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1797

MORGAN

SARGENT.

" aflignee, &c. to demand and have of the said T. Owen the said * fum of 401. above demanded. Nevertheless the said T. Owen, " although often required, hath not paid,” &c. inserting Owen's name for that of the Defendant.

To this there was a special demurrer, affigning for cause that * it is not averred, or shewn in or by the faid declaration, that * the said R. Sargent hath been guilty of any breach of the condition; that it no where appears that the said R.Sargent hath neglected or refused to pay the money, or that payment " thereof has ever been demanded of the said R. Sargent; and * that no sufficient cause of action is any where stated or shewn "to have arisen, or accrued to the faid T. Morgan against the • faid R. Sargent.Joinder in demurrer. Shepherd Serjt. in support of the demurrer. It is consistent with the allegations in the declaration, that R. Sargent may have paid the money; the latter part of the declaration cannot be rejected, for there never was a declaration on a bail-bond ending with a statement of the aflignment; and the Court cannot fubftitute R. Sargent for T. Owen.

Marshall Serjt. contrà. The special demurrer ought to have alleged that the declaration had stated non-payment, by T. Owen instead of R. Sargent ; and the averment in the beginning of the declaration, “ owes to, and unjustly detains,” fufficiently thews a cause of action and non-payment by the Defendant.

Shepherd in reply. The averment in the beginning of the declaration is a mere conclusion of law, and only shows that the debt was once owing; but the Plaintiff must shew how it is owing, and that there is a debt, and detainer at the time of the aćtion brought.

Eyre Ch. J. Is it not shewn that the debt and detainer were existing at the time of the declaration, since the record begins with " was summoned to answer J. M. in a plea that he render to " the said J. M. 401. which he owes to, and detains," &c. ? You muft argue it as a mere point of form; if you attempt to argue on the substance, you must fail. This is a slip in form; but it is always the best way to make the party pay for this kind of flip, if advantage is taken of it by special demurrer. Infinite mischief has been produced by the facility of the Courts in overlooking these errors: it encourages carelessness, and places ignorance too

upon a footing with knowledge among those who practise the drawing of pleadings. The averment of “ often requested” is

much

an

1797

MORGAN

SARGENT.

an established form, and I think a necessary form: had the
Courts even determined it to be substance, I should have had no
objection; for many actions might have been avoided, if re-
queft had actually been made. The party, if he will not amend,
but will join in demurrer, must pay for his blunder.
The other Judges afsenting,

Judgment for the Defendant.

June 28th.

SABINE V. ELIZABETH JOHNSTONE.

SSUMPSIT.

If a replication

Plea in abatement of the writ: That Eliza A to a plea in abate

Allen Johnstone, who is impleaded by the name of Elizabeth ment of the writ begin, “ that the Johnstone, was baptised by the name of Eliza Allen, and had " said declara

always been called and known by the name of Eliza Allen, withation ought not 6 to be quath

out this, that she had ever been called or known by the name of sed," but con- Elizabeth : and prays judgment of the writ. Replication : That it is well enough; the faid declaration ought not to be quashed, by reason of any for such words, thing in the said plea above alleged: because the said Eliza Allen

be as furplufage. Johnstone, who now appears to the original writ and declaration,

is the same person against whom the Plaintiff sued out his writ, and was at that time, and still is, called and known, as well by the name of Elizabeth as by the christian name of Eliza Allen. Concluding to the country. To this there was a special demurrer, asligning for canse: That the Plaintiff in his replication has not shewn any reason why the said writ of the faid Plaintiff, of “ which the said Eliza Allen hath above prayed judgment, “ should not be quashed: but on the contrary thereof hath

alleged that his faid declaration ought not to be quashed ; to “ which said declaration the said Eliza Allen hath not pleaded,

nor is the bound to plead; inasmuch as the faid declaration “ cannot be good or sufficient in law, if the faid writ of the said • Plaintiff is quashed: and for that the matter alleged by the “ Plaintiff in his replication should, if truc, have been pleaded “ in support of his faid writ, and not of his faid declaration," &c.

Joinder in demurrer.

Marshall Serjt. in support of the demurrer. It is a principle in pleading, that the consequence intended to be drawn by one party must be excluded by the answer of the other. Here the Defendant says, that she is miscalled in the writ, and that it ought to be quashed. The Plaintiff in reply says, that the declaration ought

not

1797

SABINE

JOHNSTONE.

not to be quashed, though the Defendant has not alleged that it
ought. Suppose a judgment that the declaration should be
quelhed, yet the writ would remain, and then the plaintiff could
not bring a new action: for he must declare on the same writ as
long as it remains. Now if he declared on the same writ, in the
fame manner, the same objection would lie; and if in a different
manner, there would be a variance between the writ and the
declaration.
Runnington Serjt. contrà was stopped by the Court.

EYRE Ch. J. I think the rules of pleading ought to be maintained; but I cannot but consider this as a frivolous objection. The plea is right in praying that the writ may be quashed; and the replication is right: it is an answer by matter of fact, and not by matter of law: it states that the Plaintiff was called and known by one name as well as the other, and concludes to the country. If the Plaintiff had prayed judgment, “ if the declaration ought to * be quashed,” it might have altered the case; but the answer on which the Plaintiff has relied, is an answer of fact. Then what is the consequence? If that fact had been tried, and found for the Defendant, the judgment would have followed the prayer of the plea. As to the beginning of the replication, it does not signify whether it says that the declarationor the writought to be quathed, or whether it says neither. If the plaintiff had fimply replied; That the Defendant was called and known, &c. and concluded to the country, it would have been fufficient, and the issue would have been well joined. It is therefore a surplusage form.

Heath J. Of the fame opinion.
ROOKE J. Of the fame opinion.

Judgment for the Plaintiff,

8T.R. 423.

MEDDOWSCROFT One, &c. v. Sutton and Another, Fuly 30
Executors of Bowen.

3 Eas, 307. Bowen was served with an attachment of privilege on a recogni- if bait be ferved

zance of bail, but died before the quarto die post; until which with process on day he had time to surrender the principal; the Plaintiff then and die before the

his recognizance, served the Defendants with an attachment of privilege, and before quarto die pf, the quarto die post of that writ the principal was furrendered.

and fresh process

issue against his Shepherd Serjt. having obtained a rule to shew cause why the executors; they proceedings against the Defendants should not be staid, on pay- quarto die poft of ment of costs;

4

Cockell

to surrender the principal

the second writ

1797.

Meddows.

CROFT

SUTTON.

Cockell Serjt. thewed cause. The surrender was insufficient. Bowen's death made no difference: his executors could not be in a better situation than himself, and the principal should have been surrendered by the quarto die post of the first writ.

Shepherd Serjt. contrà. The bail could not be fixed until the fourth day after the return of the writ; now he died on the first day: if he had lived he might have relieved himself; the executors therefore are not sued as the executors of bail fixed in his lifetime, and must be in the same situation as if no action had been brought against their teftator. Hoare v. Mingay, 2 Str. 915. Though the staying proceedings on a surrender before the quarto die post was formerly ex gratiâ, it is now become a matter of right.

Per Curiam (after looking into the case of Hoare v. Mingay). The cafe in Strange has established this rule: That if the principal is surrendered within four days after the return of that writ in which there is an effectual proceeding, it is sufficient. The former fuit was as much done away in this case by Bowen's death, as in Hoare v. Mingay, by the action being brought in the wrong court: the sufficiency of the surrender within the quarto die poft, is a privilege to the party fued, to which the executors of the bail are as much intitled as the bail himself.

Rule absolute.

C.

July sth. 7 T.R. 391. 3 East, 561. Poft, 335.

Ex parte ANSELL and Another. 2 Taun. 229. if an annuity- ANSELL and S. W. Fores granted an annuity to E. Boulton, deed contain a proviso that the

and gave a bond, warrant of attorney, and annuity-deed to grantor thall re- fecure it. The deed contained a provifo of redemption. The memorial of such memorial stated the bond and warrant of attorney properly, but deed muft date described the proviso of redemption as follows: “ and in the the proviso and

« fame indenture is contained a certain provifo or agreement, the terms and conditions of re- “ impowering the said C. Anfell to repurchase the said annuity demption; if it only refer to the

upon such notice, terms, and conditions as are therein exdeed, and ftate

s pressed." the anuuity to be Tedeemable " on

Williams Serjt. on the part of the grantors, on the firft day “ such notice, of Easter Term, obtained a rule to Thew cause, why the “bond, " terms, and " conditions as

“the warrant of attorney, and the deed, should not be delivered « are therein

up

to be cancelled.” expressed," it does not luf. ficiently comply with the 17 G. 3. 6. 26. f. 1,

The

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The ground of his motion was, that the memorial had set forth the proviso of redemption in too general a way (a). He cited Seadman v. Purchase, 6 T. R. 737. to fhew that a memorandum endorsed on the deed, importing that the grantor might redeem en terms, muft be inserted in the memorial: and Appleby v. Saith, H. 37 G. 3. in Scacc., where it was held equally necessary, thongh the proviso was contained in the body (6) of the deed.

Shepherd Serjt. shewed cause. Though it has been held that a provifo of redemption ought to be inferted in the memorial, it has never been deemed necessary to state it verbatim. A proviso of redemption is a part of the confideration, and there is a difference between the first clause which relates to setting out the deed, and the second clause which relates to fetting out the confideration. The former requires the day of the month and year when the deed bears date, with other particulars to be specified; the latter only a general description. Unless this be fufficient, the whole deed must be set out; the days of payment and the remedy, as whether by distress or otherwise. The clause of redemption is stated generally, referring to the deed for particulars,

Williams in support of the rule. The proviso of redemption forms part of the terms of the agreement on which the annuity is granted : and there is no difference in fenfe, whether such provifo be totally omitted in the memorial, or only generally inserted, as in the present case. The deed is in the custody of the grantee; it is necessary therefore that the memorial should contain the facts essential to be known to the grantor. From this memorial he can only learn that he has the power of redemption, but not the terms on which he can redeem. If the

(1) Another obje&tion to the memorial agreement was made at the time of the mas taken by Williams Serjt. vix, that it grant, that the grantors should have a was therein itared, tbat. the confideration power of redemption, which agreement was paid by * E Boulton or her solicitor," was not then reduced to writing; but after in the alternative; and for this was cited the memorial had been inrolled, was inthe opinion of Lord Lorghborough, in Duke dorsed on the bond; the Court of K.B.

Belton v. Williams, 4 Bro. Chan. Caf. were of opinion that the third section of 309. where it is said, that the actual the act, which requires the confideration * mode and manner of payment is neces. to be ftated in every deed, &c. could not be sary to be fated in the memorial ;" but extended to a power of redemption intended this was agreed to be a mistake in the re- to be reserved to the grantor. And though Part: and Eyre Ch. ). said, “Thas the it had been objected for the Defendant,

deed muft express by whom the consider that such an agreement ought to have been "ation tras paid, but not the memorial.stated in the memorial, the Court directed Tito alio Dalmer v. Barnard, 7 T. R. 248. the counsel for the Plaintiff to speak to

(6) See also to this effc& Harris' v. another point. Dalmer v. Barnard, 77.R. Gapleton, 7 T.R. 205. But where an 250.

Courts

意 B

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