1860. Maidstone, coram Erle, C. J. BEARD v. WATSON. Spring Assizes. ACTION* for pulling down the plaintiff's fence and tres- In an action of passing on his land. Pleas: 1. Not possessed. trespass, pleas: not possessed; and also a justification under a 2. Justification under a right of way all over the land, right of way all the fence being an obstruction thereto. Issue, and new assignment extra viam. The cause had come down for trial at the last Assizes before MARTIN, B., who had made an order that a plan should be marked on the part of the plaintiff with the places where the alleged trespasses were committed, and the cause was made a remanet; but there was no stay of proceedings. over the locus in quo; an order having been made at the last Assizes for a plan to be marked by the plaintiff so as to show the places at which the alleged trespasses were committed; and there having been no appli plan on the Petersdorff, Serjt., now applied, on the part of the cation for the defendant, to postpone the trial, on an affidavit that the part of deplan had not been marked, although applications had been fendant since made to the plaintiff's attorney for that purpose. ERLE, C. J., allowed the plaintiff's attorney time (while another cause was taken) to answer the affidavit, although he thought it hardly necessary to do so, since there was no stay of proceedings (a), nor any application to a Judge to enforce delivery of the plan, so that the present application was apparently for delay. Lush answered the application upon an affidavit of the plaintiff's attorney, that there had been no refusal to mark the plan, but only an intimation in August that there was no immediate necessity for so doing; that notice of trial had been given on the 1st March, but that there had been no application to have the plan marked; that particulars of trespasses had been given; that the defendant could not be ignorant of the places; that the dispute was, whether VOL. II. (a) See Vol. I. p. 227. D F.F. notice of trial, an application on his behalf, to postpone the trial because of the non-delivery of the plan, was re fused. 1860. BEARD บ. WATSON. there was any right to go over the land either from the road or from any part of the premises. ERLE, C. J.-If the land on which the fence is was not the plaintiff's, then there is an end of the case. If it is, then the defendant must prove a right of way such as to justify breaking down the fence and going all over the land (a). So that it does not appear how the marking the plan can be so material as that the defendant cannot go to trial without it; and if it were so, he should have applied for it before. If there were any real reason shown for refusing the plan I would postpone the trial, even now, until it was in some way supplied; but I see no reason, and therefore I shall try the cause. Petersdorff, Serjt., declined to appear, and the cause was tried as undefended. Verdict for the plaintiff. (a) Smith v. Royston, 8 M. & W. 381; Webber v. Sparks, 10 M. & W. 458. Spring Assizes. In an action on a bill of exchange, a special plea allowed to be added, as sub stitution for others on the record, raising a substantial defence, not inconsistent with others allowed to re main. Maidstone, coram Erle, C. J., at Chambers. MYERS v. BARRETT. ACTION on a bill of exchange dated 24th May, 1853. 2. (Except as to part) that the bill was accepted as a security for 75l., and no consideration, save as to so much. 3. That the plaintiff, before action, exonerated and discharged defendant. 4. Payment. Willoughby, for the defendant, applied to strike out the two first pleas, and to add this plea : "That prior to the 24th May, 1853, the defendant owed the plaintiff 1757.; and that, on payment, he gave his acceptance to the plaintiff with the date in blank (which was the bill sued upon). That prior to the 24th May, 1853, he paid the same to the plaintiff; and that the plaintiff fraudulently filled up the blank with the date in the declaration mentioned; whereas, in truth and in fact, at that time. there was nothing due and owing to the plaintiff from the defendant. ERLE, C. J., allowed the plea to be added. 1860. MYERS v. BARRETT. Chelmsford, coram Wightman, J. BRIDGER v. HUETT AND OTHERS. EJECTMENT for a copyhold tenement. The admission of one Bedell, in 1812, was proved by an entry on the rolls; and a surrender by him to the plaintiff, in 1824, by entry of presentment of surrender out of Court; but no admission. The rolls were proved by one Sayer, his deputy-who was now called to prove them-who had been appointed by word of mouth only, and who had acted as steward for eighteen years. Spring Assizes. Copyhold rolls proved by a deputy steward, not signed by admitted in the steward, evidence, and a surrender out of Court proved by entry upon such rolls. Heirship proved as a matter of reputation, by an intimate friend of the family at WIGHTMAN, J.-He acted as such; that is sufficient. steward. WIGHTMAN, J.-Signing is not necessary. It is sufficient that they are proved to be the rolls. It was then proved, by Sayer, that he had known the plaintiff's family intimately for twenty years, and had always known the plaintiff as his father's eldest son. This was the evidence of heirship. Garth objected that the evidence was insufficient; but WIGHTMAN, J., held it sufficient; as it was enough, even in a pedigree case. Verdict for the plaintiff. birth. 1860. Spring Assizes. D., the consignee of a cargo, on the day on which he stopped payment, received the bill of lading, and transferred it, being then insolvent, to a person or per Kingston, coram Erle, C. J. WHITMORE AND OTHERS (Assignees of DEMETRIO) v. LLOYD. THE declaration stated that the plaintiffs, as assignees, had taken possession of the ship Gloria and cargo; and that, in consideration of their withdrawing therefrom, the defendant promised that the same should be sold as soon as possible, on the best terms; and that in case the plaintiffs were or ought to be entitled by law to the cargo, or the proceeds thereof, either alone or jointly with one Parisse, the defendant would pay to the plaintiffs the amount of Co.," and from the proceeds; and averment, that the cargo had been sold, whom, after he and that the plaintiffs were and are entitled by law to the sons whom he called "L. & had been ad judged bank rupt, on his own petition, one M. pro fessed to purchase it, and afterwards H. & Co. bona fide bought it from M. before the ship arrived. The assignees in bankruptcy of D. seized it issue was raised & Co." and M. was collusive proceeds. Breach, non-payment. Pleas: denying the promise, and also the averment (which was the main question at issue) that the plaintiffs were or are at law entitled to the proceeds. In July, 1859, the cargo was shipped by Parisse, a Greek merchant at Odessa, to Demetrio, the bankrupt, drawing a bill on him for the amount, and sending him the bill of lading and charter-party, dated 25th July, 1854, and by which latter the cargo was consigned to Parisse's order (a). There was an indorsement on the bill of lading by Parisse, Consigned to the order of Demetrio & Co., of London," and the charter-party also had an indorsement, substituting Demetrio for Parisse as consignee. Demetrio, on advice of the consignment, accepted the bill of exchange, and 66 and colourable, effected an insurance on the cargo. and with in tent to defraud D.'s creditors, there was a case for the plain There were bill transactions between Demetrio and cer (a) Brown v. Hare, 27 L. J., Exch. 372. tiffs. 2. That the question was, whether M. purchased bona fide. Quære, whether on the one hand even if she did, the transaction was not avoided by knowledge of a prior act of bankruptcy, or whether, if she did not, H. & Co. having bought bona fide, were protected, or whether the plaintiffs, as assignees, could set up fraud by D. as the consignor. tain persons with whom he proposed to correspond as "Labaus & Co." On the 30th July, Demetrio wrote to Messrs. Labaus in these terms: "According to arrangement, not being able to pay you to-day, as promised, the 2,5501., proceeds of your bill for 7,7001. negotiated by us for your account, we are willing to lodge with you, as security until final payment to you of the above amount, the cargo per Gloria, the documents for which will be handed to you as soon as completed; and in the meantime we enclose charter-party for the same." On the 8th August the bill of lading arrived. On the 8th August Demetrio & Co. wrote to Messrs. Labaus to the effect that, with reference to the previous letter regarding the deposit of the cargo of the Gloria as security, &c., they sent the bill of lading, &c., and Demetrio wrote to the captain, directing him to abide the orders of Messrs. Labaus. On the same day, 8th August, Demetrio stopped payment, and this was published in the "Times" of the following day, the 9th August. On the 24th August, a document, in the following terms, was signed by the persons called Labaus & Co. : "Sold this day, to Miss May Martin, the cargo of wheat shipped per the Gloria, as per bill of lading dated 25th July, 1859, &c." Which was enclosed in a letter signed in the same way, along with invoice, making the gross amount 2,4077., and the nett amount (less freight and cargo) 1,8991. And Demetrio then indorsed to Miss Martin his letter to the captain, directing him to deliver to the order of Messrs. Labaus. On the 26th August, Demetrio was made bankrupt on his own petition. The bankrupt was examined in bankruptcy, and the assignees imputed fraud and collusion in the transactions between him and the persons called Messrs. Labaus. 1860. WHITMORE and Others (Assignees of DEMETRIO) v. LLOYD. |