fendants. Now, there was no detriment to the plaintiffs; for there was nothing in the terms of the note to prevent them from suing Taillasson and Co. for the whole debt due to them. And there was clearly no advantage to the defendants.

ABBOTT C. J. I was not free from doubt at the trial, but I am now satisfied that the verdict is right. The facts are these: The plaintiffs were creditors, and the defendants debtors, to Taillasson and Co.; and, by the consent of all parties, an arrangement was made that the defendants should pay to the plaintiffs the debt they owed to Taillasson and Co., and as the demand of Taillasson and Co. on the defendants was for money had and received, it seems to me that the defendants, by acceding to this arrangement, made themselves liable for money had and received to the use of the plaintiffs. Thus the case stands, independently of the note. But it seems to me that the note makes no difference; for although it might, perhaps, be at first conditional, yet, afterwards, the condition ceasing, it became an absolute promise; and, if so, the defendants have absolutely acceded, and are liable to the consequences of the arrangement. The verdict, therefore, is right.

BAYLEY J. The legal effect of what has taken place is this; Coupland and Co. are indebted to Taillasson and Co. to the amount of 7681. for money had and received. The latter being indebted to the plaintiffs, a bargain takes place, by which Taillasson and Co. agree, that the money had and received by the defendants to their use shall be money had and received to the use of the plaintiffs. To this arrangement the defendants assent. Then their assent makes them debtors, and

1821.

WILSON

against COUPLAND.

1821.

WILSON against COUPLAND.

liable to an action of money had and received to the use of the plaintiffs. The agreement of the 14th August seems to me to be absolute, and not conditional. It is in effect an agreement to give the defendants three months, in which to pay the balance, which is an advantage to them; and the defendants agree to pay it then in England, unless the plaintiffs are, in the mean time, paid in the West Indies. That is, as it seems to me, an absolute promise. I am, therefore, of opinion that this action is maintainable, and that there ought to be no rule.

HOLROYD J. concurred.

BEST J. A chose in action is not assignable without the consent of all parties. But here all parties have assented, and from the moment of the assent of the defendants, it seems to me that the balance of 7687. became money had and received to the plaintiffs' use. It is said that the promise was conditional. That may, perhaps, be doubtful; but supposing it to be conditional, the event has happened upon which it became absolute. Rule refused.

Saturday,
November 9th.

DOE on the Demise of FENWICK and Others

against REED.

Where a de

fendant's an

cestor came into

EJ

JECTMENT for several messuages and land in the parishes of Simonburn, Wark, &c. in the county of possession of certain lands in Northumberland. In the year 1747, Edward Charlton,

1752, as a cre

ditor under a judgment obtained against the then owner of the land, and defendant's family had continued in possession ever since: Held, that the original possession having been taken, not under any conveyance, the length of possession was only primâ facie evidence, from which a jury might infer a subsequent conveyance by the original owner, or some of his descendants, but that it might be rebutted, and that the jury must not presume such conveyance from length of possession, unless they were satisfied that it had actually been executed,

esquire,

esquire, under whom the plaintiffs claimed, being indebted to John Rooke, to the amount of 850l., for which debts Rooke had obtained judgment, it was agreed between them, that Rooke should be put into the pos-, session of the rents and profits of the estates in question, until the debts should be satisfied thereout, which agreement was carried into effect, and Rooke entered into, and remained in possession until 1752. Edward Charlton, being at that time indebted also to John Reed, under whom the defendant claimed, Reed was desirous of getting into the possession of the estates held by Rooke, and by a certain indenture of assignment between Rooke and Reed, the former assigned over all the debt then remaining due, and his right of possession to the estates in question, upon the payment to him of the sum of 5751. Under this agreement, Reed entered into possession, and he and his family have continued so ever since. In the year 1801, a suit in chancery was instituted by the Charlton family, to recover possession of the estates, upon which, in 1821, the Vice-Chancellor directed the present action to be brought, prohibiting the defendant from setting up as a defence, that the debts due or assigned to John Reed, deceased, were paid 20 years ago, or that the same were still unpaid. At the trial, it was proved, in addition to the beforementioned circumstances, that the title deeds relative to these estates, (which deeds, however, extended to other estates also,) were still in the hands of the Charlton family, and that the lands being copyhold of the manor of Wark, the name of Rooke had remained upon the manor books till within a few years, having first appeared there in 1752. It appeared also, that moduses had been paid by the steward of the Charlton family, to

1821.

Doɛ dem.
FENWICK
against
REED.

the

1821.

DOE dem.
FENWICK
against
REED.

the then rector of Simonburn, in 1779, for several estates, including some of the estates in question. There was no distinct evidence of their value. Edward Charlton died in 1767, leaving a widow and a son then under age. The son, William Charlton, married in 1778, and died in 1797, leaving a son an infant. The question for the jury was, whether, under these circumstances, a conveyance of these estates, either from Edward Charlton or William Charlton to the Reed family, might be presumed. Bayley J., who tried the cause at the last assizes for the county of Northumberland, in summing up the case, after adverting to the different facts above stated, told the jury, that the real question for them to consider was, whether they believed that a conveyance had actually taken place; observing, that the loss of a deed of conveyance was less likely to take place, than of a grant of a right of way. And that, during the marriages of Edward and William Charlton, no conveyance could have been made without levying a fine; which being of record, might have been produced, if it had existed, The jury found for the lessor of the

plaintiff. And now,

Hullock Serjt. moved for a new trial, on the ground of misdirection. The true criterion by which to judge in these cases, is laid down by Lord Mansfield in Eldridge v. Knott (a), where he says, "There are many cases not within the statute of limitations, where, from a principle of quieting possession, the Court has thought that a jury should presume any thing to support a length of possession. Lord Coke says, that an act of parliament may

(a) Cowp. 215.

be

be presumed, and eyen in the case of the crown, which is not bound by the statutes of limitations, a grant may be presumed from great length of possession. It was so done in The Mayor of Hull v. Horner. (a) Not that in such cases, the Court really thinks a grant has been made, because it is not probable, that a grant should have existed without its being on record, but we presume the fact, for the purpose, and from a principle of quieting the possession." This then is the true principle which ought to have been presented to the jury in this case. And in Keymer v. Summer (b), Yates J. directed the jury to presume a grant of a right of way from a possession of nearly 30 years, although it appeared, there had been an absolute extinguishment of the right of way some years back by unity of possession. If the law is to be, as stated here, it will be open in every case of a right of way, or of the enjoyment of ancient lights or water, to go to the jury on the question, whether, although possession for 20 years has been proved, they believe, that in fact any grant was ever made, and evidence of the cautious or imprudent character of the supposed grantor will be receivable. This will, in all probability, make such possession very doubtful; for no one really supposes that such grants have any existence. Besides, if the jury do really suppose a grant to have been made, the length of possession is immaterial. And there was no use in the courts laying down as a rule, that 20 years' possession would warrant a presumption. As to the observations made with respect to the fines, they were not correct. For if there had been, as probably there was a settlement on the respective marriages

(a) Cowp. 102.

(b) Bull. N. P. 74.

of