1804. MASON versus VICKERY. MASON versus VICKERY.-April 20. The attorney for the defendant, being under sheriff, and having summoned the jury, is no ground før a new trial after a verdict for the defendant in a case of contradictory evidence. Semble, the plaintiff should take advantage of it by challenging the array at the trial. READER moved for a new trial. This was an action by the plaintiff, an attorney at Coventry, for defending the defendant and three others, at the quarter sessions. The clerk to the attorney proved the business done. The defence set up was, that Mason had given credit to another person, and a witness was called to prove that one Hawes had agreed to pay the attorney, if he would undertake the cause for the defendant, and that Mason gave Hawes credit originally. Hawes, however, being called, contradicted all that this, witness had said, and declared that he had never undertaken to pay. The jury found a verdict for the defendant, which, it was now contended, was contrary to the evidence; and READER offered an affidavit that the attorney for the defendant was the undersheriff who had the summoning of the jury. "If that were the case, Lord ELLEN BOROUGH, C. J. you might have challenged the array; not having done so, that circumstance must be laid out of our consideration, and there being evidence on both sides, it is the common case of a mere question of credit between the two witnesses, on which the jury have decided. RULE NISI REFUSED. LYDE versus HIGGINS and Another-April 20th. A surgeon attends a pauper for some time, giving credit to the pauper's father for payment of his bill; but he becoming unable to pay, and the pauper still continuing ill, the surgeon applies to the overseers of the poor, to know whether he shall continue his attendances at their expence; they say they will give no authority, but if he brings in a reasonable bill, they will see it paid. Upon motion for a new trial, held, the attendance of the surgeon being divisible, he may recover for the latter attendances on the credit of the overseers without proving a promise in writing. ASS SSUMPSIT by the plaintiff for his bill for attendances, &c. as a surgeon, upon a special promise by the defendants, who were overseers of the poor, to pay for curing a pauper. The pauper was a servant in place at the time, and the parish were in the habit of employing another surgeon for the ordinary poor. At first the plaintiff began his attendances upon the credit of the pauper's father; but he continuing ill for some time the surgeon applied to the parish officers (the defendants) to know if he should continue to attend him and they would pay his charges. The defendants said "they would give no authority, but if he brought in a reasonable bill, they would see it paid." LAWRENCE, J. at the trial, on the Oxford circuit, summed up in favour of the defendants, but the jury found a verdict for the plaintiff; and ABBOTт now moved for a new trial, contending that the promise proved was not sufficient, that there was no consideration, and that the undertaking to see the plaintiff paid should have been in writing. Lord ELLEN BOROUGH, C. J. "If there was a special promise, I think there was a sufficient consideration, for the attendance of the plaintiff is divisible, and then it is not merely a promise to pay the debt of another, but a promise upon a consideration moving to the defendants. VOL. III. N°. 18. RR 1804. LYDE versus HIGGINS and Another There was some evidence of a promise, upon which the jury might found their verdict." RULE NISI refused. BORDENAVE versus GREGORY. BORDENAVE versus GREGORY.-SAME versus BARTLETT. On a sale of stock, the plaintiff, in an action on the 7 Geo. H. c. 8, s. 6, performing a contract for stock, to be made under the 7 Geo. II. c. 8, s.6 THESE were actions of assumpsit on the 7 Geo. II. c. 8, s. 6, for loss on the resale of stock, which the defendants had first contracted to purchase, tried before Lord ELLENBOROUGH, C. J. at Guildhall, in the sittings after Michaelmas Term, 1803. The declaration in the first case stated a contract on the 5th of May, 1803, by the defendant, for the purchase of 20001. stock in the 3 per cent. consols at 69 per cent. "in consideration whereof the plaintiff undertook that he would transfer and cause to be transferred the said 20001. capital stock in the books of the governor and company of the Bank of England, upon payment by the defendant of the said price for the same, when the plaintiff should be thereto 1804. versus GREGORY. afterwards requested; that the defendant undertook to accept the same upon request, and averred that the plain- BORDENAVE tiff was ready and willing to have transferred, upon payment of the price, and that he requested the defendant to accept the same, and pay the price. Nevertheless the defendant did not, nor would not, when so requested, or at any time afterwards, accept the same, &c. In a second count, the plaintiff averred, that although he was ready and willing to transfer, yet the defendant before the plaintiff had transferred, or been requested so to do, declared and caused to be declared to the plaintiff, that he (the defendant) would not in any wise abide by or fulfil the said contract, to wit, at, &c. and hitherto wholly refused so to do, or to do any act in furtherance or performance of the same, and then and there wholly discharged the plaintiff from transferring or causing to be transferred, &c. These were cases arising out of the transactions of the 5th of May, 1803, when there was a false report of peace *. One Meyer, the broker for the plaintiff, proved the sale, &c. and that it was usual to apply to the buyer On the 5th of May, 1803, a person, habited like a king's messenger, delivered a note at the Mansion House, directed to the Lord Mayor of London, from his majesty's principal secretary of state, informing him that peace was concluded between Great Britain and France. This note the Lord Mayor immediately made public at the Stock Exchange and other places: and, upon the faith of it, the stocks rose suddenly to a very considerable price above that of the previous day. Bargains for immense sums were made, when, in a very short time, the letter was discovered to be a forgery. Some persons refused to fulfil their contracts, and a committee of the Stock Exchange declared all contracts made on that day void. The books of all brokers being examined by them in vain for the purpose of discovering the per RR 2 1804. versus GREGORY, of stock on the day when the transfer is to be made, to BORDENAVE give in the name of a person to whom it shall be transferred, and if he neglects to do this before, one o'clock that day, he is considered as a defaulter. That on the 6th of May he applied to the defendant to accept the stock, and asked him to give a name; that he never did so, but he could not be certain whether he made a like application to him on the 5th of May; that at first he said he would inquire of others, and would abide by the determination of the Stock Exchange on the subject, and if others paid he would accept the stock; but that afterwards, on being asked, he said if the stock had been transferred into his name on the day (the 5th of May) he would have paid for it. The witness, however, could not say whether the plaintiff, either on the 5th or the 6th of May, attended at the transfer office to make a tender of the stock. That it was afterwards (on the 12th of May) resold to another person at 64 per cent. in pursuance of the 7 Geo. II. c. 8, s. 9; that had it been sold on the 4th it would have been more disadvantageous to the defendant, for that the medium price of stocks on that day, (immediately after the falsehood of the report of peace was discovered) and subsequently was lower than on the 12th. The defendant's counsel cited Lancashire v. Killingworth*, and the Duke of Rutland v. Hodgsont, at the trial, and insisted that as no actual tender and refusal was made, the plaintiff ought to have attended on the whole of the 5th of May, at the Transfer office, until the close of the books, in order to shew that he was ready to transfer, as the defendant had . perpetrators of the fraud, a reward of 5001, was offered, but the forger was never known. Several persons acquiesced in the decision of the Stock Exchange committee, but in general where the bargains had been made for actual transfers, actions were brought, * 1 Ld. Raymond, 686. + Strange, 777; see also Strange, 57. 504. 533. 872, concerning tenders of stock. |