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Exch. of Pleas, the Court will grant a rule calling on the plaintiff to give 1841.

security for costs.

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ALDERSON, B.-We cannot interfere in the manner prayed for. Whether this action be brought for the sum recovered in the former action, we cannot tell, and we cannot be called upon to decide that on affidavits. If it be so, that should be pleaded in bar as a defence to the action. With respect to the other point, the plaintiff is within the jurisdiction of the Court, and her poverty is no reason why she should give security for costs. The case of a plaintiff suing in formâ pauperis is an instance of that.

The other Barons concurred.

Rule refused,

PAGE v. JARVIS. A declaration in ASSUMPSIT. The declaration stated, that heretofore, assumpsit stated, that one w. to wit, on the 17th of July, 1839, one William Augustus A. S. was in the South was in the lawful custody of the warden of the Fleet, custody of the warden of the in execution at the suit of the plaintiff for the sum of Fleet in execution at the 951. 98. 6d. upon and by virtue of a certain judgment for suit of the plaintiff, upon a

that sum before then, to wit, in Hilary Term, 2 Vict. judgment in

recovered by the plaintiff against the said W. A. South this Court, and that in consi- in her Majesty's Court of Exchequer of Pleas at Westderation that the plaintiff minster; and the said W. A. South so being in such cuswould cause him to be dis

tody as aforesaid, in consideration that the plaintiff, at the charged, and

request of the defendant, would cause the said W. A. South would take his warrant of attorney for the debt and costs, the defendant undertook that W. A. S. should be forthcoming to satisfy the amount of the judgment to be entered up on the warrant of attorney, on the 18th July, 1840, at the office of Mr. A., and also, that one day's previous notice of meeting W.A. S. should be given to Mr. A.: -Averment, that the plaintiff, confiding, &c., did discharge W. A. S. out of custody, and took a warrant of attorney for the debt and costs: Breach, that W. A. S. was not forthcoming to satisfy the amount of the judgment so to be entered up as aforesaid, at the day and place agreed on, nor was one day's notice, &c., given to Mr. A.:

Held sufficient, on motion in arrest of judgment, without an averment that judgment was actually entered up on the warrant of attorney.

PAGE

JARVIS.

to be discharged out of the said custody of the said warden Erch. of Plcas, of the Fleet, and would take the warrant of attorney of

1841. the said W. A. South for the payment of the debt and costs in respect of which he the said W. A. South had been so taken in execution as aforesaid, the defendant, to wit, on the day and year last aforesaid, undertook and promised that the said W. A. South should be forthcoming to satisfy the amount of the judgment to be entered up on the said warrant of attorney, on a certain day and at a certain place in that behalf agreed upon between the plaintiff and defendant, to wit, on the 18th day of July, A.D. 1840, at one Mr. Ashley's, No. 9, Shoreditch, in the county of Middlesex; and further, that one day's previous notice of the time of meeting the said W. A. South should be given to the said Mr. Ashley. And the plaintiff avers, that he, confiding in the said promise of the defendant, did cause the said W. A. South to be discharged out of the said custody of the said warden, and did take the warrant of attorney of the said W. A. South for the payment of the debt and costs in respect of which he had been so taken in execution as aforesaid, of all which the said defendant had notice, to wit, on &c.; yet the defendant did not regard his said promise, inasmuch as the said W. A. South was not forthcoming to satisfy the amount of the said judgment so to be entered up as aforesaid, on the day and at the place in that behalf agreed upon as aforesaid, nor was one day's previous notice of the meeting the said W. A. South given to the said Mr. Ashley ; whereby the plaintiff lost the benefit of his said execution, and of the said warrant of attorney, and of the judgment thereon, and was put to divers charges and expenses in the law and otherwise, amounting in the whole to a large sum, to wit, the sum of £100, in and about the premises, &c.

Pleas, first, non assumpsit; second, that W. A. South was forthcoming to satisfy the amount of the said judgment so to be entered up, &c.; third, that one day's pre

PAGE

Exch. of Pleas, vious notice of meeting the said W. A. South was given to 1841.

Ashley :-on which issues were joined.

At the trial before Alderson, B., at the London sittings JARVIS. in last Michaelmas Term, the plaintiff obtained a verdict,

damages £5. R. V. Richards subsequently obtained a rule to shew cause why the judgment should not be arrested, on the ground that the declaration contained no averment that judgment had been entered up on the warrant of attorney.

E. James and Baddeley now shewed cause.—After verdict, it will be presumed that that which was material to be proved in order to support the declaration, was proved at the trial. The rule on this subject is laid down in the notes to Stennell v. Hogg (a) :-“Where there is any

defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the Judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission is cured by the verdict by the common law.” If, therefore, it was necessary in this case, in order to entitle the plaintiff to damages, to prove that judgment had actually been entered up, it must now be assumed that such proof was given. But that was not necessary to make the contract binding. [Alderson, B.—There is an equal breach of contract, whether the judgment was entered up or not; the difference is, that in the latter case there was no damage. Lord Abinger, C. B.- I do not think the contract imports that judgment is to be entered up before the day named; it is to be then entered up; therefore, if the party does not appear on the day, it may be entered up afterwards.] The Court then called on

(a) 1 Saund. 228, n. (1).

JARYIS.

Whateley, in support of the rule.—The object of the Erch. of Pleas,

1841. debtor's coming on the day and to the place mentioned in the declaration, is to satisfy the judgment; it is therefore PAGE a condition precedent that it should be first entered upthat there should then be an existing judgment. The requisition of one day's notice shews this to be so; there was no necessity for notice, except to enable the creditor to get the judgment entered up in the mean time. Inverting the terms of the contract, it amounts to this, that notice shall be given on the 17th of South's intention to appear on the 18th, thereby to enable the plaintiff to enter up judgment; and that on the 18th he shall appear to satisfy the judgment so to be entered up.

Lord ABINGER, C. B.—There is some nicety in the case, but upon consideration, I think the declaration is sufficient, and that the rule must be discharged. The defendant undertakes for two things: first, that South shall be forthcoming on the 18th of July, at Mr. Ashley's, to satisfy the amount of the judgment to be entered up; and secondly, that a day's notice of the time of meeting South shall be given to Ashley. The declaration alleges that neither of these things was done. The object of the day's notice was to enable the plaintiff to sign judgment. Then he alleges, that by the neglect to give such notice, he lost the fruits of the judgment signed afterwards. The defendant has therefore broken his contract.

ALDERSON, B.- The contract was broken by the omission to give notice to Ashley on the 17th, the object of which was that the plaintiff might sign judgment, so as to be ready to take South on the 18th. If that notice was not given, the plaintiff was not bound to put himself to the unnecessary expense of signing judgment.

ROLFE, B.-I am entirely of the same opinion : and

Exch. of Pleas, even without the matter relating to the notice, I should 1841.

have thought the declaration sufficient, because the underPAGE taking is that South shall be forthcoming on a given day JARVIS. to satisfy a judgment to be entered up; and the breach

alleged is, that he was not forthcoming, whereby the plaintiff lost the fruits of his judgment. I think, after verdict, it may be safely inferred that the fruits of the judgment which the plaintiff lost, were those of a judg. ment actually existing.

Rule discharged.

the defendant

accounts be

rectness of

Tuomas, Administrator of THOMAS, Deceased, v. HAWKES

and Another. Undera plea or AssUMPSIT by the plaintiff, as administrator, against to a count on an the defendants as joint makers of a promissory note payable account stated, to the intestate ; with a count on an account stated with may shew that the intestate. Pleas, to the first count, that the defendtween the plain- ants did not make the note; to the second, non assumptiff and him. self, the cor

serunt. At the trial before Lord Abinger, C. B., at the

London sittings after last Michaelmas term, the plaintiff which he has admitted, were put in, to prove the second issue, certain accounts between in fact incor

the defendants and the intestate, and proved an admission on the part of the defendants of their correctness. The defendants proposed to shew, in answer to this evidence, that mistakes to their prejudice existed in the accounts. The Lord Chief Baron rejected the evidence, on the ground that, under the plea of non assumpserunt, the only question was whether an account had in fact been stated or not, and that fraud or mistake should have been specially pleaded. A verdict having been found for the plaintiff, Humfrey, in Hilary Term, obtained a rule nisi for a new trial, on the ground that the evidence had been wrongly excluded.

rect.

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