548 Superior Courts: Exchequer.-Court of Bankruptcy.-Analytical Digest. The note having been dishonoured, the de- reception of the affidavits made by the fendant gave the plaintiff the following memo- country creditors. The 24th of the General randum: :-" November 2, 1844. I request Rules and Orders, made under the 5 & 6 Vict. you will hold over the promissory note in your c. 122, s. 70, was in these words:-"Every favour of J. Leigh, dated 31st July, 1844, for affidavit under the said act shall be entitled of 2007., at three months, and in consideration of The Court of Bankruptcy in London,' or so doing, I undertake to continue in all respects The Court of Bankruptcy for the — Dismy guarantee of the same. John Pink." On trict' [as the case may be]." Here the words the part of the defendant it was objected that "in London" were omitted, and therefore the there was no evidence to support the declara- rule had not been complied with. tion, and the learned judge being of that opinion, nonsuited the plaintiff. A rule nisi having been obtained to set aside the nonsuit, and for a new trial, Ogle showed cause. The plaintiff was properly nonsuited. The plea of non assumpsit puts in issue not only the promise, but also the consideration on which it is founded. Here the consideration alleged is forbearance for a reasonable time, but the guarantee mentious no time, and the law will not imply a reasonable time. The mere forbearing is not a sufficient consideration to support a promise to pay, but it must be for some certain and specified time. Chitty on Contracts, p. 35; Cole v. Dyer, 1 C. & J. 461. The two documents taken together do not support the declaration, and the latter document is only an undertaking by the defendant to continue his guarantee to pay the note when due. It was submitted, on the other side, that the affidavits were sufficiently entitled in the Court of Bankruptcy. Mr. Commissioner Evans. As the objection is taken, I think I am bound to give it effect. The affidavits are not in compliance with the rule and cannot be received. The Solicitor for the country creditors then applied to have the choice of assignees adjourned, to afford an opportunity for amending and reswearing their affidavits. Mr. Commissioner Evans. I never adjourn a choice of assignees. The choice was then proceeded with, and two persons nominated by the town creditors were appointed assignees. ANALYTICAL DIGEST OF CASES, REPORTED IN ALL THE COURTS. Common Law Courts. ABATEMENT. Miller, in support of the rule. The guarantee supports the allegations in the declaration. Where no particular time is mentioned for the performing of an act, the law implies a reasonable time. In agreements for the purchase of land, the vendor has a reasonable time for making out his title. [Alderson, B. In that 1. Affidavit of verification.—Statement of recase the act itself necessarily requires some sidence of co-contractor.-In an affidavit of time; but in a case like the present, what de- verification of a plea in abatement of the nonfinite idea can you attach to a forbearance for a joinder of A. as a defendant, his residence was reasonable time? It would depend upon the declared to be "43, Lowndes Street, Belgrave disposition of the party, whether he was litigious Square." or mild or somnolent. Suppose he brought his action the next day, would that be a forbearance for a reasonable time? Rolfe, B. The declaration seems to be bad.] Per curiam. The rule must be discharged. Bankruptcy. Exparte Hyams. Sept. 30, 1847. PRACTICE. AFFIDAVITS. - TITLE OF THE COURT. Affidavits by country creditors to support proofs of debts, must be entitled "In the "Court of Bankruptcy in London." If the words "in London" be omitted the affidavits will be rejected. THIS was a meeting for the choice of assignees, before Mr. Commissioner Evans. Several country creditors of the bankrupt, to an amount sufficient to determine the choice of assignees, proposed to prove their debts by affidavits, which were entitled "In the Court of Bankruptcy" merely. The Solicitor to the fiat objected to the there at the time of the commencement of the It appeared that he was residing suit; that the honse and furniture were his; that he was endeavouring to let the house furnished for a few months, until his return from abroad; and that B. was occupying it as his friend and guest. Held, that this was a sufficient description of A.'s residence, within the stat. 3 & 4 Ŵ. 4, c. 42, s. 8. The "residence" mentioned in that statute Cases cited in the judgment: Newton v. Ver- 2. Auter action pendant.-In an action of contract against A., he cannot plead in abatement the pendency of another action for the same cause against B. Henry v. Goldney, 15 M. & W. 494. And see Arbitration; Husband and Wife: ACCORD AND SATISFACTION. 1. Annuity. In debt for money had and Analytical Digest of Cases: Common Law Courts. received, &c., the defendant pleaded, that, after the accruing of the debts and causes of action, the defendant executed a deed, securing to the plaintiff a certain annuity, and that the plaintiff then accepted and received the same of and from the defendant in full satisfaction and discharge of all the said several debts and causes of action. The plaintiff replied, that no memorial of the annuity deed was enrolled pursuant to the statute; that, the annuity being in arrears, plaintiff had brought an action against defendant; that the defendant pleaded in bar of that action the non-enrolment of the memorial; and that thereupon the plaintiff elected and agreed that the indenture should be null and void, as pleaded by the defendant, and discontinued the action. Held, a good answer to the plea, inasmuch as it showed that the accord and satisfaction thereby set up had been rendered nugatory and unavailing by the act of the defendant himself. Turner v. Browne, 3 C. B. 157. 549 thereof, and entitled to sue the defendant on the same. Replication, that the bill became due before the commencement of the suit, and defendant did not pay it, and that S., before the commencement of the suit, returned the bill to plaintiff, who then became the holder, and continued so to the commencement, &c., and still is the holder: Held, bad, on special demurrer, for setting up fresh matter, without confessing and avoiding, or expressly traversing the averment of S. being holder at the commencement of the action. The word "discharge " in the plea imported, not payment or satisfaction of the debt, but only that the bill was given "for and on account of" it. The 9th plea resembled the 8th, except in averring that whilst S. was holder, defendant and K., at his request and on his account, respectively paid him its amount. Replication, traversing the payment, &c., of the bill in the terms of the plea, and generally, 2. Bill of Exchange.-Duplicity.-Assumpsit and averring the return of the bill by Sharp to on a bill of exchange for 501. by drawer against plaintiff, and the holding of it by plaintiff, as in acceptor, with counts for money lent, and on the replication to the 8th plea: Held, bad, on special demurrer, for like reasons as the eighth. an account stated. Kemp v. Watt, 15 M. & W. 672. ACCOUNT STATED. Plea to the first count, that before the bill became due, G. had agreed to pay defendant certain sums by monthly instalments of 401.; In indebitatus assumpsit for money due on that defendant was unable to pay the bill, and thereupon, while plaintiff was holder, and be an account stated, it is not sufficient to plead fore it became due, in consideration that de- that, after the accruing of the causes of action fendant, with assent of G., and at request of in the declaration mentioned, and before the plaintiff, would permit plaintiff to receive from commencement of the suit, defendant and G. so much of the instalments of 401., as plaintiff accounted together of and concerning should amount to the sum in the bill, plaintiff the said causes of action, and all other claims agreed to accept payment of the bill thereout, and demands then being between plaintiff and and to discharge defendant from performing the promise in the first count. Averment, that plaintiff received the first instalment, but neglected of his own wrong to procure payment of the residue from G. out of the next instalment. Replication, that, in consideration that defendant would, with assent of G., at request of plaintiff, permit plaintiff to receive from G. so much of the instalments of 401. as should amount to the sum in the bill, plaintiff did not agree to accept, &c., (traversing the plea in terms): Held, bad, on special demurrer, for not expressly traversing the agreement, and for leaving it uncertain whether it meant to put in issue simply the agreement, or the consideration, or both, or that G., by plaintiff's consent, agreed to pay him the bill out of the instalments, so as to substitute themselves as debtors to plaintiff on the defendant's acceptance. defendant, amounting to a large sum, to wit, Case cited in the judgment: Atherley v. Evans, AMENDMENT. 1. After judgment and lapse of a year.-The 8th plea, as to 50l., parcel of the monies in the 2nd and last counts, that before breach of court refused to allow a replication to be the promises in those counts, plaintiff drew his amended after the lapse of a year after judgbill for 501., which defendant accepted and de- ment pronounced on demurrer, the case having livered to plaintiff, who then accepted and re- previously stood over that the parties might ceived the same in discharge of the said sum of mutually agree to amend, and both having deHammond v. Colls, 3 C. B. 50%, parcel, &c., and then indorsed and de-clined to do so. livered the same to S., who from thence 212. hitherto hath been, and still is, the holder 2. Christian name.—Where the plaintiff had 550 66 Analytical Digest of Cases: Common Law Courts. 66 issued a writ and declared against the defend- own hand, he did not write thereon with his ant as " Hume," and the defendant had proper hand the formula styled in the French afterwards given a written consent signed tongue a "bon," or approuvé," bearing in "Robert Montagu Hume," to a judge's order words at length the sum secured, nor was the for judgment, and judgment was accordingly defendant at the time a merchant or tradessigned against him in November, 1844, as man, &c.; concluding, that, "by reason of the Hume," the court, on the application of premises, the bond, by the laws of France, the plaintiff, for the purpose of proceeding to never was nor is obligatory or binding on the outlawry against the defendant, made an order defendant, but always was and is of no force, in Trinity Term, 1846, to amend the declaration, effect, or validity." and all subsequent proceedings, by inserting the defendant's Christian name. Wood v. Hume, 4 D. & L. 136. And see Ejectment. ANNUITY. Non-enrolment. - Former action. Declaration for money had and received. Plea, that the defendant granted an annuity in satisfaction of the plaintiff's debt. Replication, that the deed was not duly enrolled; that in an action to recover arrears of the annuity, the defendant pleaded the non-enrolment, and that the plaintiff elected to make it null and void, and thereupon discontinued: Held, that the replication answered the plea, as it showed that the deed had become null by the defendant's act, and consequently, the plaintiff might recover the consideration for the annuity. Turner v. Browne, 4 D. & L. 201. And see Accord and Satisfaction, 1. ARBITRATION. Abatement or bar.-To a declaration, Nov. 11th, 1844, for goods sold and delivered, and on an account stated, defendant pleaded, Nov. 23rd, 1844, beginning "And, for a further plea, as to the 1st and 2nd counts of the said declaration, the defendant saith that," &c., alleging that, before action brought, disputes had arisen between plaintiff and defendant whether defendant was indebted to plaintiff in any and what sum for the causes of action declared upon, which disputes they submitted themselves to refer, and did refer to arbitration, and mutually promised to fulfil the award; that the arbitrators, before action brought, took upon them the reference; that the matters in dispute are still under their consideration; and that a reasonable time has not elapsed for making the award. Conclusion: "and this the defendant is ready to verify, &c." On demurrer, Held, 1. That the plea could not be considered as plea in abatement informally pleaded. 2. That, as a plea in bar, it was bad; the tendency of an arbitration being no answer to an action for recovery of a debt. Harris v. Reynolds, 7 Q. B. 71. ARGUMENTATIVE AVERMENT. 1. Foreign law.-Replication de injuria.To debt on bond the defendant pleaded, that the bond was executed by him in France, where he was then domiciled; that it was not taken or passed by any public officer authorised by the laws of that kingdom, nor was it written throughout by the hand of the defendant; that, though the defendant signed the bond with his Held, that the plea was bad, as being a mere argumentative and inferential statement of the French law; which, being pleadable only as matter of fact, ought to have been distinctly and affirmatively alleged. Quare, whether, supposing it to have been well pleaded, the whole of the allegations therein might have been put in issue by de injurić. Benham v. Earl of Mornington, 3 C. B. 133. 2. Law of France.-To an action of debt on bond, the defendant pleaded, that the bond was executed at Calais, in the kingdom of France, where the defendant was domiciled; that certain forms in the plea mentioned were not adopted on its execution, nor did the defendant belong to certain classes of persons therein described; and that "by reason of the premises," by the law of France, the bond never was binding on the defendant: Held, that the plea was argumentative and inferential in its mode" of stating the law of France, and therefore bad. Benham v. Earl of Mornington, 4 D. & L. 213. And see Bond; Contract; Uncertainty. ARREST, MALICIOUS. Defect cured by verdict.-Since the 1 & 2 Vict. c. 110, the declaration in an action for a malicious arrest must allege falsehood or fraud in obtaining the judge's order for the capias, and must state the circumstances which constitute such falsehood or fraud. But where the declaration alleged that the defendants, not having reasonable or probable cause for believing that the plaintiff was about to quit England, falsely and maliciously, and without reasonable or probable cause, caused and procured a judge to make an order for the plaintiff's arrest: Held, that after verdict the declaration must be taken to mean that the order was procured by false evidence, or by means of falsehood; the allegations as to the defendant's not having reasonable or probable cause for believing that the plaintiff was about to quit England, being rejected as subterfuge. Daniels v. Fielding, 4 D. & L. 329. And see Married Woman, See Set-off, 2. ASSUMPSIT. BAILIFF. Justification. In an action of trover, the defendant pleaded, that the supposed grievance was committed after the passing of the 7 & 8 Vict. c. 19, intituled "An Act for regulating Bailiffs of Inferior Courts:" that the defendant had been duly appointed to act as bailiff in execution of the process of the Tolsey Court of Analytical Digest of Cases: Common Law Courts. BILL OF EXCHANGE. 551 1. Presentment, allegation of.-In a count by an indorsee against the drawer of a bill drawn payable in London, the venue being laid in London, a general allegation of presentment was held to be a sufficient allegation of presentment in London since the rule of Hilary T. 4 W, 4, Bristol, which court has, by charter, jurisdic- And see Justification. BAIL. Quære, whether the defect would have been aided by the defendant's pleading over, if the venue had been laid elsewhere. Boydell v. Harkness, 3 C. & B. 168. 66 3. Initials of party. In a declaration on a bill of exchange, it is informal to describe any of the parties to the bill by the initials only of his christian name, without showing that he is so described in the bill itself. Esdaile v. Maclean, 15 M. & W. 277. 2. Venue.-Presentment.-By Reg. Gen. Hil. Render-Declaration on a bond under 1 & 2 T. 4 W. 4, ii. r. 8, no venue is required to be Vict. c. 110, s. 8, given by the defendant and stated in a declaration except the one alleged others, his partners in trade, stated that judg- in the margin; and therefore, in an action by ment was recovered in an action for the original the indorsee against the indorser of a bill of debt, which was not paid; and that a judge's exchange drawn payable in London, where the order was made to render the principals within venue stated in the margin of the declaration 10 days, which time was enlarged without pre- was London," ," it was held that an averment judice by another judge's order; that a rule of presentment, not stating where, sufficiently nisi was obtained within that period, calling on alleged a presentment in London. Boydell v. the plaintiffs to show cause on a subsequent Harkness, 4 D. & L. 178. day why the defendant and his bail should not have further time to render, and that in the mean time proceedings against the defendants and his bail should be stayed; and that neither the defendant nor his co-debtor rendered themselves according to the practice of the court, or within the time mentioned in either of the orders or within any other time, or in any several counts on different bills of exchange, 4. Certainty. In a declaration containing manner directed by the court or any judge each count, after describing the bill, referred to thereof: Held, 1st, that a plea which alleged it as "the said" bill of exchange: Held, sufthat a writ of ca. sa. had issued in the original ficiently certain, even on special demurrer; for action was good; 2ndly, that a plea which that the words "the said " ought to be referred averred, that the judge's order had been ob- to the last antecedent. Esdaile v. Maclean, 15 tained exparte by the plaintiff, was bad; 3rdly, M. & W. 277. that a plea which alleged that the rule nisi in the declaration alleged, was made absolute on the 22nd day of term, giving further time to render, and that a render was made within that time, was good; 4thly, that a bond under 1 & 2 Vict. c. 110, s. 8, under such circumstances, was not a claim within the 6 G. 4, c. 16, ss. 51 and 56, barred by the defendant's certificate obtained after the commencement of the original action, but before judgment; 5thly, that a plea alleging that the plaintiff had brought an action to recover the sum mentioned in the bond, was not a bar to an action on the bond, although the judgment in respect of the debt was obtained in an action subsequently commenced. Hinton v. Acraman, 3 D. & L. 426. Cases cited in the judgment: Sandon v. Proctor, 7 B. & C. 800; South v. Gryffith, Cro. Car. 481; Weddall v. Manucaptors of Jocar, 10 Mod. 287; Wilmore v. Clerk, 1 Lord Raym. 156; Jameson v. Campbell, 5 B. & A. 250; Exparte Barker, 9 Ves. 110; Exparte Marshall, 1 Mont. & Ayr. 145; Abbott v. Hicks, 7 Scott, 733; 5 Bing. N. C. 578. See Detinue. BAILMENT. BAR, PLEA IN. 5. Amending judgment.-Where the defendant pleads non assumpsit to the whole of a declaration, consisting of a count on a bill of exchange, and money counts, the plaintiff cannot sign judgment generally. And the court will not allow him to amend the judgment, by confining it to the count on the bill, and entering a nolle prosequi on the Eddison v. Pigram, 16 M. & other counts. W. 137. And see Accord and Satisfaction, 2. BOND. Debt on bond Argumentative averment. against a surety under 1 & 2 Vict. c. 110, s. 8, conditioned for the payment of a debt due by H., or for his render. Plea, that the plaintiff recovered judgment in the Queen's Bench for the debt, and arrested and detained H. on a ca. sa.; that H. sued out a habeas corpus cum causa, and was committed to the Marshalsea of the Queen's Bench, and detained there until after the return day of the writ; that H. was always ready to render himself, and would have rendered himself according to the practice of the court, but that he was prevented from so doing by the plaintiff in manner aforesaid: Held, on special demurrer, that if the plea was See Abatement; Arbitration; Double plead-construed as an excuse, as it did not distinctly ing; Husband and wife. aver that it was impossible for H. to render 552 Analytical Digest of Cases: Common Law Courts. himself, it was bad as argumentative; and if construed as a performance, it was bad as not being substantially so averred. Hayward v. Bennett, 4 D. & L. 228. CONTRACT. and entering a farm, the plea, after setting out a lease by indenture from A. to the plaintiff, which contained covenants by the plaintiff that he would not, at any time during the term, sow, reap, or take from the arable lands demised, or any part thereof, more than two crops of any sort of corn or grain successively, but would every third summer fallow or lay the said arable lands down with rye-grass and clover seeds, or would plant with potatoes, or sow with peas or beans, which should be twice well hoed; and also that the plaintiff, his executors, &c., should not, at any time during the term, let, assign, or set over, or otherwise part with the indenture of lease, or the premises thereby demised, without the special license and consent of A., his heirs and assigns, in writing-with a power of re-entry for breach of 1. Argumentative denial.—What amounts to the general issue.-Where the declaration in an action of assumpsit complained of a breach by the defendant of a condition on which the sale of certain houses had been made to the plaintiff, namely, "that the vendor would deliver an abstract of title to the purchaser, or his or her solicitor," and the plea of the defendant stated that at the time of the promise it was agreed as part of the contract, that the defendant should deliver an abstract of the title, commencing with a certain specified deed, and to that extent only. Held, that the plea was an argumentative any covenant in the lease-and setting out a denial of the contract in the declaration, and bad as amounting to the general issue. Sharland v. Leifchild, 34 L. O. 277. 2. Exception.-A. delivered goods to B. to be conveyed from Gibraltar to London, the act of God and the dangers of navigation excepted. The vessel was to touch at Cadiz on the passage. While the vessel was at Cadiz the goods belonging to the plaintiff were seized as contraband, and forfeited according to the revenue laws of Spain. Held, in an action by A. for the non-delivery of the goods, that a plea setting out the above facts was bad as not amounting to a defence to the action. Spence v. Chadwick, 34 L. O. 80. And see Debt, 1. COAL LEASE. The grant by indenture of the reversion to the defendant, stated, that, after the making of these indentures, &c., the plaintiff did set over and part with the said indenture of lease and the term thereby created, within the true intent and meaning of the said indenture of lease, and the proviso and condition for re-entry therein contained, to wit, by pawning, pledging, and mortgaging the said indenture of lease to and with certain creditors, to wit, B. & C., without the consent of A. or of the defendant. plaintiff replied, that he did not set over or part with the said indenture of lease, or the term thereby created, within the true intent and meaning of the said indenture of lease, &c., by pawning, pledging, or mortgaging the said indenture with the said supposed creditors, modo et forma: Held, bad, on special demurrer; for that the replication should have denied generally that the plaintiff had parted, i. e., in any manner parted, with the indenture, instead of confining the issue to the particular mode of parting with it, immaterially stated under a scilicet, in the plea. Covenant.- Declaration in covenant stated, that plaintiff, by indenture, granted to defend ant all the coals and mines of coal under certain lands; that defendant covenanted to pay to plaintiff, as the price of the coal so granted, 401. for every statute acre of the said coal which should be found under the said lands; and until the said price should be fully paid, to Another plea stated, that during the term the pay plaintiff 401., part of the said price, in each plaintiff sowed and took off and from 50 acres of the arable lands demised, more than two year, by two equal half-yearly instalments, whether the whole of an acre of the said coal crops of corn successively; and that he did should be gotten in every such year or not. not nor would every 3rd year summer-fallow or Averment, that, at the making of the in- lay the said arable lands or any part thereof denture, there were under the said lands divers, down with rye-grass, &c., nor did nor would to wit, 14 acres of the said coal, and that plant with potatoes, nor sow with peas, which divers, to wit, 13 acres of the said coal still re- The plaintiff replied-that he did not at any were twice well, or in any manner hoed, &c. mained under the said lands; and that 40%, time during the term, sow or take off or from for two of the half-yearly instalments of the the arable lands, or any part thereof, more than said price for the coal aforesaid, became due and still was in arrear and unpaid to the plain- two crops of any sort of grain successively— tiff: Held, on motion in arrest of judgment, and in every 3rd year did summer-fallow a part, that the declaration was bad, for not averring that coals had been found under the premises. Jowett v. Spencer, 15 M. & W. 662. Case cited in the judgment: Sicklemore v. Thistleton, 6 M. & Sel. 9. consisting of 50 acres, and did lay down with 50 other acres, with potatoes, and did sow aprye-grass and clover seeds part, consisting of peas, and the residue of the arable land with other part, consisting of 50 other acres, with beans, which were twice well hoed, &c.; and that there was not at any time during the said demise, any portion of the said arable lands in the indenture contained which the plaintiff did not every 3rd year either summer-fallow or lay 1. Construction of.-In trespass for breaking down with rye-grass and clover-seeds, or plant CONSTABLE. See Trespass, 1, 2. COVENANT. |