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Statement of Defence. 1. The defendant denies the breaches alleged in the 5th para- Statement graph, and the damages alleged in the 6th paragraph of the of defence. statement of claim.
2. The stipulation as to the time of the performance of his said agreement by the defendant was waived from time to time by the plaintiff before any breach thereof, and a reasonable time had not elapsed after the last waiver before the commencement of this action.
3. The defendant is able to deduce a good title to the said messuage and lands, and is ready and willing to execute a conveyance of the same within a reasonable time.
Action against Vendee on an Agreement to assign a Lease.
1. By an agreement in writing bearing date the 12th day of Claim July, 1877, and made between the plaintiff and the defendant, against
purchaser the plaintiff agreed to sell and assign to the defendant the lease on an of his then dwelling-house and licensed premises known as “The agreement
for the Grapes,” and the goodwill thereof, for the remainder of a term assignment then to come and unexpired, which was about nineteen years, sub- of a lease. ject to the yearly rent of £92, and to the performance of the covenants thereby reserved and contained, together with the furniture, fittings, utensils, and effects, according to inventory, for the sum of £1500, to be paid as follows :-£100 as a deposit, and £1400 on the 26th day of July last, and the defendant thereby agreed to accept such assignment, and to pay to the plaintiff the said sum of £1400 on the said 26th day of July last; and it was also mutually agreed that whichever of them should refuse or neglect to perform his part of the said agreement, should pay to the other of them on demand the sum of £300 as and for liquidated damages, to be recoverable in any of her Majesty's courts of law.
2. The plaintiff has always been ready and willing, and has offered to assign the said lease of his said dwelling-house, and the goodwill, fixtures, and utensils in trade to the defendant, and has fully performed his part of the said agreement; but the defendant has wrongfully refused to accept or pay for the same.
Against 3. The plaintiff says that the defendant has neglected and purchaser
refused to pay to the plaintiff the said sum of £1400 pursuant agreement to his said agreement, or to carry out his part thereof, and all for the assignment
times have elapsed and all conditions have been fulfilled and of a lease. all things done on the part of the plaintiff necessary to entitle
him to recover from the defendant the said sum of £300; but the defendant refused and still refuses to pay
The plaintiff claims :-
Defence of fraud.
Statement of Defence and Counter-claim. 1. The defendant denies that his refusal to pay was wrongful, or that he acted wrongfully in refusing to carry out the said agreement.
2. The defendant further says that the said sum of £300 is not due, nor is any part of it, and that such a sum is a penalty and not agreed or liquidated damages.
3. The defendant was induced to enter into the agreement mentioned in the statement of claim by the representations of the plaintiff that the takings of the public-house called the “Grapes Inn” were from £160 to £180 a month, and that the payments to the brewer and the distiller were £60 and £40 respectively, that the house was capable of doing a much larger business, and further, that the brewers and distillers were prepared to lend £1100 upon the security of the lease and goodwill of the premises.
4. The said takings were not in fact £160 a month, but considerably less.
5. The said payments to the brewers and distillers were not in fact £60 and £40 respectively, but considerably less.
6. The said brewers and distillers were not in fact prepared to lend £1100 or any other sum upon the said security or at all, nor was the house capable of doing a much larger business.
7. The representations mentioned in the 3rd paragraph of Statement
of defence this statement of defence were false to the knowledge of the
setting up plaintiff when he made them to the defendant, and were made fraud. by him fraudulently; or if they were not then false to his knowledge, yet he had no belief that they were true, and no reasonable ground for believing them to be true, and he stated them to the defendant as facts within his knowledge for the purpose of inducing the defendant to enter into the said agreement.
And by way of counter-claim the defendant says as follows:
1. The defendant repeats the allegations contained in the Counter3rd, 4th, 5th, 6th, and 7th paragraphs of the statement of de- claim,
praying fence, and says further that he was induced by the said repre- damages sentations of the plaintiff to pay the sum of £100 by way of and a
return of deposit upon the purchase of the premises referred to in the the deposit. above-mentioned agreement between the plaintiff and the defendant.
2. Shortly after the deposit of the £100 and within a reasonable time and before he had entered into the actual possession of the lease and goodwill of the said premises, or of the said premises, the defendant discovered that the said representations were false and fraudulent, and he thereupon immediately rescinded the said agreement, and demanded back the said £100 which he had paid to the plaintiff as above stated.
3. The plaintiff refused to pay to the defendant the said £100, and he has not repaid the same, nor any part of it.
4. The defendant also seeks to recover the said £100 as money payable by the plaintiff to the defendant, for money received by the plaintiff to the use of the defendant.
The defendant claims :-
Action for Recovery of Deposit paid to Agent on Sale of Property
on the Vendor failing to complete. 1. The plaintiff is an innkeeper.
Claim 2. The defendants are auctioneers.
auctioneers 3. On or about the 17th day of October, 1876, an agreement for recovery
Claim was entered into between the plaintiff and C. J. L., whereby the against auctioneers
said C. J. L. agreed to sell to the plaintiff the Duke of York for recovery public-house, Road, in consideration of the sum of £50 of the deposit.
then paid by the plaintiff as a deposit into the hands of the defendants, and of a further sum of £2000 to be paid by the plaintiff to the said C. J. L.
4. By the said agreement it was provided that the said sale should be completed by the said C. J. L. by the 25th October, 1876, and that the said C. J. L. would do all necessary acts for duly transferring the licence and magistrate's certificate to the plaintiff.
5. The said C. J. L., as the defendants well knew, wholly failed to complete the said assignment aforesaid, or to do all necessary acts for transferring the licence or magistrate's certificate to the plaintiff as aforesaid, and has wholly neglected and failed to do so, and has refused and become incapacitated from so doing.
6. The consideration for the said agreement and said deposit aforesaid wholly failed.
7. The plaintiff thereupon, as he lawfully might do, demanded of the defendants the said deposit of £50 aforesaid ; yet the defendants have wrongfully refused and still refuse to hand over or refund the same.
The plaintiff claims as follows:
the same became due until final judgment.
Action for Seduction of Plaintiff's Daughter. Claim for 1. The plaintiff is a farmer residing in the village of seduction in the county of — The defendant is a young man of in
dependant means residing in the same village.
Loss of (a) The plaintiff in an action for seduction is never the woman who services the has been seduced ; but someone between whom and herself there existed foundation in the eye of the law, at the time of the seduction, the relation of master and of the servant. A right of action is given to such a person merely on the ground action of that, as a consequence of illness resulting from the seduction, he has lost seduction.
2. Before, at the time of and since the seduction herein- Claim for
seduction. after mentioned, Jane P., the daughter of the plaintiff's wife, lived with the plaintiff and his said wife, and was treated by
for a time the services of the woman. It is laid down in some books that there must be actual pregnancy, if not the
birth of a child, consequent on Quære, Is the seduction, before an action will lie. But it is submitted that this is actual not so, and that any kind of illness which is immediately produced by pregnancy the seduction, and which is sufficient, even temporarily, to deprive the essential to master of the services of the woman, is enough; and there is for this the action ? proposition the authority of the case of Manrill v. Thomson, 2 C. & P. 303, where the plaintiff recovered £100 damages, although the woman did not become pregnant. The illness relied upon in this case was that the woman "continued sometime in a state of great agitation, and received medical attendance, and was obliged to be watched lest she should do herself some injury."
There are therefore at least three essential ingredients in an action Material of seduction : 1. The relationship of master and servant between the averments plaintiff and the woman seduced. 2. The seduction of the woman, in the while in the plaintiff's service, by the defendant. 3. Her subsequent claim. illness, and loss of service and damage to the plaintiff; and it is necessary that averments disclosing all these facts should appear on the face of the statement of claim. It will be seen therefore that the law gives neither to the woman nor to the parent any remedy where there has been seduction not followed by pregnancy or illness; and even in cases where pregnancy or illness is joined to the seduction, there may be no remedy if the woman at the time is residing away from the house of her parents, and the person in whose service she is refuses to bring an action. Suppose that her seducer is her master. In such a case there would be no action. The girl could not bring it; Cases the father is in the same position, because she is not in his service; where and the master cannot and would not bring an action against him- there is no self. Even if in the case supposed, as a consequence of the seduc. remedy for tion, the girl is thrown ill upon her father's hands, and he expends a seduction large sums of money in attending to her and the child, still he followed by would have no right of action. (Grinnell v. Wells, 7 M. & G. 1033.) illness. In such a case, however, it has been held that if it could be proved that the service was not bonâ fide, but a mere device or contrivance to get possession of the person of the woman, then the father would have an action on the ground that she remained in his service. (Speight v. Oliviera, 2 Stark. 495.) Another case in which there would be no remedy for a seduction, joined with subsequent pregnancy and illness, is the following. Suppose a woman in the service of her father or one master at the time of the seduction, and in the service of another master at the time of the pregnancy and illness, no action would lie by either master or the father. The father or first master could not sue, because there was no illness while in his service, and no loss of service. The second master cannot sue, because she was not seduced while in his service. (Davies v. Williams, 10 Q. B. 725.)
To entitle a father to sue in this action for the loss of his daugh- What is ter's services, it is not necessary to show any contract of service evidence of between them. (Erans v, Walton, L. R. 2 c. P. 615.) It is sufficient service to that the woman is not bound to give her services to anybody else, and entitle a that living with him or only temporarily absent, he can at any moment parent command her services. If the father is dead, the mother or any other person who stands in loco parentis to the woman seduced has his rights. There is one important difference between the case of Difference