1842.

TYLER v.

BLAND.

a substantially different occasion.] It is admitted by this Exch. of Pleas, demurrer, that a larger sum than 41. 16s., and including that sum, was due; that the plaintiff demanded it, and the defendant refused to pay the same and every part thereof; and all that appears further is, that on a subsequent occasion, the defendant tendered the 47. 16s. only; but his previous default had incapacitated him from setting up that defence. Cotton v. Godwin is precisely in point.

Ogle, in reply. The whole appears on the pleadings to have been one and the same transaction. [Lord Abinger, C. B. To make out your defence, you ought to shew that then and there you tendered the whole sum demanded, or that no more was due than 47. 16s., and that you then tendered that.] How could the defendant rejoin, but by repeating the tender, as alleged in the plea? The replication ought to have shewn that a larger sum was due than the amount tendered, on the same cause of action. In Cotton v. Godwin, the replication was applied to the specific cause of action as to which the tender was made; but that is not so here. [Alderson, B.-Why could not you rejoin that when the plaintiff demanded the 71. 12s., you tendered the 4l. 16s.? you ought to amend by so rejoining.]

Lord ABINGER, C. B. - Where the replication to a plea of tender re-enforces the demand, and sets it up again, the rejoinder must either deny or confess and avoid that demand, otherwise it must be taken that the whole sum is due. Therefore, although the original plea of tender does not admit the whole sum to be due, it is admitted on this demurrer. The defendant should have rejoined by realleging a tender, at the time of the plaintiff's demand of 71. 12s., of the smaller sum of 41. 16s., and denying that more was due.

ALDERSON, B.-All the facts stated in the replication are admitted by the demurrer, and facts may be supposed

Exch. of Pleas, which make them all true; as a demand of the whole, afterwards payment of part, and then a tender of the residue.

1842.

Leave to amend on payment of costs; otherwise judgment for the plaintiff.

Jan. 21.

A Judge made

PLOCK and Another v. PACHECO.

R. V. RICHARDS moved for a rule to shew cause why an order for the the defendant in this cause should not be discharged out

arrest of the defendant for £422. The capias was indorsed for

4221. 13s. 4d., (the real amount of the debt). The Court refused to discharge the defendant

of custody, and why the plaintiffs should not pay the costs of this application. It appeared from his affidavit, that the defendant, having gone on board a vessel at Southampton bound for the West Indies, was arrested at Falmouth on a capias issued in pursuance of a Judge's order under 1 & 2 Vict. c. 110, s. 3. The learned Judge, before

out of custody, making the order, inquired the amount of the debt, and being informed that it was 4221. 13s. 4d., he indorsed on the order the sum of £422. The defendant was arrested for the sum of 4221. 13s. 4d., for which amount the capias

and directed the writ to be

amended on payment by the

plaintiff of the

costs of the

plication for the was indorsed.

defendant's dis

charge.

Richards contended that the arrest was bad, having been made for a larger amount than that ordered by the Judge. The statute empowered an arrest only "for such sum as such Judge should think fit, not exceeding the amount of the debt or damages," and enabled the plaintiff to sue out thereon a writ of capias, in the form contained in the schedule annexed to the act; according to which form, the writ was to be indorsed for the amount of bail ordered by the Judge. He cited Hodgkinson v. Hodgkinson (a), where the defendant was discharged out of cus

(a) 1 Ad. & Ell. 533; 3 Nev. & Man. 564.

tody, on the ground that in the copy of the capias the Exch. of Pleas, direction appeared to be to the sheriff of "Middesex."

Cleasby shewed cause against the rule in the first instance; and also applied for a cross rule to shew cause why the writ of capias should not be amended, by substituting thereon the sum of £422 instead of 4221. 13s. 4d. He urged that the Courts had always acted on the principle of allowing amendments in writs, where the justice of the case requires them, and where no injury is done to any party. In Laroche v. Wasbrough (a), which was an application to amend a writ, Lord Kenyon said, "The justice of the case requires that we should permit the plaintiff to amend. If the defendant had indeed suffered by the excess in the execution, that might have varied the case; but here he has not sustained any damage by it." So here, the defendant can have sustained no damage whatever by being held to bail for the odd shillings and pence beyond the sum directed by the Judge. The Court is expressly empowered, by the 6th section of the act, upon the application of a party by rule or order for his discharge from arrest, to make absolute or discharge such rule or order, or make such other order therein as to such Judge or Court shall seem fit."

"to

Richards, in reply. -In Trotter v. Bass (b), the Court held that they had no jurisdiction to amend a writ of summons. Such an amendment was indeed allowed in Lakin v. Watson (c), but that was in order to save the Statute of Limitations; and Parke, B., in his judgment, appears to confine such amendments to cases of that nature. [Alderson, B. The stat. 1 & 2 Vict. c. 110 had not then passed; and therefore the exception could not have been extended

1842.

PLOCK

υ.

PACHECO.

(a) 2 T. R. 737.

(b) 1 Bing. N. C.516; 1 Scott, 403. (c) 2 C. & M. 685.

Exch. of Pleas, to a case like the present.] Partridge v. Wallbank (a) is

1842.

PLOCK v.

PACHECO.

an authority to the same effect.

Lord ABINGER, C. B.-In this case, as no oppression appears to have been exercised towards the defendant, and as we are empowered, by the 6th section of the act, to make such order in the matter as we shall think fit, under all the circumstances, we think the defendant should pay into Court the sum of £422, and £20 in lieu of bail, with liberty to take out those sums on putting in and perfecting special bail: Mr. Cleasby's rule for amending the writ will be made absolute, and Mr. Richards's rule discharged, the plaintiffs paying the costs of this application.

ALDERSON, B.-I agree in opinion that this writ ought to be amended, and think that, in so doing, we are not departing from any principle laid down by this Court in former cases. We have allowed writs to be amended, where justice appeared to require it, and the situation of the parties has not been changed by the amendment, as in the case of the Statute of Limitations. Here the Judge thought the plaintiffs were in danger of losing their debt by the defendant's quitting England in case he were at large; and it seems to me that that circumstance brings the case within the same principle that governed the Courts in regard to the Statute of Limitations. Here, too, we have something by which the writ can be amended. The rules will therefore be disposed of in the manner which has been stated by my Lord Chief Baron; and the plaintiffs will be quite sufficiently punished for their mistake by paying the costs of these applications.

GURNEY, B., concurred.

(a) 1 M. & W. 316.

Rule accordingly.

BALL and Others v. GORDON and Others.

Exch. of Pleas, 1842.

Jan. 24.

ASSUMPSIT by indorsees against acceptors of a bill of Declaration by

exchange. The declaration stated, that "whereas certain persons using the name, style, and firm of M'Leod & Co., on the 14th day of July, 1841, made their bill of exchange in writing, and thereby required the defendants to pay, four months after the date thereof, to them the said M'Leod & Co., or order, 1321. Os. 7d. value received, which period has now elapsed; and the defendants accepted the said bill, and the said M'Leod & Co. then indorsed the same to W. J. Strickland, who then indorsed the same to the plaintiffs," &c.

Special demurrer, assigning for causes, that the alleged drawers of the bill were not sufficiently described, as they ought to have been described by their christian or names of baptism, and surnames, or by the initial or contraction of their christian or first names, in addition to their surnames; that the description is vague and uncertain: and that even if "M'Leod & Co." is a sufficient description, yet it is not alleged that the supposed drawers in fact drew the bill in that name, or by means of such description. Joinder in demurrer.

Bovill, in support of the demurrer. The description of the drawers of the bill in this declaration is not sufficient. The rule of the common law, is that the christian and surnames of all persons mentioned in the pleadings should be accurately set out; Stephen on Pleading, 329 (4th edit.), citing Com. Dig., Abatement (E. 20), (F. 19); Buckley v. Thomas (a), and Rowe v. Roach (b). The authority of this rule is recognized also in Gamly v. Bechinor (c). And the stat. 3 & 4 Will. 4, c. 42, s. 12, has no application to this

(a) Plowd. 128 a. (b) 1 M. & Selw. 304. (c) 2 Lev. 197.

indorsee against acceptor of a

stated it to be

bill of exchange drawn by "cerusing the name, style, and firm & Co.," and that "the said M. & Co." indorsed it. Semble, that

tain persons

this was not a

sufficient description, as it did not shew that M. & Co.

drew or indorsthat name.

ed the bill in