[*197 *HAMMOND v. TEAGUE. The Court will not allow a party to plead in assumpsit matter which may be given in evidence under the general issue, unless the plea be simple, and not likely to perplex the plaintiff. IN assumpsit for money had and received, money lent, money paid, &c., Russell, Serjt., had obtained a rule nisi to plead several matters; viz. first, the general issue; and secondly, as follows: That before the said times in the said first, second, and third counts mentioned, to wit, on the day and year aforesaid, to wit, at London aforesaid, the said plaintiff and divers other persons had entered into and become and then were shareholders and partners together in a certain partnership or company, called the Cornwall and Devonshire Mining Company, and remained and continued such partners for a long space of time, to wit, from thence hitherto; that the said sums of money so alleged to have been lent and advanced, and paid, laid out, and expended by the said plaintiff, and for the use of the said defendant, and had and received by the said defendant to and for the use of the said plaintiff, were lent, and advanced, and paid, laid out, and expended by the said plaintiff, and had and received by the said defendant and the said other partners in the said company or partnership for and towards the purposes and concerns of the said company and partnership, and the said sums then and there became and were part of the stock and effects of the said company or partnership, and became and were common to all the partners and shareholders therein, to wit, at, &c. Wilde and Merewether, Serjts., showed cause. All that can be given in evidence under the second plea, may also be given in evidence under the general issue. The plea is a catching plea, very astute, and, as it does [*198 not narrow the question to be tried, but only tends to distract, and to give rise to a multifarious and double reply, the court will refuse its sanction. Farr v. Hinckling, 4 B. & C. 547; Maggs v. Ames, 4 Bingh. 470. Russell. In Moffat v. Van Millingen, 2 B. & P. 124, the same plea was pleaded, (Cur. without the general issue.) And in Mainwaring v. Newman, 2 B. & P. 120, with the general issue. In Holmes v. Higgins, 1 B. & C. 74, Lord Tenterden held, that it might be pleaded and it would save expense, by confining the question between the parties to a single issue, for a single replication might be taken on the whole. TINDAL, C. J. By refusing the present application we do not abridge any portion of the defence, because all which it is proposed to plead may be given under the general issue. The defendant alleges, that he seeks to avoid expense by driving the plaintiff to a single issue; and though we incline to think that one issue might be taken on the whole matter which it is proposed to plead, the several allegations amounting to but one defence, as in the case in Burrow, the levancy and couchancy of commonable cattle,-yet there is enough to perplex a plaintiff, and to raise a doubt whether he could reply to all or a part only of the matter pleaded; and as the whole may be given in evidence under the general issue, the application must be refused. PARK, J., and BURROUGH, J., concurred. [*199 *GASELEE, J. Under the statute of Ann. a party is permitted, with the leave of the Court, to plead as many several matters as are necessary for his defence. In assumpsit, the general issue, and matters which may be given in evidence under it, are not several matters; nevertheless, it has been the practice of the Court to permit a party to plead matters which might be given in evidence under the general issue, where such matters are simple and single. And such a course is beneficial, as it tends to prevent surprise. In the cases cited, the pleas were in short terms, partnership between the plaintiff and defendant; and if the plea now proposed had been such, perhaps we should have allowed it but this plea contains five or six different matters, calculated to perplex the plaintiff. The action is for money paid and money lent: the defendant pleads that the plaintiff and defendant and others were partners in a mining company; that the money was employed by them for the purposes of the company and became part of the effects of the company. That is no longer money lent or money received; and, independently of the multifariousness of the plea, which would put the plaintiff to difficulties, it is doubtful whether the plea is good. By refusing to allow it, we do not abridge any portion of the defence, and the rule must be Discharged. In the course of the last vacation Sir Nicholas Conyngham Tindal, Knight, was appointed Chief Justice of this Court in the room of Sir William Draper Best, created Baron Wynford; and took his seat on the first day of this term. Edward Burtenshaw Sugden, Esquire, was appointed his Majesty's SolicitorGeneral in the room of Sir N. C. Tindal; and was knighted. Sir Charles Wetherell, his Majesty's Attorney-General, resigned his office, and was succeeded by Sir James Scarlett, Knight. In the course of this term William Henry Tinney, Thomas Pemberton, James Lewis Knight, Esquires, and the Honourable Charles Ewen Law, were respectively appointed his Majesty's Counsel learned in the law; and took their seats within the bar accordingly. CASES ARGUED ANT DETERMINED IN AME COURT OF COMMON PLEAS, AND OTHER COURTS, IN Michaelmas Cerm, IN THE TENTH YEAR OF THE REIGN OF GEORGE IV. "I agree to be security to you for J. C., late in the employ of J. P., for whatever von may intrust him with while in your employ, to the amount of 50l. :" Held, that the consideration for the guarantee sufficiently appeared. ASSUMPSIT on the following guarantee : "To Mr. John Newbury. "Sir, I, the undersigned, do hereby agree to bind myself to be security to you for J. Corcoran, late in the employ of J. Pearson of London Wall, for whatever you may intrust him with while in your employ, to the amount of 501., case of any default to make the same good. "11th March, 1828. "W. ARMSTRONG." in A verdict having been given for the plaintiff at the trial before Tindal, C. J., Middlesex sittings after Trinity term, for 347., which Corcoran had failed to account for to plaintiff, *Taddy, Serjt., moved to set it aside and enter a nonsuit, on the ground that no consideration for the defendant's undertaking appeared on the face of the agreement. [*202 If Corcoran were already in the plaintiff's employ at the time of the guarantee, there was an entire absence of consideration; and if he were taken in consequence of the guarantee, that could only appear by parol evidence, which it was the object of the statute of frauds to exclude in such a case. Saunders v. Wakefield, 4 B. & A. 595; Jenkins v. Reynolds, 3 Brod. & Bingh. 14; Lees v. Whitcomb, 5 Bingh. 34. TINDAL, C. J. The statute of frauds requires that an agreement to answer for the default of another shall be in writing; and the word agreement has been held to include a consideration, for without one there is no valid agreement. The question here is, whether a consideration appears on this agreement, or is to be collected from it by fair and necessary implication? In my opinion the consideration appears. The language is, "To be security to you for J. Corcoran, late in the employ of J. Pearson, for whatever you may intrust him with while in your employ." That is, if you will intrust one who has left the service of another. The words are all prospective. It may fairly be implied that Corcoran had left one service, and that the guarantee was given in consideration of his being taken into another. We ought not to be too strict in the construction of these instruments; for if every agreement entered into by a tradesman be so minutely criticised, it will be necessary to resort to an attorney in the most common intercourse of life. PARK, J. I should be sorry to depart from the decisions in Saunders v. *203] Wakefield, and Jenkins v. Reynolds, *where the principle established in Wain v. Warlters, 5 East, 10, was unanimously adhered to. The question here is, whether the consideration sufficiently appears on this instrument? I think it does; because where the defendant undertakes in respect of one who has lately been in the employ of another, for whatever the plaintiff may intrust him with, the agreement is plainly prospective, and in consideration of the party's being employed and intrusted. BURROUGH, J. Whatever is necessarily implied may be taken to be in the instrument. There is no ground for the objection. GASELEE, J. It is clear that credit was to be given prospectively to Cor- coran. HERBERT, Assignee of KNIGHT, v. WILCOX. Nov. 7. A payment by an insolvent to a creditor, within three months before the insolvent's imprisonment, is void under 7 G. 4, c. 57, s. 32, although the word pay is not employed in that section. By the 7 G. 4, c. 57, s. 32, it is enacted, "That if any prisoner who shall file his or her petition for his or her discharge under this act, shall, before or after his or her imprisonment, being in insolvent circumstances, voluntarily convey, assign, transfer, charge, deliver, or make over any estate, real or personal security for money, bond, bill, note, money, property, goods, or effects whatsoever, to any creditor or creditors, or to any person or persons in trust for, or to or for the use, benefit, or advantage of any creditor or creditors, every such *204] conveyance, assignment, transfer, *charge, delivery, and making over, shall be deemed and is hereby declared to be fraudulent and void, as against the provisional and other assignee or assignees of such prisoner appointed under this act provided that no such conveyance, &c., shall be deemed fraudulent and void unless made within three months before the commencement of such imprisonment." Knight being insolvent, borrowed money of A. B., and immediately paid it over, within three months before his imprisonment, in discharge of the debts of various of his, the insolvent's, creditors, and among others, the defendant. The plaintiff, as Knight's assignee, then sued the defendant for money had and received, under the above section of the insolvent debtors' act. A verdict having been given for the plaintiff at the trial before Tindal, C. J., last Bristol assizes, Merewether, Serjt., moved to set it aside and enter a nonsuit, on the ground that the above section of the act was directed against fraudulent transfers of property by the insolvent, but not against bona fide payments; that the word deliver, taken as accompanied with the other expressions, did not include a delivery by payment of money; and that by analogy to the language of the bankrupt acts, it might be presumed the word pay would have been employed if it had been intended to prohibit payment, even though voluntary. TINDAL, C. J. Looking at the clause, it is impossible not to see that payment is included; and there are equivalent and equipollent words. The language of the clause is, "That if any prisoner who shall file his or her petition for his or her discharge under this act, shall, before or after his imprisonment, being in insolvent circumstances, voluntarily convey, assign, *transfer, charge, deliver, or make over any estate real or personal, security for [*205 money, bond, bill, note, money, property, goods or effects whatsoever, to any creditor or creditors, or to any person or persons in trust for, or to or for the use, benefit, or advantage of any creditor or creditors, every such conveyance, assignment, transfer, charge, delivery, and making over, shall be deemed, and is hereby declared to be fraudulent and void, as against the provisional or other assignee or assignees of such prisoner appointed under this act." What is intended to be made void is, not delivery in general, but delivery to a creditor. How can we understand delivery of money to a creditor except in payment, or for the advantage of such creditor? To say that a payment is not avoided under these circumstances would render the act nugatory. PARK, J. The intention of the legislature was to effect an equal distribution of the insolvent's effects, and terms could not have been found more explicit to prevent anything that would defeat such distribution. The prohibition against delivering money to creditors comprehends payment. BURROUGH, J., concurred. GASELEE, J. The clear object of the act is that no insolvent shall pay any creditor within three months of his imprisonment, either in money or money's worth. Rule refused. *PINERO, One, &c. v. JUDSON and Another. Nov. 7. 44 [*206 1. Agreement for a lease, with stipulation for the lessee to commence with laying out a considerable sum on the premises (the lease to contain certain specified covenants), and in the mean time, and until such lease shall be executed, to pay rent, and to hold the same premises, subject to the covenants above mentioned:" Held, to amount to an actual demise. 2. Use and occupation lies for constructive as well as actual occupation. day of ASSUMPSIT for use and occupation of a house belonging to the plaintiff for one quarter, from Ladyday to Midsummer, 1828. At the last London sittings before Tindal, C. J., the plaintiff put in the following agreement :Memorandum of agreement made the 1823, between Thomas Wing Pinero of the one part, and Charles Judson and Samuel Cook of the other part. The said T. W. Pinero, for the considerations hereinafter meLtioned, agrees to grant, seal, and execute unto the said Charles Judson and Samuel Cook a legal and effectual lease of all that messuage or tenement and premises, situate, standing, and being, &c., to hold the same, with the appurtenances, unto the said Charles Judson and Samuel Cook, their executors, administrators, and assigns, from the 25th of March now last past, for the term of five years, and three quarters of another year, wanting ten days, at and under the yearly rent of 801. of lawful money of Great Britain, to be made payable quarterly, on the four most usual days of payment of rent in the year, without making any deductions or abatement out of the same, &c., and under and subject to covenants by and on the part of the said Charles Judson and Samuel Cook, their executors, administrators, and assigns, to pay the said rent in manner aforesaid, and also the sewers' rate and all other taxes, rates, assessments, and impositions whatsoever in respect of the said premises, parliamentary, parochial, and otherwise howsoever; to keep the premises in good repair (damage by fire only excepted); to paint all the outside wood and iron-work of or belong |