1846. BAINBRIDGE V. LAX. On the trial, before Cresswell J., at the Yorkshire Queen's Bench. Summer assizes, 1845, a verdict was found for the plaintiff on the issue first mentioned. In Michaelmas term, 1845, Knowles obtained a rule calling on the plaintiff to shew cause why a repleader on this issue should not be awarded, or why the judgment should not be arrested. Watson (with whom was Bliss) now shewed cause. First, the issue is material: secondly, the defendants can neither have a repleader nor arrest the judgment. The agreement cannot be separated from the actual satisfaction, which becomes a satisfaction only by virtue of the agreement: a traverse of the agreement therefore answers the plea. The plea really sets up, in answer to the complaint, an agreement and performance therefore it adds that the plaintiff accepted, "as such settlement" &c., "the said money." The ordinary plea of accord and satisfaction is here expanded: and, by a traverse of the satisfaction, the agreement would have been admitted. In Bro. Abr. tit. Traverse per sans ceo, pl. 179., Brian C. J. is reported as saying: "in trespas le defendant pled' in satisfaction, ceo est tantum traversable, mes sil pled' accord' ou pled' submission, arbitrement, et satisfaction, le partie poit traverse laccord', le submission, arbiterment, ou le satisfaction, car quant le party voit alleage les circumstances et ne besoigne, la ceo est traversable, quod nota." The Yearbook, Trin. 4 H. 7. fol. 9 B. pl. 2., is referred to, where the Chief Justice says, "jeo scay bien que est common erudition a ceo jour." In Peytoe's Case (a) Lord Coke says: "Nota reader, the best and most secure form (a) 9 Rep. 77 b. 80 b. Volume IX. 1846. BAINBRIDGE V. LAX. of pleading of an accord, is to plead it by way of satisfaction, and not by way of accord, for if he pleads it by way of accord, he ought to plead the precise execution thereof in the whole, and if he fails of any part thereof, his plea is insufficient; but by way of satis faction he shall plead no more, than that the defendant paid the plaintiff 67. 10s. in full satisfaction of the same action, which the plaintiff received, &c. judgment if action?" Here the plea is by way of accord. (He was then stopped by the Court.) Gordon v. Ellis (a) shews Granger and Rew, contrà. that a repleader is the proper course where the replication leaves unanswered so much of the plea as constitutes a bar: and that is the case here. The words "such" and "said" make no difference: the payment and acceptance in satisfaction, however originating, answers the complaint. A traverse of such payment and acceptance would have answered the plea: the authorities cited do not apply where, as here, there is an independent averment of satisfaction given and accepted. All of the plea that is traversed might be struck out, and a good answer left on the record. Or, even if the plea were now shaped precisely upon the finding of the jury, it would only appear that, no previous agreement having been made, the defendants gave a satisfaction which the plaintiff accepted as such: and that would be a good plea. "To constitute an acceptance, there must be an act of the will. Every receipt is not an acceptance: but if the party accepts the thing, though but for a moment, for that for which the other pays it, he cannot afterwards, by his subsequent dissatisfaction, get (a) 7 M. & G. 607. 1846. BAINBRIDGE V. LAX. rid of the effect of it;" Hardman v. Bellhouse (a), per Queen's Bench. Alderson B. If the traverse of the agreement answer the plea, an avoidance would also be an answer: but, if it appeared on the record that the agreement was abandoned, yet afterwards the plaintiff accepted the money in satisfaction, would not that bar the action? In Thurman v. Wild (b) the defence was that defendant committed the trespass as B.'s servant, and that plaintiff had accepted satisfaction from B.; and it was holden to be immaterial whether defendant consented or not to the satisfaction. Lord DENMAN C. J. It is clear that the agreement described in the plea is made an ingredient in the satisfaction it is therefore properly put in issue. PATTESON J. The two are clearly mixed up. The acceptance alone is immaterial: the case is like that of an award. COLERIDGE J. The payment is nothing without that being shewn for which it is made. We cannot separate it from the agreement. The plea would be bad if it did not, either briefly or in full, shew the agreement. WIGHTMAN J. The satisfaction is pleaded as made in pursuance of the agreement: and, if the party chooses so to plead it, he makes the agreement material and traversable, according to the remark cited from Peytoe's Case (c). Rule discharged. (a) 9 M. & W. 596. 600. (c) 9 Rep. 80 b. (b) 11 A. & E. 453. Volume IX. 1846. Thursday, December 17th. The QUEEN against The Inhabitants of ST. PAUL, Reported, 7 Q. B. 533. Thursday, A count in an indictment is good which simply charges that defendants, and agree to- The QUEEN against GOMPERTZ, LEWIS, WILLIAM NDICTMENT for conspiracy. The first two counts charged that defendants, devising, &c. to injure George Pitt Rose, conspired as in those counts stated. Third count. That defendants, devising &c. as aforesaid, to wit on 21st July, 5th Victoria, with force and arms, at &c., unlawfully, falsely, fraudulently and deceitfully did conspire, combine, confederate and agree indirect means, together, unlawfully and by indirect means, to obtain, acquire and get into their hands and possession, of and Where an in- from the said G. P. Rose, certain bills of exchange, ac to cheat and defraud R. of his moneys. dictment for conspiracy con- cepted by G. P. R., amounting altogether to a large tains several counts, if only a single conspiracy be proved, the verdict may nevertheless be taken on so many of the counts as describe the conspiracy consistently with the proof. In the course of proving a conspiracy to defraud, carried into effect by prevailing upon the prosecutor to accept bills, a warrant of attorney, given to him for the purpose of inducing him to accept, reciting the acceptance, may be given in evidence, though unstamped. An indictment for conspiring to defraud the prosecutor may be supported by proof of a conspiracy to obtain his acceptances, though the prosecutor part with no money, and though he never has intended to take up the acceptances, and though the bills were never in his hands except for the purpose of his accepting. Where all of several defendants in an indictment for conspiracy are found Guilty, if one of them shew himself entitled to a new trial on grounds not affecting the others, the new trial will nevertheless be granted as to all. &c., to wit 7000%., and to cheat and defraud G. P. R. (a) These three defendants and Lewis, were described in the first count as attorneys at law. Queen's Bench, 1846. The QUEEN V. GOMPERTZ. |