RATTON V. DAVIS. DEBT, in 2001. for work and labour, 2001. for money paid, and 2007. on an account stated. The declaration had only one count. 1841. Tuesday, May 4. In debt for and labour, money paid, and on an account stated, 2001. for work the defendant pleaded, 1st, Never indebted; 2d, As to 17/. 6s. 3d. parcel &c. a set-off; and 3dly. As to 2l. 10s. other parcel &c. pay Pleas-1st. Never indebted. 2d. And for a further plea, as to the sum of 171. 6s. 3d. parcel of the debts and sums of money in the declaration mentioned, the defendant says, that the plaintiff, before and at the time of the commencement of this suit, was and still is indebted to the defendant in 30l. for money had and received to the use of defendant, out of which the defendant offers to set off the sum of 171. 6s. 3d. parcel &c. Verification. 3rd. And for a further plea as to the further sum of 27. 10s. other parcel &c. the defendant says, that after the accrual of the causes of action in the declaration mentioned, as to the sum of 21. 10s. parcel &c. and before the commencement of this without the suit, the defendant paid the sum of 21. 10s. in full satisfac- allegation of tion and discharge, which payment the plaintiff accepted. or prayer of judgment. Verification. Special demurrer to the second plea, on the ground that it had no proper commencement, and that it did not thereby appear whether the plea was intended to be pleaded in abatement or in bar, or to the further maintenance of the action; that though expressed to be pleaded to a part only of the cause of action, it commenced, with reference to Reg. Gen. H. T. 4 Will. 4, as a plea in bar of the whole action generally; that it ought to have commenced with the allegation of actionem non, and to have concluded with a prayer of judgment. Similar demurrer to the third plea. Joinder. Heaton, in support of the demurrer. The second and third pleas being pleaded to parts only of the causes of action, and not in bar of the whole action, the commencement by actionem non, and the prayer of judgment, are still necessary, notwithstanding Reg. Gen. H. T. 4 Will. 4, s. 9. ment:-Held, on special de murrer, that the second and third pleas were good, actionem non, 1841. RATTON v. DAVIS. [Lord Denman C. J. referred to Weeding v. Aldrich (a)]. That is an adverse authority, but there is a later case. The Court of Common Pleas held, that where a plea is expressed to be pleaded to part only of the plaintiff's demand, the formal commencement and conclusion are necessary; Upward v. Knight (b). The dictum of Parke B. in Putney v. Swann (c) was extra-judicial; and in Bird v. Higginson (d) the plea applied to the whole cause of action in one count of the declaration. The modern practice of pleading has followed the construction of the rule adopted in Upward v. Knight (b). Fortescue contrà was not called upon by the Court. Lord DENMAN C. J.--We see no reason to depart from our former decision, which appears to be in accordance with the opinion of the Court of Exchequer. PATTESON J.-I adhere to our decision in Bird v. Higginson (d). Tuesday, May 4th. A plea, to debt on bond, that after its execution a material addition was made to the condition thereof:-Held HARDEN v. CLIFTON. DEBT on a bond for 1200l., executed by one Lucas, the principal debtor, and by the defendant and one Deacon as his sureties, conditioned to be made void on payment of 600l. and interest. Plea, that after the making and sealing of the said writing bad, for not stating that the addition was made in writing to the condition itself. obligatory in the said declaration mentioned, a certain material addition was made to the condition thereof by the plaintiff, and with his privity, and without the knowledge or consent of the defendant; which said addition was and is as follows, that is to say, that the giving day of payment for the said principal and interest, or any part thereof respectively, to the said Lucas (the principal debtor), his executors &c. from time to time, should not discharge the said defendant and the said Deacon, their heirs &c. as such sureties as aforesaid; whereby the said writing obligatory was and is wholly void; and this the defendant is ready to verify &c. Replication, de injuriâ &c. Special demurrer to the replication, that de injuriâ &c. cannot be replied to the plea, the subject-matter of the plea not being matter of excuse, but in absolute avoidance of the contract; and that de injuriâ cannot be replied in an action of debt on a specialty; and that a traverse of the plea should be a direct denial of some material averment therein contained. Joinder. Martin, in support of the demurrer. First, the plea is an answer to the action. Time given to the principal obligee for payment, if given under seal, and without the knowledge of the surety, is a discharge of the surety at law : if given by parol only, it will discharge him in equity, Rees v. Berrington (a). The alteration of the condition was therefore material, and whether made by the plaintiff himself, or by a stranger, will make the deed void; Pigot's case (b). The Court then called upon Byles contrà. [The argument in support of the replication is omitted, as the Court gave judgment on the plea.] The plea is bad; it omits to state that the addition to the condition was made under seal, or that it was placed above (a) 2 Ves. jun. 540. (b) 11 Rep. 27; Shepp. Touchst. p. 68, Com. Dig. (Fait) F. 1. 1841. HARDEN v. CLIFTON. 23 1841. HARDEN v. CLIFTON. the seal of the bond, or that it was in writing, or was contained in the same instrument. Unless the addition was made under seal, it would not operate as a discharge of the defendant, because if time be given to the principal under a parol agreement, that is not a defence at law to an action on a bond against the surety, Davey v. Prendergrass (a); and unless the addition was in writing, it would not make the deed void. Martin in reply. The objections to the plea are to be taken as on a general demurrer, and certainty to a common intent only is required. The plea shews an addition to the condition of the bond, and the condition is in writing and under seal. The alteration might be given in evidence under non est factum. Lord DENMAN C. J.-I think this is a bad plea. It appears from the authorities cited that a deed is made void if it be altered after execution in any material part by rasure, interlineation, addition, or drawing a pen through a line or material words. The expressions used assume that the addition is in writing, and if the defendant had pleaded that a material alteration was made in writing in the condition of the bond, our judgment might have been different. As it is, the plaintiff is entitled to our judgmeut for the defect in the plea. PATTESON J.-The language of the plea is too vague. It was necessary for the defendant to aver in substance, that the bond was materially altered by a written addition to the writing itself. WILLIAMS J. and WIGHTMAN J. concurred. Judgment for the plaintiff. (a) 5 B. & Ald. 187. HENWOOD V. OLIVER. 1841. Friday, April 16th. support of witness was, ISSUE joined on a plea of tender. At the the trial before In Wightman J., at the last assizes for the county of Corn- der, the evia plea of tenwall, a witness was called whose evidence was, "I went to dence of the plaintiff, I told him I came with the amount of Oliver's "I went to bill, 157. 16s. 9d. The plaintiff said he should not take plaintiff, and told him I that, it was not his bill. I offered it to him as the amount came with the of his bill." It was objected on the behalf of the plaintiff, amount of that the evidence shewed a conditional tender. The learned defendant's) judge ruled that the tender was a good one, and directed verdict for the defendant, reserving to the plaintiff leave to move to enter a verdict. a bill. The plaintiff said he would not take it, it was bill." Beld, that this tender no more was due. Moody now moved, pursuant to the leave reserved, for amount of his a rule to shew cause why the verdict should not be entered for the plaintiff on this issue. If the plaintiff had taken the sum thus tendered, he would have been precluded from bringing an action to recover any sum beyond it. In Sutton v. Hawkins (a), in support of a plea of tender, a witness proved that "the defendant went into the plaintiff's shop and offered to pay Mrs. Sutton, the plaintiff's wife, 6l. 19s. He put down seven sovereigns and asked for a shilling as change; he did not offer 67. 19s. as part payment, but offered that sum as all that was due;" and Alderson B. ruled that that was no tender. The learned judge said, "If a party takes a sum properly tendered, he does not thereby compromise his future claim to more. Now if Mrs. Sutton had taken this money, her husband could not have gone for more, as it was offered as all that was due." [Patteson J. I think there must be some error in the report of that case; if the defendant had tendered the sum as part, it would have been said to have been an admission that more was due. When a man makes a tender, in all cases he intends it as a tender of all that is due. If a man says, "There is 101.," what difference can it make if he adds, "which is (a) 8 C. & P. 259. |