Gledstane v Hewitt
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1831 |
| Date | 01 January 1831 |
| Court | Exchequer |
English Reports Citation: 148 E.R. 1548
EXCH. OF PLEAS.
S. C. 1 Tyr. 445; 9 L. J. Ex. (O. S.) 145. Referred to, Bryant v. Herbert, 1878, 3 C. P. D. 194.
1548 GLEDSTANE V. HEWITT 1 C. & J. 866. gledstane v. hewitt. Exch. of Pleas. 1831.-To a count in detinue, on the bailment of a promissory note to be redelivered on request, the defendant pleaded, that the plaintiff had deposited the note with him, to be kept as a pledge and security for the repayment of a loan of 501.; the plaintiff replied, a tender of the 501. ; Held, on special demurrer, that the replication was good, and no departure. [S. C. 1 Tyr. 445; 9 L. J. Ex. (O. S.) 145. .Referred to, tln/anl v. Herbert, 1878, 3 0. P. D. 194.J Detinue on bailment of a promissory note, delivered by the plaintiff to the defendant, to be redelivered oil request. Averment of a special reque.st.(a) Plea, that before the exhibiting the bill of the plaintiff, to wit, &c., the plaintiff delivered the said promissory note to, and deposited and lodged the said promissory note with, [566J the defendant, to be by him kept as a pledge and security for the repayment of a certain sum of money, to wit, the sum of 501., then lent and advanced by the defendant to the plaintiff, upon the faith and security of the said promissory note, and which said sum of 501. had not at any time before the exhibiting the bill, &c., beeii repaid to the defendant, but still remained wholly due and unpaid. By reason whereof, the defendant from thence hitherto detained, and still detains, Sic. &c. Replication, that the plaintiff, after the said depositing and lodging the said promissory note with the defendant, and before the exhibiting the bill, &c., waa ready and willing, and then and there tendered and offered to pay to the defendant the said sum of 501., and then and there required the defendant to rodelivor up to him the said promissory note, which the defendant then and there wholly refused to do; wherefore, &c. &e. Special demurrer, shewing for cause, that plaintiff had, in his said replication, departed from the declaration, and relied upon a new ground of action, and that the matters alleged in the replication did uot support the declaration, but were inconsistent with it. Cresswell, in support of the demurrer. This replication is a departure ; it does not support the declaration, but it contains matter which would defeat the right of action as stated in the declaration. The contract stated in the plea, and admitted by the replication, is totally different from that stated in the declaration. The one alleges a general bailment, the other a bailment for a special purpose, which may be, and ought to be, traversed in the replication. in Kettle v. Jlrwusalt (Willes, 120), the delivery in the declaration to be safely kept, differed from the delivery to take care of, as [567] his own proper goods, &c., as Alleged in the plea ; and the replication, therefore, was held to have rightly traversed the only material part of the plea. Lord Chief Justice Willes, in giving the opinion of the Court, observed-"The only material part, therefore, of this plea is, whether the goods in the declaration were delivered to the defendant only to take care of them as his own, &c., and this fact the plaintiff' has traversed." In the present case, the plaintiff ought to have traversed the material part of the plea, which sets up a bailment inconsistent with the delivery in the declaration. Mills v. Lf-raltam (I New liep. 140) is an authority to shew that this is a departure ; for, in that case, it was distinctly held at the trial, that the first count of the declaration, which stated a bailment of goods to be...
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