+ 2(,1 1/,1(Citation: 103 Eng. Rep. 926 1378-1865

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BUTTERFIELD V. FORRESTER

gooseberry hedge, was in the actual occupation of a tenant at the time : yet heldthat the whole passed under the description of "all his copyhold cottage andpremises;" the words "then in his own possession" being merely a mistakendescription, following the mistake of the surrender, which mentions the croft withthe rest as then being in his possession.

This was an ejeetment to recover one croft and two roods of land in Scotter, inthe county of Lincoln. The premises were copyhold, holden of the manor of Scotter,and claimed by the lessor of the plaintiff as heir of Benjamin Lamb, the tenant lastseised. The defendant claimed under the widow of Benjamin, who derived title bydevise from her husband, he having previously surrendered to the use of his will.That surrender was enrolled on the 28th of October 1800, and recited a surrender byBenjamin out of Court on the 14th of July preceding of "all his copyhold cottage,with a croft adjoining, and a common right and north-moor-gate belonging to thesame; all which premises were then in his own possession," to the use of his will.On the same 14th, of July he devised to his wife "all his copyhold cottage andpremises then in his own possession, for her life ;" and after her decease, to R. Elsom,&c. The testator died within a few days after making his will. At the time ofmaking his will and the surrender out of Court he in fact only occupied the cottageand a garden behind it: the croft, which was separated only.by a gooseberry hedgefrom the cottage and garden, was then and till the testator's death in the actualpossession of the defendant as his tenant. It was contended at the trial beforeBayley J. at Lincoln, that the croft mentioned particularly in the surrender, butomitted to be so mentioned in the will, and which was in fact let to and in thepossession of another person, did not pass to the widow under the description of "his(59] copyhold cottage and premises then in his own possession;" though it wasadmitted that if the croft had then been in his possession, it would have passed underthose words: but the learned Judge being of opinion that the latter words were amere misdescription, copied probably from the words of the surrender which mis-described the fact; and that the former words, "copyhold cottage and premises,"were sufficiently certain to carry the croft which formed part of those premises ; non-suited the plaintiff.

Vaughan Serjt. now moved to set aside the nonsuit, and stated the case as beforementioned.

Lord Ellenborough C.J. The surrender and the will are as one instrument. Theywere cotemporaneous acts; and that which was a mere mistake in the surrender, wasfollowed in the will, in describing all the premises as being in the copyholder's posses-sion, when part of them was in the possession of his tenant: but it is clear by thegeneral words that all was meant to be passed.

Le Blanc J. The croft was not in the testator's possession at the time of the sur-render to the use of his will, though it is there described as being in his possession.And that mistake was followed in the will.

Per Curiam. Rule refused.

(60] BUTTERFIELD against FORRESTER. Saturday, April 22d, 1809. One who isinjured by an obstruction in a highway against which he fell, cannot maintainan action if it appear that he was riding with great violence and want of ordinarycare, without which he might have seen and avoided the obstruction.

[Principle applied, Bridge v. Grand Junction Railway Company, 1838, 3 M. & W. 248;Tuff v. Warman, 1858, 5 C. B. (N. S.) 585. Dictum adopted, The Thuringia, 1872,26 L. T. 455. Principle explained, The Vera Cruz (No. 1), 1884, 9 P. D. 94;.10 App. Cas. 59; The Bernina (No. 2), 1887-88, 12 P. D. 69; sub nom. Mills v.Armstrong, 13 App. Cas. 1.]

This was an action on the case for obstructing a highway, by means of whichobstruction the plaintiff, who was riding along the road, was thrown down with hishorse, and injured, &c. At the trial before Bayley J. at Derby, it appeared that thedefendant, for the purpose of making some repairs to his house, which was close bythe road side at one end of the town, had put up a pole across this part of the road,a free passage being left by another branch or street in the same direction. That theplaintiff left a public house not far distant from the place in question at 8 o'clock in

926 11 EAST, 59.

LORD V. HOUSTON

the evening in August, when they were just beginning to light candles, but whilethere was light enough left to discern the obstruction at 100 yards distance: and thewitness, who proved this, skid that if the plaintiff had not been riding very bard hemight have observed and avoided it: the plaintiff however, who was riding violently,did not observe it, but rode against it, and fell with his horse and was much hurt inconsequence of the accident; and there was no evidence of his being intoxicated atthe time. On this evidence Bayley J. directed the jury, that if a person riding withreasonable and ordinary care could have seen and avoided the obstruction; and ifthey were satisfied that the plaintiff was riding along the street extremely hard, andwithout ordinary care, they should find a verdict for the defendant: which theyaccordingly did.

Vaughan Serjt. now objected to this direction, on moving [61] for a new trial;and referred to Buller's Ni. Pri. 26 (a), where the rule is laid down, that "if a manlay logs of wood across a highway; though a person may with care ride safely by,yet if by means thereof my horse stumble and fling me, I may bring an action."

Bayley J. The plaintiff was proved to be riding as fast as his horse could go, andthis was through the streets of Derby. If he had used ordinary care he must haveseen the obstruction ; so that the accident appeared to happen entirely from his ownfault.

Lord Ellenborough C.J. A party is not to cast himself upon an obstruction whichhas been made by the fault of another, and avail himself of it, if he do not himselfuse common and ordinary caution to be in the right. In cases of persons riding uponwhat is considered to be the wrong side of the road, that would not authorise anotherpurposely to ride up against them. One person being in fault will not dispense withanother's using ordinary care for himself. Two things must concur to support thisaction, an obstruction in the road by the fault of the defendant, and no want ofordinary care to avoid it on the part of the plaintiff.

Per Curiam. Rule refused.

[62] LORD against HOUSTON. Tuesday, April 25th, 1809. In debt by bill thedeclaration is good, though the sums demanded in the several counts amountaltogether to more than the sum at first demanded in the queritur; for that issuperfluous and may be rejected.

The plaintiff sued by bill in debt, and declared against the defendant, of a pleathat he render to him the sum of 77501., which he owes to and unjustly detains fromhim ; for that whereas, &c.: and so the plaintiff proceeded to set out in his first counta tertain deed for securing the payment of 16251. and interest: and concluded thatcount by alleging, that thereby "the defendant became liable to pay to him 16251.when requested, .which still remains unpaid, whereby an action hath accrued to theplaintiff to demand and have of the defendant the said sum of 16251. parcel of thesaid sum of money above demanded." In each ef five other counts for goods sold,money paid, &c. the plaintiff respectively demanded 16251., the four first of thoseconcluding that "by reason whereof an action hath accrued to the plaintiff to haveand demand from the defendant the said last-mentioned sum of money, further parcelof the said sum above demanded." And the last count stating the 16251. thereindemanded to be "the residue of the said sum of 77501. above demanded." And thenthe declaration concluded ; "Yet the said defendant although requested hath not paidthe said sum of money above demanded, or any part thereof, to the plaintiff, but hathhitherto wholly refused and still doth refuse, and the same still remains wholly dueand unpaid ; wherefore the plaintiff says that he hath sustained damage to the valueof 5001., and therefore he brings suit," &c. To this there was a demurrer, statingspecially (amongst other causes relating to other particulars in the several counts ofthe declaration not set forth here) that in the beginning, of [63] the declaration theplaintiff has complained of the defendant in a plea that he render to, him the sum of77501. only; and afterwards by the several counts thereof the plaintiff has claimedand declared for divers sums, amounting in the whole to a much larger sum, to wit,97501., and that the declaration is in that respect repugnant and inconsistent. That

(a) The book cites Carth. 194 and 451 in the margin, which references do notbear on the point here in question.

11 EAST, 61.