though communicating with it. Rex v. Great Canfield, 6 Esp. 136. Ellenborough, C. J. Essex, 1810.

84. Semble, that if A. B., dean of, &c. and the chapter of the same church, declare for the use and occupation of And see Philips v. Davies, 2 Anst, 572. lands, held by the defendant by the per78. A notice of action against a jus- mission of the said dean and chapter, tice of the peace, in which the attorney and it appear in evidence that the predescribes himself as of New Inn, Lon-mises were occupied by the defendant don, instead of Westminster, is insuffi- before A. B. was dean, the variance is cient. Stears v. Smith, clerk, 6 Esp. fatal, though the insertion of the name 138. Ellenborough, C. J. Maidstone, of A. B. was unnecessary. The Dean 1810. and Chapter of Rochester v. Pierce, 1 79. Declaration in covenant recited a Campb. 466. Ellenborough, C. J. demise of premises, "late in the occupation of Samuel R.” In the lease it

1808.

Ibid.

Upon a motion to set aside a nonsuit, stood "Saul R. ;" and the name was the court of K. B. was equally divided. not contracted either in the indenture or in the record. Held, a fatal variance. Bowditch v. Mawley, 1 Campb. 195. Ellenborough, C. J. 1808.

Vide Doctr. Plac. 163; 1 H. Bla. 354; ante, ABATEMENT, pl. 7; BILLS, pl. 320, 325; PENAL ACTION, pl. 47. And see Pitt v. Green, 9 East, 188. And as to the necessity of naming the 80. Plaintiff declared that he was head of the corporation, see Co. Litt. constable of the parish of St. Paul, Co- 3; Tho. Co. Litt. ; Carter and Clayvent Garden, and that defendant as-cole's case, 1 Leon. 306, 307; Dyer, saulted him in the execution of his said 86, a, b. office. It appeared that he had been 85. It is a fatal misdescription of a presented as a fit person to serve as one trial at nisi prius to state, that "at the of the constables of the parish of St. P. sitting at nisi prius, holden after MiC. G., but that he had been sworn in to chaelmas term, in the 45th year, &c. on serve for Westminster generally. Held, the 29th day of November in that year, a fatal variance. Goodes v. Wheatley, in the court of king's bench, before Edesq. 1 Campb. 231. Ellenborough, Č. ward Lord Ellenborough, then Lord Chief Justice of the same court, the trial 81. An indictment for perjury in ar- came on to be heard in due course of ticles of the peace, exhibited to a ma- law;" as the words in italics are exclugistrate, stated, that the defendant sively applicable to a trial at bar, and swore "in substance and effect," that the defect is not cured by the general A. assaulted her, and at the same time averment with which the sentence conthreatened to shoot her. The word cludes. Woodford v. Ashley, 2 Campb. "time" appeared to have been omitted 193. Ellenborough, C. J. 1809. in the articles. The variance was held fatal. Rex v. Mary Ann Taylor, 1 Campb. 404. Ellenborough, C. J.

J. 1808.

1808.

And the court refused a rule to set aside nonsuit. Ibid. and 11 East, 509. 86. An agreement to sell goods expected by the Fanny and Almira, is 82. In such a case the deposition described in the declaration as an agreeshould be exactly set forth and the omis-ment to sell goods expected by the sion supplied by an innuendo. Ibid. Fanny Almira; semble, that the variance 83. But where an indictment stated is fatal. Boyd v. Siffkin, 2 Campb. that an action was depending between 326. Ellenborough, C. J. 1809. A. plaintiff, and B. defendant, and the 87. An averment in a declaration for judgment produced began with "B. a malicious prosecution, that plaintiff sued by the name of C. was summoned was "acquitted by a jury in the court to answer A.," the omission in the in-of our lord the king, before the king dictment of the name by which B. ap- himself, at Westminster before the chief peared to have been miscalled in the justice, and discharged thereupon by the process, was held to be immaterial. Rex court," is not proved by a record, stating v. Windus, 1 Campb. 406, n. Ellen- that the trial took place before the chief borough, C. J. 1808. justice at nisi prius, and that the plain

88. Though a commission of bankrupt passes the great seal, it does not issue out of chancery. And semble, that an averment to the former effect, would be fatal. Poynton v. Forster and others, 3 Campb. 58. Ellenborough, C. J.

1811.

was that plaintiff should accept a sur render, which was not noticed in the special count. Upon which omission the plaintiff was nonsuited. Dashwood v. Peart and Davis. Sittings after H. T. 1818.

95. In a declaration on a bill of exchange, the omission of the word "sterling" is immaterial. Glossop v. Jacob, 1 Stark. 69. Ellenborough, C. J. 1815. S. C. not S. P. 4 Campb. 227. 96. A British-built vessel is let to 89. An averment in a declaration for freight, as "the Swedish ship, called maliciously suing out a commission of the Maria," but is documented as a bankrupt, that the commission was duly Swedish ship. The freighter is unacsuperseded, is not supported by pro-quainted with the circumstances. He ducing the chancellor's order, directing cannot set up the misdescription as a it to be superseded. Ibid. defence to an action for not loading. And as to the malice, see ante, Ac-Reusse v. Meyers, 3 Campb. 475. ElTION ON THE CASE, A. (g); ibid. A. lenborough, Č. J. 1813. (h). 90. An undertaking to deliver goods to A. is not proved by an agreement to deliver goods to the bearer of a receipt for the goods given by the defendant. Samuel v. Darch and others, 2 Stark. 60. Ellenborough, C. J. 1817.

97. In an action against A. on a bond declared upon as the joint bond of A. and B., A. pleads that it is not his deed. It is only necessary to prove that the bond was executed by A. Middleton v. Sandford, 4 Campb. 34. Dampier, J.

1814.

bond be

may

91. A covenant to repair, "fire and 98. A joint and several all other casualties excepted," cannot declared on simply as a joint bond. be declared on as a covenant to repair Middleton v. Sandford, 4 Campb. 34. generally. Tempany v. Burnand, 4Dampier, J. 1814. Campb. 20. Ellenborough, C. J. 1814. And see Howell v. Richards, 11 East, 633; Tempest v. Rawling, 13 East, 18, 20.

99. Notice of action against a J. P. under 22 Geo. II. (24 Geo. II. cap. 44) describing plaintiff's attorney as of New Inn, London, instead of New Inn, West92. Plaintiff declares that on such a minster. Held insufficient. Stears v. day the defendant made his bill, bearing Smith, clerk, 6 Esp. 138. Ellenbodate the same day and year as aforesaid. rough, C. J. Maidstone, 1810. The real date is different. The variance is fatal. Anon. 2 Campb. 308, n. Ellenborough, C. J. 1809.

S. P. Baynham v. Matthews, Fitzg. 130.

And see Taylor v. Fenwick, 7 T. R. 635, n; more fully reported, 3 B. & P. 553 (n) a.

100. Declaration, qui tam, for insuring a particular lottery ticket at 421.; proof 93. Declaration on policy on that this sum was paid as the premium plaintiff's share of goods." The policy for insuring that ticket and others, the was originally" on profits of goods," variance is fatal. Phillips, qui tam, v. but was enlarged by a marginal insertion Mendez da Costa, 1 Esp. 59. Kenyon, with defendant's initials. Held, that C. J. 1793.

the original agreement need not be set 101. Declaration for insuring a lottery in the declaration. Robinson v. Tobin, ticket, without mentioning any pre1 Stark. 336. Ellenborough, C. J.mium; proof, that the ticket was insured at a certain premium. This is no variance. Ibid.

1816.

94. Special assumpsit by landlord against assignees of a bankrupt, on an agreement to pay 10s. in the pound for rent, due from bankrupt and themselves. It appeared that part of the consideration

D. HOW TAKEN ADVANTAGE OF. 102. Where a declaration omits a

3. Purchaser of lands, takes growing proviso, which goes in defeasance of the covenant declared on, the defendant crops at a valuation. The purchaser must have oyer and demur. He cannot enters, but the seller can make no title take advantage of the omission upon to the lands. The contract being entire, non est factum. Gordon v. Gordon, 1 the seller cannot maintain indebitatus Stark. 294. Ellenborough, C. J. 1816. assumpsit for the crops. Neale and 103. A defendant is not precluded others v. Viney, 1 Campb. 471. Elfrom insisting upon a variance, by an lenborough, C. J. Guildford. 1808. Sed vide ante, USE AND OCCUPAadmission produced at the trial" of the

due execution of the deed mentioned in TION. pl. 1. the declaration." Goldie v. Shuttle- 4. Held that an agreement to sell worth, 1 Campb. 70. Ellenborough, 100 sacks of flour, at 94s. 6d. per sack, is an entire contract, and that if after

C. J. 1807.

66

as

104. Semble, that it would be other-delivery and acceptance of part, the wise if the admission had run vendor refuse to deliver the remainder, mentioned in the declaration." Ibid. he cannot recover the price of the quantity delivered. Walker v. Dixon, 2 Stark. 281. Ellenborough, C. J. 1817.

VENDOR AND PURCHASER.

A. SALE.

(a) Entire contract.
(b) Conditional contract.
(c) Contract, when perfect.
(d) Concealment.

B. DELIVERY, WHAT SHALL BE.

C. RIGHTS of vendor.
D. LIABILITY of vendor.
E. RIGHTS OF VENDEE.
F. LIABILITY OF VENDEE.
G. BILL OF SALE.
(a) Possession under.

A. SALE.

A. (a) Entire contract.

But the court of K. B. set aside the verdict; ex relatione Wilde, of counsel for the defendant. And see APPENDIX.

5. Purchaser of two houses in distinct lots, may refuse to take one house if no title can be made to the other. Chambers v. Griffiths et alt. 1 Esp. 150. C. J. 1794.

But see Poole v. Shergold, 2 Bro. C. C. 118; 1 Cox, 273; S. C. 6 Ves. 676; Sugd. V. & P. 5 edit. 247.

6. Where two lots are bought at an auction the agreements for each lot are separate, and cannot be treated or declared on as one contract. James and another v. Shore, 1 Stark. 426. Ellenborough, C. J. 1816.

7. A. is employed by B. to sell his horse; A. sells B.'s horse, and another belonging to C., at an entire price to D., and warrants both horses sound; sever the contract, and bring his actions 1. Where three articles are ordered upon the warrants against A. in respect from a tradesman at the same time, at of the unsoundness of his horse. Syseparate prices, the purchaser may con-monds v. Carr, 1 Campb. 361. Elsider the contract as entire, and may lenborough, C. J. 1808. refuse to receive one article without the rest. Champion v. Short, 1 Campb. 53. Ellenborough, C. J. 1807.

And see Dig. 21, 1, 34; Ibid. 21, 1, 59, 1; Ibid. 21, 2, 72; 5 Vin. Abr. 511, 515; ante, BILLS AND NOTES, pl. 237.

2. But if he accept one of the articles, and another be tendered without the third, he cannot reject it, having himself severed the contract. Ibid.

And see Dig. 21, 1, 38; ante, AUCTION, pl. 8.

S. P. Hort v. Dixon, Selw. 101.

8. A sale of coals to A. & B. who agree to divide the quantity between them, cannot be described in pleading as a sale to A., though a separate delivery be made to A. of his share. Parish, qui tam, v. Burwood, 5 Esp. 33. Ellenborough. C. J. 1803. and Everett, qui tam, v. Tindall, 5 Esp. 169. Ellenborough, C. J. 1804.

A. (b.) Conditional contract. 9. An agreement whereby the defend

ants sell to the plaintiff, a certain quan- 15. In an action for the price of a tity of goods expected, by a particular Claude sold to defendant to plaintiff's vessel, on arrival, is a conditional con-agent, who had refused to disclose his tract dependent on the arrival of the principal, but knowingly suffered degoods. No action will therefore lie for fendant to buy, under the impression the non-delivery of the goods on the that it was the property of another arrival of the vessel in ballast. Hawes person, the sale was held bad on the v. Humble, 2 Camp. 327 n. Wood, B. ground of fraud, even though proved to Lancaster, 1809. be a real Claude. Hill v. Gray, 1 Stark. And see ante, AGREEMENT, pl. 28, 434. Ellenborough, C. J. 1816. 16. Where the conditions of sale,

29.

10. Consequently the statement of provide that any mistake in the partisuch an agreement as an undertaking to cular, shall not vitiate the contract. such sell on the arrival of the vessel is a fatal stipulation does not extend to a willful misdescription of the contract. Boyd v. misdescription of the situation of the Sifflin, 2 Campb. 326. Ellenborough, property, calculated to inhance its apC. J. 1809. parent value. Duke of Norfolk v. 11. Where defendants sold to the Worthy, 1 Campb. 340. Ellenborough, plaintiff's all the hemp, not exceeding C. J. 1808. 300 tons, which might be loaded in a 17. Conditions of sale pasted on the certain vessel by the agent of the concern, auctioneer's box, gives sufficient notice who shipped only 71 tons for defendants, to the buyer. Mesnard v. Aldridge, 3 and filled up the vessel on the account Esp. 571. Kenyon, C. J. 1801. of other correspondents, it was held, that defendants were not liable for the non-delivery of the residue of the 300 tons. Hayward and others, v. Scougall and others, 2 Campb. 56. Ellenborough, C. J. 1809

A. (c) Contract, when perfect. 12. A broker sells goods for the house of A and B., but fills up the bought note in the names of A. and C., (the former firm.) The purchaser is bound, unless he would be thereby deprived of a set off against A. and C. Mitchell and others. v. Lapage, Holt 253. Gibbs, C. J. 1816.

A. (d) Concealment. 13. Vendor of ship sold "with all

B. DELIVERY, WHAT SHALL BE. (And see ante, FRAUDS STATUTE OF, C. (a); STOPPAGE IN TRANSITU; post, F. (a)).

18. Upon a verbal agreement for the purchase of wine, the vendor's clerk cut the spills from the casks, and marked them with the vendee's initials in the presence of all parties. Held, that this was a sufficient delivery to take the sale out of the statute of frauds. Anderson v. Scot, 1 Campb. 235, n. Ellenborough, C. J. 1806.

19. But the delivery not having been perfected, it was held to be no bar to an action for not delivering the goods according to contract. Ibid.

And see Dig. 18, 6, 1, 2. APPENDIX, VI.

faults" held to be bound to disclose a latent defect known to himself, which it was impossible for the vendee to dis- 20. Where goods are sold, to be paid cover. Mellish and another v. Motteux for in 30 days, and if not then removed, and others, Peake, 115. Kenyon, C. J. to be liable to warehouse rent, the pro1792.

14. But in a subsequent case, it was held, that a vendor is not liable under such circumstances, unless it can be

shewn that he has used some artifice for the purpose of concealing such defect from the vendee. Baglehole v. Walters, 3 Campb.154. Ellenborough, C. J. 1812. And see ante, ACTION ON THE CASE, pl. 85:

perty vests in the purchaser immediately, and remains at his risk, Phillimore and others, v. Barry and another, 1 Campb. 513. Ellenborough, C. J.

1808.

Acc. Elmore v. Stone 1 Taunt. 458. 21. But the property in goods continues in the vendor, whilst any thing remains to be done on his part to ascertain the sum which he is to receive

for them. Zagury v. Furnell and v. Dunkin, 2 Campb. 344. Ellenboanother, 2 Campb. 240. Ellenborough, rough, C. J. 1810. C. J. 1809, and Mansfield, C. J. 1810. S. P. Dig. 18, 6, 1, 1; and see Keilw.

26. Warehouseman at the request of vendor, gives a written acknowledgment to the vendee, that he holds the 35. But in a subsequent case the regoods on account of the latter. He sale was held to be no bar to the action, cannot refuse to deliver them, on the though it might perhaps be considered ground that by custom, the property as a wrongful conversion. Merteus v. does not vest in the vendee until the Adcock, 4 Esp. 251. Ellenborough, article is remeasured, and that the ven-C. J. 1803.

dor became bankrupt before any re- 36. If the buyer neglect to remove measurement had taken place. Stonard the goods within a reasonable time, the