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Exch. of Pleas, note until delivery: besides, it was not to have operation 1832.
as a note until Davis had attested it.
[Bayley, B.-Any neglect in Davis to subscribe his name would not deprive the plaintiff of his remedy, if he had done all which it was incumbent on him to perform.]
Lastly.—The learned Baron was wrong in leaving to the jury, whether the consideration for the note had wholly failed or not; and telling them, that, if they thought that the defendant had the value, any misconduct of Davis could not affect the plaintiff's right to sue upon the note.
[Bolland, B.-I left it to the jury to say, whether the possession was given up or not. Bayley, B.- Part of the summing up was distinctly on that point.]
The real question was, whether the condition was performed by the possession being given up, according to the terms of the bargain, and at the time when the defendant Morgan was entitled by the bargain to require it.
Lord LYNDHURST, C. B. — The summing up of the learned Judge amounted to this, whether or no the bargain was performed; if it were, the plaintiff was entitled to recover. As to the question on the evidence of the marriage, it appears to me that there was sufficient evidence of the reputation, that the parties were living together as man and wife. As to the remaining question, whether the condition on which Davis was to deliver up the note was complied with; that seems to me a mere question of fact for the jury. I think that the balance of the evidence warranted them in the verdict which they found; but it is sufficient to say that it was a question of fact for their decision.
BAYLEY, B.—I am of the same opinion. There appears
Exch. of Pleas, think that there was prima facie evidence of reputation 1832.
of a marriage. I think, also, that there was evidence of Evans the condition being performed. That condition was the
giving up possession of the land, and the defendant had his cattle on the land on the day in question. There was evidence the other way, but still the question was for the jury; and it appears to me that the evidence for the plaintiff was the stronger. If so, Davis was bound to give up the note to the plaintiff; and if he were bound to give up the note, it is clear that the plaintiff has a right to sue on it, notwithstanding any wrongful act of Davis. The case, therefore, was left to the jury, on the exact grounds on which it ought to have been left to them, and this rule must be discharged.
BOLLAND, B., concurred.
DAY v. Williams. A. devised an CASE by the plaintiff, as reversioner, against the deestate to trustees for years,
i fendant for undermining a dwelling-house of the plaintiff.
Tendanu vor u with remainder At the Carnarvon Assizes, before Bosanquet, J., the to B., which B., 4 18 years after plaintiff proved his title by shewing perception of rent; the death of A., treated as his upon which, evidence having been given of the injury, freehold, and
es, the defendant produced a lease of the premises in quesIn an action by tion, from the Marquess of Anglesey to the plaintiff, for the lessee of B., as reversioner,' lives; and likewise the will of the late Lord Uxbridge, the jury were
hey who had been dead about eighteen years, by which he
devised the premises in question to trustees for a term of sume a surren
years, in trust to pay annuities, and for certain other purtó B.; and, upon poses mentioned in the will, with remainder to Lord motion, the direction was held Anglesey. The plaintiff insisted that it was for the jury to be right.
to decide, whether the term had not been surrendered, and relied upon the manner in which the property had
der of the term by the trustees