1844. DOE d. POPE v. ROE. Jones who received the said rents of the said premises as aforesaid (14), he the deponent personally served the said George Drew with the declaration and notice by delivering a copy thereof to the said George Drew, who admitted to the deponent that he was the attorney for the said person named Jones.-The learned Serjeant submitted that enough had been done at least to entitle him to a rule nisi: and he cited Doe d. Osbaldiston v. Roe, 1 Dowl. 456, where, the affidavit stating that inquiry had been made for Cook, one of the tenants, on the premises, and it being found that he and his family had left and were understood to have embarked for America, and did not intend to return, and that the declaration and notice had been affixed on the door of Cook's house, and had also been delivered and read over and explained to a person on the premises who was servant to one of the tenants of other part of the premises, the Court granted a rule nisi, directing that it should be served in the same manner as the declaration was served. TINDAL, C. J.-The two cases seem very much alike. Take a rule nisi. The rest of the Court concurring, the rule was drawn up as follows: Rule absolute, unless cause shewn to the contrary on Tuesday next-service of the rule, by affixing a copy on the respective outer doors of the houses numbered 16, 17, and 18, in Great John Street, in the parish of St. John, Southwark, being part of the premises in question, and by leaving another copy at the office of Mr. George Drew in the said affidavit named, to be deemed good service. (14) The impression conveyed to the Court was, that Drew was attorney for the lessee, Whayman. THIS KEELE V. WHEELER. 1844. Thursday, June 6th. By certain acts for improving the port of Southampton, the commis sioners were empowered to raise money upon instru ments which were known in Old Pier the market as bonds. These bonds were all originally is sued at 5 per with the exception of eight, which were granted to one cent. interest, was an action of assumpsit. The first count of the declaration stated that the plaintiff, before and at the time of making the promise of the defendant thereinafter next mentioned, to wit, on the 14th of September, 1842, was lawfully possessed of and entitled to divers, to wit, eight securities for money, that is to say, a certain assignment bearing date, to wit, the 18th of August, 1824, under the hands and seals of divers, to wit, seven of the commissioners acting in the execution of an act passed in the 43 Geo. 3, intituled "An act for abolishing certain dues called petty customs, anchorage, and groundage, and for improving the port of the town of Southampton, for making a convenient dock for the security of ships, for extending the quays and wharfs, and making docks and piers in the harbour there, and for erecting warehouses for the safe custody of goods and merchandize, and for imposing certain duties for the above purposes," and of another act passed in the 50th year of the reign of his said late Majesty, intituled "An act for altering and amending an act made in the 43rd year of his present Majesty's reign, for improving the port of the town of Southampton," for securing the sum of 1001., together with interest thereon, to Martin Maddison the younger, his executors, administrators, and assigns, payments were for 1007. each, M., upon which a memo randum was indorsed before or at the time of the execu- tion of the agreed to accept interest at 4 per cent. provided the regularly and promptly made. The plaintiff, who was the holder of these eight bonds, was applied to by one C., a broker employed to purchase such securities for the defendant, and the plaintiff agreed to sell to the defendant "eight Old Pier bonds for 1001. each," nothing being said on either side as to the rate of interest payable thereon. The bonds in question were left with the broker for the purpose of his getting them transferred, and remained with him from the 14th to the 16th of September. He accordingly prepared a transfer and got it registered by the clerk to the commissioners under the act, and then for the first time discovered that the interest payable on them was by the memorandum on the back limited to 4 per cent., and immediately repudiated them. In assumpsit for the contract price, the jury found," that the bargain between C., as the defendant's agent, and the plaintiff, was for Old Pier bonds of the usual sort, at 5 per cent.; but that the plaintiff only intended to sell bonds at 4 per cent." A verdict was thereupon entered for the defendant. Held, that the jury were warranted in the conclusion they came to; and that the indorsement, in Equity at least, became part of the bond. 1844. KEELE v. WHEELER. Pleas. upon the credit of the rates and duties granted and made payable by the said acts; a certain other assignment &c. &c. [enumerating eight several bonds for 1007. each]; which said several securities respectively had been before then duly transferred by the said Martin Maddison the younger to the plaintiff according to the provisions of the said acts of parliament, and which said securities were then of certain great value, to wit, of the value of 8007.; whereof the defendant then had notice: and the plaintiff, at the request of the defendant, then sold to the defendant the said securities at and for a certain price between them in that behalf agreed upon, to wit, the price or sum of 8007., to be therefore paid by the defendant to the plaintiff for the same: and thereupon, in consideration of the premises, and that the plaintiff at the request of the defendant would transfer and deliver the said securities to the defendant, one Robert Wheeler, one Samuel Wheeler, and one Robert Wheeler junior, according to the provisions of the said acts of parliament therein before mentioned, the defendant then promised the plaintiff to pay him the price or sum of 800l. for the same, whenever he the defendant should be thereunto afterwards requested: averment, that the plaintiff, relying on the said promise, did, to wit, on the day and year last aforesaid, duly transfer and deliver the said securities to the defendant and the said Robert Wheeler, Samuel Wheeler, and Robert Wheeler junior, according to the provisions of the said acts of parliament thereinbefore mentioned. There was also a count upon an account stated, and a general breach. The defendant pleaded-first, non-assumpsit-secondly, to the first count, that the defendant did not buy of the plaintiff nor did the plaintiff sell to the defendant the said securities in the declaration mentioned, in manner and form as the plaintiff had in the said first count alleged, concluding to the country-thirdly, to the first count, that the plaintiff did not transfer and deliver the securities to the defendant and the said Robert Wheeler, Samuel Wheeler, and Robert Wheeler junior, according to the provisions of the said act of parliament, in manner and form as the plaintiff had in the said first count alleged, concluding to the country-fourthly, that the promises in the declaration mentioned were obtained from the defendant by the plaintiff and others in collusion with him, by fraud, covin, and misrepresentation, and therefore the said promises were and are void in law; verification. 1844. KEELE v. WHEELER. The plaintiff joined issue on the first three pleas, and Replication. traversed the fraud and covin alleged in the fourth. The cause was tried before Wightman, J., at the last Spring Assizes at Winchester. The facts that appeared in evidence were as follow:-By the acts of parliament referred to in the declaration, viz. the 43 Geo. 3, c. xxi, and 50 Geo. 3, c. clxviii, certain commissioners were appointed to execute certain duties connected with the port of Southampton, the acts containing clauses authorizing them to raise money upon the security of the pier dues to be collected under the acts, and to execute securities in the form of bonds, to bear interest not exceeding 5 per cent, and to be transferable (15); these securities, and any future transfer thereof, to be registered. In pursuance of the (15) The power to borrow money was given in these terms by the first-mentioned act:-" That the said commissioners are hereby authorized and impowered to borrow and take up at interest any sum or sums of money not exceeding 30,000/., on the credit of the rates and duties hereby granted, and by writing under their hands to convey and assure the duties granted by this act (the charges of such conveyance and assurance to be paid out of the said duties) as a security for any sum or sums of money by them to be borrowed for the purposes of this act, to any per- 1844. KEELE v. WHEELER. powers conferred upon them by these acts, the commissioners granted several of these bonds bearing 5 per cent. interest. On the 18th of August, 1824, the commissioners executed eight of these bonds for 100l. each to Mr. Maddison, the banker, at Southampton. These eight bonds, like all the others, upon the face of them, purported to bear interest at 5 per cent.; but, when Mr. Maddison took them, he agreed with the commissioners, in consideration of their abating some nuisance, and paying the interest regularly, to receive 4 per cent. instead of 5 per cent. ; and a memorandum to that effect, signed by Mr. Maddison, and attested by the same witness who attested the execution of the bonds, was indorsed on the back of each bond (16). Each bond was indorsed-" Bond for securing 1007. and interest at the rate of 41. per cent." Mr. Maddison, who was called as a witness, stated that the memorandum was written before the bonds were executed. It appeared by the payments noted on the back of the bonds, that, for the year immediately succeeding their date, Mr. Maddison tum per annum, to be paid half- half-yearly, being at the rate of 4l. yearly. per cent. per annum, as and for interest on the within-written bond, and in discharge of the interest within mentioned to be paid, provided the treasurer or treasurers appointed in pursuance of the within-mentioned acts, or his or their bankers in Southampton, do and shall well and truly pay such sum of money upon the day the same shall become due, or, at any time after the same shall become due, immediately on demand thereof being made by him the said Martin Maddison, or by his executors, administrators, or assigns." This was signed by Maddison, but not sealed. |