Exchequer. The declaration stated, that the sheriff had seized goods of the plaintiff under a fi. fa. issued upon a judg ment, and sign- attorney given tiffs and one R., to one S., as trustee for the as security for monies due from the plain tiffs and R. to the defendant, and thereupon it was agreed, that the plain tiff's should give the defendant two several warrants of attor ney for specific sums, and that the defendant should procure RADFORD and others v. SMITH. ASSUMPSIT The declaration stated, that before the making of the promise of the defendant thereinafter mentioned, the Sheriff of Middlesex had seized divers goods and chattels of the plaintiffs of great value, to wit of the value of 2007., under and by virtue of a certain writ of fieri facias theretofore issued out of the Court of Queen's Bench in a certain suit in that Court, wherein one Charles Stoddart was plaintiff, and they the now plaintiffs, and one John Hopkins Radford were defendants, and which said writ of fieri facias issued upon a certain judgment, theretofore signed in the said Court of Queen's Bench, under and by virtue of a certain warrant of attorney by them the now plaintiffs, and the said J. H. Radford theretofore to wit given defendant, and and executed, whereby the now plaintiffs, and the said J. H. Radford, authorized the said judgment to be entered up, but which said warrant of attorney was then given and executed for the use and benefit of the now defendant, and to the said Charles Stoddart, as trustee for the now defendant, and as a security for monies at the time, and on the occasion of such warrant of attorney being given and executed as aforesaid, due and payable from the now plaintiffs and the said J. H. Radford to the now defendant, and which said writ of fieri facias was directed to the Sheriff of Middlesex, and the said goods and chattels from thenceforth down to and until, and at the time of the making of the promise of the defendant continued, and were in the hands and custody of the said Sheriff of Middlesex, under and by virtue of the said writ of fieri facias, and thereupon afterwards to wit on the 29th day of April, 1837, it was mutually agreed by and between the plaintiffs and the defendant in manner following, that the plaintiffs should give the defendant two several warrants of attorney, the one for the sum of 647. 178., being the sum due and recoverable upon the judgment, upon and under which the said writ of fieri the defendant facias was issued as aforesaid, and the other of such warrants of attorney for the sum of 341. 3s., being a sum of money which the said J. H. Radford, the father of the now plaintiffs, was then liable to pay to the defendants, and not a debt-claim or demand against them the plaintiffs, or any or either of them, and that the defendant should cause and procure the said goods and chattels of them the plaintiffs, to be re-delivered and given up to them. The declaration then alleged, that the two sums of 647. 178., and 347. 3s., far exceeded the amount to be levied under the fieri facias, and after averring mutual promises, stated, that in pursuance of the said agreement, the plaintiffs afterwards and at and within a reasonable and proper time in that behalf, and before the commencement of this suit, to wit, on, &c., did give to him, the defendant, the said two several warrants of attorney in the agreement mentioned and provided for, which he, the defendant, then took, accepted, and received of and from the plaintiffs; yet, the defendant not regarding his said promise, did not nor would then or at or within a reasonable and proper time in that behalf, although such reasonable and proper time elapsed before the commencement of this suit, or at any other time cause or procure the said goods and chattels of them the plaintiffs, or any of them, or any part thereof, the goods and chattels to be re-delivered to the plaintiffs: that plaintiffs gave the warrants of attor ney, but that did not cause the goods to have been exe- of the defend- as his trustee : -Held, that the plea was bad, as travers ing an immaterial issue. Held, also, that it was not ne cessary to set out the war rants of attor ney, or to aver a request to re-deliver the goods. to be delivered or given up to the plaintiffs, by means of which premises the plaintiffs have wholly lost and been deprived of the said goods and chattels and every of them and the value thereof, &c. Second Plea. That the warrant of attorney in the declaration mentioned, and therein alleged to have been given and executed by the plaintiffs, and the said J. H. Radford was not given and executed for the use and benefit of the defendant, and the said C. Stoddart, as trustee for the defendant in manner and form; &c Special demurrer, on the ground that the plea put in issue a matter wholly immaterial. Cowling, in support of the demurrer, was stopped by the Court, Parke, B., observing that it was immaterial for whose benefit the original warrant of attorney was given, since the two new warrants of attorney would constitute a good consideration for the return of the goods. Mansel, contrà.-There are two objections to the declaration; First, it does not set out the warrants of attorney. It ought to have been shown that they were instruments of such a nature as to be a benefit to the defendant, Bolton v. Fenn (a).-[Parke, B.-Supposing there had been a judgment by default, would the declaration have been bad on that ground, in arrest of judgment?]-Secondly, the declaration does not state any request to re-deliver the goods. Where the contract is merely to pay money, a request is not ne essary, but in other cases, it must be alleged and proved.-[ Parke, B.-There the contract is to procure them to be re-delivered, without any request.]-In Bach v. Owen (b), A. and B. had agreed to exchange horses, B. giving A. a sum of money to bind the bargain, and it was held on general demurrer in an action by A. against B., for not delivering his horse, that the declaration was bad for not alleging a specific request.-[Lord Abinger.Where by the terms of the contract, a request must precede delivery, or when a request is to be implied, it must be alleged and proved, but not otherwise. In the case cited, the plaintiff was not entitled to the horse, unless he offered his own, and demanded the other.] Cowling, in reply.-As to the first objection, the declaration need not be more precise than the terms of the contract itself. With regard to the other points, the promise is, that the defendant will "procure the goods to be redelivered;" and he is bound to do it within a reasonable time. It is only in the case of collateral engagements, in which a party promises to do an act on request, that an allegation of request is necessary. In the report of Bach v. Owen, the contract is not stated; but there is no doubt that the delivery was to be on request. Besides, it has been since held, that the allegation," although often requested," is good after verdict, or on general demurrer (c). The contract in Bach v. Owen, Lord ABINGER, C. B.—When a warrant of attorney is stated to have been given, it necessarily implies some value. was most probably to deliver on request. (a) 1 Lev. 257. (b) 1 Sid. 415. (c) 5 T. R. 409; See Bowdell v. Parsons, 10 East, 364; Exchequer, RADFORD V. SMITH. PARKE, B.-I have no doubt that upon these objections, the declaration is not bad on general demurrer. As to the first point, if you look at the contract, there can be no doubt of the meaning of the warrant of attorney. The contract is stated to be, that a certain warrant of attorney was given by the plaintiffs, authorizing judgment to be entered up; and it is then averred that in consideration that the plaintiffs would give the defendant two several warrants of attorney, for certain specific sums of money, the defendant would cause the goods to be re-delivered. It clearly appears by the terms of the contract, that they were warrants of attorney to enter up judgment. If the warrant of attorney be for the payment of a sum of money, that is a sufficient consideration. As to the objection that no request is alleged, the contract is absolutely to re-deliver the goods, and no request is necessary. The case of Bach v. Owen, is imperfectly reported, the contract must have been to deliver on request, or the objection would not have been taken. BOLLAND, B. concurred. Judgment for the plaintiff. Amendments may be made in penal as in other actions, unless there has been unnecessary delay. JONES, qui tam, &c. v. EDWARDS. THIS was an action of debt, to recover the penalty of 1007. from the defendant, for acting as a magistrate for the county of Merioneth, without being duly qualified. The declaration was delivered on the 26th October, and the venue was laid in Middlesex. On the 4th November, the defendant pleaded the general issue, and on the 8th November, the issue was delivered to the defendant's agent, with notice of trial, for the second Sittings in Michaelmas Term. The error in the venue having been discovered, on the 10th November, the defendant countermanded the notice of trial, and on the 13th, a summons was taken out to amend the declaration, by laying the venue in Merionethshire, instead of Middlesex, which was allowed upon payment of costs, the defendant to be at liberty to plead de novo. On the 22d November, the defendant delivered a special demurrer to the declaration, assigning for cause that it did not state what acts the defendant had done as a magistrate. The plaintiff, after twice obtaining time to join in demurrer, took out a summons, before Gurney, B., to amend the declaration, but the learned judge refused to make an order. A second summons was taken out before Parke, B., who ordered the proceedings to be stayed, until the fourth day of Term, that the plaintiff might apply to the Court. г Welsby, having obtained a rule nisi to amend the declaration. Creswell, shewed cause upon an affidavit, that the defendant had a good qualification, and that the plaintiff was a person in indigent circumstances, and wholly unable to pay costs if he failed. It was contrary to the practice of the Court to allow amendments in penal actions.-[Parke, B.-In Tidd's Practice (a), it is stated, that there is no difference between penal and other (a) p. 711. actions, unless there has been unnecessary delay. The only class of cases in which amendments are not allowed, are real actions, and even as to them, there are exceptions.]-The law allows less favour to a common informer; he must bring his actions within a certain time, and must lay the venue where the offence was committed. Besides, the plaintiff has not shewn that he has a meritorious cause of action. In Matthews v. Swift (b), which was an action against an attorney for penalties, for practising without having his name entered on the roll, the Court refused to allow the declaration to be amended after special demurrer. So in Wright v. Ager (c), which was an action against a sheriff's officer, for extortion; the Court refused to allow the declaration to be amended, by inserting counts on the 23 Hen. 6, c. 9. At all events, the amendment ought only to be allowed upon the terms of the defendant being at liberty to plead de novo, and the plaintiff giving security for costs. Jervis and Welsby, in support of the rule.-Matthews v. Swift, was decided upon the grounds that the plaintiff was not entitled to indulgence, because there had been unnecessary delay. Here the venue being in Merionethshire, there could be no delay. (He was then stopped by the Court.) PARKE, B.—We all agree, that according to the rule acted upon in other cases, it is competent for the plaintiff to amend in a penal action, unless under very special circumstances, and one of those is unnecessary delay. The result is, that we think the amendment ought to be allowed upon payment of costs, the defendant to be at liberty to plead de novo, and the plaintiff undertaking to go to trial at the next Assizes. We should also be disposed to add, that the plaintiff give security for costs, but as there does not appear to be any precedent for it, we are unwilling to make one. Rule absolute accordingly. Exchequer. JONES V. EDWARDS. ques WALLINGER, moved for a rule nisi, calling on the plaintiff or his Where to an action on a bill the defendant he was only pleaded that of exchange liable as that time had been given to the principal: -Held, that entitled to inspect a deed surety, and he was not in the plaintiff's posses sion, although it was suggested that time had been thereby given to the principal, the defendant being no party to the deed. (a) 4 Taunt. 157. Exchequer. v. WINTER. parties in interest, though not instrumentary parties.-[Gurney, B.-You should give the plaintiff notice to produce the deed, and if he then refuses to produce it, you may give secondary evidence of its contents.]-In Browning v. Aylwin (b), which was an action for negligence, the Court ordered the defendant to grant the plaintiff inspection of his book. PARKE, B.-We do not think the defendant has such an interest as entitles him to inspect the deed. If he has no other evidence, he must file a bill of discovery. Rule refused. (b) 7 B. & C. 204. An execution creditor appearing under the Interpleader Act, need not produce an affidavit. ANGUS v. WOOTTON. RULE having been cbtained by Barstow, under the Interpleader Act. Rogers, for the claimant objected that the execution creditor could not be heard, inasmuch as he had produced no affidavit. He referred to Powell v. Lock (a). PARKE, B.-An affidavit is not required from the execution creditor. The case of Powell v. Lock, was that of a claimant. (u) 3 A. & E. 314; 1 Har. & Wol. 281; 4 Nev. & Man: 852. The declara tion stated, that defendants a certain ves sel, and that plaintiff caused to be shipped on board thereof certain goods, to be safely carried by the defend BENNION v. DAVIDSON and others. THE declaration stated, that the defendants, before and at the time of making the promise thereinafter next mentioned, were the owners and were owners of proprietors of a certain ship or vessel called the Frodsham Trader, then in a certain river near Chester, to wit, the river Dee, and bound from thence to Liverpool, and thereupon the plaintiff theretofore and before the making of the promise thereinafter next mentioned, to wit, on, &c. at the request of the defendants, caused to be shipped and loaded in and on board of the said vessel, divers goods, to wit, 800 bushels of potatoes of great value, &c., to be taken care of and safely and securely carried and conveyed by the defendants as owners of the said vessel, from the said place of loading to Liverpool aforesaid, and in consideration thereof, and of certain freight and reward to the defendants in that behalf, they the defendants, promised the plaintiff to take due and proper care of and safely and securely carry and convey the said goods as aforesaid; and although the defendants then had and received the said goods to be taken care of and carried and conveyed as aforesaid, yet ants as owners of the said vessel; that the defendants promised the plaintiff safely to carry the said goods, as aforesaid :Held, that under the plea of the general issue, the ownership of the defendant was not admitted. A plea denying a particular fact does not admit other immaterial allegations. |