1841.

LAIRD

v.

PIM.

Exch. of Pleas, not to perform his part, it is not necessary for the first to go farther, and do a nugatory act."] But here the money is not to be paid until after the completion of the conveyance. True, it is by the defendants' default that it is not completed, and they may be liable in damages for that default; but not for non-payment of the money, until the time for payment of it has actually arrived. The case falls entirely within the rule laid down by Lord Holt in Thorpe v. Thorpe. Then as to the breach, it is clear that it must be taken to be contained in the express allegation that the defendants did not pay the purchase-money after a reasonable time. Suppose the Court held that, on this declaration, the plaintiff might recover the whole purchase-money; what counter-remedy have the defendants? Mutual promises are not even alleged. [Lord Abinger, C.B.—It is certainly informal; but does it not amount in substance to a complaint against the defendants for not completing the purchase?] Assuming it to be so, still that does not entitle the plaintiffs to recover the purchase-money: but the non-completion of the purchase is not assigned as a breach, but is stated before the allegation of the breach.

Lord ABINGER, C.B.-I think that the breach is informally alleged, and that the words, "that the defendants did not regard their said promise," are not sufficient to constitute a good breach, so as to cure the defect; but the objection, as it arises on general demurrer, cannot prevail. With regard to the averment of the plaintiff's being ready and willing, and having offered, to execute a conveyance, the case of Jones v. Barkley appears to be an express authority, and must govern the present case. The averment is, that the plaintiff offered to execute a conveyance, and would have tendered a proper conveyance, but that the defendants discharged him from so doing. That, coupled with the other allegations in the declaration, is substantially the same as if it had been averred that the

1841.

defendants had refused to execute a conveyance actually Exch. of Pleas, tendered to them. Our judgment must therefore be for the plaintiff.

PARKE, B.-I have had considerable doubt on this case in the course of the argument, but I have at length arrived at the same conclusion as that stated by my Lord. This declaration is certainly informally drawn, but I think it is sufficient on general demurrer, upon the principle laid down in Jones v. Barkley. Upon the facts alleged in this declaration, the plaintiff is substantially in the same situation, for the purpose of recovering the money, as if all had been done on his part which he engaged to do. It does not follow that he shall recover the whole purchase-money, but he is in the same situation for the purpose of recovering damages for the non-paymentof the price, as if all had been done by him. The distinction which it has been attempted to draw between this case and Jones v. Barkley, is no distinction at all; it proceeds altogether on the ground, that there two contemporaneous acts were to be done on a particular day but the case is just the same whether two contemporaneous acts are to be done at an indefinite time, or on a specified day. The only distinction. is, that in that case one simple act was to be done by the plaintiffs, which the defendant discharged them from doing; here, what the plaintiff has to do is somewhat more complicated; first he is to make a good title, then the defendants are to prepare the conveyance, and the plaintiff to execute it; and the defendants having discharged him from doing that, it is the same as if it had been done. According to Jones v. Barkley, therefore, the plaintiff is in the same situation as if he had performed all his part of the agreement; that is, as if he had perfected a conveyance. That is the conclusion to which I have at length arrived, and to which, perhaps, I should not have come but for the case of Jones v. Barkley. This is all on

:

LAIRD

v.

PIM.

Exch. of Pleas, general demurrer; had the question arisen on special

1841.

LAIRD

บ.

PIM.

demurrer, I doubt whether I should have come to the same conclusion.

GURNEY, B. and ROLFE, B. concurred.

Judgment for the plaintiff (a).

(a) See Poole v. Hill, 6 M. & W. 835.

Jan. 25.

Plea, to an action of covenant

for rent due for turnpike tolls,

that before it

became due, the

trustees, on &c.,

entered into and

upon a certain part of the

tolls, and then ejected, expelled, put out, the defendant

and removed

PALMER and Another v. GOODEN and Others.

COVENANT, by the trustees of the Honiton turnpikeroad, for rent due for turnpike-tolls demised to the defendants, and payable by certain monthly payments. Breach, the non-payment of five such monthly payments. Second plea, as to the sum of &c., parcel &c.; actionem non, because before the said sum of &c. became due, and after the making of the said indenture, to wit, on &c., the said trustees in the said indenture and in the declaration mentioned, with force and arms &c., entered into and upon a certain part or portion of the said demised tolls, that is to say, &c. [setting out certain of the tolls], and then so ejected, &c. ejected, expelled, put out, and removed the defendant, Robert Gooden, from the possession thereof, and kept and cation, that the continued him so ejected, expelled, put out, and removed, from thence hitherto.-Verification. There was also a third plea, differing from the second only in stating that the tolls from which the defendant was evicted, were certain tolls on lime used for agricultural purposes.

from the posses

sion thereof, and kept and continued him

from thence hi

therto. Repli

trustees did not

enter into or upon the said

part of the tolls,

or eject, &c. the

defendant from

the possession

thereof, modo et formâ:-Held bad on special demurrer, as putting in issue not only the expulsion, which was the only material allega

Replication, that the said trustees did not enter into or upon the said part or portion of the said demised tolls, or eject, expel, put out, or remove the defendant, Robert Gooden, from the possession thereof, modo et formâ.

Special demurrer, assigning for cause, that the replication of the plea, tion puts in issue the entry, which is an immaterial fact,

but also the

entry, which

was immaterial. as well as the expulsion, which is the only material fact

1841.

alleged in the plea; that it puts in issue two facts, whereas Exch. of Pleas, it ought to put in issue one only, &c.

Cowling, in support of the demurrer.-The replication is bad. The traverse ought to have been confined to the substantial allegation of the plea, namely, the eviction, whereas it comprehends also the immaterial fact of the entry: Hodgskin v. Queenborough (a), Bushell v. Lechmore (b). There may be an eviction without an entry, and the former is the only material part of the plea. In Vin. Abr. Disseisin (C. 5), it is said, "If a man hath a house, and locks it and departs, and another comes to his house and takes the key of the door into his hand, and says that he claims the house to himself in fee, without any entry into the house, this is a disseisin of the house." And again, (Id. (C. 7).)-"If a man that has a right to enter into lands, in coming towards the land is disturbed from entering, this is a disseisin." [Parke, B.-I do not know how an entry could be made on tolls.] How then can the defendants prove the issue cast upon them by the replication? The averment of entry is a mere inference of law, like that of the entry of a tenant, alleged in covenant or debt for rent, and cannot be traversed. The case resembles that of the traverse of a particular day, where time is not material: Hawe v. Planner (c).

Crowder, contrà.-The replication does in fact take issue on the only point which was traversable. The entry being wholly immaterial, and indeed impossible, the denial of it does not throw any onus of proof on the defendants; and it is in effect a denial of the eviction only. The cases referred to on the other side only prove that an issue on the eviction only would have been good: but the eviction includes an entry. The averments of payment by the

PALMER

v.

GOODEN.

(a) Willes, 129.

(b) Lord Raym. 369.

(c) 1 Saund. 13.

1841.

PALMER

Exch. of Pleas, defendant, and acceptance in satisfaction by the plaintiff, may be included in one traverse: Webb v. Weatherby (a). [Parke, B.-There must have been an acceptance in satisfaction, to constitute a payment in satisfaction: the one proposition is involved in the other.] So here, the eviction involves an entry.

v.

GOODEN.

PER CURIAM.-The plaintiffs have included immaterial matter in their traverse, which they ought not to have done. The replication is contrary to the usual forms of pleading. You had better amend.

Leave to the plaintiffs to amend on payment of costs; otherwise

Judgment for the defendants (b).

(a) 1 Bing. N. C. 502; 1 Scott,

477.

(b) The plaintiffs declined to amend, and there was judgment for

the defendants, which, however, has since been reversed on error in the Exchequer Chamber. See post, vol. 8.

Jan. 25. Debt is main

tainable on a bill of exchange by indorsee against his immediate indorser.

WATKINS V. WAKE.

DEBT upon a bill of exchange for £40, by indorsee

against his immediate indorser. General demurrer, and joinder.

G. T. White, in support of the demurrer.-Debt is not maintainable against the indorser of a bill of exchange : the only remedy is by assumpsit. The promise of an indorser is not an absolute undertaking to pay the bill, but is in the nature of a collateral engagement only, to pay if the acceptor makes default. And Randall v. Rigby (a) is an authority to shew that debt cannot be maintained on a collateral covenant. No case has yet decided that debt is maintainable by an indorsee against an indorser of a bill of exchange. In Bishop v. Young (b), it was held that debt (a) 4 M. & W. 130. (b) 2 Bos. & P. 78.