1825. SEAMAN บ. PRICE. houses. To these were added the common money counts. The defendant pleaded the general issue. At the trial, before Lord Chief Justice Best, at the adjourned Sittings at Guildhall, after the last Term, the plaintiff gave in evidence a written agreement, between him and the defendant, which contained the terms as stated in the declaration; but it appeared that the former had entered into no written contract or agreement with Emanuel, the owner of the houses, for the purchase of them at 6007.; but he proved that, although a mere verbal contract, it had been acted on; and that the defendant had obtained possession accordingly. It also appeared that the premises were conveyed by Emanuel, at the request of the plaintiff, and under the direction of the defendant, to the defendant's wife; but the conveyance was not in trust for the defendant, but was made beneficially to Mrs. Price herself; and Emanuel stated, that he would not have conveyed to her unless at the request of the plaintiff, to whom he held himself bound by his contract. On this evidence it was objected, for the defendant, that this action could not be maintained, on two grounds: first, that as the bargain between the plaintiff and Emanuel was not in writing, it was void under the statute of frauds, and therefore that the transfer of it to the defendant could form no good consideration for the defendant's promise, inasmuch as it could not be legally enforced against Emanuel; and secondly, that the evidence did not support the declaration, as it was alleged that the defendant himself became the purchaser; whereas, the legal conveyance was not executed to him, but to his wife, who was not even a trustee for the defendant. His Lordship, however, was of opinion that all the counts of the declaration were substantially supported, and that, as to the first objection, the plaintiff had brought himself within the statute of frauds, the agreement on which he founded his action against the defendant being in writing; that if Emanuel had refused to convey, there might have been a valid defence; but that the defendant having derived all the advantage intended by the bargain, he could not be afterwards permitted to say, that what he agreed for with the plaintiff was of no value; and, as to the second objection, his Lordship thought that as the defendant had, in substance, become the purchaser of the premises, he had the entire benefit of the bargain by the conveyance to his wife, as his nominee, and which conveyance was procured for the defendant through the means of the plaintiff. The Jury found a verdict for the latter; damages, 401. Leave being reserved to the defendant to move that this verdict might be set aside, and a nonsuit entered, in case the Court should be of opinion that either of the objections raised for the defendant was well founded:: Mr. Serjeant Pell now moved accordingly, and submitted, in the first place, that the plaintiff had no interest in the houses in respect of which he could enter into a contract with the defendant, as the bargain or agreement for the purchase between the former and Emanuel had not been reduced into writing. Secondly, the consideration for the defendant's promise, is stated in all the counts of the declaration, to be founded on the plaintiff's giving up or relinquishing his bargain; whereas, there was no bargain he could give up; and even if there had been, it was not binding on Emanuel, and consequently was no consideration at all. Lastly, the declaration states, that the defendant became the purchaser of the houses, when, in point of fact, he was not so, as the conveyance was executed to his wife, absolutely, and not as a trustee for her husband. Lord Chief Justice BEST.-There can be no doubt as to the justice of this case, when the facts are fully considered. The plaintiff made a bargain with Emanuel, for the purchase of the houses in question for the sum of 600%. 1825. SEAMAN v. PRICE. 1825. SEAMAN v. PRICE. The defendant, being desirous of having the bargain, offered him 407. for it; the plaintiff accepted the offer, and a contract in writing was accordingly entered into between him and the defendant; but as there was no previous written contract between the plaintiff and Emanuel, it has been contended that there was no good or legal consideration for the agreement entered into between the plaintiff and defendant. Emanuel made no objection to the performance of his contract or bargain with the plaintiff, or to the agreement made by the latter with the defendant, but, on the contrary, allowed the wife of the latter, as his nominee, to take possession of the premises. He therefore had the opportunity of becoming the purchaser, and should not be afterwards allowed to take advantage of such objections as have been now raised. A moral obligation is a sufficient consideration on which to found an assumpsit, and more particularly so, if it be productive of advantage to the party to whom it is made: and here Emanuel conveyed the premises to the defendant's wife, at the express request of the plaintiff; and Emanuel stated that he would not have assigned them to her but for such request, as he held himself bound by his contract with the plaintiff. Although it has been objected, that none of the counts in the declaration can be supported, the fourth was clearly proved, and is of itself sufficient to entitle the plaintiff to recover; as it is therein alleged, that he relinquished his bargain, and gave the defendant an opportunity of becoming the purchaser. He had in fact given him that opportunity, and was consequently entitled to the sum agreed to be paid to him by the defendant; and I, therefore, see no reason to disturb this verdict. The rest of the Court concurring, Rule refused. SCHUMACK v. Lock. THIS was an action of special assumpsit. The first count of the declaration stated, that in consideration that the plaintiff had permitted the defendant to deposit certain mud or soil on a rope-walk belonging to the plaintiff, the defendant undertook to remove it on being requested so to do. Breach for not removing. The second count was for not removing it within a reasonable time. At the trial, before Mr. Justice Park, at the last Assizes for Surrey, it appeared, that the plaintiff's rope-walk abutted on a mill stream belonging to the defendant, the mud of which, on cleansing the stream, had been deposited on the plaintiff's land; that the plaintiff some time afterwards required it to be removed, as it rendered his ropewalk nearly useless; which requisition not being complied with, the present action was commenced. That the defendant's foreman had previously asked and obtained the plaintiff's permission to throw the mud on his land, and that he promised to remove it whenever he should be requested so to do; but the foreman having died before the commencement of the action, the plaintiff, in order to shew that he was authorised by the defendant to make such a promise, called witnesses to prove declarations made by a person of the name of Shepherd, who acted as clerk to the defendant, and who had the internal management of the mill at the time, as to the directions he gave the foreman for clearing the stream and taking away the mud; but as those witnesses merely proved that Shepherd resided in America Square, and acted as clerk to the defendant, who had a counting-house there, and that he had given orders for lead and other things necessary for carrying on the business within the mill, the learned Judge was of opinion, that it was not sufficiently shewn that Shepherd was authorised by the defendant to give directions to the 1825. Thursday, An agent or servant can of only act within the scope therefore, decla his authority: him as to a parrations made by ticular fact, are not admissible in evidence, unless they fall within the na ployment as such agent or ture of his em servant. 1826. SCHUMACK v. Lock. foreman as to cleansing the stream; and as the plaintiff could furnish no other evidence of a promise by the defendant to remove the mud, a nonsuit was directed. Mr. Serjeant Wilde now applied for a rule nisi that this nonsuit might be set aside, and a new trial granted;—and submitted, that the declarations of Shepherd should have been received, or, that at all events, there was sufficient evidence to go to the Jury, of his being authorised to give directions to the foreman as to the removal of the mud, as he had the exclusive management of the mill, and might therefore be considered as the agent of the defendant, and empowered by him to give directions respecting the cleansing of the stream, and more particularly so, as he paid the labourers their wages for so doing, on account of the defendant. He therefore must be considered as standing in the situation of the defendant himself, as he not only conducted the business at the counting-house, but attended daily at the mill; and it was his duty to give directions as well as to the cleansing of the stream as the management of the machinery; and it was unnecessary to call him as a witness, as the directions he gave the foreman might be proved by those who heard him as well as by himself. Lord Chief Justice BEST.-I am of opinion, that the agency of Shepherd, as far as regarded the cleansing of the stream, was not established, so as to render his declarations admissible in evidence at the trial. It appeared, that he acted as a clerk to the defendant, who was a miller; and that, independently of such duty, he had given orders as to the articles furnished for the interior of the establishment. The cleansing of the stream and removal of the mud did not fall within the ordinary dealings of the defendant as a miller; and his clerk does not appear to have been authorised by him to make any bargain as to |