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![handle is hein.slavery/ssactsengr0095 and id is 1 raw text is: BADELEY V. VIGURS
although I certainly had doubts as to whether enough was shewn in this modern loose
mode of pleading. As to the third replication, the answer which it sets up does not
depend on the legality or illegality of the sale which was threatened : it is only said
that the captain threatened to sell the plaintiff as a slave. I have much doubt whether
that does not mean that the plaintiff would thereby become a slave, and that he had
reasonable ground for believing this. The fact, if it were so, that California was a
state in which slaves might be legally sold would rather be in the nature of evidence
that there was such reasonable ground. I am [71] not prepared to say that this
replication does not shew an answer to the plea.
Judgment for the plaintiff on the demurrer to the second replication, and for the
defendant on the demurrer to the third (a).
EDWARD BADELEY AND WILLIAm NANSON LETTSOM against Louis VicuRs, Executor
of John Vigurs. Friday, June 30th, 1854. Declaration by B. and L. against
the executor of V., alleged that G., holding premises under lease for 99
years expiring in December 1849, underlet them to V. and S. for a term ending
in March 1849, V. and S. jointly and severally covenanting with G. to repair
during the term, and to deliver up the premises to G., or his assigns, in repair
at the end of the term ; and V. and S. entered and became possessed as joint
tenants :-That during the continuance of the Lease to V. and S., G. granted his
reversion to S., B. and L. :-That afterwards V. assigned his interest in the
under-lease to S. :-That afterwards S. died, before the determination of the
under-lease made to V. and S. :-Breach : That V. did not deliver up the premises
in repair, at the expiration of the under-lease to V. and S.-On demurrer to the
plea : Held, that the declaration shewed a good cause of action.-For that the
whole reversion existing at the time of the breach was then in B. and L. alone ;
either from the grant of the reversion by G. to S., B. and L. operating so as to
cause one undivided third of the interest to coalesce with so much of S.'s interest
in the term (which semble was the legal effect), or from one sixth then coalescing
and another sixth on the subsequent assignment by V. to S.-That B. and L.,
being solely interested in the whole existing reversion, could sue alone on the
covenant, though the damages they could recover must be commensurate with
their interest.-That, supposing (which semble was not the case) that, during the
interval between the grant by G. to S., B. and L. and the assignment by V. to
S., S. was interested in the covenant both as covenantor and covenantee, this,
though it might have suspended and so destroyed the right of action for any
breach happening at that time, did not affect the right to sue on the covenant
for a breach happening after S. ceased to be so interested.-That the right of
action on such a covenant, by virtue of privity of contract under stat. 32 H. 8,
c. 34, s. 1, is apportionable : but in this case the plaintiffs would recover without
apportionment, since the covenantee was bound to leave the whole of the premises
in repair, though the plaintiffs B. and L. would be entitled to only two thirds of
the damages.-Defendant pleaded : That J. had demised the premises for the 99
years to a party who assigned to G., with covenants to keep and leave in repair:-
That after G. had demised to V. and S., and before V. assigned to S., V. and S.
demised to T. for a term ending in June 1848, T. covenanting to keep and leave
in repair :-That T. died, and his estate came to M.-That after the death of S.
and T., and during the continuance of all the terms, J. sued B. and L. for not
keeping in repair.-That afterwards, in July 1844, J., B. and L., and M., without
the consent of V., made an agreement: by which M. was to pay J. one sum, and
B. and L. to pay J. another sum; M. was to pay J. the costs of the action he
had commenced, and all rent up to June 1844; M. was to deliver up possession
to J. : B. and L. were to deliver up to one F. the lease for the 99 years, in trust
for J., but to be produced by F. to support any claim by B. and L. upon V. or
any other person for recovering rent due or to become due to B. and L., or for
indemnity in respects of payments by V. and L. under the agreement, or liabilities
(a) See stat. 17 & 18 Vict. c. 104, part. 3, s. 243. Stat. 7 & 8 Vict. c. 112, is
repealed by stat. 17 & 18 Vict. c. 120, from 1st May, 1855. See sect. 3, and stat.
17 & 18 Vict. c. 104, s. 3.
4 EL. & BL. 71.](ViewImageLocal?handle=hein.slavery/ssactsengr0095&div=1&collection=&method=preview&ext=.png&size=3)