1812.

HUMPHRIES

against CARVALHO.

casks, &c. to the plaintiff for his approval and inspection as to quality, nor had the defendant yet delivered the said casks, &c.; but refused so to do. This was laid in various ways. At the trial before Lord Ellenborough, C. J. in London, the plaintiff called as a witness the broker who made the contract stated in the declaration between the parties; and he proved that he had agreed to purchase the five casks of ipecacuanha of the defendant for the plaintiff, at the price stated, on Saturday the 21st of December 1811, subject to the plaintiff's approval of the quality on the Monday following; and that the written note of the contract (commonly called the boughtnote,) which he sent to the plaintiff on the Saturday, had these words on the face of it, "quality to be approved on Monday;" but no sold-note was sent on that day to the defendant, because the broker having met him on the same day, and told him that he had sold the ipecacuanha to the plaintiff, upon the terms stated, there was no occasion to send him a written note. The broker further proved that it was the custom of the trade for either party to return the contract, if he disapproved of it, within 24 hours. That the plaintiff not having returned the contract, nor signified any disapproval, the broker on Friday the 27th of December sent the sold-note to the defendant, with the words "quality to be approved on Monday" struck out; but the defendant returned it again immediately to the broker; upon which the broker went to the defendant on the same day, and insisted on his completing the contract; but he refused to do so, on account of its not having been sent to him on the Monday. On these facts his Lordship was of opinion that the defendant having agreed on the Saturday to the actual sale of the commodity, at the price stated, subject

to

to the plaintiff's approval of the quality on the Monday, and the plaintiff having accepted the contract on those terms, and not having returned it on the Monday, which was to be taken as an approval by him of the contract, both parties were bound by it; and under that direction the jury found a verdict for the plaintiff for 417. 18s. 9d.

Scarlett now moved to set aside the verdict, and enter a nonsuit, or for a new trial, upon the ground that by the terms of the contract it was not enough that the plaintiff did not signify his dissent on the Monday; but not having then signified his approval, that the contract at least remained open until he had so done, and that in the mean time it was open to the other contracting party to disaffirm it; for every contract must in its nature be binding upon both parties, or open to be disaffirmed by each. As in Cooke v. Oxley (a), where the contract stated was that the defendant had proposed to the plaintiff to sell and deliver to him goods at a certain price; whereupon the plaintiff had desired the defendant to give him time till 4 o'clock of the same day to agree or dissent to the proposal; and thereupon the defendant proposed to the plaintiff to sell and deliver to him the goods upon those terms, if the plaintiff would agree to purchase them upon the terms, and would give the defendant notice thereof before 4 o'clock on that day: and then the plaintiff averred that he did agree and did give the required notice; but that the defendant on request did not deliver the goods. After verdict, the judgment was arrested, because the engagement was not mutually binding, and therefore nudum pactum.

(a) 3 Term Rep. 653.

1812.

HUMPHRIES against CARVALHO.

Lord

1812.

HUMPHRIES against

CARVALHO.

Lord ELLENBOROUGH, C. J. Here there was a salenote sent, and an actual sale made by the defendant through the intervention of the broker, who communicated to the defendant on the same day that he had sold the goods; and it was not merely an offer to sell, as in that case; but the buyer had an option of renouncing the purchase on the Monday, which he did not do; and therefore it stood absolute.

GROSE, J. agreed.

BAYLEY, J. (a) The argument of the defendant is, that if a contract give an option to one of the parties to determine it, the law will give the like option to the other, until both are bound: but here neither of the parties had an option after the Monday; for the plaintiff not having renounced the contract within that time, must be taken to have approved of it. The question in Cooke v. Oxley arose upon the record; and a writ of error was afterwards brought upon the judgment of this Court; by which it appears that the objection made was that there was only a proposal of sale by the one party, and no allegation that the other party had acceded to the contract of sale.

(a) Le Blanc, J. was absent at Lancaster,

Rule refused.

THIS

LEWIS against TAYLOR.

pe

1812.

Tuesday, June 2d.

An unqualified person going out with the qualified owner of greyhounds

a

to course a hare,

whichwas killed

In

a

HIS was an action of debt for penalties upon the game laws, tried at the last Aylesbury assizes before Heath, J. One count charged the defendant for the nalty of 57., upon the stat. 5 Ann. c. 14, for using greyhound to kill game, not being qualified so to do. support of which it was proved that W. Goldby, a farmer, who was by his own estate qualified to kill game, went out with greyhounds and other dogs to course and kill hares; that the defendant, who was not qualified, was in company with Goldby when he coursed and killed hare; that the defendant took an active part in the sport, by beating the bushes in order to find a hare, and after the hare had been killed by a greyhound he alighted from his horse, went over a gate, and took up the hare. Upon this evidence the learned Judge was disposed to have nonsuited the plaintiff; but upon the authority of a case which was cited from Burn's Justice (a), as having been decided by Mr. Justice Lawrence at Stafford in 1804, in which an unqualified person partaking of the sport in company with one who was qualified was held not to be protected from the penalty of the statute; he suffered the plaintiff to take a verdict for the penalty of 57.; with liberty to the defendant to move the Court to set it aside and enter a nonsuit, if the evidence did not support the charge.

Storks accordingly moved the Court for this purpose in the last term, and referred to the case of The King v.

(a) 2 Vol. of the last edit. See Rex v. Taylor, 15 East, 462. VOL. XVI.

E

Newman

by the dogs, is

not liable to the

penalty of 5. given by stat. for using a greyhound to kill game; although he took an active part in the sport by beating the bushes in order

5 Ann. c. 14,

to find a hare,

and took it up

after it was

killed.

1812.

LEWIS

against TAYLOR.

Newman and Others (a), where, upon an information being moved for in this court against magistrates for having unduly convicted two unqualified persons in penalties upon the game-laws for using greyhounds to kill the game, though they offered to prove in their defence that they were out at the time with a qualified person, to whom the dogs belonged, Lord Mansfield expressed a strong opinion against the conduct of the magistrates, and only discharged the rule upon the terms of their paying the whole costs of the application. And in Molton v. Rogers (b), Lord Ellenborough also gave his opinion, that an unqualified person, joining in the sport with the owner of the dogs, who was qualified, was not liable to the penalty.

King now appeared to shew cause against the rule; but the Court expressing a decided opinion in favour of the defendant, he submitted to it without further discussion.

Lord ELLENBOROUGH, C. J. There is no evidence against this defendant upon the charge of using a greyhound for killing the game. The dogs belonged to a qualified person, who was out with them at the time. This is not a solitary amusement, and there is nothing to prevent a qualified person from taking others with him to aid him in the pursuit of the game; and he is the person using the dogs: the others have no other use of them than as his servants, and contemplating with him the pleasure of the chace. The learned Judge's first thoughts were best. If indeed an unqualified man (a) Hil. 13 Geo. 3. Loft's Rep. 178.

(b) 4 Esp. N. P. Cas. 217. See Rex v. Taylor, 15 East, 462.

used