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1862.

And, (no evidence being offered on the count for false representation) the learned Judge left that question to the jury, who found a

Verdict for the plaintiff (a).

STUCKEY

Bailey.

(a) In Easter Term, Karslake got a rule (in Exch.) on the rejection of the parol evidence, and on the point as to the effect of the bill of sale. On the argument of the rule in T. T., Chapman v. Callis (Vol. II., p. 161, and 9 C. B., N. S. 769) was cited. The Court seemed to consider that there would be no objection to a warranty uno flatu with the deed; but that when there had been an interval between the original contract and the deed, it might be a question whether the parties had intended that the former should continue in force, or that the deed should embody the whole. The rule was made absolute, but on the former ground, so that the Court gave no judgment on the other. As to which, see Burnett v. Lynch, 5 B. & C. 589, that a deed does not preclude an action on an implied contract, not withstanding an assignment by deed, in which there is no covenant by the assignee, although, wherever there is a covenant on the subject, the action must be on that (Schlenker v. Mory, 3 B. & C. 789); and the

terms of an express covenant may exclude or qualify an implied one; Line v. Stephenson, 5 B., N. C. 183. Even a lease under seal does not exclude terms to be imported by custom not affecting any of the covenants contained in it; Hutton v. Warren, 1 M. & W. 466. So as to a mercantile contract silent on the subject; Lockett v. Nicklin, 2 Exch. 93; Brown v. Burne, 3 E. & B. 703; Humphrey v. Dale, 26 L. J., Q. B. 140. And that, the deed being subsequent, does not necessarily exclude the operation of this principle seems to follow from Yates v. Aston, 4 Q. B. 182 (and see Barber v. Butcher, 8 Q. B. 863; Middleditch v. Ellis, 2 Exch. 623), there being no evidence that the parties did not intend the warranty to continue. The Court, however, in the present case, really decided rather on the ground that there was no warranty even in the letters : as to which, see Hopkinsv. Tanqueray, 15 C. B. 130; or that it was for the jury on the whole evidence whether there was; Furness v. Meek, 27 L. J., Ex. 34.

1862.

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Maidstone, coram Erle, C. J.

CLOTHIER v. WEBSTER. Spring Assizes. A builder hav. The declaration stated, that the defendant so carelessly ing contracted with a public executed certain works and excavations under an oven of

the plaintiff, a baker, that through the carelessness of the certain work, stipulating to defendant in filling up the said excavation, the soil under material when the oven sank and subsided, and the oven cracked, &c., required by Dyineer and so required to be rebuilt, &c. .

Plea : not guilty, and denying the alleged injury. having executed the work to his satisfac

Hawkins, Prentice and L. Kelly for the plaintiff. tion, putting in little of that M. Chambers, Brown and Crawford for the defendant. material, and an injury The defendant was a builder, and had entered into a having arisen to the plaintiff's contract with the Metropolitan Board of Works to execute premises either

et certain sewer works, in the course of which it became deficiency in necessary to make the excavation under the oven of the the bad work- plaintiff, a baker, in order to effect a communication with ing of the ma. terial which the main sewer at some distance below. The contract Held, that if

: provided for concrete when required by the engineer of the

P the injury arose board, and (in the usual way) specified that all works through the defendant's should be well done, &c., and concrete had been put in so negligence het

iable; and far as required by him, and (as he said) so far as was

that the necessary. There was concrete, however, only as far as board might also be liable. the crown of the sewer below, and the space above it, up

to the oven, was filled up with chalk and clay, the oven, being supported upon it by wooden “struts” or beams.

There was strong evidence for the plaintiff that the ground had not been filled in tightly and closely under the oven, and had given way, so as to cause it to sink and crack.

At the close of the case for the plaintiff,
M. Chambers, on behalf of the defendant, submitted

was used .

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1862.

CLOTHIER

WEBSTER.

that the works had been done in execution of the powers of the act, and that, therefore, the only remedy of the plaintiff was by a proceeding for compensation under the act (a).

Erle, C. J.- That is so, no doubt, except so far as concerned any negligence in the manner of doing the work, for which the contractor would be responsible (6).

The clerk of the works was called on the part of the defendant, and stated that, in bis judgment, all that was necessary had been done in the way of precaution or care. When pressed as to the cause of the sinking of the oven, he said he could not deny that it might not have sunk by reason of the works, but that no possible means would secure it from some sinking (except perhaps a solid stone wall), that even concrete would not have been a perfect security, and that chalk, well rammed in, was as good as concrete.

The jury asked if the chalk was as good as concrete.

The witness said he considered that it was, if well rammed.

The jury observed that it hardly could be so underneath the oven, as the rammer could not be worked.

The engineer of the board, who had charge of the works, said he gave instructions from time to time to the clerk of the works as to what should be done, and he considered that the precautions taken were sufficient, and that all his orders were carried out. He admitted, however, that it was necessary, in order to prevent subsidence of the soil, that the chalk should be very carefully rammed down. When asked, on cross-examination, how the oven could have sunk, supposing the chalk had been well rammed

(a) Rupson v. Cubiti, 9 M. & Ruck v. Williams, 27 L. J., Exch. W.710.

357, that the commissioners are (6) Vide Brownlow v. The Me only liable for what is wanting in tropolitan Board of Works, Vol. II., the contract. The present one p. 604, that the contractor and the seemed to come between those board may be liable jointly for what two cases. is in accordance with the contract;

1862.

CLOTHIER

WEBSTER.

down, he said it was difficult to account for; it might have occurred from defect of construction, or foundation, or partly from one cause and partly from another; but he stated that, with every precaution, it was impossible to prevent such accidents. He admitted that if there had been anything wrong in the construction of the oven it would bave been the duty of the workmen to call attention to it, and that neither he nor the clerk of the works had heard, at the time, that it was so. His opinion on the whole was, that the work had been done carefully and skilfully.

Chambers, in summing up for the defendant, contended, that as the contract required concrete only under the orders of the clerk of the works or engineer-who were employed by the board, and as they were satisfied with what the defendant had done, the maxim of law respondeat superior applied, and that the board alone were liable.

ERLE, C. J., said, he should rule otherwise, reserving the point (a).

Chambers then contended, on the evidence for the defendant, that, even assuming that he might in law be liable, he was not liable in fact, for that every possible care had been taken, and the chalk was rammed as closely as it could be.

Hawkins, in reply on the part of the plaintiff, contended that the ramming down had been badly done, and that for this the contractor was responsible,

Erle, C. J., in summing up the case to the jury, told (a) His Lordship did not ask a be liable, as in Brownlow v. The Mespecial finding, whether the negli- tropolitan Board of Works, Vol. II., gence was in not putting in con- p. 604, and that probably was really crete, or in not ramming in the the law of the case; for the board chalk. But it seems that the con- were liable for the negligence of tractor would be liable, if concrete their engineer in not ordering conwas necessary, whether ordered or crete. Quære, however, if the negnot. Even supposing the board to ligence was in not duly ramming be liable, the contractor might also in the chalk?

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them that if the contractor had been wanting in due care
and skill, he, and not the board, would be responsible.
The great question was, whether the excavation had been
well filled in; it was for the jury to say, whether, upon the
whole of the evidence, there had been a want of reasonable
care or skill in the filling up of the excavation? If so, the
plaintiff was entitled to a verdict; if otherwise, he was not.
The jury returned a

Verdict for the plaintiff, damages 35l. (a).
(a) Rule in C. P. discharged T. T.

the sheriff on

it would delay

under the stat.

HENDERSON v. LLOYD.

Spring Assizes. INTERPLEADER issue: the plaintiff being claimant Although a and the defendant execution creditor, and the question feats or delays

deed which debeing, whether certain goods and chattels assigned by a the

an execution post-nuptial settlement made by the plaintiff were, at the must defeat

and delay an time of the seizure, the property of the plaintiff, the trustee, execution cre.

ditor, and it as against the defendant.

may be matter

of law whether Hawkins, Denman, Q. C., and Talfourd Salter for the it plaintiff.

or defeat the

sheriff, yet, Wood and Rosher (with whom were Parry, Serjt., and

of Eliz., it is Pearce) for the defendant, the execution creditor.

for the jury on

all the facts The plaintiff was trustee under the settlement, which was whether that made by one Ferguson after his marriage, and it conveyed with which it all bis goods and chattels, and all that could be taken by was executed. the sheriff under an execution, except a sum of 1501., which he put into the hands of his wife. It appeared that at that time he owed Lloyd, the execution creditor, a debt of above 201., and owed altogether about 1501. He had debts owing to him to the amount of 2001., and he had an income of above 2001. The case for the defendant was, that as these could not be seized by the sheriff (a), and the 1501.

(a) And though they might be ceeding less summary than an exeollached under the C. L. P. Act, cution. 1854, . 60, that would be a pro

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