allow any innovations to be made on a point so thoroughly settled. It will henceforth be prudent for defendants in actions of trespass, of a trifling nature, to abstain from denying that the locus in quo is the plaintiff's.

Rule absolute.

1838.

PURNELL

V.

YOUNG.

SIMPSON V. NICHOLLS.

goods sold and delivered, and

assumpsit for

on an account

ASSUMPSIT for goods sold and delivered, and on an To indebitatus account stated. Plea, as to the sum of 18s. 6d. parcel, &c., actionem non, because the goods, the price and value whereof amounted to the sum of 18s. 6d. parcel of the money in the first count mentioned at the time of the sale and delivery thereof, consisted of certain wines and goods, to wit, two bottles of port, &c., and that the plaintiff, before and at the time of the sale and delivery thereof,

stated, the defendant pleaded as to 18s. 6d., parcel, that they

were sold on a Sunday, in the plaintiff's trade

way of the

and business. Replication, that although

the goods were

and in the man

ner stated, still

that the defendant kept and detained the

same without

whereby he be

came liable to

carried on the trade and business of a wine merchant, and the said goods were so sold and delivered by the plaintiff to the defendant, on Sunday the 1st day of March, 1835, sold at the time, and in the way of the plaintiff's said trade and business, and in his ordinary calling of a wine merchant; and the said promise to pay the price and value thereof was made on that day by the defendant to the plaintiff in the way of offering to rethe plaintiff's said trade and business, &c., upon the said turn them, Sunday, such sale or delivery not being a work of necessity or of charity, and contrary to the statute, &c.: and that the sum of 18s. 6d., parcel of the money in the last count mentioned, as found to be due from the defendant to the plaintiff, and an account whereof was so stated as aforesaid was so found to be due, and was and is the said sum of 18s. 6d. in which the defendant is supposed to be indebted to the plaintiff, for and in respect of the said goods so sold and delivered on a Sunday as aforesaid. Verification.

Replication as to so much of the plea as relates to the said sum of 18s. 6d. parcel of the money in the first count

pay for them on a quantum valebant. On demurrer to the replication, it was held bad,

on the ground that it ought to

have shewn a

new promise to

pay after the re

taining of the goods by the defendant.

1938.

SIMPSON

v.

NICHOLLS.

mentioned precludi non, because, although the said goods were sold and delivered by the plaintiff to the defendant at the time, and in the manner, in the plea alleged; yet the defendant, after the sale and delivery of the said goods, kept and retained the same, and hath ever since kept and retained the same, for his own use and benefit, without, in any manner, returning or offering to return the same to the plaintiff, and thereby hath become liable to pay to the plaintiff the said sum of 18s. 6d., the same being so much as the said goods were and are reasonably worth: and as to so much and such part of the plea as relates to the said sum of 18s. 6d., parcel of the said sum of money in the second count mentioned precludi non, because, although the said sum of 18s. 6d. was found to be due from the defendant to the plaintiff upon an account stated between them as by the defendant in that behalf alleged; yet that the said account, in the second count of the declaration mentioned, was stated between the plaintiff and the defendant upon a different and subsequent day, to wit, upon the 25th day of April, 1835, the same not being the Lord's Day, or Sunday, and upon that accounting the defendant was then found to be indebted to the plaintiff, and in consideration thereof, then promised the plaintiff to pay him the said sum of 18s. 6d., parcel of the monies in the second count of the declaration mentioned as aforesaid, in manner and form as the plaintiff hath in his declaration in that behalf alleged, &c.

Special demurrer to the replication to so much of the plea as related to the said sum of 18s. 6d., parcel of the monies in the first count mentioned, assigning for causes that the replication neither traversed or denied, nor confessed or avoided, the matters in the plea alleged, and that the plaintiff had not stated or shewn that the defendant made a fresh promise to pay the plaintiff the said sum of 18s. 6d., and that the matters pleaded in the replication might and ought to have been pleaded by a formal traverse

of the sale and delivery having taken place on a Sunday, and that the replication was a departure from the first count of the declaration; and to have enabled the plaintiff to have recovered on the matters contained therein, he ought to have declared specially.

To the replication so far as it related to the 18s. 6d. pleaded to as part of the monies mentioned in the second count of the declaration, the defendant rejoined, denying that the account was stated on a different or subsequent day to the Sunday on which the goods were sold and delivered, as in the plea mentioned.

Martin, in support of the demurrer.-The replication is bad; the proper course would have been for the plaintiff to have alleged a new promise, instead of stating such new promise in his replication. The case of Williams v. Paul (a) will, doubtless, be relied upon on the other side; it is, however, distinguishable from the present. In that case the defendant had purchased three cows and a heifer on a Sunday, to be paid for in three months. He afterwards objected to pay for the heifer, alleging that it was not the one he had chosen. The beast, however, remained with him, and some time afterwards, upon being applied to for the price, the defendant said he would pay when the time agreed on was up. The case of Read v. Rann (b) explains the proper mode of proceeding in a case like the present, and the legal inferences from which the promise will be implied in such a case. Parke, J., says, "The custom supposes a special contract between the parties, and if that is not satisfied, no claim at all arises, for no other contract can be implied. In some cases a special contract, not executed, may give rise to a claim in the nature of a quantum meruit ex. gr., where a contract has been made for goods, and goods sent not according

1838.

SIMPSON

บ.

NICHOLLS.

1838.

SIMPSON.

v.

NICHOLLS.

to the contract are retained by the party; there, a claim for the value on a quantum valebant may be supported, but then, from the circumstances, a new contract may be implied." This shews clearly that the proper course for the plaintiff would have been a new assignment, and that the present replication is a departure.

Curzon, contrà.-This is no departure; there is nothing in the replication inconsistent with the declaration.

PARKE, B.-The real question is, whether your replication is good in substance; adverting to this view of the case, the plaintiff no doubt relies on Williams v. Paul.

Lord ABINGER, C. B.-There is another difficulty in the plaintiff's case, viz., that the goods might have been consumed; he ought to shew the defendant has it in his power to return the goods.

PARKE, B.-The replication ought to have stated the legal result of the facts, and not the facts themselves: in other words, the replication ought to have averred that he retained the goods, and afterwards promised to pay ; no promise is shewn subsequent to the statement of the account, even supposing the decision in the Common Pleas correct, and that where a party keeps goods sold under an illegal contract, a new promise may make him liable. In Williams v. Paul the Court proceeded upon evidence of an express promise after the retainer, and, for want of it here, the replication is bad.

BOLLAND and GURNEY, Bs. concurred.

Judgment for plaintiff.

1838.

EDMUNDS v. KEATS.

66

the required amount over

BARSTOW opposed the justification of bail. The ob- Bail must swear jection was, that the bail had sworn that they were worth they are worth property to the amount of 1007. over and above all their just debts," instead of "over and above what will pay all their just debts," as required by 1 Reg. Gen. H. T. 2 Will. 4, s. 19 (a). He referred to Miller's bail (b).

Thomas, in support of the bail, relied on the previous rule of H. T. 1 Will. 4, and cited Hunt's bail (c).

PARKE, B.-The terms of the latter rule must be complied with, and consequently the affidavit is insufficient.

Rejected.

and above what

will pay all

their just debts.

(a) Ante, Vol. 1, p. 185.

(b) Ante, Vol. 5, 602.

(c) Ante, Vol. 4, p. 272.

WRIGHTSON v. BYWATER and Others.

ferred to an

arbitrator, who

was to settle all ference between the parties at

matters in dif

THIS was an action of trespass, which was referred by A cause was rean order of Nisi Prius to an arbitrator, who was to determine all matters of difference between the parties at law and in equity, so as the said arbitrator should make and publish his award in writing, concerning the premises ready to be delivered to the parties) or, if either of them should be dead before the making of the award, to their

law and in equity, so that

he made his

award by a certain day (with power of en.. largement), to be delivered to the parties, or if either of them should be dead, to their personal representatives. The arbitrator was to be at liberty to make one or more awards at his discretion. At the time of the submission, two equity suits were pending, in which the parties to the action, and also certain infants, were concerned. Before any award was made, one of the parties to the equity suits died.

The arbitrator by his award ordered a verdict to be entered for the plaintiff, damages 500, and also that the defendants should pay to the plaintiff 350l, for grievances not included in his declaration:-Held, first, that the award was sufficiently final, although it did not dispose of the equity suits; secondly, that the circumstance of infants being parties to those suits did not invalidate it; thirdly, that the arbitrator's authority was not revoked by the death of one of the parties; and, lastly, that the award of 350l. was sufficiently certain.