of another person, to the intent or purpose that such person might obtain credit, money, or goods upon, within the true intent and meaning of the statute in the plea mentioned that the plea, if valid in substance to bar the action, was circuitous, and amounted to a plea of not guilty-that the plea stated what was only matter of evidence, and did not offer or tender any sufficient issue of fact that the plea neither traversed, nor sufficiently confessed and avoided, the matter of the count that the plea circuitously and informally denied the representations stated in the count to have been made by the defendant-that the plea, while it in effect traversed the making of a representation sufficient to support the action, concluded with a verification, whereas the same ought to have concluded to the country, &c. Joinder in demurrer.

Channell Serjt. (with whom was J. Henderson) in support of the demurrer. The third plea alleges that the defendant was not an officer in the service of government, nor able, from the means of knowledge which he possessed, to afford information. The latter fact is neither alleged in, nor to be implied from, the declaration. It is not averred that the defendant was able to afford information, but only that Douglas had represented him to be able, to give it.

The next objection to the third plea is, that this plea, in denying that the defendant was an officer of the [53] government, raises an immaterial issue. The plea of not guilty puts in issue both whether the defendant made the representation, and whether he knew it to be false. If the plaintiff failed to establish either of these facts at the trial, he could not succeed. If he made them out, the rest of the declaration, not traversed, would disclose a sufficient cause of action. The traverse of the allegation that the defendant was a government officer, is therefore wholly immaterial. If not, it amounts to not guilty, and is bad on that ground. [Cresswell J. Suppose the verdict on such a traverse to be, that the defendant was an officer, but was not able to give the information.] The plaintiff would be entitled to judgment non obstante veredicto. If the issue raised on such a traverse were to be held material, it could only be so on the ground that the want of means of knowledge might go to disprove that the defendant was aware of the falsity of the representation; so that it is clear that the traverse is either immaterial, or amounts to not guilty.

The fourth plea is bad both in form and in substance. The objection in point of form is, that this plea also amounts to-not guilty. The defence which it attempts to set up, namely, that the representation was not in writing, signed by the defendant,to bring the case within the 9 G. 4, c. 14,—was, in Lyde v. Barnard (a), given in evidence under not guilty. Leaf v. Tuton (10 M. & W. 393. Vide post, 54, note (b), 56, note (e)) is a distinct authority upon this point. There, in assumpsit for goods sold, the defendant pleaded that at the time when the defendant became indebted to the plaintiff as in the declaration mentioned, he became so indebted upon a contract for the sale of the goods therein mentioned, for a price exceeding 101.; that the defendant, being the buyer thereof, did not accept or actually re-[54]-ceive the goods, or any part thereof, or give or pay any thing in earnest, or to bind the bargain, or in part of payment, nor was any note or memorandum in writing of the bargain made and signed by the defendant or by his agent thereunto lawfully authorized; and the plea was held bad, on special demurrer. Parke B. in delivering the judgment of the court says, "Buttemere v. Hayes (5 M. & W. 456) decided that the general issue,--which, under the new rules, is a denial, in fact, of the express contract or promise alleged, or of the matters of fact from which the contract or promise alleged, is implied by law,'—is a denial that the requisites of the statute of frauds have been complied with, in cases where the statute applies (b); and on an issue on that plea, the plaintiff must prove the affirmative. The plea of the non-compliance with the statute of frauds is therefore nothing but an argumentative denial of the contract, or of the facts from

(a) Tyrwh. & Gr. 250, 1 M. & W. 101; 1 Gale, Exch. 388. In that case the barons were equally divided.

(b) On the ground that the production of a note in writing could be necessary only to support some allegation in the declaration, and that it supported none but that of the making of the contract. In a case upon the seventeenth section,-which Leaf v. Tuton was, though Buttemere v. Hayes was not, this would appear to be so; as that section avoids the contract. But with reference to the fourth section, the object of the proof would seem rather to be, to shew that the plaintiff was not, by reason of the non-observance of certain prescribed forms, precluded from suing upon that which,

which it is implied by law. ... Maggs v. Ames (4 Bingh. 470, 1 M. & P. 294) was decided without sufficiently adverting to that distinction. At all events, since the decision in Buttemere v. Hayes, that case cannot be supported." The 9 G. 4, c. 14, ought to receive the same construction as the statute of frauds; and there is no distinction, with respect to this point, between case and assumpsit.

[55] The objection to the substance of the plea is, that it is an attempt to bring this case within the 9 G. 4, c. 14, s. 6. The representation here is not a representation as to the credit or ability of another, within that statute. Upon this point the learned serjeant referred to the judgments of Parke and Alderson BB. in Lyde v. Barnard; and he sought to distinguish the case from Haslock v. Fergusson (7 A. & E. 86, 2 N. & P. 269) and Swan v. Phillips (8 A. & E. 457, 3 N. & P. 447).

Bompas (with whom was Cowling) for the defendant. If the latter part of the allegation traversed by the third plea be immaterial, the court will reject it; Palmer v. Gooden (8 M. & W. 890, 1 Dowl. N. S. 673); and then the question will be whether the first part of the plea, which denies that the defendant was an officer in the service of the government, is not good, as being a traverse of what is, substantially, alleged in the declaration.

The objection in point of form to the fourth plea is not free from difficulty. Maggs v. Ames however is a distinct authority in support of the plea. There, a plea that the undertaking of the defendant was for the debt of another, without writing and without consideration, was held good, notwithstanding the facts might have been given in evidence under the general issue. That case was grounded on Carr v. Hinchliffe (4 B. & C. 547, 7 D. & R. 40). [Tindal C. J. That case was decided before the new rules. In Buttemere v. Hayes the court of Exchequer point out the distinction between defences which amount to an unqualified denial of the facts alleged, and those which avoid the contract for some matter that is the subject of proof on the part of the defendant.] Here, the plea admits what is stated in the declaration, but seeks to avoid it by shewing [56] that the representation was not in writing. In Devaux v. Steinkeller (6 N. C. 85, 8 Sc. 202) this defence was pleaded; and no objection was taken to the form of the plea (et vide ante, 54 (b)). Maggs v. Ames is not inconsistent with Buttemere v. Hayes and Eastwood v. Kenyon; at any rate those were actions of assumpsit; whereas this is in case. In Barnett v. Glossop (1 N. C. 639, 1 Sc. 621), which was also an action of assumpsit for a dramatic piece composed by the plaintiff and sold by him to the defendant, it was held that a defence on the ground that there was not an assignment in writing must be specially pleaded.

On the point as to whether the representation was within the 9 G. 4, c. 14, s. 6, the learned serjeant referred to Eyre v. Dunsford (1 East, 318), Tapp v. Lee (3 Bos. & P. 367), Swan v. Phillips, and Lyde v. Barnard.

Channell Serjt. in reply. As to the third plea, the matter rejected in Palmer v. Gooden was not only immaterial, but insensible; and all that was there decided is, that it should not avoid the issue. With regard to the technical objection to the fourth plea, there is no distinction, as to this point, between case and assumpsit. In Hayseldon v. Staff (g), a plea to a count for work and labour, that the work was done under an agreement that the plaintiff should receive no remuneration for his services, if, as the event was, they should prove unsuccessful, was held bad on special demurrer, as amounting to the general issue. Lord Denman there says in giving the judgment of the court: "There is a great distinction between the case of a plea, which amounts to the general issue, and that of a plea which merely discloses matter which may be given in evidence under the general issue. In the latter case, though, as has [57] been observed in the earlier part of this judgment, the various things enumerated may be given in evidence under the general issue, independently of any of the new rules, yet it is incorrect to say that these things amount to the general issue: they only defeat the contract; but what, in correct language, may be said to amount to the

although the requirements of the statute may not have been satisfied, is not the less a subsisting contract; 5 Taunt. 788; ante, vol. i. 773.

In Reed v. Nash, 3 Wentw. Plead. 102, S. C. 1 Wils. 305; Saunders v. Wakefield, 4 B. & Ald. 595; Wakeman v. Sutton, 2 A. & E. 78, 4 N. & M. 114; Devaux v. Steinkeller, post, 56, the statute was pleaded.

(g) 5 A. & E. 160, 6 N. & M. 659. In that case, as in Leaf v. Tuton, there was no contract; secus, in Buttemere v. Hayes.

general issue, is a plea containing an allegation, that for some reason specially stated, the contract does not exist in the form in which it is alleged; and where that is the case, the plea, instead of a direct denial, presents an argumentative denial of the contract, which, according to the established rules of pleading, is not allowed." It is clear that declarations upon contracts within the statute of frauds do not, and need not, set out any agreement in writing. Here, the plea is a denial, not of any thing contained in the declaration, but of a matter of evidence required by law.

Cur. adv. vult.

TINDAL C. J. now delivered the judgment of the court. The plaintiff has demurred specially in this case to the third and fourth pleas of the defendant.

The question as to the third plea is, whether the traverse in that plea, is the traverse of a material allegation in the declaration; and we are of opinion that it is not.

The defendant in his plea traverses that he was an officer in the service of the government, and that he was able by means of knowledge possessed by him to afford information as alleged by the plaintiff, and concludes to the country. Now the subject of the first branch of this traverse, that the defendant was an officer, was altogether an immaterial allegation. The plaintiff alleges in his declaration that one Douglas had referred him, the plaintiff, to the defendant, for information on the subject of a claim which Douglas had on the government, as being an officer, and as being able, from his means of knowledge, to give information. It is true the declaration goes on [58] to allege that the defendant was in fact an officer of the government; but this is an immaterial allegation. Douglas had stated him to be an officer; but whether Douglas had made a true or a false statement on that point, could not have the remotest bearing on the complaint of the plaintiff, which is, that the defendant made a false representation to him. The first part of the traverse is therefore bad, as being the traverse of an immaterial allegation. And the latter part of the traverse, viz. that "he the defendant was not able, from the means of knowledge possessed by him, to afford information," is a bad traverse, because the plaintiff has never alleged that the defendant was able to give the information. All that the declaration states is, that Douglas represented to the plaintiff that such was the fact. This plea therefore is bad upon special demurrer (a).

And as to the fourth plea, we think this case is governed by the decision of the court of Exchequer on Leaf v. Tuton (b), where a plea to a declaration in assumpsit, that the contract declared upon was not made in writing, although it was brought within the description of contracts mentioned in the statute of frauds, and therefore the action was not maintainable thereon, was held to be bad on special demurrer, as amounting to an argumentative denial of the contract; and we think that the present case cannot be distinguished from that decision.

Judgment for the plaintiff on the third and fourth pleas.

[59] SUSANNA KING v. SARAH GREENHILL. June 9, 1843.

[S. C. 6 Scott, N. R. 869; 12 L. J. C. P. 333; 7 Jur. 604.]

Upon a mortgage from B. to A., the mortgage-deed, dated the 13th of February, 1834, recited that, "as an inducement to A. to advance the money, C. had agreed to covenant for the due payment of the interest," B. covenanted to pay the principal, and interest for the same after the rate of 5 per cent., on the 13th of February, 1835, and C. covenanted "that B. and C., or one of them, would, during the continuance of the mortgage security, pay the interest to become due in respect of the said principal sum after the rate of, &c., by two even half-yearly payments, on the 13th of August and the 13th of February." The indenture also contained a power of sale, on six months' notice, in default of payment of principal and interest, with

(a) Quære, whether a plea traversing an immaterial allegation, and also matter neither expressly nor impliedly alleged, would not be bad on general demurrer.

(b) The decision in that case, which was a case within the seventeenth section of the statute of frauds,-proceeded not, as it might have done, on the words of that section, but upon the authority of a former case (Buttemere v. Hayes) within the fourth section, the words of which appear to be susceptible of a different construction, and more nearly to resemble those of the 9 G. 4, c. 14, s. 6.

authority to A., out of the proceeds, to pay herself the principal and interest, “or so much thereof as shall be then due." Held, that C.'s covenant was not limited to the payment of the first two half-years' interest, but was a covenant for payment of the interest so long as the principal remained unpaid.—The breach assigned was, that on a certain day which had elapsed before the commencement of the suit, to wit, on the 13th of August 1842, there became and was, and still was due and owing for and in respect of divers, to wit, six half-years' interest of and upon the said principal sum, a large sum of money, to wit, 901., which had not been paid. Held, sufficiently certain, on special demurrer.

Covenant. The declaration stated that heretofore, to wit, on the 13th of February 1834, by an indenture then made between John Greenhill of the first part, the defendant of the second part, and the plaintiff of the third part [profert], after reciting, amongst other things, that the said John Greenhill had applied to the plaintiff to lend him the sum of 6001., at interest, upon the security of a certain mortgage in the said indenture mentioned, and also an assignment of certain personalty as a collateral security, which the plaintiff had agreed to do, and that as a further inducement to the plaintiff to advance the said 6001. the defendant had agreed to covenant for the due payment of the interest, the defendant covenanted with the plaintiff that she the defendant and the said John Greenhill, or one of them, their, or some or one of their heirs, executors, administrators, or assigns, should and would, during the continuance of the said mortgage security, well and truly pay or cause to be paid unto the plaintiff the interest to be-[60]-come due in respect of the said principal sum of 6001. after the rate of 5 per cent. per annum, by two even half-yearly payments, on the 13th of August and the 13th of February, free from all deductions whatsoever; as by the said indenture fully appeared. Breach: that although the said mortgage security had been from the making thereof to the commencement of the suit, and was still, in continuance, and the said principal sum of 6001. had never been paid, and that on a certain day which had elapsed before the commencement of the suit, to wit, on the 13th of August 1842, there became and was and still was due and owing for and in respect of divers, to wit, six half-years' interest of and upon the said principal sum of 6001., a large sum of money, to wit, 901., yet no part of the said 901. had ever yet been paid, &c.

The defendant craved oyer of the indenture, which was set out. It purported to be an indenture made the 13th of February 1834, between John Greenhill of the first part, Sarah Greenhill (the defendant) of the second part, and Susanna King (the plaintiff) of the third part. After reciting the will of William Greenhill, the father of the said John Greenhill, whereby he devised and bequeathed all his real and personal property to certain trustees, upon trust,-after the death of his wife, to whom a life interest therein was given,-for his six sons and daughters in equal shares, among whom was John Greenhill; and reciting a codicil to the said will, whereby the said testator appointed John Greenhill a co-executor and trustee with his other executors and trustees; and stating the death of the said testator, and that the said will and codicil were duly proved in the Prerogative Court of Canterbury, the deed proceeded as follows:--And whereas the said John Greenhill hath applied to, and requested, the said Susanna King to lend him the sum of 6001., at interest, upon the security of a mortgage of all his interest under his said deceased [61] father's will, and also an assignment of certain personalty as a collateral security, which the said Susanna King has agreed to do: and whereas, as a further inducement to the said Susanna King to advance the said 6001., the said Sarah Greenhill has agreed to covenant for the due payment of the interest: now this indenture, &c. It was then witnessed that, in consideration of 6001. by Susanna King to John Greenhill paid, he, the said John Greenhill granted and conveyed unto Susanna King, all John Greenhill's share in the real and personal estate of the said testator, under his said will and codicil : habendum, to Susanna King, her heirs, executors, &c., subject to the proviso for reconveyance and redemption of the same premises therein contained, and also subject to an indenture of assignment, bearing date, &c., whereby the one-fourth of the produce of the share and interest of John Greenhill of and in the real and personal estates of the said testator, was assigned upon the trusts therein mentioned, and also subject to a certain indenture of mortgage, bearing date the 4th of November 1833, whereby the said share of John Greenhill under the said will, was assigned to secure the sum of 20001. and interest. This was followed by a proviso for the redempC. P. XII.-26*

tion of the mortgaged premises on the payment by John Greenhill, his heirs, executors, &c. to Susanna King, her executors, &c. of 6001. and 51. per cent. interest, “on the 13th day of February now next ensuing," after which was a power of attorney from the mortgagor to the mortgagee, for better enabling her to receive the share, &c. thereby assigned. "And the said J. Greenhill doth hereby for himself, his heirs, executors, &c. covenant with the said S. King, her executors, &c. that he the said J. Greenhill, his heirs, executors, &c., or some or one of them shall and will well and truly pay, or cause to be paid, unto the said S. King, her executors, &c. at or in her or their dwell-[62]-ing-house or place of abode for the time being (and of any change or changes of abode, she or they from time to time shall give notice to the said J. Greenhill, his executors or administrators), the full and just sum of 6001. of, &c., with interest for the same after the rate at the time and in manner in and by the above written proviso mentioned and appointed for payment of the same, according to the true intent and meaning of these presents. And the said S. Greenhill doth hereby for herself, her heirs, executors, &c. covenant, with the said S. King, her executors, &c., that they the said S. Greenhill and J. Greenhill or one of them, their, or some one of their heirs, executors, &c. shall and will, during the continuance of the present mortgage security, well and truly pay or cause to be paid unto the said S. King, her executors, &c. the interest to become due in respect of the said principal sum of 6001., after the rate of 51. per cent. per annum, by two even half yearly payments, on the 13th of August and the 13th of February, free from all deductions whatsoever." The deed then contained a power of sale of the said share, &c., "if default shall happen to be made of or in payment of the said sum of 6001., or of any part thereof, or the interest thereof, or of any part thereof, at the day and time, and in manner, hereinbefore appointed for payment thereof, &c., and if Susanna King shall give six months notice in writing for the payment of the 6001. and interest." The trusts of the proceeds of the sale, after payment of the expenses and of the first mortgage debt of 20001. and interest, were declared to be, "to pay to herself the said Susanna King, her executors, &c., the said principal sum of 6001. and interest intended to be hereby secured, or so much thereof as shall be then due," with an ultimate trust of the residue, for J. Greenhill, his executors, &c. After a clause enabling the mortgagee to foreclose upon default, and another, limiting her responsibility to money [63] actually received, &c., and covenants by J. Greenhill to concur in conveyance, &c., to do any act for confirming such sale, &c., and that he had good title to convey, &c., the indenture contained a covenant, by him, for quiet enjoyment by S. King "at all times after default shall be made in payment of the said principal sum of 6001. and interest or any part thereof respectively;" and lastly, a covenant also by the said J. Greenhill for further assurance "from time to time and at all times after default shall be made in payment of the said sum of 6001. and interest, &c."

Which being read and heard, the defendant said that the said declaration was not sufficient in law,-assigning for causes-that although six half-years' interest was claimed in the declaration, it did not appear thereby that more than two were secured by the covenant of the defendant, and that it did not appear that any part of the sum of 901. in the declaration mentioned, was any part of the interest by the defendant so covenanted to be paid, or of the two half-yearly payments of interest in the declaration mentioned; that the contrary thereof appeared, inasmuch as it was alleged that the said interest became due on the 13th of August 1842—that it did not appear how the said mortgage security continued, as in the declaration alleged that it was not shewn how the said sum of 901. or any part thereof became owing, or when the said sum of 901., and the several portions thereof became due and payable, or in respect of what half-years-that six half-years' interest was alleged to have become due on one day, which was impossible that there was no proper or specific or traversable breach of covenant in the declaration in this-that there was no specific and distinct averment that the defendant and the said John Greenhill, or one of them, did not pay any particular supposed sum of interest, or that they or he did not pay the same ou the day when [64] it became due, nor was the declaration so framed that the defendant could plead performance, &c.

Dowling Serjt. (with whom was Bramwell), in support of the demurrer. The question is, to what extent the defendant is liable, as the surety of the mortgagor, for the payment of the interest; whether for an indefinite time, or only for the period mentioned in the covenant of the mortgagor, namely, for a year. The latter, by