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1851.

under a pe

LEVY v. MOYLAN and Others.

Jun. 31. THIS

HIS was an action of trespass for an alleged false A defendant imprisonment. The defendants having in Michael

remptory unmas term, 1850, obtained judgment on demurrers which dertaking to went to the whole cause of action (a), and certain issues sitting in term,

try at the first of fact remaining to be tried, a rule for judgment as in duly gave 10

tice of trial, case of a nonsuit for not proceeding to trial pursuant to and passed the notice was obtained by (Tracey) one of the defendants, record, but,

two days before which rule was discharged on the 25th of November, the sitting day,

obtained a rule upon a peremptory undertaking by the plaintiff to pro- for a special ceed to trial at the first sitting for Middlesex in the jury, in consepresent term, viz. the 16th instant. On the fourth of which the January, the plaintiff accordingly delivered a notice of cause was

passed over trial for the first sitting; and on the 14th (two days and made a before the day of sitting) he obtained a rule for a special Held, that the jury, and procured the cause to be marked in the marshal's plaintiff list as a special jury, and consequently it was passed over his under

thereby broke and made a remanet. On the 22nd, Tracey obtained a taking. rule absolute for judgment as in case of a nonsuit, the plaintiff not having tried the cause pursuant to his undertaking.

quence of

remanet:

S. Temple, on the 25th instant, obtained a rule calling upon Tracey to shew cause why the rule of the 22nd should not be discharged, and all subsequent proceedings thereon set aside, for irregularity, with costs. The affidavit upon which the motion was founded, stated that the special jury rule was not obtained for delay.

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1851.

LEVY

v.

Byles, Serjt., and Ogle, now shewed cause. They submitted that the plaintiff had been guilty of a clear breach of his undertaking, and consequently that the rule absolute for judgment as in case of a nonsuit was perfectly regular.

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Temple and J. Thompson, in support of the rule. The plaintiff complied with his undertaking by giving notice of trial and setting down the cause at the first sitting. The cause having been properly made a special jury cause, it could not possibly be tried until the sittings after term ; and therefore there has been no default.

CRESSWELL, J. The plaintiff has not complied with his undertaking. By obtaining the rule for a special jury two days only before the sitting day, he effectually prevented the trial from taking place as he had engaged that it should do.

The rest of the court concurring,

Rule discharged. (a)

(a) See Twysden v. Stulz, 6 Scott, the cause being a proper one to 434, where it was held that the be tried by a special jury, is not obtaining a rule for a special jury, such a default as is contemplated after a peremptory undertaking, by the statute 14 G. 2. c. 17.

1851.

THORNE and Another v. SMITH.

Jan. 16.

THIS

IS was an action of assumpsit by the payees A. and B. gave against the maker of a promissory note for 1001. their joint and

several promispayable on demand. The action was brought to recover sory note to a balance of 301., alleged to be due from the defendant to wards, by ar

C., who afterthe plaintiffs upon the joint and several promissory note rangement

with A., reof the defendant and one Kentsh, dated the 14th of ceived in satis

faction of that September, 1848.

note another The only plea was a plea of payment.

of the like At the trial before Cresswell, J., at the first sitting for amount from

D., which was Middlesex, in Michuelmas term last, the following facts ultimately

paid by E. : appeared in evidence :-On the 14th of September, 1848, Held, that the plaintiffs, who were brewers, advanced Kentsh 1001. these facts sus

tained a plea to enable him to take a beer-shop called The Joiners' of payment by Arms, the advance being secured by the joint and B., in an ac

tion against several promissory note of Kentsh and the defendant, him by C. on payable on demand. Kentsh being afterwards desirous the first note. of getting rid of the house, the plaintiffs in April, 1850, introduced one Lowe to him. The business was accordingly transferred by Kentsh to Lowe, the latter undertaking to pay the 1001. to the plaintiffs, and for that purpose giving them his promissory note for that sum, payable on demand. Lowe afterwards assigned his interest in the premises to one Russell, who thereupon paid the amount of Lowe's note. The first-mentioned note still remained in the plaintiffs' hands: but it was distinctly sworn by Kentsh and Lowe, that the second note was given to exonerate Smith from liability upon the first. It further appeared, that, when Kentsh retired from

1851.

THORNE

0. Smith.

the business, he was indebted to the plaintiffs to the amount of 301. for beer supplied to him: and they produced the note with an indorsement thereon, shewing that 701. had been paid on account of the note,--301. out of the 1001. paid by Lowe having been appropriated by the plaintiffs, with the assent, as they said, of Kentsh, to the payment of the balance of his beer account.

On the part of the plaintiffs, it was submitted, that, assuming the facts proved on the part of the defendant to be true, they afforded no defence under the plea of payment.

The learned judge was of that opinion: but he left it to the jury to say whether they thought that the 1001. paid by Lowe was received by the plaintiffs in satisfaction of the joint and several note of Kentsh and Smith, or to be applied in discharge of Kentsh's liability generally.

The jury found that the money was paid to exonerate Smith.

A verdict was thereupon directed to be entered for the plaintiffs,-leave being reserved to the defendant to move to enter a nonsuit, or a verdict for him, if the court should think the defence established, and admissible under the plea of payment.

A rule nisi having been granted accordingly,

Collier now shewed cause. The question is, whether the facts proved amounted to payment by the defendant. No doubt, according to the authority of Whitcomb v. Whiting (a), they might shew enough to take the case out of the statute of limitations. But this is a question of pleading. There was no privity between the plaintiffs and the defendant, nor any specific appropriation at the time Russell's payment was made ; nor was the note

(a) 2 Dougl. 629.

1851.

THORNE

V. Smith.

now in question produced. In Phillips v. Warren (a), it was held that payment of a bill by a third person, is not evidence of payment by the acceptor. [Maule, J. There, the bill was paid by one who thereby became possessed of the holder's rights. Here, the payment, in effect, is by a joint maker of the note. The note which was discharged by Russell's payment, had been given to the plaintiffs in satisfaction and discharge of Kentsh and Smith's note. Lowe's note being paid, both are paid. When the circumstances amount to payment, the proper thing is to call it payment. Williams, J. Lowe's note was given for and on account of Kentsh and Smith's note. Payment of the former, therefore, was payment of the latter.] The mere giving a bill for and on account of a debt, is not payment: Griffiths v. Owen (b); James v. Williams (c); Price v. Price. (d) The finding was in the very teeth of the evidence. (e)

Mac Oubrey and R. Kettle, in support of the rule. The payment by Russell of Lowe's note, which had been given in satisfaction of the note originally given by Kentsh and Smith, and which payment the jury found

(a) 14 M1. & W. 379.
(b) 13 M. & U'. 58.
(c) 13 M. & W. 828.
(d) 16 M. & W. 232.

(e) See Morley v. Culverwell, 7 M. & l. 174. There, the drawer of a bill of exchange, before it became due, agreed with the acceptor, that, on his giving a certain mortgage security for the amount, he, the drawer, should deliver up to him the bill of exchange as discharged and fully satisfied. The acceptor accordingly executed the mortgage, and received back the bill, un

cancelled. It was held, that the
drawer was liable on the bill, to
a party to whom the acceptor
afterwards indorsed it for value,
before it became due. And it
was further held, that a plea, in
such an action, that the bill was
paid by the acceptor before it
became due, and afterwards re-
issued by him without any new
stamp, could be supported only
by proof of actual payment in
cash, and not by evidence of any
arrangement between the drawer
and acceptor, whereby the bill
was treated as being satisfied.

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