cided was that there was no contract implied in point of fact, to deliver an abstract of title, on an agreement to grant a lease. In Temple v. Brown (a), the question arose as to the latter point, but cannot be considered as having been decided by it. In George v. Pritchard (b), on an agreement in general terms to sell an existing lease, Lord Tenterden was of opinion that no contract to make out a complete title could be implied, and that the vendor, without an express stipulation, was not bound to produce his lessor's title: and he considered the cases in equity as deciding merely that a vendor on a bill for a specific performance could not compel a purchaser to take a lease without shewing the lessor's title. On the other hand there is a decision of Lord Ellenborough which appears by no means unworthy of consideration. (c) In an action for work and labour brought by Mr. Denew the auctioneer, against Mr. Deverell, the plaintiff in the chancery suit against Lord Bolton above referred to, the defence was negligence in conducting the sale: several witnesses proved it to have been long the constant usage of auctioneers employed to sell leasehold property, to insert a proviso in the particular, that the vendor shall not be called upon to shew his lessor's title. The jury found a verdict for the defendant with his Lordship's full approbation. He thought the plaintiff guilty of gross negligence, in not adhering to the practice, which he observed had very properly sprung up among auctioneers, to insert such a proviso. We have, therefore, that learned judge's opinion of the reasonableness of the practice, and the fact that it has prevailed in the ordinary course of business, which is strong to shew the ge(b) 1 Ryan & Moody, 417. (a) 6 Taunt. 60. 1834. SOUTER against DRAKE. neral 1834. SOUTER against DRAKE. neral understanding that a vendor is bound to make out a good title in all respects, upon the sale of a leasehold, unless the contrary is expressed. For the reasons above given, we come to the conclusion, that, unless there be a stipulation to the contrary, there is, in every contract for the sale of a lease, an implied undertaking to make out the lessor's title to demise, as well as that of the vendor to the lease itself, which implied undertaking is available at law as well as in equity; and we cannot adopt the distinction acted upon in George v. Pritchard (a). It was, however, contended, that, admitting the general doctrine, the terms of the instrument, in this case (as in that of Spratt v. Jeffery (b)), shewed that both parties intended to waive the question of title; and that this was to be inferred from the short residue of the term, the small value of the property, and the absence of any premium for the lease. From these circumstances, and from the agreement "to take the lease and fixtures as per list," we might think it very probable that the contracting parties never thought of the title. But this cannot be stated higher than as a very probable conjecture; and it would be dangerous to defeat the general rule by speculations on the possible intention of the parties. It follows that the purchaser had a right to call for proof of the lessor's title before he parted with his money; and as no title was shewn, this action for refusing to complete the purchase cannot be maintained. Rule absolute. (a) i Ryan & Moody, 417. (b) 10 B. & C. 249. 1834. The KING against The Justices of the West Tuesday, (Case of the LEEDS and WHITEHALL Roads.) IN N 1826, an act of parliament was passed for making and maintaining a new road from Leeds to Whitehall, near Halifax, and several branch roads therefrom, all in the West Riding of the county of York. The preamble was in the following words: "Whereas the making and maintaining a new turnpike road from Leeds in the West Riding of the county of York, to join the Wakefield and Halifax turnpike road at or near Whitehall in the township of Hipperholme-cum-Brighouse in the parish of Halifax in the said Riding, passing through or into the several townships or places of Leeds, Holbeck, &c. (naming several more), all within the Riding aforesaid, and the making and maintaining several branch roads from and out of the said main turnpike road, will be a Jan. 21st. of the sessions shall be final and that no and conclusive, act shall be re- tiorari. The sessions on appeal against a certificate of two justices, that a turnpike road, made under a local act, had been completed, and was fit to be travelled upon, having decided that the certificate was void in point of law, and having refused to go into the merits of the appeal in point of fact, this Court refused to grant a mandamus to them to hear the appeal on the ground that their decision was contrary to the local act. A local turnpike act recited, "that the making and maintaining a new turnpike road from Leeds to join the Wakefield and Halifax turnpike road, at a certain point, and several branch roads (therein also described) from and out of the said main turnpike road, would be an advantage to the inhabitants of Leeds and Halifax, and to the public in general;" and it authorised the making of the said several roads, and enacted, "that the said new roads should not be respectively opened to the public, or become public roads, until two justices should have certified that the said roads respectively, and the works thereon respectively, were completely made and fit to be travelled upon throughout the whole length of such roads respectively." Semble, per Littledale and Taunton Js.,that the making of all the branch roads was not a condition precedent to the main road becoming a public road as soon as it was completed and fit to be travelled on, but that the main road, when so completed, and certified so to be by two justices, became a public road, although the branch roads were still unfinished. great -727 740 1834. The KING against The Justices of - great accommodation to the inhabitants of the townships of Leeds and Halifax, and of the several townships and places lying near the said roads, and to the public in general, &c." The act, after authorizing the making and YORKSHIRE. maintaining the several roads, contained the following clause: "Provided always, and be it further enacted, that the said new roads shall not be respectively opened to the public, or become public roads or highways, until two justices of the peace acting for the West Riding of the county of York, legally assembled at a special sessions, shall have certified that the said roads respectively, and the bridges, culverts and embankments, and other works thereon respectively, are completely made and fit to be travelled upon throughout the whole length of such roads respectively." Two justices acting for, and residing within, the wapentake of Agbrigg and Morley in the said Riding, certified that they had viewed so much of the main turnpike road, authorised to be made by the act of parliament, as was situate within the wapentake aforesaid, and lay between Whitehall and the centre of the river Aire in the township of Holbeck in the said Riding; and that such part of the said main road, and the bridges, culverts, embankments, and other works thereon, were completely made and fit to be travelled upon throughout the whole length of such road. Two other justices, acting for and residing within the wapentake of Skyrack in the said Riding, certified that so much of the said main road, &c., as was situate between a certain turnpike road called the Wellington Bridge Road, and the centre of the river Aire, both in the township of Leeds, were completely made and fit to be travelled upon throughout the whole length of such road. At the Michaelmas West Riding sessions, sessions, an appeal was entered by Briggs, a rated inhabitant of Wike (one of the places enumerated in the preamble of the above Turnpike Act), against these certificates. On the hearing of the appeal, the counsel for the appellant objected that the certificates were void, because all the branch roads authorised to be made by the act had not been completed; and thereupon the Court, after hearing the point argued, and without going further into the merits of the appeal, adjudged, that as the certificates were given before the branch roads were completed, they were therefore void. Before the adjudication, the counsel for the respondents tendered evidence in support of the certificates; but the Court refused to hear it. A rule nisi having been obtained, calling upon the defendants to shew cause why a mandamus should not issue, commanding the Justices to enter continuances and hear the appeal, Sir G. A. Lewin and Baines now shewed cause. The court of quarter sessions have decided that the certificate of the justices was void, because it was granted before the branch roads were completed. That decision, whether right or wrong, is made final by the General Turnpike Act, 4 G. 4. c. 95. s. 87. (a) The attempt (a) It enacts, that if any person shall think himself aggrieved by any determination made, or matter or thing done by any justices of the peace in pursuance of that act, or any local act for making or repairing any turnpike road, such person may appeal to the justices of the peace at the next general or quarter sessions of the peace for the riding, &c. wherein the cause of complaint shall arise; and the said justices at such sessions shall hear and finally determine the causes and matters of such appeal; and the determination of such general or quarter sessions shall be final and conclusive to all intents and purposes; and no proceeding to be had or taken in pursuance of that act, shall be removed by certiorari or any other writ or process, into any court of record at Westminster. 1834. The KING The Justices of VOL. V. 3 U is |