The Sun.
London, England, 1864-02-12 00:00:00

THE DUKT OF MARLBOROUGH V. OSBORNE.

This was a case which raised a rather curious
philological discussion with some interesting prac-
tical illustrations. It was an action of ejectment
by the Duke against a farmer, one of his tenants, at
Hanborough, in Oxfordshire, to recover his farm,
on the ground of an alleged forfeiture on the fol-
lowing clause in his agreement of tenancy :—" The
tenant to perform each year for the Duke of Marl•
borough, at the rate of one day's team work with
two horses, and one proper person, for every 150 of
rent, when required (except at hay or corn harvest),
without being paid for the same." The Duke's
agent had desired the tenant to send a cart to carry
coals from the railway station to the Duke's man-
sion at Blenheim. This the tenant refused to do,
though he offered to send the horses and the man,
contending that the Doke was to find the cart. This
was the point in contention between the parties.
The case was tried at Oxford before Mr. Justice
Byles, who reserved the point, the verdict being
entered for the Duke subject thereto. Mr. Huddle-
ston, Q.C., had obtained a rule on the part of the
tenant to set aside the verdict and enter it for him.
Mr. Gray, Q.C., and Mr. Cripps argued on the
part of the Duke, in support of the verdict, and
against the rule to set it aside; They contended
that, according to the agreement, as the tenant was
to do " team work," and it could not be done with-
out a cart, he was bound to find the cart.
In the course of the argument of Mr. Cripps,
Mr. Justice Crompton said, in the course of his
reading he had met with the following lines, which
seemed to show that the team was separate from
the cart :-
66 Giles Jolt was sleeping—in his cart he lay,
"Some waggish pilferers stole his team away.
" Giles wakes and cries, ' Odd's bodikins, what 'a here?
66 Why, how now, am I Giles or not ?
Si 6 It he, I've lost six geldings to my smart,,,,
"' If not, odd's bodikins, I've found a cart.
(Much laughter.)
Mr. Justice Blackburn cited some lines from one
of Wordsworth's poems—we believe from the Wag-
goner—the lines beginning thus:—
"My jolly team will work alone for me."
Mr. Cripps cited Walker's Dictionary ;—" Team,
a number of horses drawing the same carriage ;"
and so Johnson's Dictionary—" A number of horses
drawing the same carriage.
Mr. Justice Cr, mpton said these citations seemed
to imply that the team was distinct from the car-
pps urged that the team without the cart
riage.
Mr.
would be of no use, and he cited a stanza from
Gray's Elegy ;
bsbicokrnle gylieeblde,hath broke ;
"Oft"rr dhiedirthfuerhroarwvoosfti, ttohtehsetiur
team
m afield,
stroke('
" Howoowjobcuowndedditdhethweyooddrsivbeentheieatrh
theirHe also cited the description given by Caesar iar o the
mode of fighting from the chariot adop-ed by the
ancient Britons, who used to come out of their
chariots and "percurrere per tenionem." The
learned counsel also alluded to what he called the
"graphic" account of the battle of Bull's Run, in
which it was stated that " the teamster cut the
traces of the horses."

Mr. HuddlestonTQ C., and Mr. Griffits argued
on behalf of the farmer, in support of the rule to
enter the verdict in his favour. They cited Bos-
worth's Anglo-Saxon Dictionary :—" Team: issue,
offspring, progeny, a succession of children ; any.
thing following in a line."
Mr. Justice Crompton—Surely the word there
must be spelt " teem P'' (Laughter.)
, The leurued Cuuntel cited Richardson's ,Diction-

"We fairies that do run
" 'By the triple Hecate's team,
" From the presence of the sun,
"'Following darkness like a dream;
" Now we frolick.'
—Shakspere's Midsummer Night's Dream.
" am in love, but a team of horse shall not pluck that
from me, nor who 'tis I love—Shakspere.
" After the declining sun
"'Had chang'd the shadows, and their task was done,
"'Home with their weary team they took their way."
—Roscommon.
"'He heav'd with more than human force to move
" A weighty stone the labour of a team.'—Dryden.
" 'ln stiff clays they may plough one acre of wheat with
a team of horse.'—Mortimer.
" ' Any number passing in a line.
" Like a long team of snowy swans on high
" ' Which clap their wings, and cleave the liquid sky.'
—Dryden.
"To team (v. a., from the noun), to join together in a
team,
" ' By this the night forth from the darksome bower
" ' Of Erebus her teamed steeds gan call.'
—Spenser (Vtrgil's quart.)"
After a long and interesting argument the learned
Judges consulted together and then delivered judg-
ment.
Mr. Justice Crompton said he thought that the
duke, the plaintiff, had not made out his case so
clearly as to sustain a forfeiture. In the modern
sense of the term the word " team," to -day the least,
did not clearly imply the cart as well as the horses.
He thought that the meaning was that the farmer
was to bring the horses and do the work he was set
to. Something must be added to the agreement to
make sense of it. It might be said that it was not
stipulated that the duke should find the cart. But
so neither was it stipulated that the farmer should
do so. And then it must be considered that the
duke was to prescribe the work to be done.
And the farmer could hardly bring the proper
vehicle or tackle before he knew what the work was.
Moreover, the agreement was not to draw the coals,
but to perform the team work. If it had been to
draw the coals, then the tenant would have had to
find the cart. But it was not so. The work to be
done was not confined to agricultural work. The
work might be to draw timber, or carry coals, or
draw a plough or harrow, or what not. In all these
cases the tackle or vehicle would vary. And if in
all these cases the tenant was to find it, the contract
would be very oppressive. He thought that it was
enough if the farmer sent the horses and the driver
to be put to such purpose as the Duke's agent might
please. It was to be lamented that these contracts
were not made more;clear ; but on the best con.
struction he could put on the agreement it did not
mean that the tenant was to bring the cart.
Mr. Justice Blackburn concurred. No doubt it
was a general legal principle that if a man con-
tracted absolutely to do a specific thing he must do
it, and find the means to do it, as in the common
mercantile case of a vendor contracting to sell goods
" free on board"—that is, to put them on board
free of charge, in which case, of course, he must find
lighters for the purpose, though, on the other hand,
the vendee must provide and name the ship. So
here, if the contract had been to draw the coals, the
farmer must have found the cart as well as the
horsee. Bat here the Duke was to define the work
to be done, and it must be work proper to be done
by a team of horses. It might be to break up a
field, in which case the tenant might say, "Hera is
my team, and I am ready to do the work; but
where is the plough ?" So, if he were set to draw
timber, he might ask for clumps and chains to draw
it with; so, if he were asked to draw coals, he had a
right to demand the cart, for it was impossible that
the team should do all these varied kinds of work
without the proper tackle and vehicle.
Mr. Justice Mellor differed, and thought that the
faroer was bound to provide the cart. It might
well h,-‘ that the Duke might not have the proper
vehicles te' do the work, for he was to do the team
work, and ha could not do it without the vehicle or
tackle. The eeh!ract was not merely to farnish the
horses and man, 1)0 to do the team work, and that
bound him to do and provide all that was necessary
to do the team work.
The majority of the Con:rt being, however, in
favour of the former, the rule was absolute to enter
a nonsuit,
Mr. Gray observing, however, that, as it was
ejectment, the Duke could bring another action
anyhow.

NEW THE ATRE-RO YAL, ADELPIII.-
Sole Pronti.tor and Manager. M. B. Wshster.
THIS EVENING, THE ['BETTY HORSEBILEAKER.
Miss Woolgar.
4t to Eig-ht, the New Drama of LEAH: Miss Bate-
man, supported by Messrs. Arthur Stirling, R. Phillips, 1311-
Iw:ton, Stuart, Stephenson, Eburne; Miss H. Simms, and
Mrs. Billing-ton.
To elneindo with LADY BELLE BELLE; or, Fortunio
mid his Seven Magic Men. Messrs. J. Clarke, it. Phillips,
ttephenson ; Miss Woolgar, Miss K. Kelly, Miss Patti
"sei)hs, Miss L. Laidlaw, Miss Seaman.

Commence at 7.

H.-E VERY NIGHT.
MISS BATEMAN.

yrShSe
IBI4At ja-EppN,IaAN.,
—THIS
EVENING,AF.H.--tTTllilcSActress
misa
BATEMAN, in the character of Lr.rZi. Inag consequence of
with which Miss the unbounded s.ne.e„,
Bateman's imperso-
nationthe riLcipai character in the new Five Act Drama
of Pb en tt n r
FATI has e
fa e
Webster begs to announce
of L •
it will be per orme EVERY EVENING until further
that
notice.

HIGH WATER AT LONDON BRIDGE.
cHIS DAY.—Moiaing, sh. 12,.n.—Afternoon, sh. 38m.
r 0-Molmo-cf.-Morning, sh. 57m.—Afternoon, 6h. 18m.

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The Weather—Sun Office, Feb. 12, 1864.

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