1826. FARQUHAR v. SOUTHEY and OTHERS. by the circumstance that the plaintiffs did not, when they had money of the defendants in their hands, to an amount exceeding that of the bills, and OTHERS apply that money in extinction of the bills: they were not, in my opinion, bound to do so, nor would they have dealt well by the defendants if they had done it: there can, therefore, be no laches in their not doing it. The only question I can leave to the Jury is, whether they can collect from the dealings between the parties evidence that the plaintiffs ever entered into an agreement to discharge the defendants, or expressly renounced all intention of holding them liable. If the Jury are satisfied of the existence of either of these facts, their verdict should be for the defendants; but if otherwise, for the plaintiffs (a). One of the bills was originally addressed, "Messrs. Southey, Crowther and Co.," but the words" and Co." were obliterated, and the word "and" inserted; so that, when produced, the address was, "Messrs. Southey and Crowther." The acceptance was signed, "Southey and Crowther." It did not appear when the alteration had been made. Scarlett objected that the plaintiffs could not recover on this bill without explaining the alteration. F. Pollock, for the plaintiffs, said, The alteration, even if made after acceptance, was immaterial; the (a) See Adams v. Gregg, 2 Stark.531. C 1826. defendants would be equally liable in which ever FARQUHAR Way the bill was directed to them. and OTHERS v. SOUTHEY LITTLEDALE J. was of opinion that the alter and OTHERS. ation, even if made after acceptance, was immaterial, and did not discharge the acceptors. Verdict for the plaintiffs. F. Pollock and Henderson for the plaintiffs. ADJOURNED SITTINGS IN LONDON. GUILDHALL, MAINWARING v. LESLIE. In an action ASSUMPSIT for goods sold and delivered. against a husband for goods The goods appeared to be ordered by and desupplied to his livered to the wife of the defendant, who was at wife living separate from the time living separate from her husband. No him, the plain- evidence was given of the circumstances or cause tiff must give evidence of of the separation. the circum stances of the separation, to show that they her to bind the husband. ABBOTT Ld. C. J. The plaintiff must be called. were such as When the wife is not living with her husband there is no presumption that she has authority to bind him even for necessaries suitable to her degreé in life: it is for the plaintiff to show that, under the circumstances of the separation, or from the conduct of the husband, she had such authority. The mischief of allowing the ordering of goods by a married woman living apart from her husband to be prima facie evidence, so as to charge him for them, would be incalculable. 1826. MAINWARING Nonsuit. (a) v. Brougham and Erle for the plaintiff. (a) The cases which settle how far the husband is liable for goods furnished to the wife are very copiously collected in Stark. on Ev., Part IV., 692, &c., and in Selwyn's Nisi Prius, Tit. Baron and Feme, I.; but it does not appear to have been so much a matter of question, until the case of Montague v. Benedict, 3 B & C. 631., what proof the plaintiff must give in the first instance, as what the law was on the whole facts given in evidence on one side and on the other; and in point of fact, in a large proportion of instances, the proof of the circumstances appears to have come from the defendant. In that case, however, a similar question to that in the principal case arose, and was decided in conformity with the same rule; for it was held that the plaintiff must prove circumstances to shew the assent of the husband to the wife's contracts for goods, not being necessaries, even during cohabitation. LESLIE. FREEMAN v. JURY and Another. ASSUMPSIT for use and occupation. GUILDHALL, among A. being in possession unyears, underlet the premises der a lease for from year to year to the defendants, who knew the extent of A.'s interest. The plaintiff afterwards took a lease of the same premises, expectant on the determination of A.'s term; and the defendants, after the determination of A.'s term, continued in possession for a quarter of a year, when they paid the rent for that period, and claimed to give up the premises: Held, in an action for use and occupation for a subsequent period, that there was no evidence of a tenancy continuing beyond that quarter of a year. 1826. FREEMAN V. JURY and ANOTHER. plaintiff took a lease from the Cutlers' Company of all the premises held by Moline, commencing at the expiration of Moline's term. The defendants occupied the premises in question, with full knowledge of the extent of Moline's interest under the company, as his tenants from year to year for several years, and continued in possession at the expiration of his term at Christmas 1825. On Lady Day 1826, they paid one quarter's rent to the plaintiff, at the same rate they had previously paid to Moline, and claimed to give up possession. The plaintiff refused to take possession, conceiving himself entitled to notice of quitting; but the defendants left the premises, and they continued unoccupied during the period for which the action was brought. Scarlett objected that there was no evidence of a tenancy beyond Lady Day. Moline's interest, and consequently the interest of the defendants under him, was determined; and the only evidence of a contract with the plaintiff' was the payment of rent for one quarter at Lady Day. That might just as likely be rent due on a taking for a single quarter as on any other taking, and, therefore, was no evidence of a continuing tenancy. Marryatt, for the plaintiff, answered, that the payment of rent at the old rate was evidence of a holding on upon the old terms. It would be evidence for the defendant that the plaintiff had accepted him as tenant on those terms; it must, therefore, be evidence for the plaintiff that he was so. ABBOTT Ld. C. J. The plaintiff cannot recover unless he proves a new continuing tenancy under him. Moline's interest expired at Christmas 1825, and the defendants were aware that it did so; their tenancy from year to year under Moline must, therefore, be considered as necessarily expiring at that time. Then their old tenancy being determined, there is no evidence of a new continuing tenancy, for the fact relied on admits equally well of a different construction. Marryatt and Comyn for the plaintiff. Nonsuit. 1826. FREEMAN v. JURY and ANOTHER. REX v. DANIEL PRINCE. 1827. GUILDHALL, ness within THE defendant was indicted under the stat. One gratuit52 G. 3. c. 63., for unlawfully negotiating and ap- to procure the ously engaging plying to his own use a bill of exchange deposited discount of a bill, not being with him as agent for the owners, without any in any busiauthority to sell or pledge, for the purpose of get- which such an ting it discounted, and paying the proceeds to his employment regularly employers. There was a second count charging falls, cannot him with unlawfully pledging it; and a third, be convicted charging him with unlawfully embezzling and the bill desecreting it. The defendant was not a bill broker, and was to receive no commission for discounting the bill; but was in the habit of discounting bills for the owners of the present bill, and they were in the of embezzling posited with him for the purpose of discount, unprocuring such der the statute 52 Geo. 3. c.63. |