aforesaid); and the articles and memorandum were not, nor were either of them, made or entered into by any person for that purpose duly authorised by any instrument in writing under the common seal of the plaintiffs so being such corporation as aforesaid. Verification.

The second, third, fourth and fifth pleas, pleaded by the defendant Booth, were in substance the same as those pleaded by the defendant Robertson.

The defendant Staines pleaded fourthly, to the whole of the first count, a plea similar to the fourth plea of the defendant Robertson.

Fifthly, to the first count; that the plaintiffs did not withdraw all opposition to the progress of the said bill in that count mentioned, according to the true intent and meaning of the said articles of agreement and memorandum, modo et formâ: concluding to the country.

Replication to the second plea of the defendant Robertson. The plaintiffs, not denying the matters stated in the said second plea, for replication, nevertheless, said, that, before and at the times of the making and entering into the said articles of agreement and memorandum respectively in the said first count mentioned, and which on the faith of the defendants' said promise were so acted upon and performed by the plaintiffs on their part as therein also mentioned, the said Ĵ. D. T. had been and was the attorney and solicitor of the plaintiffs, and had been and was employed by them, the plaintiffs, as such solicitor and as the agent for them, and on their behalf, in and about the conduct and management of the [151] said opposition of the plaintiffs to the bringing in and passing of the said bill in the first count first above mentioned and referred to, and the supporting the said claims of the plaintiffs to, in, over and upon the said slob or waste land in the said articles of agreement mentioned, and also in and about the making and entering into the said articles of agreement and memorandum respectively; and that the said articles of agreement and memorandum were respectively made and entered into and consented to and approved of, as in the said first count mentioned, by the said J. D. T., as such solicitor and agent as aforesaid, for and on behalf of the plaintiffs, and in the course and performance of his the said J. D. T.'s employment and duty as such solicitor and agent as aforesaid, and by and with the authority, consent and approbation of the plaintiffs, and of which the defendants, at the respective times of the making and entering into the said articles of agreement and memorandum respectively, had notice. Verification.

Special demurrer to the third plea of the defendant Robertson; assigning for causes, that the said third plea traversed, and attempted to put in issue, matter which was wholly immaterial to the merits of the case, and to the matters to which the same was pleaded; and that, if, as the said third plea must be taken to admit, the agreement and memorandum were made and entered into and fully performed by the plaintiffs on their part, and the disputed clauses and provisions were settled by Mr. Brodie as alleged in the first count, it was perfectly immaterial as to each and every of the breaches of contract charged in the first count, and to which the said third plea was pleaded, especially as to the nonpayment of the costs and the 10001., that the bill after it was settled and agreed upon, was not so beneficial as it might have been, as alleged in the said third plea; that [152] it was material only that the differences should have been settled by Mr. Brodie; that the said third plea shewed no default or failure of consideration on the part of the plaintiffs, nor any valid excuse or justification of the defendants' breaches of contract to which the said third plea was pleaded, and did not even disclose any grounds for a cross action against the plaintiffs; that it was not a matter contracted for by the agreement that the bill should be so beneficial as in the third plea mentioned; and that this defendant was by his own argument, and by consenting to the bill, as admitted by the pleas, precluded from now disputing the matters attempted to be put in issue by the said third plea; and that, at most, the third plea could be an answer, if at all, only to the first breach charged in the declaration; and that, if the third plea contained sufficient matter of defence (*) to the breaches of promise to which the same was pleaded, the same also would amount to an answer and defence to the whole of the first count of the declaration; that the third plea improperly contained and was an answer and defence to a further and other part of the first count of the declaration than was professed to be answered by the said third plea, that is to say, to the whole of the first count; and, if judgment on the said third plea should be given for the defendant, the court could not consistently give judgment for the plaintiffs, as to the matter excepted in the introductory part of such

plea, and would be uncertain for whom judgment ought to be given; and that the said third plea was in other respects wholly immaterial, improper, and insufficient, &c. Joinder.

Special demurrer to the fourth plea of the defendant Robertson; assigning for causes, that the said plea tendered an issue which was wholly immaterial and insufficient; that the portion of the agreement on the part [153] of the plaintiffs, the partial breach whereof was alleged and relied upon by the said fourth plea, was not in the nature of a condition precedent to the performance of the defendant's part of the contract, but was an independent agreement; that it formed a part only of the consideration for the defendant's promise; that the breach of it might be compensated in damages, and afforded a ground only for a cross action, without being a defence in the present case: that the fourth plea admitted that the plaintiffs delivered over the survey, plans and valuations, withdrew their opposition to the introduction of the bill, and also presented a petition in its favour, and otherwise promoted it, withdrawing also, until the passing of the act, all opposition to its further progress, and that the defendants had had, and still had, the benefit of the said survey, plans and valuations, and had further obtained the advantage, by the plaintiffs' acts, of having been able to bring in their bill, and that there had been in other respects a partial performance of the contract on the part of the plaintiffs; and yet that the same fourth plea contained no sufficient answer or matter of defence as to the said breaches of contract in the first count of the declaration mentioned, and to which the said fourth plea was pleaded, or any of them, more especially as to the breach in nonpayment of the 10001. which was to be paid at a specified time, and on account of the said survey, plans and valuations, which the defendants had actually enjoyed to their own use (*); that it was not in or by the fourth plea alleged that the defendants, or either of them, requested the plaintiffs to use any means or endeavours, or that the plaintiffs could have used any means or endeavours, to promote the progress of the bill, or that the defendants, or either of them, tendered or offered, or were or was ready or willing, to pay to the plaintiffs the expenses thereof, or that the plaintiff's had notice of [154] the same; that if the said fourth plea contained sufficient matter of defence, &c. (Concluding as the demurrer to the third plea from the (*).) Joinder.

Special demurrer to the fifth plea of the defendant Robertson; (assigning similar causes to those assigned in the demurrer to the fourth plea down to the (*); and continuing thus); that the said fifth plea did not sufficiently traverse or confess and avoid the matters to which the same was pleaded, or any of them; that the same plea amounted to and was an argumentative denial of the allegation contained in the first count, that the said plaintiffs did use all reasonable means and endeavours to promote the progress of the said bill, and to procure an act of parliament to pass thereupon, as therein alleged; that the said fifth plea amounted to and was an argumentative denial of the allegation contained in the first count, that the plaintiffs did withdraw all opposition of them, the plaintiffs, to the progress of the said bill, according to the true intent and meaning of the said articles of agreement and memorandum; that the plea improperly concluded with a verification, instead of to the country; that it was not alleged in the plea, that the petition therein mentioned was presented by the plaintiffs before any breach by the defendants of their said promise in the first count mentioned as to which the same plea was pleaded, nor did it sufficiently appear in or by the plea, at what time the plaintiffs presented the petition therein mentioned; that the plea did not sufficiently confess the breach of promise in the first count firstly above assigned, being a matter to which the plea was pleaded; and if the same is sufficiently. confessed, then that it appeared by the first count, and was not denied by the plea, that the defendants broke their said promise as to the breach in the said first count firstly above assigned, and to which the plea was pleaded, before the bill had passed the House of Com-[155]-mons, and before the alleged breach of contract by the plaintiffs in the fifth plea mentioned and to which the same plea was pleaded; that from the said fifth plea, it appeared that the plaintiffs partially broke their contract as in that plea alleged, after such breach by the defendants of their said promise as last aforesaid; that, if the plea contained sufficient matter of defence, &c. (Concluding as the demurrer to the third plea from the (*).) Joinder.

The plaintiffs also replied and demurred in a similar manner to the pleas of the defendant Booth. Upon each demurrer there was a joinder in demurrer.

The plaintiffs also demurred to the fourth and fifth pleas respectively of the

defendant Staines, assigning similar causes to those assigned in the demurrer to the fourth plea of the defendant Robertson, down to the (*). Joinder.

Rejoinder by the defendant Robertson to the replication to his second plea, that the plaintiffs, before and at the several times of the making and entering into the said articles of agreement and memorandum respectively in the said replication and first count mentioned, were and still are a corporation aggregate, and which same corporation was before and at the several times and still is called and known by the name of The Wardens and Commonalty of the Mistery of Fishmongers of the City of London; that the said bill in the said replication and first count respectively mentioned, and the said opposition to the bringing in and passing of the same bill in the replication and first count respectively mentioned, and also the said claims of the plaintiffs, and the said articles of agreement and memorandum also in the said replication and first count respectively mentioned, severally [156] and respectively solely related to and concerned certain estates and interests in lands and tenements, and did not nor did any or either of them relate to or concern any trade or merchandise whatsoever; that before and at the said several times of the making and entering into the said articles of agreement in the said replication and first count respectively mentioned, the said plaintiffs by parol only, and without and not by any instrument in writing under the common seal of the plaintiffs, or otherwise howsoever, appointed and employed the said J. D. T. as, and to be, attorney and solicitor and agent of them the plaintiffs, for them and in their behalf in and about the conduct and management of the said opposition of the plaintiffs and the supporting of the said claims, and also in and about the making and entering into the said articles of agreement and memorandum respectively; that the said J. D. T., by virtue of such parol appointment and employment of him the J. D. T. as aforesaid, and not otherwise, was so employed by them, the plaintiffs, as such solicitor and agent for them and on their behalf, in and about the conduct and management of the said opposition of the plaintiffs to the bringing in and passing of the said bill, and the supporting the said claims, and also in and about the making and entering into the said articles of agreement and memorandum respectively, as in the said replication mentioned; that the said J. D. T., by parol only, and without and not by any instrument in writing under the common seal of the plaintiffs, or under the seal of the said J. D. T., made and entered into and consented to and approved of the said articles of agreement and memorandum respectively; that the said articles of agreement and memorandum were respectively made and entered into, and consented to and approved of, by the said J. D. T., as such solicitor and agent, for and on behalf of the plaintiffs, and in the [157] course and performance of his the said J. D. T.'s employment and duty as such solicitor and agent, as in the said replication mentioned, by virtue of the said J. D. T.'s so, by parol and without and not by any such instrument in writing under the common seal of the plaintiffs, or under the seal of the said J. D. T. as aforesaid, so making and entering into, and consenting to, and approving of, the said articles of agreement and memorandum respectively, and under and by virtue and in pursuance of the said parol appointment and employment of him the said J. D. T. as aforesaid, and not otherwise, he the said J. D. T. having been so appointed and employed by parol only, and without, and not by, any instrument in writing under the common seal of the plaintiffs as aforesaid; that the plaintiffs by parol only, and without and not by any instrument in writing under the common seal of the plaintiffs, or otherwise howsoever, did authorise, and did consent to, and did approve of the said J. D. T. as such solicitor and agent (so appointed and employed by parol, and not otherwise, as aforesaid), for and on behalf of the plaintiffs, and in the course and performance of his, the said J. D. T.'s, employment and duty, as such solicitor and agent (so appointed, &c.), making and entering into, and consenting to, and approving of the said articles of agreement and memorandum respectively, in manner aforesaid; that the said articles of agreement and memorandum were respectively made and entered into, and consented to, and approved of, by the said J. D. T. as such solicitor and agent (so appointed, &c.), for and on behalf of the plaintiffs, and in the course and performance of his, the said J. D. T.'s employment and duty as such solicitor and agent (so appointed, &c.), by and with the authority, consent and approbation of the plaintiffs, as in the said replication and therein-before mentioned [158] and alleged, under and by virtue of the plaintiffs so by parol only, and without and not by any writing under the common seal of the plaintiffs or otherwise, howsoever, authorising and consenting to, and

approving of, the said J. D. T., as such solicitor and agent, (so appointed, &c.), for and on behalf of the plaintiffs, and in the course and performance of his, the said J. D. T.'s employment and duty as such solicitor and agent (so appointed, &c.), so making and entering into, and consenting to, and approving of, the said articles of agreement and memorandum respectively, by parol only, and without, and not by, any instrument under the said common seal of the said plaintiffs, or under the seal of the said J. D. T. as therein-before mentioned; without this, that the said articles of agreement and memorandum were respectively made and entered into, and consented to, and approved of, as in the said replication and first count respectively mentioned and alleged, by the said J. D. T., as such solicitor and agent as in the same replication mentioned and alleged, for and on behalf of the plaintiffs, and in the course of his, the said J. D. T.'s, employment and duty as such solicitor and agent as aforesaid, and by and with the authority, consent and approbation of the plaintiffs, modo et formâ : -concluding to the country.

The defendant Booth rejoined, that the articles of agreement and memorandum in the first count mentioned, were not, nor were either of them made or entered into, or consented to, or approved of, as in the replication and first count mentioned by the said J. D. T. as the attorney, solicitor, or agent of the plaintiffs by any instruments in writing under their common seal, or under the seal of the said J. D. T. by or with any authority, consent or approbation of [159] the plaintiffs in writing under their common seal. Verification (a).

Special demurrer to the rejoinder of the defendant Robertson; assigning for causes, that the matters stated in the inducement in the rejoinder were wholly immaterial, and did not directly or indirectly deny, or confess and avoid, the last-mentioned replication of the plaintiffs, and the matters therein alleged; that, if it were material that the said J. D. T. should have been employed and appointed by an instrument under seal, and that the articles of agreement and memorandum should have been made and entered into, and consented to, and approved of, by an instrument under the common seal of the plaintiffs, or under the seal of the said J. D. T., and that the authority, consent and approbation for the said J. D. T.'s making and entering into, and consenting to, and approving of such articles of agreement and memorandum should have been by an instrument under the common seal of the plaintiffs, then that the said matters ought to have been pleaded by way of confession and avoidance; that the rejoinder improperly concluded with a traverse; that it improperly concluded to the country, and ought to have concluded with a verification; that the plaintiffs were, by the said rejoinder, precluded from relying upon a subsequent ratification of the articles of agreement and memorandum by the plaintiffs under their common seal; that, if the rejoinder were properly pleaded by way of traverse, then that the same ought to have further averred in the inducement thereof that the said articles of agreement and memorandum had not been ratified by the plaintiffs under their common seal; that, if the matters stated in the inducement to the rejoinder in any way traversed or denied matter set forth and alleged in the replication, the same amounted to [160] and were a direct denial of the matter alleged or necessarily implied in such replication; that the inducement and the matters therein stated ought to have been and contained an argumentative denial only of the matter of the replication; that the rejoinder was impleaded by way of special traverse; that, if the matters aforesaid stated in the inducement were material, then any one of such matters would have been sufficient as a special inducement to the rejoinder; that, by the insertion of the several allegations and matters before mentioned, the rejoinder was double and multifarious; that the matters stated and alleged in the inducement of the rejoinder ought to have been pleaded disjunctively, and not copulatively; that if it were material and necessary that the said J. D. T. should have been appointed and employed by an instrument under seal, then the rejoinder improperly contained an argumentative and no direct denial of such appointment and employment; that the rejoinder was also double, in avowing the appointment and employment of the said J. D. T., as well as the fact of the agreement and memorandum having been made, and entered into, and consented to, and approved of, by him; that the rejoinder was a departure from the second plea of the last named defendant, and the said last named defendant by his said rejoinder attempted to vary and put in issue, and, by the said inducement, directly to deny, the (a) Unnecessary, ante, vol. i. 22, 816.

C. P. XII.-17*

articles of agreement and memorandum in the first count mentioned, and although the same had not been varied, questioned or denied by the last-named defendant in his said second plea; that the construction and effect of the agreement were matters for the consideration of the Court, and could not be traversed as in the said rejoinder was attempted; and that the said rejoinder confessed and admitted the matter of the last-mentioned replication of the plaintiffs, and was in other respects immaterial, &c. Joinder.

[161] Surrejoinder to the rejoinder of the defendant Booth: that, after the said articles of agreement and memorandum in the first count mentioned were respectively made and entered into, and consented to, and approved of, as in that count and also in the last-mentioned replication mentioned, and after the same had been so acted upon and performed by the plaintiffs upon the faith of the defendants' said promise, as in the first count also mentioned, and before the commencement of the suit, to wit, on the 9th of May, 1839, by a certain deed-poll under the common seal of the plaintiffs, as and being such corporation aggregate as aforesaid, then made and executed by the plaintiffs, and which deed-poll the plaintiffs did recognise and adopt,-ratify and confirm the said articles of agreement and memorandum; and of which the defendants thereupon afterwards, and before the commencement of the suit, to wit, on the day and year last aforesaid, had notice. Verification, and profert.

Rebutter; setting out upon oyer the deed-poll mentioned in the surrejoinder. (Which deed-poll, reciting the agreement and memorandum declared on, witnessed that the said Wardens and Commonalty of the Mistery of Fishmongers of the City of London did thereby recognise and adopt the said articles of agreement, and the indorsement thereon, and all and every the acts done and performed, as well by the said J. D. T., as by the Irish-estate committee of the said company in pursuance thereof, and did thereby ratify and confirm the said agreement and indorsement, and all such acts as aforesaid, and did thereby testify and declare that such agreement was entered into, and that such acts were done and performed, by the said J. D. T., and by the said Irish-estate-committee, not on his or their own behalf, but as the agent or agents of and for, or on behalf of, them, the said company; as witness their common seal thereto affixed, &c.) Averment: that the deed-poll mentioned [162] in the surrejoinder was made under the common seal of the plaintiffs long after the articles of agreement and memorandum in the first count mentioned had been and were respectively made and entered into and consented to and approved of, as in that count mentioned, and long after the making of the supposed promise in the first count mentioned, and long after the respective times of the committing of the several breaches of promise respectively in that count mentioned, and long after the respective times of the accruing of the supposed causes of action in that count mentioned, to wit, on the 9th day of May, 1839. Verification.

Special demurrer; assigning for causes, that the said agreement and memorandum and promise by the defendants having been made by them and acted upon and performed by the plaintiffs on the faith thereof, it was wholly immaterial whether the same agreement and memorandum were expressly ratified by the plaintiffs under their common seal before or after the breaches of promise by the defendants;-that, if the matters stated in the rebutter were material, then the same must be taken to be, and were, a traverse of matter necessarily implied by the surrejoinder, namely, that the deed-poll was executed before the defendants' breaches of promise, and the rebutter ought to have concluded to the country instead of concluding with a verification;— that, although the rebutter admitted the agreement and memorandum to have been acted upon and performed by the plaintiffs on the faith of the defendants' promise before the deed-poll was executed, yet it did not sufficiently confess that the deed-poll was executed before the commencement of the suit;-that it did not deny, or sufficiently confess, the surrejoinder, or any of the matters stated therein, or sufficiently avoid the same;—and that the rebutter was in other respects uncertain, &c. Joinder.

The case was argued in last Trinity term (May 25th, 27th, and June 1st) by [163] Channell Serjt. (with whom was Bovill) for the plaintiffs. The first point intended to be raised by the defendants is that the plaintiffs, being a corporation aggregate, cannot sue upon a contract made by them which is not under their common seal; or, if the contract were made by their agent, that his appointment must not be shewn to be under seal. Assuming these to be correct, as general propositions, the