by all the judges, (pursuant to the stat. 1 & 2 Vict. c. 110, s. 20;) which says, "that in all cases in which the judgment is for a penalty, and the plaintiff seeks to obtain interest, there shall be a memorandum on the back or at the foot of the writ, directing the sheriff to levy the amount of the sum of money really due and secured by the penalty, and of the dainages and costs recovered, and interest thereon at the rate of 4l. per cent. per annum, from the time when the judgment was entered up; and that in the cases in which the amount for which the judgment has been given is less than the amount of the sum of money really due and secured by the penalty, and the damages and costs recovered, and the interest thereon calculated as afore said, it shall be stated in the body of the writ that the sheriff is to levy interest at the rate of 4l. per cent. per annum from the

day of ; and on the back or at the foot of the writ there shall be a memorandum as above directed."(a)

The judgment in this case must, therefore, be taken to have been for the sum for which it was authorized to be signed by the warrant of attorney; and if that be so, then the writ does not follow the judgment.

TINDAL, C. J. I think that this is such an irregularity as entitles the defendant to costs.

The other judges concurring,(b)

Rule absolute, with costs.

(a) The forms of writs appended to the rule apply to writs of capias only; and the directions in the rule appear to have reference merely to cases where a plaintiff seeks to enforce a penalty, and the statute, under which the new rules are framed, deals with cases of arrest alone.

(b) Coltman, Erskine, and Cresswell, JJ.

*CALLANDAR v. DITTRICH.

[*68

Assumpsit. The first count was upon a contract to sell and deliver sound tares; breach, that the tares delivered were unsound. The second count was upon a promise properly to ship the tares; breach, that they were improperly shipped, and thereby damaged. Plea to these two counts, that the plaintiff had impleaded the defendant in a foreign court for not performing the identical promises in the first and second counts mentioned, and that the said court had adjudged that the plaintiff had no cause of action in respect of the non-performance of the said promises; and that such judgment was final and conclusive. In support of this plea a judgment of the foreign court was produced, " that the plaintiff be barred of his claim against defendant, on account of a cargo of tares, received by the ship M.S." From a statement of "reasons" appended to this judgment, and which was in fact a statement of the case, it appeared that part of the tares contracted for had reached the plaintiff'; that he refused to accept them by reason of their unsound condition; that he had sold them under protest; and that he had instituted that suit to rescind the contract, and recover back the money from the defendant; but that he was barred by lapse of time, having brought the suit too late by the law of the country (Prussia) in which the court sat, and in which the goods were shipped, and in which the defendant resided.

Held: first, that the judgment did not support the plea, inasmuch as it clearly was not applicable to the cause of action contained in the second count.

Secondly, that the plea could not be taken divisibly, so as to be considered as applicable to the first count only.

Thirdly, that under the circumstances, the court, having the powers of a judge at nisi prius. ought not to amend the plea by stating that the judgment was in respect of the promise it. the first count only.

Quare, whether the judgment was applicable even to the cause of action contained in the firs

count.

ASSUMPSIT. First count, that on, &c., it was agreed between the plaintiff, then residing in London, and the defendant, then residing in parts beyond the seas, to wit, at Koenigsberg, in the kingdom of Prussia, that the plaintiff should purchase of the defendant, and that the defendant should sell and deliver to the plaintiff, for the purpose of being shipped and con

veyed to London aforesaid, a certain large quantity, to wit, 100 lasts of seeds, to wit, tares, at a certain price then agreed upon between them, to wit, the price of 18s. per imperial quarter, free on board in the spring, the said tares to be large, sound, good Konigsberg, seed tares, of the growth *69] of the year 1836, and of the best quality. (The remainder of the agreement as set out in the declaration relative to the mode of pay

ment, was not material to the point decided.)

Averment: that 100 lasts of tares are equal to a certain large quantity, to wit, 1050 imperial quarters, or thereabouts. Mutual promises. Averment of payment by the plaintiff in the manner stipulated, and performance of the agreement on his part, and that although the defendant did afterwards, to wit, on, &c., in part performance of the said agreement, ship and deliver on board a certain vessel provided by the defendant for the plaintiff, to wit, the "Mary Swan," at a certain port, to wit, at Koenigsberg, in the kingdom of Prussia aforesaid, a certain large quantity, to wit, 917 quarters of tares, for the plaintiff; and although the tares so shipped as aforesaid, did afterwards, to wit, on, &c., arrive at London aforesaid; yet the defendant, disregarding his said promise, did not nor would ship the said tares free on board the last-mentioned vessel, and did not nor would sell and deliver to the plaintiff sound good seed tares of the growth of 1836, and of the best quality; but on the contrary thereof, the said tares, at the time of their said delivery and shipment in and on board the said vessel, and on their arrival in London aforesaid, to wit, on, &c., werc,-as the defendant at the time of the said shipment and delivery well knew, but which the plaintiff did not discover until the day and year last aforesaid,-very soft, heated, discoloured, mouldy, rotten, decayed, and wholly unfit to be used as and for seed tares, or for any other purpose, and were not of the growth of the year 1836, and thereby, and by means of the premises, the same became and were utterly useless to the plaintiff; contrary to the terms of the said agreement and of the promise of the defendant by him so made as aforesaid.

Averment: that in consequence of the defendant's said breach of his *70] said agreement, the plaintiff has not only lost and been deprived of the advantage, profit and gain which he would and ought to have made, if the defendant had performed his said agreement, but hath been deprived of the use and interest of his said moneys, which, in pursuance of his part of the said agreement, he so paid to the defendant as aforesaid, and hath also been put to great charges and expense of his moneys, and been forced and obliged to lay out and expend a large sum of his money, to wit, 10007., in and about the insurance of the said tares, and in and about shipping the same on board the said vessel at Koenigsberg aforesaid, and conveying the same to England, and in and about the necessary surveying and ascertaining the state and condition of the said tares on their said arrival in London as aforesaid, and in landing and selling the same under protest, to wit, on, &c. Of all which premises the defendant, has, at all times, had due notice.

Second count, that on, &c., in consideration that the plaintiff, at the request of the defendant, (a) had agreed to become the purchaser of the said tares, as in the preceding count mentioned, he, the defendant, promised the plaintiff, that he, the defendant, would superintend the shipping and loading of the said tares, to wit, at Koenigsberg aforesaid, and would take and use

(a) The request appears to be immaterial, as an agreement to purchase contains in itself sufficient consideration.

every reasonable and proper precaution in seeing that the same were properly shipped and stowed in and on board a fit and proper vessel, or fit and proper vessels, in that behalf, for the conveyance of the said tares to London aforesaid; yet the plaintiff in fact saith, that although he, the plaintiff, in all things duly performed his said agreement as in the preceding count mentioned, and although a large quantity, to wit, 917 quarters of *the [*71 said tares, was afterwards, to wit, on the day and year aforesaid, under the several agreements in the preceding count mentioned, and with the privity, knowledge and sanction of the defendant, and at his instance, shipped and loaded for conveyance thereof to London, in and on board a certain vessel bound to London, which afterwards, to wit, on, &c., there arrived with the said quantity of tares on board thereof; yet the plaintiff in fact saith, that the defendant disregarded his last-mentioned promise in this, to wit, that he, the defendant, did not, in any manner, according to his said promise, superintend the shipping of the same tares, or take or use any precaution whatever in or towards seeing that the same were properly shipped or stowed in or on board a fit or proper vessel, or fit and proper vessels, in that behalf, but wholly neglected and failed so to do, and on the contrary thereof, the same vessel, in and on board of which the same 917 quarters of the said tares were so shipped and loaded as aforesaid, at the instance of the defendant, to wit, by reason of her having on board too great a cargo, and by reason of the state, size, condition and circumstances of the same vessel, was on the occasion aforesaid a very unfit and improper vessel wherein to ship or stow the same tares, as the defendant at the time well knew; and the plaintiff further saith, that the said 917 quarters of tares were, with the privity and at the instance of the defendant, shipped and stowed in and on board the same vessel in a very careless, negligent, improvident, unusual and unmerchantlike manner, and by means of the premises, the said 917 quarters of the said tares became and were so heated, mouldy, soft, rotten, discoloured and decayed, that the same and every part thereof became, were and was wholly useless and lost to the plaintiff'; whereby the plaintiff not only has lost and been deprived of great gains and profits which he otherwise might and would have derived and acquired by a resale of the same tares at high and advanced prices, but hath been deprived of the use and interest of the said purchase-money thereof, and hath been also put to great charges and expenses of his moneys, altogether amounting to a large sum of money, to wit, 1000l., in and about the shipping of the said tares, and in insuring the same against perils of the sea, and in and about the conveying of the same to England, and in and about the necessary surveying and ascertaining the state and condition of the same tares on their arrival at London aforesaid, and in landing and disposing of the same.

[*72

There were also counts for money paid, for money received; and on an account stated.

Pleas: first, non assumpsit.

Secondly, (to the first count,) traversing the bad condition of the tares. Thirdly, (to the second count,) traversing the shipment in an improper vessel.

Fourthly, (to the first and second counts,) that before the commencement of this suit, and before the commencement of the proceedings next hereinafter mentioned, the defendant was resident in parts beyond the seas, to wit, at Koenigsberg, in the kingdom of Prussia, within the allegiance of the King of Prussia, and within the jurisdiction of a certain court of judicature

called the Royal Prussian Court of Commerce and Admiralty of Koenigs Jerg; and that afterwards and whilst the defendant was resident at Koenigs serg aforesaid, and before the commencement of this suit, to wit, on, &c., he plaintiff impleaded the defendant in the said court of judicature for not performing the very same identical promises, and each and every of them, as are in the first and second counts of the declaration in this action mentioned, and for the damages alleged to have been sustained by the plaintiff *73] thereby; the same court having jurisdiction in the premises; and such proceedings were thereupon had in the said court, that afterwards and before the commencement of this suit, to wit, on the 31st of May, 1839, a judgment or decree was pronounced by the said court, whereby it was adjudged and declared that the plaintiff had no cause of action against the defendant in respect of the damages alleged to have been sustained by him, the plaintiff, through the non-performance of the said promises; and it was further ordered and decreed, by the said judgment or decree, that the plaintiff should pay the costs and expenses of the proceedings so had in the same court in that behalf: which judgment or decree was not in any way reversed or made void. And the defendant says that the said judgment or decree was and is final and conclusive between the parties to such suit, as to the said supposed cause of action, in the country where the same was pronounced, to wit, in the kingdom of Prussia aforesaid; and that the plaintiff is precluded from all further litigation in respect of the same, and ought not further to importune or molest him, the defendant, in respect of such supposed cause of action so adjudicated upon by the said judgment or decree as aforesaid. Verification.

The plaintiff after joining issue upon the first three pleas, replied to the fourth plea, that no such judgment or decree final and conclusive between the parties to the suit in that plea mentioned, in manner and form as therein alleged, ever was pronounced by the said court of judicature in that plea also mentioned, modo et forma; whereupon issue was joined.

At the trial before TINDAL, C. J., at the sittings in London, after last Trinity term, the following document, translated from the German, was given in evidence in support of the fourth plea.(a)

*74]

"Sentence.

"In the matter of Alexander Burn Callandar, of London, merchant and corn-factor, plaintiff, versus R. M. Dittrich, of Koenigsberg, merchant, defendant.

"The Royal College of Commerce and Admiralty at Koenigsberg, in Prussia, have, in their session of the 31st of May, 1839,-at which were present the Director, Mr. Privy-Councillor-of-Justice Stellter, and Becker, Henke, Burdach, Schrötter, Bittrich, Councillors of Commerce and of Admiralty, and Von Hippel, Referendary of the Supreme Court, deputed as Commissary,-conformably to the proceedings in the cause, declared as fol

lows.

"(1) That the plaintiff's claim of 780l. 10s. 1d. sterling, with interest thereon, from the 6th day of April, 1838, which he formed against defendant on account of (bezüglich auf, relating to) a cargo of 917 quarters of tares received in the year 1837 by the ship 'Mary Swan,' commanded by 'G. Wright,' master, be registered.

"(2) That the agreement between the parties, that the plaintiff should abstain from recovering the 133 quarters of tares, which, according to the (a) The translation has been compared with the original; but no correction has been made in anything which could affect the judgment of the court.

defendant's statement, were still lying here for the plaintiff, and that the defendant should be content to accept them, be hereby legally confirmed, and,

(3) That the plaintiff be condemned in the charges of the law proceedings."

"JUDICIAL REASONS.

"A. B. Callandar, in London, in the beginning of 1837, ordered of R. M. Dittrich of this place, 100 lasts of large round Koenigsberg seed tares, best quality, which were to be free from any mixture of oats, pease and such objectionable grain and seed, at 18s. sterling per quarter, free on board, to be shipped in spring. Dittrich in his letter of the 18th [*75 of January in that year to Callandar, accepted this offer. Before the shipment took place Callandar recommended to Dittrich to have the tares shipped as early as possible, and in as small vessels as possible, to prevent heating. Next to this he ordered him to resell immediately half the quantity of the purchased tares,—about 500 quarters, if the cost price, clear of expenses, could be obtained; but should they be shipped, to give preference to an English vessel. The firm of Dittrich could not effect the sale, and consequently shipped 913 quarters, to an amount of 8371. 6s. sterling, on the 29th of April, 1837, per the 'Mary Swan,' 'G. Wright,' master; and upon the 30th idem informed Callandar thereof; observing, moreover, that the remainder consisting of 133 quarters then was warehoused for his account with Dittrich.

"The purchase price for the quantity shipped of 913 quarters tares is paid in that manner, that Dittrich acknowledged to have received by accepted drafts 4501., and that afterwards, on handing bill of lading, Callandar paid to Dittrich's order 3751. 6s. sterling. As to the payment of 12. for 300 dunnage mats, the parties have not yet agreed.

"The 'Mary Swan' arrived in London on the 5th of June, 1837. Callandar examined the tares, and found they were in so bad a state that he thought himself entitled to refuse receipt thereof, and noted a protest through John Lise Venn, notary public in London, after that two corn factors had previously, as competent judges, or experts, declared the tares to be totally decayed. Immediately, and indeed on the 6th of June, Callandar informs Dittrich of his refusal to receive the tares; then on the 9th of June sent him the report of survey and protest, and again declared, that he declined the receipt of the tares, but had got the same landed and brought into a good and airy granary, where the greatest care and attention [*76 would be taken thereof; and that he would also try in favour of Dittrich to procure an abatement or reduction in the duty. Now when Dittrich declined to indemnify Callandar anywise, and on the contrary, sent him brokers' certificates, trying to prove by them that the tares had been fully worth the price charged at the time of their shipment, and that he had consequently performed his part of the contract, Callandar answered that he would, if Dittrich made no other disposition, sell the tares for Dittrich's account, and would do so in small parcels by retail; which proceeding was proposed as the most beneficial to all parties interested. Callandar did accordingly, as Dittrich continued silent, always informing him of the respective sales, but without that Dittrich ever replied thereto.

"On the 29th of December, 1837, Callandar sent his account-sales and account-current to Dittrich, and demanded payment of his debt, but as Dit trich did no. comply with such demand, Callandar on the 10th of June in the year past. brought an action against him, thereby seeking: