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plaintiff claimed the 600/. as due under the agreement, and the defendant refused to pay it, on the ground that it related only to the canal scheme, which had been abandoned, whereas the plaintiff contended that it related to any act for a Chard line.

Bovill called the plaintiff to prove the state of the facts, and the discussion between the parties at the time of the agreement, especially between the writing of the original memorandum and of the indorsement, in order to explain the latter, and show what act it referred to.

M. Chambers objected, that the written memorandum, as ultimately agreed to, must speak for itself, and that no oral evidence of a previous discussion was admissible to explain it.

Erle, C. J.—The evidence is admissible to show to what act the agreement refers, and to what it relates, so as to enable me to apply it. The question in the cause is, whether it refers to the canal act or any Chard Railway act. So far as the memorandum is concerned, I think it relates only to the canal.

The plaintiff was accordingly called, and gave such evidence. He was not asked as to the copying his line on the 4th of June.

The defendant was afterwards called, and gave his version of the conversation previous to the additional memorandum, his account of it being that it was added merely to show that the money was to be paid when the Chard Canul Railway act was passed.

Bovill cross-examined him as to whether at the interview of the 4th of June he had not been shown by the plaintiff the line to be taken, and was allowed to recal the plaintiff to prove that he had done so, and that the defendant had copied the line.

Eventually the case ended in a

Verdict for the plaintiff (a).

(«) Set aside in C. P. (T. T.), but on another point.

1862. Coram Wightman, J. v—"^^

WESTBROOK v. KERRICK.

__ Spring Assizes.

J-RESPASS for entering the plaintiff's house and seizing In trespass, by

a person who hlS goods. has been let

Pleas: not possessed, and leave and licence. Issue. 0" premises'0"

s , . under some

S/iee, feerjt., and Ribton for the plaintiff. agreement

which has not

M. Chambers and Garth for the defendant. tak?n effect

against the

The defendant had carried on a business as a brick and hinHn It wiH tile maker, in which the plaintiff had been his foreman, and b<;{ol thf Jurv defendant as showing that the plaintiff' had assented to his re-entry. The plaintiff professed himself ready to give up the premises if the accounts between them were settled, a portion of the then existing stock having been supplied to himself. The plaintiff, however, did not give up, and at two o'clock on the morning of Sunday, the 2nd of February, removed certain furniture. This came to the knowledge of the defendant, and on the next day, tlie 3rd of February last (before any rent had become due), the defendant went and entered by force, and retook possession of the premises, with all that was thereon. It was contended, on the part of the defendant, that this was perfectly lawful, and that he only re-entered upon his own, and, further, that the plaintiff, in effect, had agreed to it. On the other side it was contended that the supposed consent was conditional on a settlement of the accounts, and that the plaintiff was in lawful possession (a). At the close of the case,

1 whether he was

of which he desired to dispose. An arrangement had ac- in possession as cordingly been entered into between them at Michaelmas, wise than 1861, for a transfer of the business to the plaintiff, although merely at will),

* r » » and whether, if

it was admitted that no legal transfer had been executed. so> the de

_. fendant did not

1 he case on the part of the defendant was, that there had re-enter with only been an arrangement with a view to a partnership, and that this was inchoate and incomplete, and conditional on the plaintiff's finding a partner, which he was not able to do. In point of fact, the plaintiff had been in possession from Michaelmas to February, carrying on the business. It was part of the agreement that the rent should be at a certain rate half-yearly. Advances were made from time to time by the defendant to the plaintiff in the period between Michaelmas and Christmas, and it was admitted that the plaintiff was then indebted to the defendant for money so advanced. It then appeared that the plaintiff was unable to carry on the business, the defendant declining further advances to him. Some correspondence ensued between them as to the plaintiff's giving up the premises, and the defendant afterwards wrote in these terms to the plaintiff:—" I presume you want to give up the brick-yard you have hired of me, but you must give me legal notice." This was relied upon by the plaintiff, as showing that he was recognized by the defendant as his tenant, and by the

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Wightman, J. (to the jury).—The continued possession of the plaintiff is ambiguous, as he had previously been in possession as foreman. The questions for the jury are three: — 1. Was the plaintiff in possession, on the 3rd of February, as tenant, or as servant to the defendant (a)? 2. Was he in possession of the vans, horses and other things as purchaser and owner, or as servant to the defendant and for him? 3. If the plaintiff was in possession as tenant, did the defendant re-enter and re-take possession of the premises and goods, with the assent of the plaintiff (J).

(a) Vide Allen v. England, ante, at the lime lie thus retook posses

p. 49; White v. Bayley, Vol. II., sion? Mere consent that at some

p. 385. The agreement, being time, or at a future time, he should

partly by parol, was for the jury; do so, would not sustain the plea.

Furnen v. Aluk, 27 L. J., Exch. Assuming a lawful possession by

34. the plaintiff, as tenant only at will,

(I) That is, had he that assent there would be a determination of

The jury found that the plaintiff was in possession as 1862.

tenant (a) and as purchaser, but that the defendant had, „/"v"w^

. Westbrook

with his assent, re-entered and re-taken possession.

Kerkick.

Verdict for the defendant (6).

it by the owner's adverse entry (Doed. Bennett v. Turner, 9 M. & W. 643); and if it did not appear that the agreement amounted to a present demise per se, as it might have done (Pinero v. Judson, G Bing. 200), and no rent had been paid, there was no tenancy biyond a tenancy at will. And while an agreement for letting or purchase is inchoate, there is no tenancy at all; Winterbotham v. Ingham, 14 L. J., Q. B. 29S. If there was no tenancy beyond a tenancy at will, or licence, of course it was revocable at will ( Wood v. LeadbiMir, 13 M. & W. 840); and, on the other hand, if there was a tenancy, and a licence to re-enter, it could have been equally revoked by the plaintiffs; but this was not replied, nor could it have been proved. Sed autrre, whether there can be a licence for actual force? Vide post.

(«) This was probably against the evidence, but it was for the jury.

(4) Qutcre, whether this finding

W1THERLEY v. THE REGENT'S CANAL COM-
PANY.

T Spring Assizes.

HIS was an action by a widow to recover compensation, A man having the canal dock. The declaration stated, in the usual way, that he fell in through and by reason of their negligence in the management of a swing bridge.

was according to the evidence. For,
on the principle of the case, deciding
that leave and licence cannot be
pleaded to an assault {Christopher-
son v. Bare, 11 Q. B. Rep. 473), a
jury might be told that the plaintiff'
never could have meant to license
a.forcible entry (such as would sus-
tain an action under the statutes);
and semble, that licence cannot be
sustained in any case of actual force,
since no man can license a breach
of the peace. At all events, plain-
tiff's objecting to the entry or
seizure would have been sufficient
revocation, which did not, however,
appear. Although, therefore, two
of the particular answers of the jury
were contrary to the evidence and
the law, yet the verdict was right;
and as it could not, according to
the legal effect of the evidence,
have been otherwise, the Court, no
doubt, would not have disturbed it.
Vide Gibson v. Doey, 27 L. J.,
Exch. 37.

under Lord Campbell's Act, for pecuniary injury sustained a swmg bridge

by the death of her husband, who had been drowned in whlle " was,

J ' moving, and

then stepped back again and so fell into the water, and was drowned, it was left to the jury whether he had not so caused, or helped to cause, the result, that his representative could not recover.

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Ribton and Daly were for the plaintiff'.

Lush, Q. C, and C. Pollock were for the company.

The evidence of the son of the deceased, who had started with him on the occasion in question, but left him a little before the accident, stated that his way lay over the bridge, and that it had been usual to have a chain to protect it, but which was not up on the night in question; that he stepped upon it as it was beginning to be swung, and in stepping back again to the bank slipped into the water. There was a bridgekeeper on the spot, who was engaged in helping a vessel through.

Lush called witnesses for the defence, showing that the bridge was in the same state as it had been for forty years past, and contended that the accident had happened through the fault of the deceased, in getting on the bridge while it was in motion, and

Ribton contended that the company ought to have had a man at the bridge to caution people from coming on the bridge while moving.

The learned Judge, in summing up the case to the jury, said that the question for them to consider was, whether the death of the deceased was owing entirely to any negligence on the part of the company or their servants. It appeared that the deceased was in the habit of passing the bridge, and therefore must have known its nature and its incidents. Before the jury could find for the plaintiff they must be satisfied that the death had been caused by a neglect, on the part of the company, of any proper care or precaution on their part; for if the deceased had contributed

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