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on her credit, she must be shewn to have been interested. [Bayley, J. You were bound either to prove that she held herself out as a partner, or that she was actually so.] In Doe dem. Hanley v. Wood (a), it was held, that the interest of parties working a mine amounts only to a licence, and does not therefore, like a legal interest in the soil, require a formal conveyance. It was contended by the Attorney General, and ruled by the learned judge, that it followed necessarily that unless the defendant had some legal interest in the mine, she was not liable. It is submitted that it was suf ficient to show participation in working the mine; his lordship thought a conveyance necessary. [Bayley, J. A liberty to work, would lie in grant.] The defendant writes to Denham, stating that the Wheal Concord mines not being disposed of, is a great disappointment to Lady Anson, and that she has no opinion of a concern in which she has been so cruelly deceived. It was proved that Denham was a director. [Lord Tenterden, C. J. I do not see any evidence of that.] It was admitted that the defendant had bought shares in the mine of Thomas. [Lord Tenterden, C. J. Would not that depend upon the title of Thomas, and whether Thomas had conveyed.] What better evidence can be produced against the owner of a ship, than a letter to him from the ship's captain, speaking of his share in the ship; the defendant writes it is not very pleasant to those who have given Mr. Thomas 501. for a five hundredth share, to hear that a thousandth share is now to be had for 201., but that she will be glad to hear adventurers can be found. The tradesman does not know the internal arrangements. [Bayley, J. If the letter had been written to the plaintiff, or he had acted on the letter, that observation would have been material.] Alderson sold the shares, who stated that he was agent for the treasurer, and afterwards treasurer himself, and a shareholder, and had conversed with the defendant about
(a) 2 B. & A. 724. And see Norman v Roe, 19 Ves. 158. Chetham v. Williamson, 4 East,
469. Lord Mountjoy's case, 4
Thomas was lessee of the mines. It must be presumed that she had taken due means to inquire, and that she was satisfied that she had acquired a right either at law or in equity. She speaks of the hardship of having shares multiplied. She ought not to be allowed to say, shew that I am strictly and legally a part owner. [Bayley, J. If Thomas had ordered supplies " as lessee," would the defendant have been liable?]
Lord TENTERDEN, C. J.-The defendant's letter shews that she thought she had an interest; the piece of parchment shewed that she had no interest. I told the jury that the opinion which the defendant may have entertained, would not entitle the plaintiff to recover, he not having furnished the goods upon that information. I pointed out to them the difference between an ordinary partnership and an interest in a mine.
BAYLEY, J.-Jane Blackwell (a) said, she considered herself interested, and that defendant considered that she had the same interest, but she had nothing but a piece of parchment, which when produced does not shew any interest (b).
(a) Ante, 115.
(b) And see Alderson v. Clay,
1 Stark. N. P. C. 405. Newmarch
Rule refused (c).
V. Clay, 14 East, 239.
(c) See Dickenson v. Valpy,
A. B. draws
ROACH and others v. ANN OSTLER, Executrix of
ASSUMPSIT. The first count of the declaration stated, days' sight on that the testator, on the 29th October, 1825, in certain
a bill at 30
Held, that A.B., the drawer, is not entitled to notice of non-acceptance. A letter written by A. B, the drawer, to the payee of the bill, expressing his apprehension that it would be dishonored, coupled with the fact, that the place to which the bill is directed is the usual residence of A. B., the drawer, when in England, is evidence from which a jury may infer the identity of the drawer and drawee.
parts beyond the seas, to wit, Rio de Janeiro, in South America, that is to say, at London, made his certain bill of Exchange in writing, directed to one William Ostler, and thereby requested the said last-mentioned William Ostler, at 30 days' sight, to pay, that, his the said William Ostler, deceased's, first bill of exchange, to the order of Thomas Russell, 1617. 9s. 8d., for value received; and that by a certain memorandum, subscribed to the said bill of exchange, the same bill was also directed, in case of need, to the said plaintiffs, for the said Thomas Russell. The declaration then stated an indorsement by the payee to Brown, and from Brown to Stilwell. Averment that Stilwell, in the lifetime of testator, and before the payment of the money specified in the bill, to wit, on the 3rd February, 1826, at, &c., caused the said bill of exchange, so indorsed as aforesaid, to be presented and shewn to the said William Ostler, to whom the said bill of exchange was so directed as aforesaid, for his acceptance thereof; and that the said last-mentioned William Ostler then and there had sight of the said bill of exchange, and was then and there requested to accept the same, according to the tenor, &c., but that the said last-mentioned William Ostler did not, nor would, at the said time, when, &c., or at any time before or afterwards, accept the same, but wholly refused so to do, and that, thereupon, afterwards, to wit, on, &c., at, &c., the said Thomas Stilwell caused the said bill of exchange to be protested for non-acceptance thereof, and that, thereupon, afterwards, to wit, on, &c., at, &c., the said plaintiffs, for the honour of the said Thomas Russell, accepted the said bill of exchange upon the said protest thereof, and that the said Thomas Stilwell afterwards, in the lifetime of the said William Ostler, deceased, and when the said bill of exchange became due and payable, according to the tenor and effect thereof, to wit, on the 9th day of March, 1826, at, &c., caused the said bill of exchange, so indorsed as aforesaid, to be shewn and presented to the said William Ostler, to whom the said bill of exchange was so directed as
aforesaid for payment thereof, and payment of the said sum of money, in the said bill of exchange specified, was then and there demanded of the said last-mentioned William Ostler, according to the tenor, &c., but that the said last-mentioned William Ostler then and there wholly refused to pay the said sum of money, in the said bill of exchange specified; nor did he, at any time before or afterwards, pay the same, and that, thereupon, afterwards, and in the lifetime of the said William Ostler, deceased, to wit, on, &c., at, &c., the said Thomas Stilwell caused the said bill of exchange to be duly protested for nonpayment thereof, and that, thereupon, the said plaintiffs, upon the said protest, and for the honour of the said Thomas Russell, paid the said sum of money in the said bill of exchange specified, together with a large sum of money, to wit, 107., for the costs of the said protests, and charges attending the non-payment of the said bill of exchange, and noting the same, nevertheless, the said William Ostler, in his lifetime, the drawer of the said bill of exchange, and all others whom it might concern, always obliged unto the said plaintiffs for their reimbursement, in due form of law. Of all which premises the said William Ostler, deceased, afterwards, in his lifetime, to wit, on, &c., at, &c., had notice. By means whereof the said William Ostler, deceased, in his lifetime, then and there became liable to pay to the said plaintiffs the sum of money in the said bill of exchange specified, and the costs of protests and charges so paid by the said plaintiffs as aforesaid, for and upon the said bill of exchange, when he the said William Ostler, deceased, should be thereunto afterwards requested. And being so liable, &c. The declaration contained two other counts on the bill, and counts for money lent, paid, had, and received, and upon an account stated. Plea, non-assumpsit, and issue thereon.
At the trial before Lord Tenterden, C. J., at the sittings after last Trinity term (a), upon the formal proof on
(a) 19th July, 1827, Counsel for the plaintiff, Patteson and Hol
royd; for the defendant, F.Pollock and Chitty.
the bill being gone through, it was objected by Pollock, for the defendant, that the plaintiff could not recover upon the first count, inasmuch as it was not proved that the testator had notice of the non-acceptance. To which objection it was answered, that the bill was directed to a William Ostler, at a place which was proved to be the residence of the testator's wife and family, and of himself when in England (a). The following letter from the testator to the payee was also read:
Ship Marquis of Hastings,
Sydney, January 22, 1826 (b). My Dear Sir,-Since my arrival here, I have good cause to fear that your bill will not be paid; and I am truly sorry that I did not more particularly press your very kind
(a) In Wythers v. Iseham, Dyer 70, a, b, where in trespass, quare parcum fregit, defendant pleaded, as to the breaking and entry, that one John Arundel, Knt., being seised in fee, granted to him, defendant, the office of keeper of the said park; and as to consuming the grass, that one John Arundel, Knt., (quidam I. Arundel, miles), being seised in fee, granted to him the office of parker of the said park, and prescribed for common appendant to the office; the plea was held to be bad, because the defendant claimed the same office through different grantors. So in Philip Bickerstaffe et Ux v. Percy, 2 Lev. 207, which was debt upon a judgment, the declaration stated, that Clarke recovered 90%, and made the plaintiff, Anne, his executrix; and that she took to husband one Philip Bickerstaffe. Defendant pleaded that plaintiffs were never married, and the plaintiffs having demurred to the plea, the Court held the declaration bad.
"Car quendam Philippum Bickerstaffe, ne peut estre intend le plaintiff, Philip." So in quare impedit for a chantry, if the defendant pleads a title to a chantry, of the same name as that mentioned in the declaration, in the said chapel, the plaintiff is entitled to a writ to the bishop, as the plea must be taken to relate to a different chantry. Per Paston, in T. 9, H. 6, fo. 17, pl. 8; and see Rednesh's case, P. 1 H. 7, fo. 19, pl. 4. In the principal case the declaration seems to be cautiously worded, to exclude any inference of identity. Quare, therefore, whether the evidence may not be considered as tending to contradict the declaration?
(b) This letter appears to have been written before the presentment for acceptance, and of course without knowledge of any laches committed by the holder. See Goodall v. Dolley, 1 T. R. 712; Lundie v. Robertson, 7 East, 231, 233; S. C. 3 Smith, 225.