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Secondly. The pleas are bad in form. They are, in effect, traverses of allegations which the declaration impliedly contains, and therefore the pleas ought not to have concluded with a verification, but to the country, to give the plaintiff an opportunity of joining issue upon them.

S. J. Douglas contra.-By the terms of the agreement, the deduction of a good marketable title, and readiness to convey the estate, are conditions precedent to the plaintiff's right to receive the residue of the purchase-money. All these matters were to be performed before the 1st of November. The words are, and that "thereupon" the plaintiff should convey the premises, and at his own expense. The declaration ought, therefore, to have averred that the plaintiff had performed these several conditions precedent: Poole v. Hill (a), Laird v. Pim (b), Price v. Williams (c).

The pleas properly conclude with a verification. In Grey v. Friar (d), it was held, that where there is a general allegation of performance on the one side, and a particular matter is singled out by the other side, and denied, the pleading properly concludes with a verification.

Willes in reply.-The principle of the decision in Grey v. Friar has no application to the present case. There it was held, that the plaintiff was entitled to a general form of averment, for the purpose of avoiding prolixity upon the record; but here no such inconvenience would arise if the plaintiff were to aver specifically the performance of each of the conditions precedent. The pleas must be taken as traverses of allegations impliedly contained in the declaration. In The Edinburgh, Leith, & Newhaven Railway Company v. Hebblewhite (e), the Act of Parliament incorporating the Company provided that, in actions by the Company

(a) 6 M. & W. 835. (b) 7 M. & W. 474. (c) 1 M. & W. 6.

(d) 15 Q. B. 901.
(e) 6 M. & W. 707.

1851.

MANBY

V.

CREMONINI.

1851.

MANBY

v.

CREMONINI.

for calls, it should be sufficient to allege that the defendant, being a proprietor of so many shares, is indebted to the Company in such sum of money upon such shares belonging to him, whereby a right of action hath accrued to the Company by virtue of this Act, without setting out the special matter; and in such action it shall only be necessary to prove that the defendant was a proprietor at the time of making the calls, that they were in fact made, and that notice thereof was given according to the Act. To a declaration in the general form given by the Act, the defendant pleaded pleas denying notice of the calls pursuant to the Act, concluding with a verification. And these pleas were held bad on special demurrer for so concluding, the Court holding that they were traverses of a matter necessarily implied in the declaration, and that they ought to have concluded to the country.

PARKE, B.-The first and most material question is, whether there is an absolute contract on the part of the defendant to pay the residue of the purchase-money on the 1st of November, 1850, at all events; or whether he was not bound to pay it on that day, unless the plaintiff should have deduced a good marketable title, and should be ready to convey the premises to the defendant. We agree, upon looking to the terms of the agreement as set out in the declaration, that the defendant was not bound to pay the money upon that day, unless the plaintiff had made out a good title, and unless the plaintiff was also ready to execute a conveyance at his own expense. The declaration would have been bad on special demurrer; but as it contains a general averment of performance, and the defendant has pleaded over, according to the authority of Thorpe v. Thorpe, the declaration is clearly sufficient. The only remaining question is, whether the pleas, which conclude with a verification, are good in form. The rule was laid down in Grey v. Friar, that, although the

law allows general allegations in pleadings, where more particular averments would lead to prolixity, it was never intended that general questions should be left to the jury, but that the proper course was for the opposite party to select some particular matter, of which he might allege the non-performance, and then conclude with a verification. This rule had long been acted upon in assigning breaches of bonds. In the present case, however, there was no need for such a general averment of performance, inasmuch as the conditions precedent, the averment of the performance of which ought to have been stated in the declaration, are not numerous, and specific averments of their performance would not have caused prolixity. The defendant not having demurred specially to the declaration, but having pleaded over to it, the pleas are traverses of facts which are necessarily implied in the declaration. The pleas are therefore informal, in concluding with a verification instead of concluding to the country. The defendant had better amend.

MARTIN, B., concurred (a).

Leave to amend, otherwise

1851.

MANBY

v.

CREMONINI.

Judgment for the plaintiff.

(a) The other Judges were absent.

1851.

Feb. 14.
July 1.

In an action on

an award, a plea

tors did not publish their award of and

concerning the

matters in dif

ference modo et

formá, merely

fact that such

an award as

that declared on was made con

cerning the pre

mises, and does not put in issue the validity of the award.

Where two parties of the

one part, and one

of the other, sub

mit to arbitra

tion all matters

ADCOCK V. WOOD.

ASSUMPSIT. The declaration stated, that, before and

that the arbitra- at the time of the making of the agreement hereinafter mentioned, certain disputes and differences had arisen and were depending between the plaintiff on the one part, and the defendant and one Sharples Adcock on the other part; and thereupon heretofore, to wit, on &c., by a cerputs in issue the tain agreement in writing then made by and between the plaintiff and the defendant and Sharples Adcock, for the finally settling such differences, it was agreed by and between the plaintiff and the defendant and Sharples Adcock, mutually and reciprocally, that the said disputes and differences between them the said parties should be, and the same were thereby, referred to the final award and determination of one Thomas Sharpe and one William Inett, arbitrators chosen by and between the said in difference be- parties.-The declaration, after an averment of mutual promises, then alleged, that the said Thomas Sharpe and William Inett took upon themselves the burthen of the said arbitration, and afterwards, to wit, on &c., made and published their award in writing of and concerning the matters in difference so referred as aforesaid, ready to be delivered to the said parties, and did thereby award, order, and direct the defendant, within one month from the date thereof, to pay to the said Thomas Sharpe the sum of pay money to a 150l. 18s. 6d., and did further order and direct that the stranger, for the benefit of the said sum should be, immediately upon the receipt thereof, other party, is good. paid by the said Thomas Sharpe to the plaintiff; of which said award the defendant afterwards, to wit, on &c., had notice. Yet the defendant, although often requested so to do, hath not paid, either to the said Thomas Sharpe or to the plaintiff, the said sum of 150l. 18s. 6d. or any part thereof, although the time for the payment thereof hath long since elapsed, &c.

tween them, the arbitrator may award on matters in differ

ence which the two parties, or

either of them,

has with the other, jointly or severally.

An award that

one of the par

ties to the submission shall

Pleas': first, non assumpsit; secondly, that Thomas Sharpe and William Inett did not make and publish their award of and concerning the matters in difference referred to them, modo et formâ.-Issues thereon.

At the trial, before Platt, B., at the Leicester Summer Assizes, 1850, the following submission was given in evidence:

"Wood and Sharples Adcock v. Thomas Adcock.

"There having been disputes arisen between the above parties, it is mutually agreed by the said parties, that the said disputes and differences shall be settled by arbitration; and it is therefore agreed, that Mr. Thomas Sharpe, of Kinoulton, in the county of Nottingham, be appointed on the part of Messrs. Wood & Sharples Adcock, and Mr. William Inett, of Asfordby, in the county of Leicester, on the part of the said Thomas Adcock; and if they are unable to settle the said disputes, the said arbitrators, Thomas Sharpe and William Inett, are to name a third person before entering into the said business; and the evidence of each party is to be taken on oath."

A third person was duly nominated as umpire. The award, which was also given in evidence, was in the following terms:

"An arbitration between Messrs. Wood & Adcock
on the one part, and Thomas Adcock on the
other part, commenced October 1st, 1849, and
completed the 12th of February, 1850.

"Disputes having arisen between the above-named parties, relative to a running account, commencing in 1845 and ending in 1849, we, the undersigned arbitrators, were deputed by the above-named Messrs. Wood & Adcock and Thomas Adcock, to settle all matters of dispute between

1851.

ADCOCK

v.

WOOD.

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