« ForrigeFortsett »
1806. T\(f 0f Middlesex, he the said W. Means did afterSc«oi iv wards and before the return of the said precept, to ueTnii wjt> on tjie 2QLn (jay Qf March, in the year aforesaid, at, 8tc. pay to the said Jamts Simpson a large sum of money, to wit, the sum of 22l. for and on account of the deht and costs in the said action, so commenced by the said G. Laveday against the said W. Means, and of the fees and expences attending the said arrest, giving the said bail-bond and other charges; and that, afterwards, and before the return of any ride of the said court of our said lord the king, before the king himself, upon, or commanding the said sheriff to return 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 IV. Means 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, T-oveday against him the said W. Means, the fees, expences, ai;d 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 sum of 27l. which sum of money was, then, and thereat the time the same were so paid as last aforesaid, 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. Means 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 27l. so paid in manner aforesaid, the said James Simpson then and there accepted of and from the said W. Means, in full satisfaction and discharge of the said writing obligatory and condition thereof, and of all . damages and cause of action in respect thereof; and he further says, that if any damage or l&ofi. expence has accrued by reason of him the said Wm. cCIIOtEr Mearns not appearing in the said court of our said B*«b» lord the king, according to the condition of the said writing obligatory, and the exigency of the said precept, subsequent to the payment of the said 271-, the same was occasioned by the default of the said James Simpson, in not paying over to the said plaintiff" 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 i W. Mearns to the said James Simpson. The plaintiffs 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 satisfaction thereof, to them or either of them, is slated 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 manner, the said James Simpson, became entitled to any benefit or advantage of or from such writing obligatory ; atid 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 •aid James Simpson were at that time interested in the paid 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.
Mirkyat, in support of the demurrer; " Where there U any duty to be performed arising upon a deed, isofi. for any act to be done, except the payment of money, accord can only be by detd, and there can be no satisfaction pleaded, but by deed ; Peto's case.* So, where •paoe' there was debt brought on a bond, the defendant pleaded an indorsement of a condition to render an account before a certain d.iy, and, that, before that day he paid so much money in satisfaction; it was held upon demurrer that no payment of money in satisfaction can be pleaded f 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. Chrhtmas."§
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, here the whole sum was not paid till alter the breach, of the condition, by two payments of.Hl. and lA. 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."
» O Co. Rep 78. + Dyer. Rep. \. % 2 Bo*, and Put. 45; i 2 li'ihon, S6.
Lawrence, J. "That applies only to the pay- 1806. meat of a less sum than the bond; at all times, the SclIOLeTpayment of the penalty might be pleaded. v"aL 'In this case the sum is less than the penalty. Where there was an agreement, 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 plaintiff or otherwise; for the plea is only, that at the time of the action brought, the action is brought for the benefit of Simpton. 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 have 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'. ForB. is no party to the deed; and therefore, can neither sue, 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, f>7.°«
Espinasse, contra, cited Winch v. Keeley,f and Bottomlcy v. Brooke,\ 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.
* Officy v. Ward, 1 Lev. 235. + 1 Term Rep. 610.
IPO*. Lord Elt.enbobough, C. J. " If the bailiff
8c]U1,~y and the sheriff are one person, then ought not
verm this to have been pleaded as payment to the she* 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 simplicity of the common law, and of the distinction between 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 thru the plaintiff having been a bankrupt, the bond passed to his assignees, but it was shews 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 have little bearing upon this case.".
Lord Ellenborouch, C. J. upon Espinasse citing Webster v. Scales, cited in Winch v. Keeley; "There the bond was taken in trust for the person* who were the parties to the suit."
Mauryat, 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 liottomley and Brooke, and Winch v. Keeley.*
Le Blanc, J." If the cases of Bottomley v. Brooke and Wrbiter 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 Pieas.during theargument,+ Bult.er,j. reprobated the