Gambar halaman
PDF
ePub

1804.

BONNER

against

have found. For this purpose the verdict is always taken at the highest sum for which it is supposed that the damages can in any event be awarded, generally indeed for the amount of the damages laid in the declaration; but it CHARLTON, never is understood by the parties to such consent-rule, that the arbitrator is at liberty to award damages to any extent be pleases. The law, therefore, will not raise an assumpsit to pay any larger sum than what the arbitrator had autho rity to award; and he having awarded one entire sum, beyond his authority, no assumpsit can be raised to pay that or any smaller sum.

Lord ELLENBOROUGH, C. J. declared his further concur rence on the last mentioned ground.

[merged small][ocr errors]

SOMERVILLE against WHITE,

A Rule nisi was obtained for setting aside the execution,

Monday, May 7th.

will not infer

The Court

error was sued

fore final

sued out be

and returning the money which had been levied under that a writ of it, for irregularity; the execution having been sued out out for delay, pending a writ of error, and after notice of the allowance, because it was After a sham plea and issue joined, and interlocutory judg ment and a writ of inquiry executed, the defendant, four judgment days before final judgment entered up, sued out a writ of error on the 9th of February, returnable on the 11th, and served notice of the allowance; the plaintiff, notwithstanding, after entering up final judgment on the 15th, sued out

execution thereon.

Garrow shewed cause, insisting that it appeared upon the very face of the proceedings that the writ of error was sued merely for delay; it having issued four days before final judgment entered. That this was a more convincing proof of it than an unguarded acknowledgement of the party him self in conversation; which was admitted to be a sufficient reason for suing out execution pending a writ of error.

Gibbs and Comyn, contrà cited Jaques v. Nixon, (a), where final judgment was not signed till after the writ of error sued out, and the allowance of it served; and there Buller, J. recognized the practice of suing out a writ of error

[merged small][merged small][ocr errors]

:

signed and should be though it made return

nal judgment,

able before fi

it will still operate as a

supersedeas upon the which, when judgment, signed in the relates back to the first day of it; and therefore exe.

same term,

cution issued

thereon after such writ of

error allowed and served, was set aside for irregula rity. before [116]

1804.

SOMERVILLE

against WHITE.

[147]

before judgment signed; which he said happened in almost all cases; for otherwise execution would issue instantly. And that if a writ of error be sued out, and the plaintiff will not sign judgment till after the return of the writ, in order to avoid the effect of it, and then sue out execution, the Court would set that execution aside and so it was done in that

case.

The Court referred to Warwick v. Figg (a), where, under similar circumstances, it was contended that the writ of error, which was returnable before final judgment, was spent when the judgment was entered up, and execution issued, and therefore was no supersedeas to the execution. But it was ruled otherwise; because the judgment when entered, related back to the first day of the term, and therefore the writ of error was a supersedeas to it: and the Court therefore set aside the execution. And they added, that they could not infer that any delay was intended merely from a view of the proceedings, without an acknowledgment by the party that the writ of error was sued out merely for delay. That the precaution of suing out the writ of error before final judgment signed, was sometimes necessary; for where the judg ment was for a large sum, a plaintiff would sometimes sue out execution immediately afterwards, without waiting to have his costs taxed, and before a writ of error could be sued out to stay him, if it were not sued out before.

Rule absolute.

Monday May 7th.

If one of two

defendants,

taken on a

joint ca sa.

NADIN against BATTIE and WARDLE.

HE defendants were arrested on a joint ca. sa. ; afier

THE

be discharged which Wardle was discharged under an insolvent debtsolvent debtors' act, the plaintiff not opposing such discharge. Where

under an in

ors' act, that

will not operate as a dis

charge of the other, the discharge of the former not being with the actual consent of the plaintiff.

upon

Littledule now moved to discharge the other defendant Battie, and cited Clark v. Clement and English (b) and uther cases there referred to, to shew that if a plaintiff consent to discharge one of several defendants taken on a joint ca. sa., he cannot afterwards take any of the others. And

(a) Qto. Barnes, 196.

(b) Term Rep. 425.

though,

[ocr errors]

1801.

NADIN

against

though, he observed, the discharge in this case might be said to be by the act of the law, and not, as in that case, by the plaintiff's own act, yet the plaintiff so far adopted it, that if he had chosen to pay the sixpences, he might BATTIE and have prevented the discharge.

in con

Lord ELLENBOROUGH, C. J. The discharge, cannot be said to have been with the plaintiff's assent, because he did not choose to detain the party in prison at his own expence. Nor can the law, which works detriment to no man, sequence of having directed the discharge of one defendant, so far implicate the plaintiff's consent, against the fact, as to operate as a discharge of the other.

WARDLE.

Per Curiam,

APPLETON against BINKS,

Rule refused.

[148]

Tuesday

May 8th.

own hand and

he describe

himself in the

deed as cove. and on the nanting for part and be

THE plaintiff declared in covenant upon articles of agree- One who coment between him, on the one part; and the defendant, venants for by the name and description of T. Binks, of, &c. (for and heirs, &c. himself, his on the part and behalf of the Right Hon. Lord Viscount and under his Rokeby) of the other part, with a profert in curiam of the seal, for the articles sealed with the seal of the defendant; whereby the act of another, plaintiff, in consideration of 6000l. paid by Lord Rokeby, sonally bound shall be percovenanted with the defendant, his heirs and assigns, that by his covehe (the plaintiff) his heirs, &c. would, at the cost of Lord nant, though Rokeby, his heirs, &c. on or before the 19th of May 1803, by such conveyances as Lord R, should require, convey to Lord R. &c. in fee, certain premisses in the county of York, &c. with such warranty, &c. as Lord Rokeby should require, &c. In consideration whereof, the defendant for himself, his heirs, executors, &c. on the part and behalf of the said Lord Viscount Rokeby, did thereby covenant with the plaintiff that Lord Viscount Rokeby, his heirs, &c. should pay. to the plaintiff the said 60001, the purchaseemoney at the time of sealing and executing of the conveyances aforesaid; with a proviso, that if Lord Rokeby's counsel should not approve of the plaintiff's title to the premisses, or if Lord Rokeby should die before the said 13th of May next, the agreement should be void. The plaintiff then averred his seisin in fee of the premisses, and that his title was approved

12

by

other person,

half of such

1804.

APPLETON

against BINKS.

[149]

by Lord Rokeby's counsel, and that Lord Rokeby was still living; and that the plaintiff was willing to execute proper conveyances to Lord R. his heirs, &c. at their costs, &c. of all which premises Lord R. after making of the said articles, had notice; and though the plaintiff, after making the ar ticles, and before the 13th of May next ensuing, &c. gave notice to Lord R. and the defendant, that the plaintiff and his wife were ready and willing to convey to Lord R. his his heirs, &c. yet Lord R. has not paid to the plaintiff the said 6000l. purchase-money, but has refused, &c.; nor did Lord R. require any conveyance, &c. but declined so to do: contrary to the effect of the articles, and the covenant of the defendant, &c.; whereby the defendant has broken his covenant, &c. to the damage of the plaintiff, &c. To this there was a general demurrer and joinder.

W. Jackson, in support of the demurrer, proposed to argue, 1st, That a deed could not be made by an agent, as such; or, 2dly, That if it could, covenant did not lie against him, upon articles describing him to be merely agent for another. But

The Court said that it was impossible to contend, that where one covenants for another, he is not to be bound by it; the covenant being in his own name" for himself, his heirs," &c. There was nothing unusual or inconsistent in the nature of the thing, that one should covenant to another that a third person should do a certain thing, as that he should go to Rome. The party to whom the covenant is made may prefer the security of the covenantor to that of his principal. Here the defendant covenants for himself, not in the name of his principal, and puts his own seal to it. There is nothing against law in it, if he will bind himself for his principal. He probably consented to it upon an indemnity.

Judgment for the Plaintiff (a). Hullock was to have argued for the plaintiff.

(a) Vide Frontin v. Small, 1 Stra. 705. 2 Ld. Ray, 1418. Mac. beath v. Haldimand, 1 Term Rep. 172.; and Unwin v. Wolesley, ib. 674. Vide also White v. Cuyler, 6 Term Rep. 176., and Wilkes v. Back, 2 East, 142.

HENSHALL

HENSHALL against ROBERTS and Others, in Error

1801.

Tuesday,

May 8th.
A count upon

(not saying as &c.) cannot executrix, be joined with mises to the testator; for it is no allega. tion that the

counts on pro.

promises were made to the their repreplaintiffs in sentative ca under such a pacity; and count proof might be

with them in

S. Henshall was attached to answer Sarah Roberts and others, executrix and executors of the last will and testament of William Roberts deceased; which W. R. was an account executor, &c. of W Danson, of a plea of trespass on the stated with case, &c. For that whereas the defendant Henshall in the executrix, &c. the plaintiff's lifetime of Danson was indebted to Danson in 5001. for goods sold and delivered by Danson in his lifetime to the defendant Henshall at his request, he the defendant, in consideration thereof, promised Danson in his lifetime to pay him, &c. There were various other counts upon promises made by the defendant to Danson in his lifetime. Another set of counts was upon promises to the plaintiffs below, the executors of the executor; the first of which stated, that whereas the defendant Henshall, afterwards and in the lifetime of Danson and of W. Roberts respectively, was indebted to Danson in other 5007. for goods sold and delivered by Danson in his lifetime to the defendant, at his request; and being so indebted, the defendant in consideration thereof afterwards, given of an ac. and after the decease of Danson and W. Roberts respectively, count stated promised the said Sarah, &c. (the plaintiffs below) execu- their indivitiix and executors as aforesaid, to pay to them the said dual charac when requested. The declaration also contained the two Whether if following counts: "And whereas the defendant Henshall afterwards, &c. accounted with the said Sarah, &c. (the plaintiff's below) executrix and executors as aforesaid, concerning divers other sums to the said Sarah, &c. (plaintiffs below) executrix and executors as aforesaid, from the defendant, before that time due and owing, and then in arrear and unpaid; and upon that account the defendant was found in arrear and indebted to the said Sarah, &c. executrix and executors as aforesaid in the further sum, &c. *the defendant afterwards, &c. promised the said Sarah, &c. executrix and executors as aforesaid, to pay them, &c. when requested. And whereas the defendant Henshall was indebted to the the executrix, Said Sarah, &c. executrix and executors as aforesaid, in the mone, &c, though the further sum of 5002. for certain interest before that time when recoverdue and owing from the defendant to the said Sarah, &c. ed, would be assets? executrix and executors as aforesaid, for and on account of *[151] the said Sarah, &c. executrix and executors as aforesaid, at the instance of the defendant, having forborne and given

13

sum

day

ters. Qu.

it had been

laid to be on

an account

stated with themselves, the plaintiffs though named as executrix,

&c. it could be so joined, as the cause

of action

would still appear to

have arisen in

the time of

« SebelumnyaLanjutkan »