1838. PARKER บ. RILEY. Statute of Jeofails as matter of form; and for the same In conformity with this view of the case my Brother Coleridge decided a short time ago in Curtis v. Marquis of Headfort, which is not reported, that the objection could not prevail except on special demurrer; on the other hand, in the case of Hooker v. Nye (a), Lord Lyndhurst and my Brother Alderson held that the replication of de injuriâ, if bad, was bad on general demurrer, and Lord Lyndhurst said, that in Fursden v. Weeks, the Court decided that the objection must prevail on general demurrer, though the statute of 27 Eliz. was then in force, which enacted that the judges should give judgment without regarding matter of form, which shewed that this objection was not mere matter of form. But his Lordship does not appear to have adverted to the circumstance above mentioned, that too strict a construction had been put upon the statute of Elizabeth, which appears by the statute of Anne itself to have been the reason for the enactment of that part of it which relates to special demurrers. Nor does the attention of the Court appear have been drawn to the cases in which this objection was held to be mere matter of form under the statute of Jeofails. to The objection in this case appears to bear a strong (a) 4 Tyrr. 777; S. C. 1 C. M. & R. 258. analogy to that of duplicity, which is clearly matter of form, Com. Dig. Pleader, 94. Upon the whole we think that this objection ought to have been made the ground of special demurrer, and therefore our judgment must be for the plaintiff. Judgment for the plaintiff. 1835. PARKER v. RILEY. RADFORD and Another v. SMITH. stated that the sheriff had taken the plaintiffs' goods in execution under writ issued on a a judgment en tered on a war rant of attorney, and thereupon, that the plain in consideration tiffs would give to the defend ant two war rants of attor ney, the defendant promised to cause the THE declaration stated that before and at the time of The declaration the making of the promise hereinafter mentioned, the sheriff of Middlesex had seized and taken in execution certain goods and chattels of the plaintiffs, and A. Radford, under and by virtue of a writ of fieri facias, before then issued out of the Court of Queen's Bench, upon a judgment before then obtained upon a warrant of attorney, given by the plaintiffs and the said A. Radford to one C. Torrard, for the use and benefit of the defendant, and as trustee for the defendant, and as a security for money then due from the plaintiff and the said A. Radford to the defendant, which said goods and chattels, from thence until and at the time of the making of the promise hereinafter mentioned, remained in the custody of the said sheriff, and thereupon it was mutually agreed between the plaintiffs and the defendant, that the plaintiffs should give to the defendant two several warrants of attorney, to wit, a warrant of attorney for the sum of 577. 14s., being the sum mentioned in the judgment upon which the fieri facias ney; secondly, issued as aforesaid, and another warrant of attorney for that it was not necessary to al547. 3s., and that the defendant should cause the proper goods and chattels of the plaintiff to be given up to them: averment, that the two sums of money mentioned in the warrants of attorney amounted to a greater sum than the sheriff could have levied under the fieri facias, (mutual VOL. VI. D D D. P. C. goods to be reHeld, first, that delivered: a sufficient con sideration appeared to sup port the promise, and that it was not necessary to set out the war rants of attor lege a request to re-deliver the goods. 1838. RADFORD v. SMITH. promises). Breach, that although in pursuance of the said agreement, the plaintiffs, in a reasonable time, gave to the defendant two warrants of attorney for 57. 14s. and 541. 3s., and although a reasonable time for the re-delivery of the said goods and chattels has long since elapsed, yet, the defendant has not caused or procured the said goods and chattels, or any part thereof, to be delivered up to the plaintiffs. Special demurrer, assigning for cause that the warrants of attorney should have been set out in the declaration, in order that it might appear that there was a good consideration for the delivery of the goods. Mansel, in support of the demurrer.-There are two objections to the declaration. First, it does not set forth the warrants of attorney, but merely states them to be warrants of attorney for a certain sum of money. It ought to have been shewn that the taking such instruments was a benefit to the defendant. In Bolton v. Fenne (a), the plaintiff declared that he was possessed of several tickets for seamen's wages due to them, and had solicited the Treasurer of the Navy for payment of them, who ordered the defendant, his clerk, to pay them; and in consideration that the plaintiff would no further trouble the Treasurer of the Navy for payment of them, the defendant promised to pay them. After verdict for the plaintiff, it was objected in arrest of judgment, that it did not appear that the plaintiff had any interest in the money, or authority to receive, for he did not shew any assignment of the bills, or letter of attorney, or other authority; but the Court said, that after verdict it would be intended. Here, the objection is taken on special demurrer. [Parke, B. Supposing there had been a judgment by default, would this declaration be bad in arrest of judgment?] It is submitted that it would: these instruments might be mere (a) 1 Lev. 257. letters of attorney, their legal effect ought to appear, in order that it might be shewn that there was some detriment to the one party and benefit to the other. The second objection is, that the declaration contains no statement of a request to re-deliver the goods. Where the duty is merely to pay money, a request is unnecessary; in other cases, it must be averred and proved. [Parke, B. The contract is to procure the re-delivering of the goods without a request.] In Bach v. Owen (a), the plaintiff agreed to give defendant a colt in exchange for defendant's mare, and to pay defendant two guineas, and it was held that the plaintiff could not maintain the action, without averring a special request to deliver the mare. Cowling, in support of the declaration, contended as to the first objection, that it was not necessary to be more precise than the terms of the contract; and as to the second, that it was only in cases of a collateral engagement to do an act on request, that a request was necessary. PARKE, B.-If the contract itself is looked to there can be no doubt as to the meaning of the warrants of attorney. The contract states that, a certain warrant of attorney was given by the plaintiffs, authorizing judgment to be entered up. It then avers that, in consideration that plaintiffs would give defendant two several warrants of attorney, one for 577. 14s., the same sum for which the judgment was obtained upon which the fieri facias issued, the defendant promised to cause the plaintiff's goods to be redelivered. It appears to me clear, from the terms of the contract, that they must have been warrants of attorney to enter up judgment; but even if they had been warrants of attorney to receive a sum of money, they would have been a sufficient consideration. (a) 5 T. R. 409. 1838. RADFORD บ. SMITH. 1838. RADFORD v. SMITH. With regard to the omission of a request, the contract is to deliver the goods absolutely, and no request is necessary. Bach v. Owen is very imperfectly reported; there is no doubt that by the terms of the contract, a request was necessary, or the objection would not have been taken. Judgment for the plaintiff. In an action for not accepting railway shares, the Court refused to allow the de fendant to plead SYKES v. REEVES. HOGGINS moved for leave to plead several matters. The action was brought for not accepting and paying for certain shares in a Railway Company. The company had been incorporated by act of Parliament, but the alleged that the contract sale took place, before the act passed. It was proposed to plead the general issue, and two pleas of the Statute of Frauds, viz. that this was a sale of goods, and that there was no note in writing or earnest given; and also that it was a contract for an interest in land, and that there was no note in writing. was for goods, and that there was no note in writing, together with a plea that it was a contract for an interest in land, and no such note. PER CURIAM.-You can only be allowed to plead one plea of the Statute of Frauds. There can be no difficulty in framing a plea which will meet both points. Where an order enlargement of time have been BARTON V. RANSON. KELLY shewed cause against a rule obtained by Erle of reference and for an attachment against the plaintiff for non-payment of money, in pursuance of an award. By the order of referCourt, it cannot ence, the arbitrator was to make his award by a certain made a rule of be shewn as cause against an attachment for non-performance of the award, that there was no affidavit that the time was duly enlarged; but if in fact there is no such affidavit, the proper course is to move to set aside the rule of Court. |