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![handle is hein.slavery/ssactsengr0078 and id is 1 raw text is: FULLARTON V. MITTELHOLZER
other persons know of its existence : the case, therefore, comes within the doctrine of
the County Registration Acts, under which it has often been held that the want of
registration does not affect a conveyance as between the pur-[1020]-chaser and vendor,
but the purchaser registers for his own protection against other parties.
Williams J. It seems to me that the contract to pay by instalments made no
difference, but that this was an absolute contract in the first instance. It has been
argued, as to the second plea, that, although the agreement was valid at the time of
making, it was invalidated by the ordinance of March 1834, if something was not
done within a given time. But by whom? Nothing is shewn which of necessity
imposed that obligation on the vendor. It was the business of the transferee to make
the contract available to himself by complying with the regulation. As to the fourth
plea, the whole question is, who shall bear the loss occasioned by a vis major. And
that depends much upon the question who was the proprietor when that loss was
occasioned. The property in the services of these labourers had been transferred to
the defendant. Then the question is analogous to those which often arise in cases of
loss by fire; as, whether the goods destroyed were in transitu or the transit was
ended. If the property here had passed, and the residue of it was destroyed by a via
major, the loss must fall upon the proprietor of the thing, namely, of the services
during the unexpired term. And in my opinion that was the case.
Wightman J. The question turns entirely, or almost so, on the effect of the
contract. If it was an assignment of all the services for a gross sum of money, the
plaintiff is entitled to recover all that remains due : but the defendant argues that the
sum agreed for was in the nature of a rent, and therefore the plaintiff is not [1021] so
entitled. Were it not for the clause of resumption at the end of the agreement, this
question could hardly arise. But it seems to me that that is a clause which the
vendor alone could take advantage of, and which does not controul the agreement, or
make it any thing less than a sale for the entire sum. Then the second plea appears
to me to afford no answer. The local law made the contract, in default of registra-
tion, invalid only for the purpose of conveying the services of the labourers. If the.
question were whether that duty was incumbent on the vendor or the vendee, one
would suppose that it lay upon the party most interested. Had the whole money
been actually paid down, it would be quite clear that the vendee was that party. The
analogy between this case and those under the Register Acts is strong; and in those
Mr. Erle admits that the duty of taking care to secure the title rests with the vendee.
I think therefore, that in the present case it was the defendant's business to enter the
memorandum. As to the fourth plea, it appears to me that the ordinance could not
affect the plaintiff's right. He had done all that he professed to do, in consideration
of a sum of money ; and it makes no difference in principle, whether a sum in gross is.
to be paid in a short period, or to be paid by instalments during several years. With
respect to the first plea, I think there is no pretence for saying that the defendant
should have a verdict. Consent, there, cannot mean the implied assent to the
passing of a statute, but must signify an actual assent; and of that no evidence-
appears.
Judgment for plaintiff (a).
[1022] IN THE EXCHEQUER CHAMBER. (ERROR FROM THE QUEEN'S BENCH.)
FULLARTON against MITTELHOLZER. 1845. See note, p. 989, ante.
Judgment being entered up in the preceding case for the plaintiff below, on the.
verdict upon the 1st and 4th issues, and non obstante veredicto on the 2d issue, and
on demurrer to the 3d plea, the defendant brought error in the Exchequer Chamber,
and assigned, as special grounds, that the declaration was insufficient in law; that the
3d plea was sufficient in law; that the 2d plea was sufficient in law, and that judg-
ment, non obstante veredicto, ought not to have been given on the issue upon the
replication to that plea; and that judgment upon the verdict on the 4th issue ought.
to have been arrested. The plaintiff below joined in error.
(a) See the next case.
K. B. XLIV.-13
385
6 Q. B. 1020.](ViewImageLocal?handle=hein.slavery/ssactsengr0078&div=1&collection=&method=preview&ext=.png&size=3)