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is within his own knowledge. The enjoyment is an inference of law from the grant of the license-it consists in the right to enjoy : the using the machines depends on the defendants themselves. The declaration is therefore good without any additional allegation; and the same reasons show that the plea is bad, and that it lay on the defendants to show that they have not enjoyed. They have the option, the right is vested in them, and the license must be taken to have been enjoyed until they show the contrary. It is not like a contract to do any particular act; as soon as the plaintiff had signed the agreement, primâ facie all was complete on his part. Bird v. Higginson has no application to this case: it is clear that an easement in land cannot be granted without deed; the parol agreement, therefore, operated as a mere license to the defendant to go upon the land, which could not entitle the plaintiff to a rent. This is a contract merely for a license, and not for enjoyment, in the sense of occupation; and the user under the license both rests. in the defendants' option, and lies within their knowledge.

Cur. adv. vult.

The judgment of the COURT was delivered on a subsequent day, by

LORD ABINGER, C. B.:

We think the judgment ought to be for the defendants on the demurrer. The declaration is founded upon the contract, and nothing but the contract. If a man contract to pay a sum of money, in consideration that another has contracted to do certain things on his part, and it should turn out, before any thing is done under it, that the latter was incapable of doing what he engaged to do, the contract is at an end. The party contracting to pay his money is under no obligation to pay for a less consideration than that for which he has stipulated.. If, indeed, he does accept of a partial performance, and to a certain extent enjoys the benefit of that for which he stipulated, it may become a question whether he may not be liable upon an implied contract to pay for what he has had; as, when the consideration is in its nature capable of being divided, and the payment apportioned, by the terms of the contract, there may still be a right to recover the portion due upon the original contract. So, where a party takes an estate under a conveyance, with a warranty of title in the vendor, he cannot afterwards object to paying the consideration on account of the want

CHANTER

C.

LEESE.

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of a good title to a part of the estate, but must resort to his action on the warranty. This was the case of Boone v. Eyre, cited in the argument. But in the present case it does not appear to the Court that the defendants ever accepted or enjoyed any part of the patents which were the consideration of their agreeing to pay 4007. a year to the plaintiff, *nor that the sum they so agreed to pay can in any manner be apportioned amongst the different patents which they might have had, the possession of all and each being an entire consideration. The plea, therefore, impeaching that consideration, is a good plea to avoid the whole contract as it appears on the record.

With respect to the proceedings on the rule, we are rather inclined to think that this contract being with all of the parties, founded upon a consideration to part of which each was a conducing party, the action ought to have been by all, upon the promise made to all, though only one was to receive the money: but it is not necessary to give any judgment on this point, because we think there was a variance between the declaration and contract, in not setting out all the contracting parties, and that the plaintiff therefore ought to have been nonsuited.

Judgment for the defendants on the demurrer: and rule absolute to enter a nonsuit.

[This case having been brought by writ of error into the Exchequer Chamber, was there argued in the vacation] after Hilary Term, 1839, by the Attorney-General for the plaintiff, and by Cowling for the defendants; but the arguments, which were in substance the same as in the Court below, are so fully adverted to in the judgment, that it has been thought unnecessary to detail them at length.

The COURT took time to consider, and the judgment was now delivered by

TINDAL, Ch. J.:

The declaration in this case states an agreement between the plaintiff of the one part, and the defendants of the other part. The first plea is non assumpserunt. At the trial an agreement was given in evidence, which was made between the plaintiff and others of the one part, and the defendants of the other part. The execution of the agreement by the defendants was proved, but the learned

Judge was of opinion that the variance was fatal; on which the counsel for the plaintiff applied to amend, by inserting the names of the other parties to the agreement. The learned Judge refused to amend, and directed the jury to find a verdict for the defendants, but at the same time to find that the defendants executed the agreement produced, which was set out on the postea.

The Court

of Exchequer, upon argument, held that the variance was material, and gave judgment for the defendants, according to the very right, under the 24th section of 3 & 4 Will. IV. c. 42; upon which judgment a writ of error has been brought and argued. The judgment is, in the present case, in support of the verdict, but if it had been otherwise, no doubt can be entertained but that a court of error can review the judgment, the verdict being in the nature of a special verdict.

We are, however, of opinion, that the verdict and judgment are both right. The agreement shows distinctly, that the consideration. for the defendants' promise moved not *from the plaintiff alone, but from the plaintiff and the other parties who joined with him. It was therefore most material that the names of all the contracting parties should appear on the record; not only with a view to the defence which might be pleaded, but also to the evidence which might be adduced. It may easily be conceived that evidence might be admissible against joint contractors, which would not be admissible against the present plaintiff alone; and in many other respects it may have been most material that the agreement should have been stated as it really was. On this ground, therefore, we think that the judgment for the defendants on that part of the record must be affirmed. It is not necessary to determine whether, if the agreement had been truly set out in the declaration, the plaintiff could have sued upon it alone; but we should have felt no doubt upon that point, if that question had been directly raised.

Upon the demurrer, two questions arose: first, whether it was necessary for the plaintiff to aver that the defendants had enjoyed the use of the patents under the agreement; and, secondly, whether the plea showing that one of the patents was void, was a sufficient answer to the action.

We do not think it necessary to determine the first question, inasmuch as we are of opinion in favour of the defendants upon the second.

There is no assignment of the patents by deed in this case; no interest in them passed to the defendants, but the whole matter

CHANTER v.

LEESE.

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rests in contract. The defendant is not in a situation with respect to
the plaintiff similar to that of a tenant towards his landlord, and is
in no way estopped from showing any failure of the consideration for
his promise to pay the annuity to the plaintiff, which may be
sufficient to bar the plaintiff of his action. It is admitted by the
demurrer that a partial failure of the consideration has taken
place, namely, that one of the six patents is *void. The learned
counsel for the plaintiff argued that, as no fraud is alleged, the
defendant may have known that it was so void, and yet have
entered into the agreement. We dissent, however, altogether from
this reasoning. The patent being void, no benefit in respect of it
could accrue to the defendants; and we think we are not to presume
that any such improvident bargain took place. But it was further
contended, that it must be taken on these pleadings that the other
five are good, and also that the defendants have enjoyed the use
of them, and consequently that they are bound to perform their
part of the agreement by paying the annuity, and must bring a
cross action for damages in respect of the one void patent. This
reasoning would undoubtedly apply, if the consideration had been
divisible, and the money payable by the defendants had been
apportioned by the contract to the different parts of the considera-
tion; in which case the principles laid down in Boone v. Eyre (1),
and other authorities of that class, would have governed the present
decision. But here it is plain, that the enjoyment of all the six
patents is the consideration for every part of the defendants'
promise, and that the annuity to be paid is neither apportioned by
the contract, nor capable of being apportioned by a jury. And
this is apparent by reading the agreement itself as stated in the
declaration, in which the six patents are so closely connected with
each other, that the benefit expected by the defendants under the
agreement is obviously to result from the use of all of them jointly,
in such manner as the defendants may think fit, and the inability
to use any one would manifestly endanger great part, if not the
whole, of that benefit. All the patents but one are admitted by
the pleadings to be valid, but there is no admission that they have
been enjoyed by the defendants, no averment to that effect being
introduced into the declaration. *We see, therefore, that the con-
sideration is entire, and the payment agreed to be made by the
defendants is entire, and we see also a failure of the consideration,
which being entire, by failing partially, fails entirely; and it
(1) 2 R. R. 768 (1 H. Bl. 273, n. ; 2 W. Bl. 1312).

follows that no action can be maintained for the money. Even if it had appeared affirmatively that the other five patents had been enjoyed, we are of opinion that no action could be maintained on the agreement for the annuity, whatever question might be raised in some other form as to some right of compensation for such enjoyment. Upon the whole, we are of opinion that the judgment of the Court of Exchequer must be affirmed.

Judgment affirmed.

CHANTER

v.

LEESE.

SINCLAIR AND ANOTHER, ASSIGNEES OF GEE, a Bankrupt,

v. BAGGALEY.

(4 Meeson & Welsby, 312-319; S. C. 7 L. J. (N. S.) Ex. 305.) A written paper, containing a statement of mutual accounts between a creditor and a bankrupt by whom it was signed, and bearing date previous to the bankruptcy, showing a balance due to the creditor, is prima facie evidence, as against the assignees, in an action brought by them against the creditor, that it was written at the time it bore date.

Semble, that such a document is evidence of payment, and not of a set-off, and ought to be pleaded as such.

DEBT for goods sold and delivered by the bankrupt, and on an account stated. Plea, a set-off for goods sold and money paid to the bankrupt, and on an account stated.

At the trial before Littledale, J., at the last Nottingham Assizes, the defendant, having proved goods sold to, and bills paid for, the bankrupt to some amount, offered in evidence a paper, containing a statement of mutual accounts between himself and the bankrupt by whom it was signed, and bearing date October 12, 1836, which was previous to the bankruptcy, by which a balance appeared to be due to the defendant. The plaintiff's counsel objected that this document was not admissible, as it was not proved to have been signed by the bankrupt before his bankruptcy. The learned Judge, however, after consulting with PARK, J., was of opinion that the instrument was to be taken, primâ facie, to have been written at the time it bore date, and allowed it to be read, upon which the defendant obtained a verdict. Humfrey having, in Easter Term obtained a rule to show cause why there should not be a new trial, on the ground that this evidence was improperly received,

Whitehurst and Miller now showed cause :

This instrument was admissible as against the assignees, though

1838.

Exch. of
Pleas.

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