H. T. 1846.
Queen's Bench.

FRANCIS DOLAN v. JAMES M'TERNAN.

A declaration stated, that

in considera-
tion that the
plaintiff and
one B. E., now
deceased, had
at the special
instance and
request of the

then and there
given and
made to the
defendant a
proposal of
£15 a-year,
and a fine for

certain lands,
then and there
undertook and
promised the
plaintiff and
the said B. E.

ASSUMPSIT for breach of an agreement relating to the sale and purchase of lands.-There were six counts in the declaration. The first was in this form:-"For that whereas the said defendant heretofore, "to wit, on, &c., to wit, at, &c., in consideration that the said plaintiff "and one Bryan Early, now deceased, whom the said plaintiff hath "survived, had at the special instance and request of the said defend"ant, then and there given and made to the said defendant a proposal defendant, "of £15 sterling per year, and a fine of £500 sterling for certain lands "and premises, to wit, the house, offices, and that part of Lisnagowan "lately occupied by John Palmer, then and there undertook, and "faithfully promised the said plaintiff and the said Bryan Early to "effect and complete the purchase of the estate of Bardaldeage, and "to give and execute to the said plaintiff and the said Bryan Early, "a lease for ever of certain lands and premises, to wit, the house and "offices division of Lisnagowan, together with all the timber then "growing on said division. Yet the said defendant disregarded his "said promise, and did not, nor would, although often requested so "to do, effect and complete the purchase of the said estate of Bardaldeage, and did not, nor would, give and execute a lease for ever of "the said lands and premises, to wit, the house and offices division "of Lisnagowan, together with all the timber then growing on said "division, to the said plaintiff and the said Bryan Early, or either "of them, during the lifetime of the said Bryan, nor to the said "plaintiff since the decease of the said Bryan, but so to do hath "hitherto wholly refused, and still doth refuse, to wit, at, &c."-The remaining counts differed merely in the statement of the agreement. Special demurrer to the first count, so far as the same relates to the breach of contract in the said count secondly and lastly assigned, that there is no sufficient consideration stated for the making of the promises, or any of them, by the defendant; that it is not stated that a reasonable time had elapsed since the making the contract, before bringing the action, or that the time within which the contract was to have been performed had elapsed; or within what time the contract was to be performed; or that the plaintiff and Bryan Early, in his lifetime, or plaintiff since his death, requested the defendant to

66

to complete a purchase of the estate, and to execute a lease of the premises; and averred as a breach, that the defendant

the

did not effect and complete the purchase

of the said estate, nor execute a lease Special demurof the premises. rer, that there

is no aver

ment of a performance of precedent matter by the plaintiff, or of

a special request by the plaintiff to the defendant to execute the lease; and that there is

no averment

of a reasonable time having elapsed, or that a conveyance had been tendered by the plaintiff to be executed. Held, that the declaration was bad.

DOLAN

V.

M'TERNAN.

H. T. 1846. perform his said promises, or any of them, at any particular time Queen's Bench. before bringing this action; or that any special request was made by the plaintiff, or the said Bryan, or either of them, at any time before the commencement of the action, to purchase the said estate, or to execute a lease for ever of the said lands; or that the plaintiff, or said Bryan, or plaintiff since his decease, on their or his part, ever at any time offered, or required the defendant, to fulfil the said contract, so far as same relates to the executing of said last-mentioned lease; and that it is not shown that the plaintiff and said Bryan, or either of them, at any time before the commencement of this suit, tendered to said defendant, for him to execute, a lease for ever, or any lease of the said premises.

The grounds of special demurrer to the other counts were almost identical. The general issue was pleaded to the residue of the declaration.Joinder in demurrer.

M'Mahon and Baker, in support of the demurrer.

The consideration is not co-extensive with the promise, it being a past consideration, and there is no averment of a precedent request: Roscorla v. Thomas (a): nor does the declaration state that the plaintiff paid the £15. Where the plaintiff himself is to do an act to enable him to maintain the action, he must either show the act done, or if it be not done, at least that he has performed every thing that was in his power to do: 2 Saund. 352, d. The declaration does not state within what time the contract was be performed, or that a reasonable time had elapsed: Ward v. Harris (b); Harrison v. Gage (c); Sansom v. Rhodes (d): nor that the plaintiff offered to accept a lease: Kemble v. Mills (e). The plaintiff should have averred he was ready and willing to execute the conveyance: Sug. V. & P. 230; Granger v. Dacre (f). Further where there is no definite or fixed time within which the contract ought to be executed, the declaration ought to contain a special request made to the defendant to execute such contract: Chitty Jun. Prec. 177; 1 Chit. Pl. 339. Then there is no averment of a tender of a conveyance: Stephens v. De Medina (g).

Carleton and Wm. Armstrong, contra.

As to the objection that this is a past consideration, that con

DOLAN

v

M'TERNAN.

sideration was given at the request of the defendant, and imposed a H. T. 1846. Queen's Bench. legal duty on him to give the lands. As to the payment of the money, the consideration is not that we paid it, but that we were bound to pay it: Bailey v. Croft (a); Chitty on Contracts, 30: and as to the objection grounded on an omission of an averment of the time, it is settled, when a contract is entered into without any express stipulation as to the time in which it is to be executed, the law intends a reasonable time it is therefore wholly unnecessary to aver it: Steph. Pl. 190: Com. Dig. Pl. E. 9. As to the next objection, that no time had elapsed between the making the contract and the bringing the action, the averments in the declaration show that a reasonable time had elapsed; that which is apparent to the Court by necessary collection out of the record need not be averred: Co. Litt. 303, b; Totnam v. Hopkins (b). An averment of the plaintiff's readiness to perform, is only necessary in cases of executory contracts or mutual promises, but here the consideration is executed. A special request is in no case necessary, unless it be part of the contract : Peck v. Methold (c); Bach v. Owen (d); Radford v. Smith (e); Bristow v. Waddington (f); Maher v. O'Shea (g). A tender of a conveyance is not necessary in such a case; the promise here differs from that in Stephens v. De Medina, it is to give and execute a lease: 1 Roll. Abr. 464, pl. 26: Baker v. Bulstrode (h); Glazebrook v. Woodrow (i).

BURTON, J., delivered the judgment of the Court.

Cur. ad. vult.

This was an action of assumpsit for the breach of an agreement relating to the sale and purchase of lands. The declaration contains six counts, to each of which a demurrer has been taken and special causes assigned. It is not necessary to state the counts, or all the causes of demurrer to them, because there is one class of objection applicable to all the six counts, and upon which the Court is already of opinion that the demurrer must be allowed, and upon which it is only necessary to state the terms of the first count.

It is manifest upon the statement of the agreement expressed in that count, that several matters are required to be done by the plaintiff in order to enable him to sustain an action against the

DOLAN

บ. M'TERNAN.

H. T. 1846. defendant on the breaches so assigned. The objection to the count Queen's Bench. is, that the plaintiff has omitted to aver the performance on his part of some precedent matter. The principal breach assigned is, that the defendant did not execute to the plaintiff a lease, pursuant to the agreement; and yet the plaintiff has not averred a special request by him requiring the defendant so to do; or that he, the plaintiff, was ready or offered to accept the same; nor has he averred that a reasonable time for the defendant executing the lease had elapsed, or that he, the defendant, tendered any conveyance to the plaintiff to be executed by him; and upon this objection Stephens v. De Medina is decisive. These defects of the declaration have been specifically stated by the special demurrer, and in this respect the Court are of opinion that the declaration is plainly defective, and that the demurrer must be therefore allowed, and judgment given for the defendant on the six counts demurred to.

Demurrer allowed.

Exchequer Chamber.

E. T. 1846.

Exch. Cham.

O'CONNELL, in Error, v. MANSFIELD.

cillor of the

borough of Dublin is exempt and disqualified from serving on summoned special jury within the bo

a

May 17. ACTION on the case, for libel.-The declaration stated, by way of A Town-couninducement, that before the committing of the grievances complained of, a charge of felony had been made by the plaintiff against one Daniel Stack, Esq., in having stolen a book belonging to him, before the magistrates of the College-street Police-office; that upon the investigation in the said Police-office, it was stated, by the plaintiff, that one Christopher Rooney, M. D., was to be a witness against the said Stack; that several letters had been written by the said Stack, in which he had challenged the plaintiff to fight a duel; and several letters by the plaintiff to the said Stack, in which he was charged by the plaintiff with having stolen several books, the property of the plaintiff; that the said Stack was a Protestant, and the plaintiff a Roman Catholic; and that the said Stack had been on a visit at the house of the Rev. J. O'Connor, a Roman Catholic clergyman, in company with the plaintiff. The declaration then, after the usual

rough; and one of the special jurors having been challenged at the trial, on the ground of being a member of the Town

council, for the time being, of

the borough of

Dublin, the opposite party

put in a counterplea, alleging that the jury was a special jury, "and that at the time of the striking of the jury aforesaid, and the arranging of the said panel, the said juror was a Town-councillor of the borough of Dublin, and that the same was well known to the said defendant at the time of the striking of the said jury, and arranging of said panel." Held, that the challenge was a good challenge, and that the counterplea was not a sufficient answer to it. [Dissentiente, RICHARDS, B.]

A libel, which, by the inuendo to the heading of it, was alleged to be conversant about a false charge of felony, made through feelings of religious bigotry, by the plaintiff, against one D. S., went on to allege, that the plaintiff was aided in making the said charge by one C. R., who were stated to "have been for some time back employing every means to win the confidence of this young gentlemau, their intended victim (meaning thereby that the said plaintiff, and the said C. R., had been contriving some plan to assail the character, and destroy the reputation, of the said D. S.), as taking him on country visits, and inviting him to the Continent, with the hope, it is alleged, of getting him altogether to themselves, and destroying his prospects the more easily, by some foul charge, which he could not find means of contradicting, there being to be no one else of the company. They had met with a direct refusal, it seems, to their invitation to the Continent, and therefore, rather prematurely opened their present plot (meaning the said charge of felony). Affidavits are, we understand, shortly to be laid before the law officers of the Crown, charging the above facts, together with certain conversations between the pair of Romanists, who have trained this ingenious manœuvre (meaning the charge of felony aforesaid)." Held, that the said libel did not amount to a charge of conspiracy, though in the introductory part of the declaration the plaintiff alleged, that the object of the defendant was to injure him, &c., by causing it "to be suspected, and believed, that he, the said plaintiff, was guilty of conspiracy, calumny, and fabrication of false charges;" and that, therefore, it was not necessary that the defendant should have justified such a charge. [Dissentientibus, JACKSON, J., RICHARDS, B., CRAMPTON, J.]