SUMMER ASSIZES, 9 Geo. IV. 1828. WESTERN CIRCUIT.-EXETER. Coram PARK J. DOE, on the Demise of LAMBLE, v. LAMBLE. EJECTMENT. Upon the conclusion of the plaintiff's case, Wilde Serjt. insisted that the rule to confess lease, entry, &c. should be put in by the plaintiff as his evidence. Merewether Serjt. objected, on the ground that he was entitled to a nonsuit for this special reason, unless the defendant appeared and confessed according to the rule, and this he must be taken to have done, otherwise there must be a nonsuit for that reason. PARK J. after consulting with LITTLEDALE J. said, that in all cases the plaintiff was bound to put in the rule, in order that it might be seen for what premises and on what terms the action was brought, and that in this case the rule itself (which he looked at) showed it was imperative for the plaintiff to have it read. Verdict for the defendant. Merewether Serjt. and Coleridge for the plaintiff. A tender to a ASSUMPSIT for goods sold and delivered. Plea, non-assumpsit as to all except 47. 10s., and a tender of that sum. person in the office of the plaintiff's at torney, who is referred to on a clerk in the fuses the ten The tender relied on was made by one of the the subject by defendants at the office of Platt, the plaintiff's office, and re- attorney. When he went there, he found a clerk, der as being of to whom he proposed to pay the money. The an insufficient clerk, however, said that he had no authority to sum, is a good tender, with- act, and desired the defendant to wait. The deout showing fendant did so, until another person came in, to whom the clerk explained what the defendant had who that per son was. 1828. WILMOTT v. SMITH come for; and the defendant then made a regular tender of the 4l. 10s. to that person, who refused to receive it, saying, that he would not take less than the whole sum of 51..5s. It did not appear and ANOTHER. distinctly who this person was, probably the chief clerk of the attorney; but it was not either the plaintiff or his attorney. Williams for the plaintiff said, that this was not sufficient evidence of a tender, for that there was no proof that the person to whom it was made was authorised on the part of the plaintiff to receive the money. LORD TENTERDEN C.J. I think the evidence is sufficient. If the person to whom it was made had declined to receive the money on the ground that he was not authorized; if he had said, "I cannot take it, you must see Mr. Platt or the plaintiff;" the answer might have been a good one. But here, being referred to in the office of the plaintiff's attorney, who would have been competent to receive the money, he declines, not on the ground of any want of authority, but because the tender is, as he thinks, insufficient. If a tender under such circumstances were not held good, the party making it would be deluded: for he would necessarily go away with the impression that he had made an effectual tender. Verdict for the defendants. Williams and Platt for the plaintiff. Brodrick for the defendants. See Moffat v. Parsons, 5 Taunt. 307. and Barrett v. Deere, supra 200. 1828. GUILDHALL, In an action by the indorsee against the acceptor of a bill of exchange, the show that the MANN v. LENT. ASSUMPSIT by the indorsee against the acceptor of a bill of exchange. The defence was, that the bill was originally an accommodation bill; and a notice to dispute the defendant may consideration had been given, but only on the bill was origin- evening of the day on which the cause was to have ally given been tried, and only thirty-six hours before the cause actually was so. without consideration, though he has given no notice of disputing the consideration. F. Pollock, for the plaintiff, objected to the receipt of the defendant's evidence, on the ground that this notice was insufficient. LORD TENTERDEN C.J. I think no notice is necessary. The evidence tendered is material to the issue on the record; and I have no right to exclude it. It is matter of comment if no notice were given, or if it were not given at a reasonable time; but I do not think the evidence should be shut out on that ground. Verdict for the plaintiff, subject to a special case on other points. F. Pollock and Coltman for the plaintiff. The same rule is laid down generally in Phillipps on Evidence, 6th edit. vol. ii. p. 18.; and as the practice in the King's Bench, in Starkie on Evidence, part iv. p. 253.; and in Chitty on Bills, 7th edit. p. 401. In the Common Pleas, the defendant cannot, by showing that the bill was void in the hands of a prior holder, as having been lost or obtained by fraud, call upon the plaintiff to prove the consideration he gave for it, unless he has first given. notice that he will require him to do so. Paterson v. Hardacre, 4 Taunt. 114. It does not appear what the practice of that court is, when the bill is originally void for want of consideration; although in Selwyn, N. P. 358. 6th edit. the rule is stated generally for all courts, and in Chitty on Bills, 7th edit. p. 401. for the court of Common Pleas, that the defendant cannot object to the want of such proof by the plaintiff, unless he has given notice that he shall require it. See also Wyat v. Campbell, sup. 80. 1828. MANN v. LENT. FOWLER v. COSTER. GUILDHALL, ASSUMPSIT by the indorsee against the acceptor On a plea in abatement, to an action on that bills of exchange, of the one nonjoinder of of two bills of exchange. There were also the a joint contractor, the defendant is Sir James Scarlett, for the defendant, claimed entitled to the right of beginning. Campbell, for the plaintiff, objected. The point came under consideration yesterday, in the case of Hare v. Munn (a), and in that case it was held (a) This was an action of assumpsit for money lent. Plea in abatement of the nonjoinder of 163 persons named in the plea. begin. |