1846. WADE v. SIMEON. [Maule, J.-If the plaintiff's demurrer had stated it as a ground that the plea was bad, because it did not allege the defendant to have any available defence to the action, that might have been a valid objection. But the words “that the plaintiff never had any cause of action against the defendant" may be taken to mean that the defendant had an available defence to the action, and therefore they must be so construed upon general demurrer.] But the plea was still ambiguous, and one of the grounds of demurrer was ambiguity. TINDAL, C. J.-The question in this case now turns upon the fourth plea; and the point to be decided is, whether upon general demurrer that plea is good, and I think that it is. The declaration states that an action had been commenced by the plaintiff against the defendant, and that during its pendency, in consideration that the plaintiff would forbear proceeding, the defendant promised to pay him the sums of money for which the action was brought, and the costs; that the plaintiff did forbear: yet the defendant did not pay the said sums. To this the defendant has pleaded, by his fourth plea, that the plaintiff never had any cause of action against the defendant, and that he knew it. The plaintiff has demurred generally to this plea he admits, therefore, the facts which it alleges to be true; and, having admitted that he had no cause of action in the original suit, I think the plaintiff is estopped from saying that there was a good consideration for this promise. It is contra bonos mores and against law, that where a man knows that he has no cause of action, he should still persevere in prosecuting it. But, to view the case on more technical grounds, a consideration, to be good, must be for something either for the benefit of the defendant, or to the detriment of the plaintiff. Was the forbearance of the original suit for the benefit of the defendant? We must presume, that had the action proceeded, the defendant would have obtained judgment, and then the costs to which he would then have been entitled must be taken to be, by law, a sufficient compensation to him for all that he had sustained. Then, was it to the detriment of the plaintiff? Clearly not, for its forbearance saved the payment of both the defendant's and his own costs. It has been urged by my Brother Channell, that there is a difference between the present case and the old authorities which have been cited, as this declaration alleges that an action had been already commenced; whereas, in those cases, it did not appear that any action had been brought. In the first place, I am not able to perceive any real or substantial difference raised by this distinction; but, in the second place, the cases cited do not admit of any such distinction. In the case of Tooley v. Windham (a), it evidently appears that the suit was in existence at the time the promise was made. So in Atkinson v. Settree (b) it must have been so, for it is alleged that the defendant was arrested. The cases cited, therefore, establish the principle which should guide the decision of this Court in favour of the defendant; nor do I think that the case of Longridge v. Dorville (c) at all impeaches it. The circumstances of that case were peculiar; and it may well be, that when the ship had been taken possession of, and the event of the suit was doubtful, that a promise made in consideration of the defendant's obtaining speedy possession of the ship should be held to be founded upon a good consideration. But here, the legal event was certain, for the plaintiff admits that he never had any cause of action in the original suit. For these reasons, I am of opinion that the defendant is entitled to the judgment of the Court. MAULE, J.—I am of the same opinion. Although it may still be an open question whether, if the objections had been properly taken on the grounds of special demurrer, (a) Cro. Eliz. 206. (c) 5 B. & A. 117. 1846. WADE v. SIMEON. 1846. WADE v. SIMEON. the fourth plea is good in form, still I agree with my Lord CRESSWELL, J.-I am of the same opinion. The decla (a) 13 M. & W. 427; S. C. ante, vol. 2, p. 358. ration is framed upon a promise to pay a sum of money, in consideration that an action already commenced should be forborne from being further prosecuted. The plea is, that there never was any cause of action, and that the plaintiff knew it. In the older cases, no distinction such as my Brother Channell attempted to raise is to be found; and indeed, Lord Coke lays down the rule generally to be, that the staying of an action which has been brought unjustly, forms no consideration for a promise. Then does it sufficiently appear by this plea, that the plaintiff had commenced an action in which he must necessarily have failed, and the defendant have necessarily succeeded? I think it does. The plea states that the plaintiff never had any cause of action, and I do not see why we should intend that the defendant had put himself into such a position by a slip in pleading, that he was unable to avail himself of his rightful defence. At any rate, on general demurrer, I think the plea is good. ERLE, J.-The declaration in this case states, that in the original action between these parties, pleas had been pleaded by the defendant, and issues in fact had been joined. Now the defendant, by his plea in the present action, says, that the plaintiff had never had any cause of action against the defendant in respect of the subject-matter of the action in the Court of Exchequer in that count mentioned, which he, the plaintiff, well knew. The meaning of those words I consider to be, that upon the issues as they stood, the defendant must succeed, and the plaintiff fail. I think, therefore, that the plea is good. Judgment for the defendant on the fourth plea; for the plaintiff on the seventh plea. 1846. WADE v. SIMEON. 1846. It is not necessary that an attorney's bill should be entitled in a if from the bill taken altogether, it can be reasonably ascertained in what Court and cause the business has been transacted. MARTINDALE v. FALKNER. DEBT for work and labour as a solicitor. The defendant, besides other pleas, pleaded, first, the Statute of Limitations; and, secondly, that no signed bill pursuant to the statute cause or Court, had been delivered. At the trial before Maule, J., at the last Northampton Summer Assizes, it was objected that the bill delivered by the plaintiff did not sufficiently comply with the provisions of the 2 Geo. 2, c. 23, s. 23, as it did not state the Court or cause in which the business had been done. Maule, J., was of opinion that the bill did sufficiently comply with the provisions of the statute in that respect, and therefore directed a verdict to be entered for the plaintiff for 6347. Another objection was, that a portion of the business done, which was all in one cause, had been transacted more than six years before the action was brought. On this point, also, Maule, J., was of opinion in favour of the plaintiff. Leave was then given to move to enter a verdict for the defendant, if the Court should be of opinion that the first objection was sustainable; or to reduce the verdict by the amount of such items as had accrued more than six years previous to bringing the action, if the Court thought that the second objection was sustainable. A rule was granted upon both points in the following Term, and cause was now shewn against it by Channell, Serjt., (Hayes with him.) The items to which attention need be directed were the following: Dec. 22. Attending on you, conferring and advising respect- £ s. d. for dismissal, &c., when you left me the papers - 0 6 8 |