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proof of penning back and checking it, whereby it was made to overflow the plaintiff's meadow ; and the Court of Exchequer there held, that in actions of this nature, it was necessary that the count should be so framed as to meet the particulars of the fact with distinctness and certainty i and in Filzsimons v. Inglis, 5 Taunt. 534, where the declaration stated, that the defendant wrongfully placed and continued a heap of earth, whereby the refuse water was prevented from flowing away from his house down a ditch at the back thereof; and it was proved, that the heap was 'not originally placed so as to obstruct the water, but that in process of time earth from the heap was trodden, and fell into the ditch, and obstructed it; it was held to be a fatal variance.

BAKER . BUCKLE and others.


Nov. Ilth. This was an action of assumpsit, for sails and other rig- Where atradesging furnished to the ship Eliza, of which the defend- dit for any of

the requisites of ants were owners.

the equipment At the trial of the cause, before Lord Chief Justice of a vessel,

such as stores, Dallas, at Guildhall, at the Sittings after the last Term, rigging, or reit appeared that the plaintiff was a sail-maker; and the pairs, the only

, only question was, whether the sails and other rigging, who

dit is given : for which this action was brought, were furnished by and the

fact of ownerhim on account of, or by the order of the defendants. ship, without a

privity of conIt appeared that the ship originally belonged to one

tract, is not Longster, who conveyed his interest in her to the de- sufficient to

render an fendants by bill of sale, and they afterwards tendered her owner liable for to the Transport Board for a voyage, on which she pro- on her account; ceeded shortly after the sails were furnished, and they nor does it atalso acted as owners. Longster was called as a witness gation on a for them, who proved that the contract for supplying the merely as such, sails was made by the plaintiff with him, and not the de- as he derives

no profit until fendants ; when it was objected for the plaintiff that the ship comes

into his actual such contract did not exclude him from his right to re- possession. cover against them, as they were beneficially interested Therefore,

where the oriat the time it was made. Besides, the entire legal pro- ginal owner

had assigned all his interest in a vessel to the defendants by bill of sale, and the plaintiff furnished sails and rigging by order of the former, to whom alone credit was given ; Held, that the plaintiff could not maintain an action against the defendants to recover the price of the goods.




perty in the ship had passed to them from Longsler, tlie original owner, and the plaintiff had every reason to believe that the goods were furnished on their account.

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His Lordship, however, was of opinion, from the tes. timony of Longsler, that the credit was given by the plaintiff to him personally, and not the defendants, and accordingly directed a nopsuit; but leave was given to move to set it aside, if the Court should be of a different opinion.

Mr. Serjeant Lens now moved accordingly, and that a verdict might be entered for the plaintiff for the suni of 3221. 4s. 2d., being the amount of the articles furnished.

Lord Chief Justice DallaS.-The question in cases of this description is, to whom credit is given ?-And the obligation must follow the party to whom such credit is given, and with whom is the privity of contract. There fore the credit given by a tradesman in any of the requisites of a vessel, as stores, repairs, sailors' wages, &c. attaches no obligation upon a mortgagee, merely as such ; for he derives no profit until the ship comes into his possession : she is merely his security, and nothing more. Here Longster, the original owner of the vessel, proved at the trial, that the plaintiff gave him personal credit ; that the sails were ordered on his account; that the bill for their amount was delivered to him; and that he was applied to by the plaintiff for payment, eighteen months after they had been furnished; and that the usual credit allowed in such cases was twelve months only. It further appeared, that although the plaintiff had applied to the defendants for payment after the bill of sale had been executed, still, that Longster had since employed the plaintiff on his own account, and that the



latter had no reason to believe that Longster was not the owner of the vessel at the time the sails were furnished. I therefore think there is no ground whatever for the present application.


Mr. Justice PARK.-It has been decided in several modern cases, that a person on whose account a contract is really made, although he be not the legal owner of a vessel, is liable for necessaries supplied to her; and the latest decision on this subject is that of M'Iver v. Humble (a). That case was determined entirely on the privity of contract between the parties ; and it appeared that the goods were not furnished on the credit of the defendants, but on that of the original owner. So here, there was no personal engagement or contract between the plaintiff and defendants; and I therefore think that the former was properly called at the trial.

Mr. Justice BURROUGH concurring,

Rule refused (6).

(a) 16 East, 169.- -(6) See Abbott on Shipping, 4th edit. 20, 21. S. P. Holt on Shipping, Vol. 1, 351-2-3. See also Dowson v. Leake, i Dow. & Ryl. N. P. C. 52.



Nov. 13th. This was an action of trespass, for breaking and enter- Where, in an

action of tresing the plaintiff's close, and subverting his soil ; to which the defendant pleaded, first, not guilty ; secondly, that fendant pleaded one Honor Bowden, being seised in fee of the close, pleas, justify,

pass, the de

ing a right of way for himself and his servants, and with horses, and a like right for himself, and his servants with horses, omitting the word “and;" Held, that as those pleas involved questions of distinct and separate rights, the Court would not refer it to the Prothonotary to determine whether the latter should be struck out as being uunecessary and irrelevant.




conveyed it to the plaintiff, reserving a right of

right of way to the defendant ; thirdly, that the way formerly used by the defendant had been altered or diverted by the plaintiff; fourthly and fifthly, as to the old and new ways, that the defendant had a right to go, return, pass and repass, for himself and his servants, and with horses; and sixthly, and lastly, that he had a like right for himself and his servants with horses, omitting the word and.

Mr. Serjeant Pell, on a former day in this Term, had obtained a rule, calling on the defendants to shew cause why it should not be referred to the Prothonotary to consider the six several special pleas, and determine whether the two last should not be struck out, as being superfluous and irrelevant.

Mr. Serjeant Lens now shewed cause, and submitted, that those pleas varied substantially from the fourth and fifth ; as they not only raised different issues, and disclosed different grounds of defence, but gave the defendant distinct and different rights. He might have a way of necessity when he went with horses, although he and his servants might have another way if they went on foot. By the two former pleas, therefore, he might justify, going either on foot or on horseback ; but by the two latter he could not do so, únless he went with borses. At all events, the question raised by the whole of the pleadings involves a case of so much doubt and nicety, that although the Court have a discretionary power to order superfluous pleas to be struck out, still that it ought not to be exercised in a case of this description.

The Court, considering that the two last sets of pleas involved questions of distinct and separate rights, ordered the rule to be

Discharged without costs.


to secure a

grantee, the



Nov. 13th. Mr. Serjeant Lens, on a former day in this Term, bad where a rule obtained a rule nisi, that the judgment which had been nisi had been obentered up on the warrant of attorney given in this ting aside a warcause, and the execution issued thereon, might be set and judgment aside, and the instrument delivered up to be cancelled ; entered up

which had been on an affidavit of the grantor, that it was given to secure thereon, on an a loan which was usurious, and which amounted to the grantor, that it

had been given rate of 251. per cent. on the sum actually advanced.

loan which was

grossly usuriMr. Serjeant Pell now shewed cause, on an affidavit ous, and which

affidavit was of the grantee, which completely negatived every ma- completely anterial fact stated in that of the grantor.

swered by the Court refused

to direct an Mr. Serjeant Lens and Mr. Serjeant Vaughan, in sup- issue ; and disport of the rule, submitted, that as the affidavits by those rule with costs. parties were wholly contradictory in terms, the real facts of the case could only be arrived at, by the Court's directing them to be tried in an issue ; and more particularly so, as it was quite evident that either the grantor or grantee had been guilty of perjury. The affidavit of the latter did not of itself furnish so complete and conclusive an answer, as to shut the door against further enquiry by a Jury; and if an affidavit of one person, in answer to that of another, be suspicious on the face of it, the Court may direct an issue, to have the real merits of the case sifted into, so that justice may be administered to the party who might be ultimately entitled to it.

Lord Chief Justice Dallas,-It has been admitted, that the affidavit in support of this motion has been substantially answered; the rule, therefore, cannot be made

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