Page images
PDF
EPUB
[ocr errors]

1812. had been in the occupation of it before as a tenant paying

rent, I should have thought that he still continued to BERTIE against

occupy it in the same character, if no new agreement BEAUMONT. had been entered into in that respect when he was taken

into the plaintiff's employ, and that he was only to pay
his rent in service instead of money. But no rent had
ever been paid by him before, nor did he ever stand in
the relation of tenant to the plaintiff. Then if his occu-
pation were merely that of a servant, it was in law the
occupation of the master. This has been often held in
cases of burglary, and was so held recently in the case of
the Whitehaven bankers (a).

GROSE, J. This was the occupation of the plaintiff through the medium of his servant, which is in law the virtual occupation of the master and not of the servant.

BAYLEY, J. (b) agreed.

Rule absolute.

(a) Rex v. Stock and Another, 2 Taunt. 339.
(6) Le Blanc, J. was absent at Lancaster.

Tuesday,
June 2d.

WAKE against TINKLER.
cannot plead THE plaintiff declared in assumpsit as indorsee of a

promissory note made by the defendant; as also for off a bond-debt of the plaintiff, goods sold and delivered, and upon the common money assigned to

counts; and laid his damages at 1601. The defendant by another, to pleaded, first, non assumpsit. 2dly, That before the whom and for whose use it making of the promises stated in the declaration, to wit, was originally given. on the 2d of December 1809, the plaintiff executed a

bond

the defendant

1812.

WAKB against TINKLER,

bond to one W. Atkinson in the penal sum of 2601., conditioned for the payment of 1301. and interest on a day long since past; and that the bond being unsatisfied, Atkinson, before the commencement of this suit, to wit, on the 14th of January 1811, by a certain indenture under seal, made between him and the defendant, for certain good and valuable considerations therein mentioned, assigned, transferred, and set over to the defendant the said writing obligatory and all sums of money then due and owing, or to become due and owing by virtue thereof, and all the right, title, interest, property, and claim, &c. of him Atkinson of and in the same, &c.; and that the defendant has from thence hitherto remained and still is the assignee of the said writing obligatory, and entitled to all the money due thereon, &c.; and that the said writing obligatory is still in full force, &c.; and that at the time of commencing this suit there was and still is due and owing from the plaintiff, by virtue of the said writing obligatory so assigned, &c. to the defendant, more money than is due and owing from him to the plaintiff upon the supposed promises in the declaration mentioned, to wit, 2001. ; which the defendant offered to set off and allow according to the statute, &c. To this there was a general demurrer.

Bayley, who was to have argued in support of the demurrer, was stopped by the Court.

Reader, contrà, relied on Bottimly v. Brook (a), and Rudge v. Birch (b), which he said were not overruled in

(a) M. 22 G.3. C. B. cited in Winch v. Keeley, 1 Term Rep.621.

(6) M. 25 G. 3. B. R. cited ib. 622. But see Lane v. Chandler, in the Exchequer, cited in Scholey v. Mearns, 7 East, 153.

1812.

WAKE against TINKLER.

Winch v. Keeley (a), and other cases, where it had been held that the equitable assignment of a bond did not enable the assignee (b) to sue upon it, but that he must sue in the name of the assignor, though the latter had become bankrupt. In the two first of these cases the plaintiff having sued upon a bond executed to him as trustee for another, the defendant was allowed to plead a set-off against the cestuy que trust. This case, he admitted, went a step further, because here the bonddebt set off against the plaintiff came to the defendant by assignment from a third party, and was not originally executed for the defendant's use : but this, he contended, did not vary the case in principle from the prior decisions, as all the authorities agreed that a bond-debt was assignable in equity; and it did not follow that because the assignee could not sue for it at law, he could not set it off. But finding the Court decidedly against him, he forbore to press the argument further.

ther;

Lord ELLENBOROUGH, C. J. If

you could shew that this case ranged itself within the decisions of Bottimley v. Brook, and Rudge v. Birch, we would hear

you

furbut I am much more inclined to restrain than to extend the doctrine of those cases. At any rate, however, the present case goes further than either of them : for here the bond-debt was assigned to the defendant who now pleads it as a set-off; and it was not originally taken by the obligee in trust for the defendant.

GROSE, J. stance.

The plea is bad both in form and sub

(a) 1 Term Rep. 619.; and vide Howell v. M'Ivers, 4 Term Rep. 690. (6) Vide Carpenter v. Marnell, 3 Bos. & Pull, 40,

BAYLEY,

1812.

BAYLEY, J. We have nothing to do in this place with any other than legal rights. And if we could notice such an equitable assignment, 2001. could not have been due at the time upon the principal sum of 1301. given on the 2d of December 1809.

Judgment for the Plaintiff.

WAKE against TINKLER,

Dudlow against WATCHORN and Thibault.

Tuesday,
June 2d.

sued in scire

custom and

THE
THE plaintiff declared in scire facias against the de- The practice of

the Court is fendants upon their recognizance, as bail of G. T. pleadable Stretton, and stated the judgment recovered by the plain- merits of the

where the very tiff in this Court against the principal for 1001., and the case depend

upon it; thereissuing of the two writs of scire facias to the sheriff of fore where bail Middlesex, against the bail, with his returns of nihil. facias upon The defendants pleaded that the plaintiff ought not to

their recogoi

zance pleaded have execution against them for the said 1001. by virtue that no ca. sa.

was duly sued, of their recognizance, because after the recovery of the returned and

filed against the said judgment, and before the issuing of the first writ of

principal acscire facias, no writ of capias ad satisfaciendum upon the cording to the said judgment by the plaintiff against Stretton was duly practice of the sued out and returned, or filed in the said Court, &c. accord- the plaintiff in ing to the custom and practice of the said Court. The plain- wit of ca sa

reply a tiff replied, that after the recovery of the said judgment issued into Mid

dleser, it is no against Stretton, and before the commencement of this departure for

the defendants suit, the plaintiff sued out a writ of capias ad satisfaci- to rejoin that endum upon the said judgment against Stretton, directed the sende in to the Sheriff of Middlesex, being the county in which the against the

principal was venue in the said action against Stretton was laid; by in London ; for which writ, &c.; (setting it out;) to which the said sheriff that sustains returned non est inventus; as by the said writ of capias ad satisfaciendum, and the return thereof, duly affiled and

remaining

Court: to which

1812.

DUDLOW

against WATCHORN.

remaining of record in the said Court, &c. more fully appears. The defendants rejoined that the venue in the said action against Stretton was laid in the city of London, and not in Middlesex, as alleged in the replication: To this the plaintiff demurred, because the defendants in their rejoinder had departed from the supposed ground of defence stated in their plea; having in their plea alleged that no writ of capias ad satisfaciendum against the principal was sued out, returned, and filed according to the custom and practice of the Court; when by their rejoinder they admit that the ca. sa. in the replication mentioned was sued out, but rely on the supposed insufficiency of the said writ on account of its not having been issued and directed to the sheriff of the county in which the venue in the original action was laid: and if the defendants meant to avail themselves of such a defence, they should have stated it in their plea, and not in their rejoinder.

Marryatt, in support of the demurrer, admitted that the capias ad satisfaciendum stated in the replication was irregular, and such as the party might have moved the Court to set aside; but it did not follow that such an irregularity in practice could be relied on in pleading, either by stating, as in the plea, that no writ of ca. sa. was duly sued out, &c.; or, in answer to the replication, stating the issuing in fact of a writ of ca. sa., by shewing that such writ was irregularly issued, which is a departure from the plea; the one in effect affirming that no writ issued; the other admitting the issue of it in fact, but insisting on its irregularity in practice; which the Court will not take notice of in pleading. [Lord Ellenborough, C. J. The allegation in the plea is not that no

« PreviousContinue »