence to go to the jury of an acceptance by the de-coal-house have become and are in danger of falling
fendant, and his actually receiving the cattle; and and becoming dilapidated. And for that the defendant
there must be both to constitute a delivery and ac- carried away and converted to his own use the bricks
ceptance within the meaning of the Statute of Frauds. and materials of which the said wall was built, by
Did the owner of the cattle lose his lien in consequence means of which several premises the reversionary
of what took place between himself and the defendant? estate and interest of the said Henry Nicholls of and
Is there the least doubt about it, that the seller re- in the said dwelling-house and premises has become.
tained his lien? The seller clearly did retain his lien. and is greatly injured and depreciated."
Elmore v. Stone differs from this case.

ALDERSON, B. gave a similar judgment.
MARTIN, B.-I should have been glad if I could
have seen my way clear to have given the plaintiff
all aid to recover his money, as no doubt he was very
harshly treated. The bargain was a fair bargain, when
made between the parties, and the defendant acted very
shabbily in retreating from what he had said and
done; but still we must decide according to the law.
It was a ready-money purchase, and there never was
intended to be an acceptance or receipt until the
money had been paid. Mr. Hoskins would have no
right to take away the cattle until they had been paid
for; he would have been liable to an action of trespass
against him if he had taken the cattle before he had
paid his money. I thought at the trial there was no
evidence of Hoskins accepting and actually receiving
the cattle to be left to the jury and I remain still of
the same opinion.
Rule refused.

COUNTY COURT APPEAL.

Wednesday, May 3.
NICHOLLS v. GAYFORD.
Right of support of soil.

The action was tried before a jury, and a verdict was returned for the plaintiff, damages 237., being 20%. in respect of the injury to the plaintiff's house,. and 31. for the conversion of the materials of the wall. It appeared upon the trial that in April 1851 the plaintiff purchased the house, yard, and outbuildings No. 8, Mountford-street, and they were at the time of the commission of the alleged grievances in the possession of one Amos Harrold, as tenant of the plaintiff. The house was built in the years 1841-45.. The defendant was at the time of the commission of the acts complained of in possession of certain landsnext adjoining the plaintiff's. In Sept. 1853 the defendant contracted with one Ed. Carter to build a warehouse on the land in his, the defendant's, possession. The workmen engaged for that purpose were employed and paid by Carter, the contractor. In excavating the defendant's land, which consisted of made ground close to the plaintiff's outbuildings and yard-wall to the depth of seven or eight feet, for thepurpose of obtaining a foundation for the wall of the defendant's warehouse, the wall of the plaintiff's yard, which stood upon the plaintiff's premises was disturbed and thrown down, and the walls of the plaintiff's house were injured. The bricks and other materials of the fallen wall were carted away by the workmen employed by Carter, without the plaintiff's permission. The defendant gave no directions to the workmen employed on his land, and gave no orders. for the removal of the materials of the old wall which had fallen. It was contended on the part of the plaintiff, that the injury complained of was occasioned by the workmen employed in building the defendant's warehouse having shored up the plaintiff's

Where the defendant contracted with certain persons to
build a warehouse on his lund, and in excavating for
the foundation they disturbed and threw down the
plaintiff's yard-wall, and injured the walls of plain-
tiff's house which adjoined the defendant's premises,
the house of the plaintiff not being an ancient house:
Held, that the plaintiff had no right to the support of
defendant's soil, and that therefore the defendant was
not liable for the damage so done. The contractor's
workmen removed the bricks of the wall which had so
fallen without the directions or permission of the de-outbuildings and yard-wall in an unworkmanlike and
fendant.

Held that defendant was not liable in trover for the con-
version of such materials.

This was an appeal against the decision of the

This was an action brought by the plaintiff to recover from the defendant 1907. for fifteen head of cattle, purchased by the defendant, a butcher. defendant, having seen the cattle in the plaintiff's field, agreed to buy them of the plaintiff, on a Saturday, for 190/. He was about to pay for them; but, not having his cheque-book in his pocket, it was agreed the cattle should stay in the plaintiff's field until the following Tuesday, as it was inconvenient to the de-judge of the Whitechapel Co. C. of Middlesex. The fendant to drive them to his own fields before, and that the plaintiff should receive defendant's cheque for the money at any time he would call for it: it was also arranged that the plaintiff should allow defendant's men to feed them with hay, which the plaintiff consented to supply while the cattle remained in the plaintiff's field. This was done until the following Wednesday. The defendant afterwards refused to fulfil his agreement for the purchase, and this action was brought. It was tried before Martin, B. at Taunton; and, as the learned judge was of opinion there was no evidence to go to the jury of a sufficient acceptance and delivery to bind the bargain within the meaning of the 17th sect. of the Statute of Frauds, he directed a nonsuit, with leave to move to set the same aside if the court should entertain a different opinion.

Kinglake, Serjt. moved accordingly to enter a verdict for the plaintiff, or for a new trial; there was some evidence to go to the jury of a delivery and acceptance, and the circumstances and facts of the case would have justified the learned judge in leaving the question to them. Moreton v. Tibbett, 15 Q.B. 428, and, in a note to that case, Bushell v. Wheeler, p. 442; Chaplin v. Rogers, 1 East, 192; Norman v. Phillips, 14 M. & W. 277; Elmore v. Stone, 1 Taunt.

458.

POLLOCK, C. B.-I think there was no evidence to go to the jury in this case, as there was no acceptance and actual receiving of the cattle, which was necessary to satisfy the terms of the statute. There may b some difficulty in perhaps reconciling all the cases decided upon the subject; but each is governed by its own peculiar circumstances, and it must necessarily

insufficient manner; the defendant contending that the injury was occasioned by the bad construction of the plaintiff's ontbuildings and yard-wall. Upon these points the evidence was conflictive. Upon the above facts, the learned judge directed the jury that, as the defendant, for whom the new warehouse was erected, was in possession of the land adjoining the plaintiff's house and premises, the defendant was answerable for the wrongful acts of any person allowed by the defendant to go upon the defendant's land for the purpose of erecting such warehouse, and that the existence or nonexistence of a contract between the defendant and Carter was therefore immaterial. And that, if the plaintiff's premises were injured by the negligence of the workmen allowed by the defendant to go on his land for the purpose of building a warehouse for the defendant, the defendant was liable in damages for such injury. That the plaintiff's house, not being an ancient house, was not entitled to any support from the defendant's land; but that if, from the evidence, the jury should be of opinion that the workmen whilst they were on land in the defendant's possession, by virtue of his permission to them to go upon such land for the purpose of erecting the said warehouse, had from want of due care injured the plaintiff's wall and buildings, or had carried away from that land materials belonging to the plaintiff, the defendant was liable for the injuries resulting from those acts. The question for the opinion of the Court of Ex. is, "Whether, upon the facts stated, the direction so given to the jury was correct."

case stated that this action was brought to recover a
sum of 501. claimed by the plaintiff of the defendant
under the following amended particulars of demand,
delivered by leave of the judge:-"For that the de-
fendant on or about the 1st day of Aug. last, and on
other days thereafter, wrongfully, carelessly, negli- |
gently, and improperly excavated and carried away
the earth and soil adjoining, near, and close to a cer-
tain dwelling-house, with the appurtenances, called
and known as No. 8, Mountford-street, Whitechapel,
the same then and still being in the possession of
Amos Harrold as tenant thereof to the said Henry
Nicholls, and to which earth and soil the said Henry
Nicholls then was and still is entitled for the support
of the said dwelling-house, with the appurtenances,
and the land on which the same was built and stood;
whereby and by means of the defendant's mere
wrongful, careless, negligent, and improper conduct
in and about the premises, the coal-house and the
water-closet and the yard-wall of the said dwelling-
house fell, and the said dwelling-house and coal-
house sunk, and the walls thereof cracked, and the
same have become and are in danger of falling and
becoming dilapidated. And for that the defendant, at
the several times aforesaid, excavated and dug out
the ground next adjoining to and against a certain
wall of and belonging to the aforesaid dwelling-
house, and the coal-house and water-closet and yard
thereof, without shoring up and underpinning such
wall to its full thickness, and to the full depth of such
excavation, and with good and sufficient materials in
that behalf, and in a workmanlike and substantial
manner, or in any manner whatever; whereby and by Edgar, for the respondent (the plaintiff below),
reason whereof the said wall and the said water-contended that this case came under a different

Bagley, for the appellant (the defendant below), cited Reedie v. The London and North-Western Railway Company, 4 Ex. 234; Knight v. Fox, 5 Ex. 721; Peachey v. Rowland, 13 C. B. 182; Overton v. Freeman, 22 L. J. 52, C. P.