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1806. riff of Middleser, he the said W. Mearns did afterSCHOLLY wards and before the return of the said precept, to

wit, on the 20th day of March, in the year aforesaid, PAGE.

at, &c. pay to the said James Simpson a large sum of
money, to wit, the sumn of 221, for and on account of
the debt and costs in the said action, so commenced by
the said G. Lovcácy against the said W. Mearns, and
of the fees and expences attending the said arrest, giv-
ing the said bail-bond and other charges; and that,
afterwards, and before the return of any rule of the
said court of our said lord the king, before the king
himself, upon, or commanding the said sheriff to re-
turn the said writ, and long before the commence
ment of this suit, to wit, on the 2d day of May, in the
year aforesaid, he the said W. Mearns did pay to the
said James Simpson, as such officer as aforesaid, the
further sum of 51. for and on account of the debt and
costs in the said action so commenced by the said G.
J.oveday against him the said W. Mearns, the fees,
expences, and charges,of and attending the said arrest,
and giving the said bond and damages sustained by
reason of any proceedings then taken by virtue thereof,
or of or upon the said precept, making in the whole
the sumn of 271. which sum of money was, then, and
there at the time the same were so paid as last afore,
said, fully sufficient to pay and satisfy to the said G.
Loveday, the plaintiff in the suit aforesaid, the debt
and costs in the said action so commenced by him
against the said W. Mearns as aforesaid, and the
fees, costs, and expences, of and attending the said
arrest, giving the said bail-bond and all proceedings
had thereon, or of or upon the said precept : and
which sum of 271. so paid in manner aforesaid, the said
James Simpson then and there accepted of and froin
the said W. Mearns, in full satisfaction and discharge
of the said writing obligatory and condition thereof,
and of all damages and cause of action in respect

1806.

SCHOLEY

versus Page.

thereof; and be further says, that if any damage or expence has accrued by reason of himn the said Wm. Mearns not appearing in the said court of our said lord the king, according to the condition of the said

of one said writing obligatory, and the exigency of the said preeept, subsequent to the payment of the said 271., the same was occasioned by the default of the said James Simp. son, in not paying over to the said plaintif in the said action, or his attorney, the amount of the debt and costs which would have been taken and accepted by the said plaintiffs, or his said attorney, and sufficient to pay which, over and besides such fees, expences, and charges as aforesaid, had been so paid by the said W. Mearns to the said James Simpson. The plaintiff's demurred and shewed for cause that no competent discharge by the said plaintiffs or either of the said writing obligatory, or the condition thereof, or any legal satisfaetion thereof, to them or either of them, is stated on the said plea; and it is not shewn at what time or place, or under what circumstances, the said plaintiff's became or were trustees for the said James Simpson ; or when, where, or in what inanner, the said James Simpson, became entitled to any benefit or advantage of or from such writing obligatory; and it is not alledged, that the said James Simpson had any beneficial or other interest in the said writing obligatory at the time of his acceptance of the money by the said plea supposed to have been paid to him in satisfaction and discharge thereof; and for that, if the said James Simpson were at that time interested in the said writing obligatory, no sufficient discharge thereof by him, or satisfaction of the same to him, in point of law, is shewn by the same plea.

Joinder in demurrer.

MARIYAT, in support of the demurrer; " Where there is any duty to be performed arising upon a deed,

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for any act to be done, except the payment of money, accord can only be by deed, and there can be no satis. faction pleaded, but by deed ; Peto's case.* So, where there was debt brought on a bond, the defendant pleaded an indorsement of a condition to render an account before a certain d.ly, and, that, before that day he paid so much money in satisfaction ; it was held upon demurrer that no payment of money in satis faction can be pleaded + So here, there is an attempt to raise a question of fact upon the record by way of plea, which ought to be the foundation of an application to the equitable jurisdiction of the court. In Donnelly v. Dunn, to an action brought upon a recognizance of bail, the defendant pleaded the bankruptcy of the defendant in the original action ; and it was held bad on demurrer. And it was said that it was of importance to the profession to put an end to defences being stated upon the record, which might more properly be applied to the equitable jurisdiction of the court: and yet, there it was clear that the defendant might have been relieved, upon the facts there stated, upon motion; Preston v. Christmas."'S

LE BLANC, J. “Your argument goes to shew, that even if the money had been paid to the plaintiff in the action, it would not have been a good plea to this action.

But, secondly, admitting that if the satisfaction pleaded, would be a good bar, before the breach of the condition of the bond, yet it cannot be pleaded, after; and, bere the whole sum was not paid till after the breach of the condition, by two payments of 221. and al. At common law the payment of money in a condition to a bond could not be pleaded ; and it was necessary to pass a statute for the express purpose of allowing it."

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* 9 Co, Rep 78. + Dyer. Rep. l.

§ 2 Wilson, 86.

2.Bos. and Pul. 45.

SCHOLEY. versus PAGE.

LAWRENCE, J. " That applies only to the pay- , 1806. ment of a less sum than the bond ; at all times, the payment of the penalty might be pleaded. * In this case the sum is less than the penalty. Where there was an agreeinent, instead of paying plaintiff on a certain day, to give the obligee a horse, and 201. it was held, that it was not a good satisfaction although the delivery was on the day in pursuance of the agreement made before the day. Thirdly, this is pleaded not as accord and satisfaction nor as an agreement in satisfaction ; and it is not shown that Simpson had any interest in the bond for the plaintif or otherwise ; for the plea is only, that at the time of the action brought, the action is brought for the benefit of Simpson. And it does not even appear that he had any interest in the bond at the time of the payment, when, if it ever was a satisfaction, it was so then. Simpson therefore, to whom the satisfaction is made, could not even bave released the bond, and therefore could not take satisfaction for it.' Debt on a single bill made to A. to the uses of him and B. the defendant pleads a release made to him by B., on which the plaintiff demurs; and without difficulty; it was adjudged for the plaintiff For B. is no party to the deed; and therefore, can neither gue, nor release it; but it is an equitable trust for him, and suable in Chancery, if A. will not let him have part of money, and the book of E. IV. cited that he might in such case, release, denied to be law."* He cited also 2 Institutes, 67%

Espinasse, contrà, cited Winch v. Keeley,+ and Bottomley v. Brooke, I and contended that the bailiff Simpson, was in effect the sheriff, and that the court would take notice of the trust and of the real interest of the parties.

* Ofley v. Ward, 1 Lev. 235. + 1 Term Rep. 619.

i l'erm, Rep. 621.

1806.

.-SCHOLEY

versus Pagi.

Lord ELLENBOROUGH, C. J. « If the bailiff and the sheriff are one person, then ought not this to have been pleaded as payment to the shes riff. As to this bond, if the court would take notice of such trusts, then the statute which makes bail. bonds assignable, would be nearly useless. If this plea were allowed, there would be an end of the sim. plicity of the common law, and of the distinction be. tween the two courts of equity and of common law, and it would make all bonds completely assignable."

LAWRENCE, J. « In the case of Winch v. Keeley, it was contended that the plaintiff having been a bankrupt, the bond passed to his assignees, but it was shewn that he was only a trustee for another, and it was contended, therefore, that it did not pass under the commission, but the action was brought, not by a trustee merely, but by the original obligee, and can lave little bearing upon this case.".

Lord ELLENBOROUGH, C. J. upon Espinasse citing Webster v. Scales, cited in Winch v. Keeley ; “ There the bond was taken in trust for the persons who were the parties to the suit.”

MARRYAT, stated that in the court of Exchequer lately, in the case of Lane v. Chandler, the court had, as he was informed, overruled the case of Bot. tomley and Brooke, and Winch v. Keeley. *

Le Blanc, J.“ If the cases of Bottomley v. Brookt and Webster v. Scales, had never been impeached, this plea could not have been good; for this goes wholly beside that case.”

LAWRENCE, J. " In the case cited in the Common Pleas, during the argument,+ BULLER,J. reprobated the

. It seems he was misinformed in this. See 3 Smiths' Rep. p. 77,

+ Vide supra.

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