C. B.]

MUMFORD AND ANOTHER v. GETHING.

[C. B.

be any circumstances tending to show an intention | business of copper-roller manufactures; I apprehend, existing between Moore the bankrupt and the mort- therefore, that the case comes clearly within that of magagee that the fixtures annexed subsequently to the chinery affixed to land, by the owner of the land, for the date of the mortgage should not pass as the mortgaged purpose of better and more beneficially using and enjoying estate, and in the absence of such intention the current the land of which he is the owner; and although the means of authority in the bankruptcy courts shows that such of such use and enjoyment be manufacture or trade, still annexation would enure to the benefit of the mortgagee. I am of opinion that all such of the articles in question In Ex parte Lelcher, 4 D. & Ch. 703, it was held that as are fixed to the freehold, whether by screws, solder, fixtures annexed for a year, which, as between landlord or any other permanent means, or by being let into the and tenant, would have been removable, became soil, are within the authority of Fisher v. Dixon, and part of the freehold, and did not pass to partake of the nature of the soil, and would hence descend the assignees. Erskine, C.J. there, after adverting to the heir along with and as part of the soil itself." to the general observations in favour of trade These later decisions are in accordance with the earlier fixtures, says: "But that is not the present case. cases of Wynne v. Ingleby, 5 B. & Ald. 625; ColeAgain, it is said that the property in question grare v. Dias Santos, 2 B. & C. 76; Rex v. The Indid not pass by the mortgage-deed. Now it always habitants of St. Dunstan, 4 B. & C. 686; and Place appeared to me that where the owner of the inherit- v. Fagg, 4 M. & R. 277. In Wynne v. Ingleby it ance affixes property to it, it becomes a fixture in the was held, certain fixtures, such as set-pots, ovens and general sense of the term, and part of the freehold; ranges, would go to the heir and not to the executors, and if the inheritance be afterwards sold or let, it goes and could not be seized under a fi. fa. In Colegrave with the freehold; and I confess I see no distinction v. Dias Santos, in which there was a question whether for this purpose, whether the deed be one of absolute stoves, grates, kitchen-ranges, closets, shelves, brewingconveyance, lease, or mortgage. A mortgage, there- coppers, cooling-coppers, wash-tubs, locks, bolts, fore, made by the owner of the inheritance will, with- blinds, &c., passed by the purchase of a house and the out naming them, pass all the fixtures therein." And conveyance of the house, the court said, some of the in another part of the judgment, he says: Again, it articles, namely, stoves, cooling-coppers, wash-tubs, is urged, that as to those articles which were attached water-tubs, blinds, &c., might be removed as between after the execution of the mortgage-deed, they conld landlord and tenant, but did not belong to the executors, not pass to the mortgagee. But there has not been but to the heir, and were, as between those persons, parcel cited any authority, or even dictum, for such a propo- of the freehold. In Rex v. The Inhabitants of St. Dunsition. I confess I know no case which goes so far as stan, Bayley, J. said, stoves, grates and cupboards were to determine, or even to intimate an opinion, that where parcel of the freehold, but they might be removed by the a mortgagor in possession alters the premises by addi-tenant during his term, and would go to the heir, and tion or otherwise, the mortgagee shall not take the not the executors; and in Place v. Fagg, 2 M. & R. benefit of such alteration. I can find no distinction, 277, the property in question was stones, tackling and therefore, substantially between those which were implements necessary for the purposes of making a affixed before and those affixed after the date of the mill. There had been a mortgage of the mill, and it mortgage-deed. In this point of view also I am of was held that the stones, tackling and implements opinion that all the fixtures alike passed to the mort-passed to the mortgagee; and we may observe, with gagee." There is also a very elaborate and learned reference to a point made by one of the learned counsel judgment of Mr. Commissioner Holroyd, in Ex parte for the plaintiff, that at all events the verdict must be for Reynel, 2 M. D. & De G. 443, in which the whole the upper millstone, that Liford's case, 11 Coke, 50, citing subject is fully discussed, and the general opinion ex- Wystorne's case, disposes of the point of law as correctly pressed is confirmed by the decisions in Ex parte stated in Amos on Fixtures, 257, where, in speaking of Broadwood, 1 M. & D. 631; Ex parte Price, 2 M. D. things constructively annexed, he mentions a millstone, & De G. 518 (in 1842); Ex parte Bentley, 2 M. D. & which is essentially a parcel of the mill. We think, De G. 541; Ex parte Cotton, 2 M. D. & De G. when the mortgagor, who was the legal owner of the 725; Ex parte Tagart, 1 De G. 531 The inheritance after the date of the mortgage, annexed effect of the annexation of the fixtures of a the fixtures in question for a beneficial purpose, he similar character to those in the present case by the thereby made them part of the freehold which had been owner of the inheritance was much discussed by the vested in the mortgagee; and consequently the plainH. of L. in a Scotch case of Fisher v. Dixon, 12 Cl. & tiffs, who were the assignees of the mortgagor, cannot F. 312. There the question was considered as arising maintain the action; and the verdict, therefore, must between the heir and executors, and Lords Brougham, be entered for the defendant. Cottenham and Campbell delivered very extensive remarks in favour of the heir. The subject-matter of annexation was steam-mills and machinery for working an iron-mine. Lord Cottenham, after disposing of the wholly inapplicable cases of landlord and tenant, says: "The case being simply this-the absolute owner of the land, for the purpose of better using that land, having erected upon and affixed to the freehold, and used for the purpose of the beneficial enjoyment of the real property, certain machinery; the question is, is there any authority for saying that, under these circumstances, the personal representative has a right to step in and lay bare the land, and to take away all the machinery necessary for the enjoyment of the land? It is not necessary to go beyond the present case, which was a case of machinery erected for the better enjoyment of the land itself." Again, in Mather v. Fraser, 2 K. & J. 536, a case of bankrupt mortgagor in possession of property, decided by Wood, V.C. in 1856, Fisher v. Dixon was cited. In giving judgment, the V.C. says: They (the mortgagors) conceived that the most profitable purpose for which they could use it would be the

Nov. 12.-CROWDER, J.-In this case, in which I delivered the judgment of my brother Byles and myself, I should have stated that I was desired by my brother Willes to state that he entertains some serious doubts as to whether the things in question were not chattels, and so did not pass to the assignees.

Nov. 15 and 17.

MUMFORD AND ANOTHER v. GETHING. Evidence-Admissibility of parol evidence to show the application of ambiguous contract-Restraint of trade.

M. and M., lace and muslin merchants, employed six travellers on different “circuits." There being a vacancy on the "Midland circuit," the defendant applied to them for employment as traveller on that circuit. He was engaged, and started upon a journey before any formal agreement was entered into. A list of the places to which he was to travel was sent down to him, together with an agreement, which he signed, whereby he agreed to enter into their employ

MUMFORD AND ANOTHER v. GETHING.

That the meaning of the agreement was, that the defen-
dant should pay 501. if he travelled on the same
ground for any other house after leaving the plain-wards.
tiffs:

That the evidence showing to what the agreement ap-
plied was rightly admitted:

And, lastly (Byles, J. doubting), that the agreement, even without the parol evidence, was not bad as in restraint of trade, the restraint being limited to the same ground on which the defendant should have travelled for the plaintiffs.

"To H. and W. Mumford. "In consideration of my entering upon your employ (Macdonald . Longbottom, 28 L. J., 293, Q. B., ap- at a salary, to commence with, at 50%. a-year, I hereproved.) with agree to do so with the understanding that, in the Declaration-For that in consideration that the plain-event of my wishing to travel, and doing so, for any

C. B.]

MUMFORD AND ANOTHER v. GETHING.

--

66

ing on the Midland circuit, the same ground" and “employ" are explained, and the meaning is clear. Then other evidence was given, that in fact it was communicated by the plaintiff's to the defendant that the Midland circuit was the ground over which he was to travel. Macdonald v. Longbottom is exactly in point. In that case the Court of Q. B. held, that both pieces of evidence were admissible both that the facts might be admitted to explain the words, and also that the fact of the communication of those facts to the defendant was admissible in evidence. As to the agree ment being in restraint of trade, I think on the face of the agreement that would be a very difficult question. This agreement extends over all England. I know it is a very plausible doctrine, that persons may be left to enter into and make contracts for themselves, but I should have great doubts about this but for the parol evidence. think, however, this evidence clearly admissible; and then the case is perfectly clear and falls within the decided cases.

[C. B. ERLE, C.J.-I am of opinion that this rule should | for another during that time would be repugnant to be discharged. The first question is, whether there was his giving his whole service to the plaintiffs, and any consideration for the agreement, which was as fol- that that is not the meaning. lows. [His Lordship read the agreement.] The cir- BYLES, J.-I am of the same opinion. The first cumstances under which the defendant entered into that point is, that there is no consideration on the face of agreement were clearly a consideration for entering the agreement. But the facts were, that, after a preinto it. He had proposed to enter into the plaintiffs' liminary arrangement had been come to, the defendant employ as a traveller, upon certain terms which were set out on the journey: a list of places was sent down afterwards to be put into writing, and had set out on a to him, and the agreement was signed. Assuming journey. That was only an inchoate employment, and that there is no consideration expressed, when the ciran agreement was afterwards come to pursuant to cumstances are explained there is abundant considerathe original agreement. The plaintiff might have said tion. Then it is said that there was no breach; that to the defendant, "If you won't sign this agreement this contract contemplates a travelling by the defenI will break off immediately." I think, therefore, there dant for another person during his employment by the was ample consideration for the defendant's entering plaintiffs. But that, independently of any contract, into this agreement. The great stress of the argument would be, to say the least of it, a gross desertion of his was, that the agreement is in restraint of trade. In my duty. And I think the meaning is, that he will not opinion, if the case had been taken without any parol travel for another after leaving the employ of the plainevidence, the agreement would have been good; for it tiffs, unless he should pay the plaintiff's 50. As to the would be limited in point of space, and being limited rejection of evidence, I think the evidence was rightly in point of space it would not be void as in restraint received. The words in the agreement are, "your of trade. The words "on any part of the same employ." It does not appear from the agreement what ground" limit the agreement in point of space. I en- that was. Again, take the words, "on any part of the tirely disagree with what has been said by the counsel same ground." It does not appear what that was. for the defendant as to the desire of the courts to ex- The agreement requires to be applied. It is just the tend these agreements in restraint of trade. If these case where extrinsic evidence is required to be applied. agreements were not upheld, employers must be over-The moment it appears that the defendant was travelcautious as to whom they should employ, for fear of injury to themselves by reason of persons leaving their employ and entering into that of others. It seems to me highly important to those who enter into such service as this, that they should be able to bind themselves not to use the information which they may obtain in | such service against their employers. In Mallan v. May, 11 M. & W. 666, Parke, B. says: "It is justly observed by Lord Wynford, in giving the judgment of the court in Homer v. Ashforth, that it may often happen that individual interest and general convenience render engagements not to carry on trade, or act in a profesfession in a particular place, proper; that engagements of this sort between masters and servants are not injurious restraints of trade, but securities necessary for those who are engaged in it; and that the effect of such contracts is to enlarge rather than cramp the employment of capital in trade and the promotion of industry." A person in the situation of the defendant is quite able to judge whether it will be for his advantage to enter into any agreement, as he shows by going very soon after into the employ of some one else, and travelling over the same ground that he had travelled over for the plaintiffs. But I am further clearly of opinion that the parol evidence was admissible to apply the contract. It is not admitted in order to vary the contract. It is admissible to show the circumstances to which wide words are applied. The word "employ" includes all possible purposes for which a person can enter into the employment of another; and the list is admissible to show that the defendant entered into the employ of the plaintiffs, not only in the muslin and lace trade, but as a traveller in what is called the Midland circuit. The evidence is therefore admissible to show the meaning of the word employ," which might mean any menial service. I think the case of Macdonald v. Longbottom is a perfectly correct decision. The contract there clearly related as well to the wool grown on the premises of the plaintiffs as to wool purchased by them from other persons. The words "your wool" would be indefinite, but were capable of being applied by parol evidence. The parol evidence in the present case being admitted, the contract was to enter into the service of the plaintiffs as a traveller on the Midland circuit, and the case falls within an abundance of decisions. As to the point that the contract meant that the defendant was to pay 50/. if he travelled for another during the time that he was being employed by the plaintiff's, I think his travelling

CROWDER, J.-I am of the same opinion, and think that none of the points can be maintained. First, as to there being no consideration, the language of the agreeement clearly imports a consideration, and the circumstances show it. There was no precise agreement before this was signed. It is said that the defendant had been engaged for three months, and that there was no new consideration. But if that agreement is good, it would be equally good if sent down the next morning. It was an inchoate agreement or proposal, and it became a complete agreement when the writing was signed. The next point is, that it was meant that he was not to travel for any one else during the employment by the plaintiffs. It is quite obvious that he was engaged as one of the travellers of the plaintiffs, and it is to my mind clear that the 50%. was to be paid if he travelled over the same ground after leaving the service of the plaintiffs. Then it is said that the plea was proved, and I think for that argument it must be assumed that I wrongly admitted the evidence. I admitted it to show to what the agreement referred. I thought it was very reasonable that it should be admitted, and I think now it was properly received. In Mallan v. May, Parke, B. says these restrictions. are for the benefit of trade. Upon these grounds I think the rule ought to be discharged. But when I look at the plea, I think upon the agreement alone the rule must be discharged. It says the defendant was bound to travel all over the kingdom. But the

ROBINSON (appellant) v. LORD VERNON (respondent.) County Court appeal-Release of cause of action given by one co-plaintiff without concurrence of the other-Evidence-Right to examine co-plaintiff in

reply.

[C. B.

The plaintiffs' case was closed without any question having been put on cross-examination as to any release by the plaintiffs of this claim, but the holding over the ejectment, and the fact of the action having been brought without John's concurrence, were SO elicited. The defendant rested his case upon the following release executed in the course of the day before the trial:

"To all whom these presents shall come, I, John Robinson, of Poynton, in the county of Chester, farmer for divers good causes and considerations hereunto The plaintiffs J. and R. brought their action in the moving, do hereby, for myself, my heirs, executors and County Court to recover from the defendant com-administrators, remise and discharge the Right Honourpensation for permanent improvements made by able George John Warren Baron Vernon, his heirs, exetheir mother (whose executors they were) on a cutors and administrators, and all his and their estates farm she had held under him. The action was and effects whatever and wheresoever, of and from all instituted by R. without the consent of his co-plain-sums of money, accounts, reckonings, actions, suits, tiff J., who then was, and continues, a tenant of claims and demands whatsoever which I and Ralph defendant. At the trial the defendant put in a Robinson, either as executors named and appointed in release, given by J. to defendant the day before, and by the last will and testament of Lydia Robinson, from all sums of money, &c., actions, suits, late of Poynton aforesaid, widow, deceased, dated on or claims and demands whatsoever, which J. and R. about the 16th of July one thousand eight hundred had, as executors or otherwise, against the defen- and fifty-two, and proved in the Consistory Court of dant. The plaintiff R. having had no notice what-the diocese of Chester, on or about the second day of ever of the existence of the release, asked to be allowed to put in reply his co-plaintiff J. into the witness-box, with the view of eliciting from him whether it had been fraudulently obtained; but the judge refused to permit J. to be examined: Held, that the judge was wrong, and that the plaintiff R. was entitled to examine his co-plaintiff J. as to the circumstances under which he gave the release. Case on appeal from the County Court of Cheshire kolden at Macclesfield.

This was an action tried in the Macclesfield County Court on the 5th May 1859, tried before me, Joseph S. John Yates, Esq., judge, and a jury. The plaintiffs were the sons and executors of Lydia Robinson, deceased, under whose will they were also beneficially entitled to two-thirds of any sum which might be recovered in this action, and they sought to recover a sum of 50%. from the defendant for compensation for alleged permanent improvements made by the testatrix upon a farm at Poynton belonging to the defendant whilst she was tenant of the saine. The plaintiffs' case was, that there was a certain custom of the country prevailing in the district within which the farm was situate for outgoing tenants to receive from the landlord the value of permanent improvements made by tenants on their farms. The testatrix had resided for a very long period on the farm in question, and continued to do so at the time of her death. Shortly after this occurred, namely, in the autumn of 1856, the defendant's agent gave notice to the plaintiff's to quit the premises in the following spring.

The plaintiffs thereupon caused a valuation to be made of the improvements, in respect of which they claimed compensation under the alleged custom, and called upon the defendant to pay them the amount.

The defendant rejected the claim altogether, and as the plaintiffs refused to give up possession at the expiration of the notice, they were ultimately removed by ejectment.

At the time of the commencement of this action and of the trial, the plaintiff John was, and had for some time been, a tenant of the defendant, and it was in evidence that these proceedings had been instituted and were maintained in the names of both the plaintiff's by Ralph alone, without the consent of or any communication with his co-plaintiff John.

John, who had in his possession the probate of testatrix's will, was subpoenaed by his co-plaintiff Ralph, and appeared accordingly; but having before the trial handed that document to the defendant's attorney, who produced it when called for by the plaintiffs' counsel; he was not sworn or examined.

July one thousand eight hundred and fifty-six, or otherwise howsoever, now have or claim, or can, shall, or may have or claim, of, from or against the said George John Warren Baron Vernon, his heirs, executors or administrators, up to and inclusive of the date of these presents. In witness whereof, I have hereunder set my hand and seal this 4th day of May, in the year of our Lord one thousand eight hundred and fifty-nine.-JOHN ROBINSON, signed, sealed and delivered (being first duly stamped), in the presence of Dr. Rowley."

It did not appear that the agent of the plaintiff Ralph had been asked, or that he had been consulted with reference to this document. The plaintiffs' counsel then contended that the release being of the whole cause of action by one only of two joint plaintiffs, it was no defence. But I ruled otherwise, and intimated that, as the case then stood, I should direct the jury to find for the defendant. Upon this the plaintiffs' counsel, admitting that the defence had taken him by surprise, proposed to call the plaintiff John and examine him as to all the circumstances under which he had executed the document in question, for the purpose, as he said, of eliciting from him whether it had been fraudulently obtained, but without alleging the existence of fraud in fact. I refused, under the circumstances and for that purpose, to permit the plaintiff John to be then examined, and thereupon the plaintiffs' counsel elected to be nonsuited. The question for the Court of C. P. is, whether I was right in so refusing to allow the plaintiff John Robinson to be called and examined on behalf of the plaintiff's for the purpose stated by their counsel.

JOSEPH JOHN YATES, Judge of the said

court.

Wheeler for the appellant.-It is submitted that the plaintiff Ralph Robinson was entitled to call his coplaintiff John Robinson, to explain the circumstances under which he gave the release. It should be observed that the release was obtained only the day before the trial, and, as Ralph Robinson was entirely unadvised of the fact, he was taken quite by surprise, and he was justified in the supposition that undue influence had been used in obtaining the release. This, of course, was an action without pleadings; but, had a plea of release been pleaded in the court above in such a case, it is clear the plaintiff would have been permitted to reply fraud. [BYLES, J.-There are cases in this court where such a replication has been permitted.] Yes, what the plaintiff asked to be allowed to do was, to elicit the circumstances from his brother under which the release had been given, and he was certainly entitled to do

ROGERS . LEWIS.

[C. B.

(COPY OF RATE.)

Parish of St. Giles, Reading.

No. 365.-Rate made the 21st day of April 1859.

Name of owner.
Haslem, James

Description of property | Name or situation of property. Boult's-walk.

rated.
House.

Gross estimated rental, 187.; rateable value, 13. 10s.; rate at 1s. 4d. in the £, 18s.

Jones, John

(COPY OF CLAIM.)

J Boult's-walk
Whitley-str.

Houses occupied ( Crown-street

in immediate
succession.

Boult's-walk Whitley-str.

C. B.] that. This is the sole question for the court, and upon it it is contended the appellant is entitled to judgment. J. J. Powell for respondent.-The County Court judge had in this case no discretion - he was bound to act as he has done; but if, on the other hand, the court should say he had a discretion, then he has exercised it according to his judgment, and the court will not review it. This was a release by one of two co-plaintiffs, and therefore binding upon the other. [CROWDER, J. -Is there any rule of law to prevent a party who has given a release from being called to show whether or not some fraud or misrepresentation has been practised in obtaining from him the release? Dowdeswell for the appellant.-First, under 2 Will. ERLE, C.J.4, c. 45, s. 28, rating to this rate was not necessary. Suppose the plaintiff were to say, That section enacts "My brother was made drunk at twelve o'clock at "that the premises in respect night, and whilst in that state was induced to sign the of the occupation of which any person shall be entitled release." Surely such a circumstance may be shown in to be registered in any year, and to vote in the election reply to the document when put in to defeat the plain- for any city or borough as aforesaid, shall not be retiff.] Here there was, as the case finds, no allegation quired to be the same premises, but may be different of fraud in fact, nor replication of it. What the case premises occupied in immediate succession by such says on this head is, that it was required to examine person, during twelve calendar months next previous to the plaintiff John for the purpose of eliciting from him the last day of July in such year; such person having whether the release had been fraudulently obtained. paid, on or before the 20th day of July in such year, But it is not competent for plaintiff's counsel to put all the poor-rates and assessed taxes which shall, prethe co-plaintiff into the box for the purpose of ten-viously to the 6th day of April the then next preceding, dering fishing questions as to the circumstances under which he had given the release. A striking peculiarity of the case is, that the co-plaintiff, whom it was intended to examine, is a party to the record; and having given the release, it speaks for itself, and he cannot be examined in derogation of his own solemn

act.

ERLE, C.J.-I am of opinion our judgment should be for the appellant. The whole point is, that the release was, or might have been, fraudulently obtained, and the plaintiff endeavoured to show this by calling his co-plaintiff to give evidence and show that it was so. He was taken by surprise, and he had a clear right to do what he sought to do; and the judge was wrong in excluding him.

The other Judges concurred without remark.

Judgment for the appellant, with costs.

Saturday, Nov. 19.

ROGERS (appellant) v. LEWIS (respondent). Registration appeal-2 Will. 4, c. 45, s. 28. In case of successive occupation of premises in a city or borough for which a person claims to vote, proof of payment of the rates, without proof of rating, is sufficient.

At a

CASE.

have become payable from him in respect of all such premises so occupied by him in succession." Payment of the rate is all that is necessary: (Rogers on Election, 75.) By sect. 27, rating as well as payment is required in the case of the same occupation. The change of language in the 28th section shows the intention of the Legislature.

No counsel appeared for the respondent.

ERLE, C. J.-I am of opinion that our judgment ought to be for the appellant. It appears to me that the argument of Mr. Dowdeswell, in respect of the construction of the 28th section applying to premises occupied in succession is well founded. Where the qualification arises on one set of premises, the party must be rated and must have paid the rates; where the qualification is for premises occupied in succession, according to the words of the statute, the party must have paid the rates. Now it appears to me the difference of wording does warrant the conclusion which Mr. Dowdeswell wishes us to found upon it; and looking at the nature of property occupied in succession and the length of time for which rates are made, and during which the rates are in the course of being collected, and looking at the provisions which are made in several statutes, in case there should be a change of occupation, about the allowance to be court held before me, Henry Blencoe made to the incoming tenant, and his liability, and that Churchill, barrister-at-law, duly appointed to revise of the outgoing tenant, I think it was clearly under the list of voters for the borough of Reading, the consideration of the Legislature to make provision Henry Pocock objected to the name of John Jones for the payment of rates where there has been a sucbeing retained on the list of voters for the parish cession of occupation. There would be great inconof St. Giles. John Jones occupied a house in Crown-venience if the Legislature required a person to interstreet till Dec. 1858, and was duly rated in the Oc-ere and have his name put on the rate which might tober rate, the only one made between July 1858 and have been made two quarters before, or may be nearly the end of his occupation. He moved in December to expired, or may be in the process of formation. I think a house in Boult's-walk. The claim is annexed. that the purpose of the change of language in the two Another rate was made in April 1859, on which his sections was to say that in the case of successive occuname did not appear. He made no application to be pation the qualification should be sufficient in respect of rated; but the collector called on him, and he paid the rates, provided the rates should have been paid, and it rate, for which the collector gave the usual receipt. does not require that the party's name should be on The house mentioned in the rate is that for which the every rate due in respect of each of the two premises. claim is made; an exact copy of the rating in the book I am also of opinion, if it were necessary to go into it, is annexed. It was contended that rating for the that the appellant is entitled to succeed on the other house to which the voter has removed was not neces-point; but it is not necessary to resort to that. sary, and that, if it was, the payment of the rate to the collector under the circumstances stated was equivalent to a demand to be rated. I held that the rating to the second house was necessary, and that the payment to the collector was not equivalent to a demand to be rated; and I expunged the name of John Jones from the list.

WILLIAMS, J.-I agree with my Lord as to the construction of the 28th section, and it is unnecessary to give any opinion upon the other point.

CROWDER, J.-I am also agreed as to the construction of the 28th section, and I do not desire to give any separate opinion upon the other point.

Judgment for the appellant.