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claration contained substantially two causes of action; the one consisting of the promise to pay on the 25th of March, the other to pay on request. [Maule, J.-The allegation, "The defendant then agreed to pay the amount of the said note to the plaintiff on request," is immaterial, and may therefore be struck out. It is not the promise which the promissory note would sustain, and consequently is merely nonsense]. But the word "thereupon," might be considered as equivalent to "afterwards." If so, the allegation would mean that the promise to pay on request had been made after the note became due. Sufficient would then appear to sustain a count on an account stated.

Dowling, Serjt., (Bramwell with him), contrà, was stopped by the Court.

TINDAL, C. J.-I think that the declaration is sufficient, notwithstanding the grounds of special demurrer. The allegation in the declaration is, that, on a particular day, namely, the 25th of March, 1844, the defendant made his promissory note in writing, and also that he thereby promised to pay on the 25th of March, 1845, which day is not laid under a videlicet, the sum mentioned in the note. The declaration then goes on to say, "which day had expired before the commencement of this suit;" but that was quite unnecessary, because we can see by the writ, that the suit was commenced after the note was due; therefore, that allegation may be struck out. It then goes on to say that the defendant "then delivered the said note;" this also was surplusage, and not required. What, then, is the effect, if, after the day has expired when the note was required to be paid, the defendant should promise to pay, when requested, that which he was before liable to pay? The declaration states only what was the legal effect of the defendant's liability. It is said that it amounts to duplicity, and that either part would afford a cause of action. There is, however, nothing to show that the rule in this respect as to

1845.

SHEPHERD

v.

SHEPHERD.

1845.

SHEPHERD

v.

SHEPHERD.

pleas extends to declarations. I am, therefore, of opinion, that judgment should be for the plaintiff.

COLTMAN, J.-I am of the same opinion. The allegation in the declaration, that the defendant then agreed to pay the amount of the note to the plaintiff on request, as I understand it, refers to an agreement made on the 25th March, 1844. That was a void promise altogether; and, therefore, such allegation is no more than surplusage, and if the same be struck out, a good cause of action remains. I am not aware that the insertion in a declaration of a promise, which in law has no operation, will make the declaration bad.

MAULE, J.-It is said that this declaration is double, and cases have been cited, of Purssord v. Peek (a), and Stevens v. Underwood (b), in which pleas have been held double, though ill pleaded. But the sense in which a plea may be bad, on the ground of its being double, is not the sense in which a declaration is bad for duplicity. A plea is bad if it give two substantial answers to the antecedent pleading; but a declaration is not in like manner bad for stating two causes of action. The declaration may disclose several causes of action, as on two bonds or for two breaches of covenant, without being bad for duplicity; yet, if these were each to amount to a defence, or answer to an antecedent pleading, and were inserted in one plea or replication, such plea or replication would be bad for duplicity. A declaration may be bad, when, instead of containing in it two distinct causes of action, it states two causes of action for the same claim. Thus in an action on a bond prior to the stat. 8 & 9 Wm. 3, c. 11, two breaches could not have been alleged, because one was sufficient to give the right of action for the penalty; and, therefore, the stating two on the same bond would have been bad. So if, in the present

(a) 9 M. & W. 196.

(b) 4 Bing. N. C. 655; See S. C. 6 Scott, 402; 6 Dowl. 737.

case, the declaration had suggested another ground for making the defendant liable to pay the promissory note, there might be some colour for the objection which has been taken. But, in fact, the declaration shews, that the note was payable on the 25th March, and that the defendant was liable to pay it when due. An agreement then to pay the same on request, does not confer any cause of action on the note, but is bad as an absolute nullity. This declaration, therefore, is not open to this objection.

CRESSWELL, J., concurred, and referred to the case of Owen v. Waters (a), as overruling Abbott v. Aslett (b); and also to the case of Galway v. Rose (c), as supporting the principle laid down by Maule, J., respecting duplicity.

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1845.

SHEPHERD

v.

SHEPHERD.

HARLOW v. READ.

GLOVER, Serjt., shewed cause against a rule nisi,

obtained by Talfourd, Serjt., for setting aside an award on the ground that the award appeared on the face of it to have been founded partly on the decision of the umpire in the case, although it was not stated that any reference had been made to him in consequence of any difference of opinion between the arbitrators. It appeared that by an order of reference, the cause and all matters in difference between

On a reference

to arbitrators,

with power to appoint an um.

pire to decide

between them,
should differ
in opinion; the
arbitrators
appointed an

in case they

umpire; but no difference arising be

the umpire

the parties had been referred to three persons, named tween them, H. Gibb, R. Crickner, and J. Shelsey. It was, amongst was not conother things, ordered that as to the builder's and joiner's work, the arbitrators should adopt the opinion of Shelsey;

sidered the decision of the umpire:" Held, that this recital was mere surplusage.

sulted. In

the award, the arbitrators

recited that they had "con

1845.

HARLOW

v.

READ.

and as to the machinery and other work, the opinion of Gibb and Crickner; and in case they should disagree then they should adopt the opinion of an umpire, to be appointed previously to their entering on the reference. The arbitrators duly appointed the umpire, but having no difference of opinion, the affidavits shewed that he had not interfered in any way with the inquiry. The award recited the order and then proceeded :-" And whereas we, the said arbitrators, Henry Gibb and Robert Crickner, did before proceeding with the said reference, by an indorsement on the said order in writing, under our hands, nominate and appoint Joseph Anns, of Union-street, Southwark, engineer, to be an umpire between us, the said H. Gibb and R. Crickner, to decide as to the work and machinery, except the carpenter's, builder's, and joiner's work, referred for our opinion or decision by the said order, in case we, the said H. Gibb and R. Crickner, should differ in our opinion thereon: now we, the said H. Gibb and R. Crickner, and John Shelsey, having taken upon ourselves the burthen of the said arbitration, and having heard and duly considered all the allegations and evidence of the said respective parties, of and concerning the matters in difference so referred as aforesaid, and considered the decision of the said umpire, do make and publish this our award." The objection to the award was, that it appeared on the face of it that the arbitrators had "considered the decision of the said umpire." This statement, however, would only be regarded as surplusage.

Talfourd, Serjt., in support of the rule. The arbitrators here had, as the affidavits shewed, stated on the face of their award what was untrue. What appeared to be the ground of their decision could hardly be treated as surplusage.

PER CURIAM.-The ground on which this rule was obtained was that the arbitrators falsely state that they have taken the advice of the umpire. It does not appear that

there was any difference between the arbitrators, and consequently if there was any consultation with the umpire, it amounted to nothing. This must, therefore, be treated merely as a mistake, and nothing more. The rule must be discharged, but without costs.

Rule discharged without costs.

1845.

HARLOW

v.

READ.

STEPHENS v. LOWNDES.

age. After

After process

tiff appeared

sec. stat.
for an infant
defendant,

the Court

app

set aside the
appearance
and subsequent
proceedings
without costs,

THIS was an action on a bill of exchange against the Where a plaindefendant as the acceptor. The defendant it appeared was an infant, being only eighteen years of had been served, the defendant not appearing in due time, the plaintiff entered an appearance for him in pursuance of the statute 2 Wm. 4, c. 39, s. 2, in the following form: "William Cox, attorney for the plaintiff, appears for the defendant Lowndes, according to the statute." application. The appearance was entered on the 4th of February, and judgment signed on the 24th of the same month. On the 12th of April following, the defendant was taken on a writ of capias ad satisfaciendum. In the present Term a rule nisi was obtained to set aside the appearance entered by the plaintiff, as well as all subsequent proceedings.

Shee, Serjt., shewed cause against this rule. The question was, whether the appearance entered by the plaintiff could be considered as a mere irregularity or a nullity. When the rule was moved for, the case of Roberts v. Spurr (a) was cited. There, no appearance at all had been entered, and the Court held that a judgment signed under those circumstances for want of a plea, was a nullity. Here, however, an appearance had been entered, and, therefore,

(a) 3 Dowl. 551; See contrà, Hackin v. Hassells, ante, vol. 1, p. 1006; S. C. div. nom. 12 M. & W. 776.

on summary

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