1824. Feb. 14th. COSTER V. SYMONS, otherwise SHERWOOD. A letter written THIS was an action on a bill of exchange, drawn by by the indorser of a bill, is evi dence for the defendant in an action by indorsee against acceptor. one Shaw, on, and accepted by, the defendant, and indorsed by Shaw to a person named Akers, and by Akers to the plaintiff. The prima facie case having been made out For the defendant it was proved, that he was merely the servant of Shaw, the drawer, and had no consideration for his acceptance; and that another bill had been given by Shaw to Akers, with his (Shaw's) name upon it, but to which the defendant was no party; which hill, it was contended, was in lieu of that on which the action was brought. And to prove that Akers knew of, and consented to such arrangement, it was proposed to read a letter addressed by him to Shaw, which Shaw swore related to the transaction in question. Gazelee, for the plaintiff, objected. Akers is in existence, and may be called. I admit we are bound by any act of Akers, but not by what he says. ABBOTT, C. J.-I think, in a case at the last sittings, I admitted evidence of a similar description; and I believe the question is now before the Court, on a motion for a new trial. I will take a note of the objection. The letter was then read. It contained a request to Shaw to bring the second bill with him, and concluded with these words, "this will take out Sherwood entirely." ABBOTT, C. J. I think I ought to receive this evidence. It is a declaration of the party under whom the plaintiff claims title, shewing that he had no title at all. Shaw put his name on the second bill to assist Sherwood, and Akers consents to this arrangement. Akers was then called by the plaintiff's counsel; but his explanation not being satisfactory, the jury, under his lordship's direction, found a Gazelee, for the plaintiff. Verdict for the defendant. Scarlett and Campbell, for the defendant. [Attornies-Hodgson and Blackstock & Bunce.] 1824. COSTER v. SYMONS. M'SHANE v. GILL. Feb. 17th. An agreement between a bank rupt and a third person, that the bankrupt shall receive a sum of money from such third person on his ob taining from his assignees the sale of his house WORK and labor. The plaintiff in this action, who had been a bankrupt, claimed the sum of 347. 4s. from the defendant;-301. for procuring the sale, at a certain sum, of his (the bankrupt's) house to the defendant, and 4l. 4s. for letting it after the purchase, in the capacity of a house agent. The 47. 4s. had been tendered. A witness proved a conversation which took place between the plaintiff and defendant. The defendant wished to purchase the house, and the plaintiff said to him, "Let " us have a clear understanding: if you become a pur- price, is void "chaser either by your own bidding or mine, I shall expect 301., or five per cent. provided your purchasemoney is under 6007," The defendant said, "Cer"tainly, you shall have 30%. but do not limit yourself "within a few pounds of the 6001.❞ to that person, at a certain in law. 1824. บ. ABBOTT, C. J. If I understand this rightly, it is a M'SHANE bargain between the bankrupt and a purchaser, to obtain the property for him at a certain sum, in consideration of 30%.? GILL. The plaintiff's counsel replied in the affirmative. ABBOTT, C. J.—Then I am of opinion it is void in law: even though the assignees had consented, it is a fraud on all the creditors except them. The plaintiff's counsel then examined one of the assignees, who stated that the plaintiff called upon him at his house. The defendant's counsel objected to any thing that passed when the defendant was not present. ABBOTT, C. J.-The plaintiff's counsel thinks that if he proves the consent of the assignees to the agreement, it will be good; and he is setting about doing it. The assignee stated that the plaintiff told him he had a friend who was coming to purchase the house, and if the assignees would give that friend the preference, he (the plaintiff) would have an interest in it. The property was eventually sold to the defendant for 5607., the assignees conceiving that it was bought for the plaintiff. It appeared that a meeting of creditors agreed to the price, at the bankrupt's suggestion. The occupier of the house proved the letting of it to him by the plaintiff, as the defendant's agent. ABBOTT, C. J. I am clearly of opinion that an agreement, by which any person is enabled to buy the property at a certain sum, on giving the bankrupt 307., is void in law. A communication of the agreement to all the creditors might make a difference, but a communication to the assignees alone will not do. But in this case there has been no communication to either, of any thing like the contract spoken to the witness. His lordship then called upon the defendant's counsel to prove the tender of the 47. 4s. for the letting, which being done The plaintiff was nonsuited. Marryatt and Chitty, for the plaintiff. Scarlett and D. Pollock, for the defendant. [Attornies-Sabine and Hughes.] 1824. M'SHANE บ. GILL. HOUGH and Another v. WARR. ACTION on a bond against the defendant, as surety of amount of between £200 and £300. the Feb. 18th. A letter from a surety for a col lector to the obligees of his bond, stating that he will not be liable after the date of the letter, is no defence to an action on the bond subsequent to The defendant's counsel inquired whether his lord- for a deficit, ship thought a letter addressed by the defendant to the the letter, if it committee of the Dispensary, previous to the deficit, stat- be not pleaded specially. If ing that he should not consider himself bound beyond the it be pleaded, date of that letter, and that he had informed the collector Quare, of such his determination, could avail him in that action, or whether he must go into equity for relief. ABBOTT, C. J.—I think he must go into equity. His 1824 HOUGH & Another บ. WARR. lordship inquired if it had been pleaded, and was answered in the negative. The defendant's counsel. Does your lordship think, that after such a notice they can be considered to have trusted the collector under the bond. ABBOTT, C. J.I think they may till it is revoked. At all events you should have pleaded it (a). Verdict for the plaintiff. Nolan and Richards for the plaintiff. The Attorney General and Storks for the defendant. [Attornies-Pasmore and Mills.] (a) In Whelpdale's case, 5 Rep. 119 a. it is laid down,that in all cases where a bond is voidable, as if made by an infant or person under duress, and also in cases where a bond is made void by act of Parliament, it must be specially pleaded, and the year books (1 H. 7. 15, and 9 Edw. 4.5), are cited in support of this position; but if it ceases to be a deed, as by erasure, the plea of non est factum is sufficient. In Lambert v. Atkins, 2 Camp. 272, evidence that the obligor was, at the time of giving the bond, a feme covert, was admitted under the general issue. And in Faulder v. Jervoise, 3 Camp. 126, lunacy was allowed to be given in evidence, in action of debt on bond, under the general issue. The cases also go to shew, that if the bond was void at common law, it may be taken advantage of under the general issue, but if it is void by statute, or is only voidable either by common law or statute, such matter must be specially pleaded; and in practice, infancy, gaming, usury, &c. always are so. I see no objection to pleading almost any matter of defence specially to debt on bond, as it makes no great difference in costs, whether you plead the general issue or a special plea, unless the plea be very long. It should be observed, that in debt on bond, the general issue is, non est factum, and not nil debet; and if the latter is pleaded by mistake (as it very often is), the plaintiff may demur. In this form of action, payment must be pleaded specially; and so must a release. |