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![handle is hein.slavery/ssactsengr0074 and id is 1 raw text is: THE KING V. WHISTON
good title and was lawfully possessed of the negroes, and the defendant covenanted
that, the plaintiff performing every thing in the deed contained on his part, he would
pay the annuity, and the breach alleged was non-payment, the defendant pleaded that
the defendant was not lawfully possessed of the negroes. On demurrer to the plea,
Lord Mansfield said, The distinction is very clear. Where mutual [606] covenants
go to the whole of the consideration on both sides, they are mutual conditions, the
one precedent to the other. But where they go only to a part, where a breach may
be paid for in damages, there the defendant has a remedy on his covenant, and shall
not plead it as a condition precedent. If this plea were to be allowed, any one negro
not being the property of the plaintiff would bar the action. So here, it cannot be
contended that, if in any one week the sovereign had been unpaid, that default would
put an end to a contract made up of several stipulations, some of which have been
executed. It is immaterial to consider whether or not the replication be good.
Williams J. concurred.
Coleridge J. I think both the replication and the plea bad. The plea is not good,
unless one party to a contract like this may treat it as rescinded, if the other fails in
the slightest degree to perform his part of it. The rule is that, in rescinding as in
making a contract, both parties must concur. In Withers v. Reynolds (2 B. & Ad. 882),
each load of straw was to be paid for on delivery. When the plaintiff said that he
would not pay for the loads on delivery, that was a total failure; and the plaintiff
was no longer bound to deliver. In such a case it may be taken that the party
refusing has abandoned the contract. The present case is different; and the plaintiff
is entitled to judgment.
Judgment for the plaintiff.
[607] THE KING against THE INHABITANTS OF WHISTON. Wednesday, January
27th, 1836. Under stat. 56 G. 3, c. 139, sects. 1, 2, when an apprentice is bound
from one parish into another, the indenture is not valid for the purpose of settle-
ment, unless notice has been given to the overseers of the latter parish, pursuant
to sect. 2, before the indenture was allowed. But, on appeal against an order of
removal grounded on such indenture, the respondents are not bound in the first
instance to prove such notice : if there be no evidence to the contrary, the notice
will be presumed.
[S. C. 6 N. & M. 65; 5 L. J. M. C. 67.]
On appeal against an order of two justices, whereby Thomas May and his wife,
and their children, were removed from the parish of Saint Mary in the town of
Nottingham to the township of Whiston in the West Riding of Yorkshire, the sessions
confirmed the order, subject to the opinion of this Court upon the following case.
The pauper, a poor boy of and legally settled in the township of Dinnington in the
said West Riding, was, in December 1818, pursuant to an order of two justices of the
said riding, bound apprentice by the churchwardens and overseers of the poor of
Dinnington, to James Herring, residing within the township of Whiston in the same
riding, by indenture duly signed and allowed, for a term therein mentioned; and he
served Herring under the indenture for more than forty days in Whiston. The town-
ship of Dennington is about five miles from the township of Whiston ; each township
maintains its own poor separately ; and both are within the same county, and within
the jurisdiction of the peace of the two magistrates who made the order for the bind-
ing, and who afterwards signed their allowance of the indenture. On the hearing of
the appeal at the General Quarter Sessions for the town and county of the town of
Nottingham, the respondents refused to call evidence to prove that notice was given
by the overseers of Dinnington to the overseers of Whiston, of their intention to bind
out such apprentice, no evidence [608] having been offered by the appellants to prove
that such notice was not given. The question for the opinion of this Court was,
whether the respondents were bound, under the circumstances, to prove that notice
was given.
Whitehurst, in support of the order of sessions. First, if the notice was not in
fact given according to stat. 56 G. 3, c. 139, s. 2 (a), the binding is not therefore void.
(a) Stat. 56 G. 3, c. 139, s. 2 (latter part) is as follows :- Provided always, that
no indenture shall be allowed by any justice of the peace for the county into which
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