Drake, Clerk, against Mitchell and Others
| Jurisdiction | England & Wales |
| Date | 1803 |
| Year | 1803 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 594
IN THE COURT OF KING'S BENCH.
Followed, Bell v. Banks, 1841, 3 Man. & G. 265. Referred to, Bermondsey Vestry v. Ramsey, 1871, L. R. 6 C. P. 251. Distinguished, Cambefort v. Chapman, 1887, 19 Q. B. D. 232, 234. Followed, Wegg-Prosser v. Evans [1895], 1 Q. B. 114.
594 PRAKE V. MITCHELL 3 EAST, 252. dra&e, Clerk, against mitchell and others. Tuesday, Fe,b. 1st, 180.3. One of three joint covenantors gives a bill of exchange for part of a debt secured by the covenant^ on which bill judgment is recovered ; Held such judgment to be no bar to an action of covenant against the three; such bill, though stated to have been given for the payment and in satisfaction of the debt, not being averred to have been accepted as satisfaction, nor to have produced it in fact. [Followed, Bell v. Banks, 1841, 3 Man. & G. 265. Referred to, Bermondsey Festry v. Bamsey, 1871, L. R. 6 C. P. 251. .Distinguished, Cambefort v. Chapman, 1887, 19 Q. B. D. 232, 234. Followed, Wegg-Prosser v. Evans [1895], 1 Q. B. 114.] The plaintiff declared in covenant against three defendants upon an indenture of demise, whereby on the 27th of April 1797 he leased, bargained, and sold to^[252] the defendants certain coal mines at Blackhill, in the parish of Halifax in the county of York, for the term of one hundred years, with liberty to work the same and carry away the coals for their own use, and sink shafts, &c. Habendum to the three defendants, their executors, &c; without paying any rent or consideration for the same to the plaintiff, his heirs, &c. other than the sum of 9171. 10s. 9d., thereinafter covenanted to be paid to him by the defendants, their executors, &c. And the defendants did thereby covenant with the plaintiff, his heirs, &c. that they the defendants, their heirs, executors, &c. should pay to the plaintiff, his executors, &c. the said sum of 9171. 10s. 9d. in full for the purchase and price of the demised coals, mines, &c. by six instalments of 1521. 18s. 5Jd. the first, on the 13th of July 1798, the second on the second Thursday in July 1799, &c. The declaration then stated that the defendants entered by virtue of the said demise and became possessed of the premises, and alleged a breach by the non-payment of the second instalment. Plea. As to 411. 16s. 2|d. part of the said 1521. 18s. 5Jd. that the defendants paid the same to the plaintiff; and as to 1111. 2s. 3d., the residue, they pleaded that for the payment and in satisfaction thereof the said John Mitchell (one of the defendants), theretofore, to wit, on the 10th of July 1800, at Halifax, &c. made his promissory note in writing, dated the same day and year, and then and there delivered the said note to the plaintiff, by which said note he the said John then and there promised to pay, six weeks after date, to the plaintiff or order, 1111. 2s. 3d. value received at Messrs. B. &c. London, by means whereof, and by force of the statute, &c. he the said John became liable to pay to the plaintiff the said [253] sum in the said note contained, &c. and being so liable he promised to pay him, &c. (The plea then set forth in like manner a bill of exchange given by the defendant John Mitchell to the plaintiff for the same sum, which when presented was refused payment by the drawers); and that the plaintiff, for the recovery of the damages which he had sustained by reason of the non-performance of the said promises and undertakings, afterwards, in Michaelmas term 41 Geo. 3, sued the defendant John Mitchell in B. E. in an action on the case on promises; and such proceedings were thereupon had at the suit of the plaintiff against the said John in that behalf in the said Court, that afterwards, in Hilary term 41 Geo. 3, the plaintiff, by the consideration and judgment of the said Court, recovered against the said John 1361. 10s. for his damages which he had sustained, as well by the non-performance of the said promises and undertakings as for his costs, &c. as by the record thereof remaining in the said Court, &c. more fully appears; which said verdict (a) still remains in force and effect, riot reversed or annulled. And this, &c. The replication took issue on the part-payment of the 411. 16s. 2|d. in the plea mentioned, and as to the residue of the plea relating to the sum of 1111. 2s. 3d. the plaintiff demurred generally; on which there was joinder. Dampier in support of the demurrer. The plea is bad, not being pleaded as payment, or as satisfaction ; for no [254] satisfaction is averred : but if it were, it would be in satisfaction of damages; whereas the matter is pleaded in bar; and therefore the (a) Lord Eilenborough observed, that it was not said " which said judgment still remains in force," &e. and asked if his copy of the pleadings were right. Wood for the defendant said, that the word verdict had been used by mistake: but that was not assigned as special cause...
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