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"affignee, &c. to demand and have of the faid T. Owen the faid "fum of 40l. above demanded. Nevertheless the faid T. Owen, " although often required, hath not paid," &c. inferting Owen's name for that of the Defendant.

To this there was a special demurrer, affigning for caufe that "it is not averred, or fhewn in or by the faid declaration, that "the faid R. Sargent hath been guilty of any breach of the con"dition; that it no where appears that the faid R.Sargent hath " neglected or refused to pay the money, or that payment "thereof has ever been demanded of the faid R. Sargent; and " that no fufficient cause of action is any where stated or shewn "to have arifen, or accrued to the faid T. Morgan against the "faid R. Sargent."

Joinder in demurrer.

Shepherd Serjt. in fupport of the demurrer. It is confiftent 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 affignment; and the Court cannot fubftitute R. Sargent for T. Owen.

Marshall Serjt. contrà. The fpecial demurrer ought to have alleged that the declaration had ftated non-payment, by T. Owen inftead of R. Sargent; and the averment in the beginning of the declaration, "owes to, and unjustly detains," iufficiently fhews a cause of action and non-payment by the Defendant.

Shepherd in reply. The averment in the beginning of the declaration is a mere conclufion of law, and only fhews that the debt was once owing; but the Plaintiff muft fhew how it is owing, and that there is a debt, and detainer at the time of the action brought.

EYRE Ch. J. Is it not fhewn that the debt and detainer were exifting at the time of the declaration, fince the record begins with "was fummoned to anfwer J. M. in a plea that he render to "the faid J. M. 40l. which he owes to, and detains," &c.? You muft argue it as a mere point of form; if you attempt to argue on the fubftance, you muft fail. This is a flip 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 fpecial demurrer. Infinite mifchief has been produced by the facility of the Courts in overlooking these errors: it encourages careleffness, and places ignorance too much upon a footing with knowledge among thofe who practise the drawing of pleadings. The averment of "often requested" is

1797.

MORGAN

V.

SARGENT.

an

1797.

MORGAN

V.

SARGENT.

an eftablished form, and I think a neceffary 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, muft pay for his blunder.
The other Judges affenting,

Judgment for the Defendant.

June 28th.

If a replication to a plea in abatement of the writ

begin," that the "Laid declara

ation ought not "to be qualh

"ed," but con

clude properly,

it is well enough; for fuch words may be rejected as furplufage.

A

SSUMPSIT.

SABINE V. ELIZABETH JOHNSTONE.

Plea in abatement of the writ: That Eliza Allen Johnstone, who is impleaded by the name of Elizabeth Johnftone, was baptifed by the name of Eliza Allen, and had always been called and known by the name of Eliza Allen, without this, that she had ever been called or known by the name of Elizabeth: and prays judgment of the writ. Replication: That the faid declaration ought not to be quashed, by reafon of any thing in the faid plea above alleged: because the faid Eliza Allen Johnftone, who now appears to the original writ and declaration, is the fame perfon against whom the Plaintiff fued out his writ, and was at that time, and ftill is, called and known, as well by the name of Elizabeth as by the chriftian name of Eliza Allen. Concluding to the country. To this there was a special demurrer, affigning for caufe: That the Plaintiff in his replication has not fhewn any reafon "why the faid writ of the faid Plaintiff, of "which the faid Eliza Allen hath above prayed judgment, "fhould not be quafhed: but on the contrary thereof hath "alleged that his faid declaration ought not to be quashed; to "which faid declaration the faid Eliza Allen hath not pleaded, "nor is the bound to plead; inafmuch as the faid declaration "cannot be good or fufficient in law, if the faid writ of the faid "Plaintiff is quafhed: and for that the matter alleged by the "Plaintiff in his replication fhould, if truc, have been pleaded " in fupport of his faid writ, and not of his faid declaration," &c. Joinder in demurrer.

Marshall Serjt. in fupport of the demurrer. It is a principle in pleading, that the confequence intended to be drawn by one party muft be excluded by the anfwer of the other. Here the Defendant fays, that fhe is mifcalled in the writ, and that it ought to be quafhed. The Plaintiff in reply fays, that the declaration ought

not

1797.

SABINE

ย.

not to be quafhed, though the Defendant has not alleged that it ought. Suppofe a judgment that the declaration fhould be quafhed, yet the writ would remain, and then the Plaintiff could not bring a new action: for he muft declare on the fame writ as JOHNSTONE. long as it remains. Now if he declared on the fame writ, in the fame manner, the fame objection would lie; and if in a different manner, there would be a variance between the writ and the declaration.

Runnington Serjt. contra was stopped by the Court.

EYRE Ch. J. I think the rules of pleading ought to be maintained; but I cannot but confider 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 ftates 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 quafhed," it might have altered the cafe; but the answer on which the Plaintiff has relied, is an answer of fact. Then what is the confequence? 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 fignify whether it fays that the declaration or the writ ought to be quashed, or whether it fays 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 iffue would have been well joined. It is therefore a furplufage form. HEATH J. Of the fame opinion.

ROOKE J. Of the fame opinion.

Judgment for the Plaintiff.

MEDDOWSCROFT One, &c. v. SUTTON and Another, July 30
Executors of Bowen.

BOWEN was ferved with an attachment of privilege on a recogni

zance of bail, but died before the quarto die poft; until which day he had time to furrender the principal; the Plaintiff then ferved the Defendants with an attachment of privilege, and before the quarto die poft of that writ the principal was furrendered. Shepherd Serjt. having obtained a rule to fhew caufe why the proceedings againft the Defendants fhould not be ftaid, on payment of cofts;

Cockell

8 T.R. 423. 3 Eaft, 307.

If

bail be served

with procefs on his recognizance, and die before the quarto die poft, and fresh process iffue against his

executors; they

have until the

quarto die poft of

the fecond writ to furrender the principal.

1797.

MEDDOWS

CROFT

บ.

SUTTON.

July 5th.

7 T. R. 391. 3 Eaft, 561.

Poft, 335

2 Taun. 229.

If an

deed contain a

provifo that the grantor thall repurchase, the memorial of fuch

Cockell Serjt. fhewed caufe. The furrender was infufficient. Bowen's death made no difference: his executors could not be in a better fituation than himself, and the principal fhould have been furrendered by the quarto die poft of the firft 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 firft day: if he had lived he might have relieved himself; the executors therefore are not fued as the executors of bail fixed in his lifetime, and muft be in the fame fituation as if no action had been brought against their teftator. Hoare v. Mingay, 2 Str. 915. Though the ftaying proceedings on a furrender before the quarto die poft was formerly ex gratiá, it is now become a matter of right.

Per Curiam (after looking into the cafe of Hoare v. Mingay). The cafe in Strange has established this rule: That if the principal is furrendered within four days after the return of that writ in which there is an effectual proceeding, it is fufficient. The former fuit was as much done away in this cafe by Bowen's death, as in Hoare v. Mingay, by the action being brought in the wrong court: the fufficiency of the furrender 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.

Ex parte ANSELL and Another.

Rule abfolute.

annuity CANSELL and S. W. Fores granted an annuity to E. Boulton, and gave a bond, warrant of attorney, and annuity-deed to fecure it. The deed contained a provifo of redemption. The memorial stated the bond and warrant of attorney properly, but defcribed the provifo of redemption as follows: "and in the "fame indenture is contained a certain provifo or agreement, conditions of re-impowering the faid C. Anfell to repurchase the said annuity demption; if it upon fuch notice, terms, and conditions as are therein ex"preffed."

deed muft ftate

the provifo and the terms and

only refer to the deed, and ftate the annuity to be redeemable "on “fuch notice, "terms, and "conditions as " are therein "expreffed," it does not fuf

Williams Serjt. on the part of the grantors, on the first day of Eafter Term, obtained a rule to fhew caufe, why the "bond, "the warrant of attorney, and the deed, fhould not be delivered 66 up to be cancelled."

ficiently comply with the 17 G. 3. 6. 26. S. Iv

The

The ground of his motion was, that the memorial had fet forth the provifo of redemption in too general a way (a). He cited Seadman v. Purchase, 6 T. R. 737. to fhew that a memorandum indorfed on the deed, importing that the grantor might redeem on terms, muft be inferted in the memorial: and Appleby v. Smith, H. 37 G. 3. in Scacc., where it was held equally neceffary, though the provifo was contained in the body (b) of the deed.

Shepherd Serjt. fhewed caufe. Though it has been held that a provifo of redemption ought to be inferted in the memorial, it has never been deemed neceffary to ftate it verbatim. A provifo of redemption is a part of the confideration, and there is a difference between the firft claufe which relates to fetting out the deed, and the fecond claufe 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 defeription. Unlefs this be fufficient, the whole deed muft be fet out; the days of payment and the remedy, as whether by diftrefs or otherwife. The claufe of redemption is ftated generally, referring to the deed for par

ticulars.

Williams in fupport of the rule. The provifo of redemption forms part of the terms of the agreement on which the annuity is granted and there is no difference in fenfe, whether fuch provifo be totally omitted in the memorial, or only generally inferted, as in the prefent cafe. The deed is in the cuftody of the grantee; it is neceffary therefore that the memorial fhould contain the facts effential 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

(e) Another objection to the memorial was taken by Williams Serjt. viz. that it was therein stated, that the confideration was paid by "E Boulton or her folicitor," in the alternative; and for this was cited the opinion of Lord Loughborough, in Duke of Belton v. Williams, 4 Bro. Chan. Caf. 309. where it is faid, that "the actual * mode and manner of payment is neceffary to be stated in the memorial;” but this was agreed to be a mistake in the report: and Eyre Ch. J. said, “That the "deed muft exprefs by whom the confider"ation was paid, but not the memorial." Fide alío Dalmer v. Barnard, 7 T. R. 248. (6) See alfo to this effect Harris v. Stapleton, 7 T.R. 205. But where an

agreement was made at the time of the
grant, that the grantors should have a
power of redemption, which agreement
was not then reduced to writing; but after
the memorial had been inrolled, was in-
dorsed on the bond; the Court of K. B.
were of opinion that the third fection of
the act, which requires the confideration
to be ftated in every deed, &c. could not be
extended to a power of redemption intended
to be referved to the grantor. And though
it had been objected for the Defendant,
that fuch an agreement ought to have been
stated in the memorial, the Court directed
the counsel for the Plaintiff to speak to
another point. Dalmer v. Barnard, 7T.R.
250.

Courts

1797.

Ex parte ANSELL.

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