The Sun.
London, England, 1847-05-26 00:00:00

CLARKE V. WELLS.

Mr. WOOLLETT applied fur a rule nisi fir an attach-
ment against Mr. Wells, au attorney, and Wright, his
clerk, tor disobedience to an order ot Mr. Jus:ice Erle,
to deliver up certain papers, v, hich order Lati 1.1011 wade
a rule of court. The rule had been served personally
upon Weds and his clerk, and the) had refused to de-
liver up the papers.
It appeared trom the affidavits that much difficulty was
apprehended in the seiviee of the attiiehment, as it had
been found next to impossible to serve hint with the rule
of court. The person who had served him had called
several times, ant had only served him by meeting him
in the street, an.ipur,uing when he ran away. lie
paid the costs ordert-d by th. Master, but rctused to obey
the rule.—.llwe nisi g‘lintett
The court afterwards sat at nisi pritv, but no case of
any nnportAnce occurred.

COMMON PLEAS.--(THIS-DAY.)
(Before the Lunn ('lrli F JUSTICH in Bitlieu.)
31ARFLLET v. LEIFetIILI).
Mr. JONES (wan whom was Mr. Peacock) apps ared to
oppOse a demurrer to the judgment io this case. The
plaintiff had bought air estate or the defendant, with all
undertaking that an abstract of title should be turuish,d,
but that the inquiry should nht go further back than a
certain deed bearing d After paying the !nice
the plaintiff discovered that the title was bA. An
action was brought-, and a ver Act entered against
him ; but he sought reparation on the groan . of
there having been a breach, of the conditions of sale.
It was argued by Mr. Peacock that 'here had bon an
abstract deliver( d accordit g to the terms of the con-
ditions, and that it there nail been a bread] at all it
had not been property alleged in the eleclaration, and
that therefore trie plaintiff was not d to any relief.
In supp..krt of his view of the cas.r he cited Sin ,rt v.
II) ' where a horse Lad been sold with a warranty,
and this the plaintiff alleged had invalidated the bar-
gain. But on the trial it appeared that no notice
of unsoundness had been given, as was by law required,
before twelve o'clock of the ria) after that on which the
bale was effected. The allogadan, thereiore, was tuad-
missable, as the plea amounzed to non assumpsit, and
the rule ought to be redised. In answer to that it was
held, that the cuediti( ns of sal• had created a collateral
contract, and the case of "Park- r v. Palithir" was ci, ed to
show that such was the fact. It, that case the plsintiff
had agreed to sed a quaittit) of rice, w hich, aecordin,, to
the rules of the Ett-t. India Company, must be sold by
sample. The rice when produced, was unrqual to the
sample, and the defendant, on the taut pteaued non
assumpsit.
The LORD CHIEF JUSTICE inquired whether that ap-
peared oil the face of the contrac•, for he remKnbert ti a
case reported by Campbell, in which an action had been
brought on a contract to which there was a subsidiary
agreement. But that subsidiary agreement had Lot
appeared on the face of the declaration, and the plaintiff
was constrquently nonsuited.
Mr. PEAcocs, said that the applicant in this case had
requited that, to be done which the defendant had
never 'promised to do, and if the abstract was to be
consul:Tcd at all it would constitute a veation of hew on
which the Judges alane would have to decide. It' the
defendant had not delivered the deed of convey ante from
Mr. Bosanquet to. lr. Marfleet. which carried Lbe estate
in 1643, he would have tailed in that to fulal his en-
gagezients, but he had done so, and had therefore per-
formed all that was required of hiZn, and no rule nisi
ought to be granted.
The LORD CHIEF BARON said that he was of opinion
that there must be judgment for the plairtiff, as
the plea was a bad plea. The condition alleged in
the contract stated that 'he defendant had the power to
sdtealtievdertahagtoutdhefrdeeetlddantittleh.miTonnel plea denied tis and
-o • ed to give
certain abstract, though not the it.yusfr:tiosf good title,
but if this denial was to be effective at all it must be in
proper and direct terms, and not circuitous and argu-
mentative. The plea was therefore bad, for no cases
441nolivitedorcQuld bo cited, usiliwt,ol4-goa"