Keir v Leeman and Pearson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1846 |
| Date | 01 January 1846 |
| Court | Exchequer |
English Reports Citation: 115 E.R. 1315
IN THE EXCHEQUER CHAMBER.
S. C. 15 L. J. Q. 360; 10 Jur. 742. Approved, Rawlins v. Coal Consumers' Association, 1874, 43 L. J. M. C. 112. Discussed, Whitmore v. Farley, 1880-81, 43 L. T. 196; 45 L. T. 101. Discussed, Flown v. Sadler, 1882, 10 Q. B. D. 573. Followed, Winhill Local Board v. Vint, 1890, 45 Ch. D. 351.
keir agai/nst leeman and pearson. 1846. In an action of assumpsit, it appeared that plaintiff had indicted several persons for riot and assault upon a constable in the execution of his duty and upon others aiding him, and for simple assaults; which offences were alleged to have been committed in impeding the execution of a fi. fa. issued by plaintiff against the goods of one of the persons indicted. Defendants (being third parties), in consideration that plaintiff would, as their request, not further prosecute, promised to pay the balance in the original action remaining unsatisfied ; and likewise the costs of the prosecution. Plaintiff, in consideration thereof, with the assent of the Judge before whom the prosecution was, at the asaizea, forebore to prosecute further. On demurrer to pleas which set out the indictment, and which, in answer severally to counts charging the different promises, relied upon the illegality of the contract : Held, by the Court of Exchequer Chamber, affirming the judgment of Q. B., that the consideration was unlawful, and that no action could be maintained on any of the promises. [S. C. 15 L. J. Q. B. 360 ; 10 Jur. 742. Approved, Rawlins v. Goal Consumers' Association, 1874, 43 L. J. M. C. 112. Discussed, Whitmore v. Farley, 1880-81, 43 L. T. 196 ; 45 L. T. 101. Discussed, Flown v. Sadler, 1882, 10 Q. B. D. 573. Followed, Wi-nhill Local Board v. Vint, 1890, 45 Ch. D. 351.] Assumptit. The first count of the declaration stated that, before the making the promise, &c., plaintiff recovered in the Queen's Bench a judgment against George Emraitt, and sued out a fi. fa., which was indorsed, &c., and delivered, &c. : that the sheriff made bis warrant thereon, which was delivered to one George Acton, to ba executed, fec. ; who thereupon, by virtue, &c., entered on a farm, and a mesauage (a) The same suggestion is made in 1 Wms. Executors, p. 216, note (e). 1316 KEIR V. LEEMAN Q. B. STJ. and dwelling house, of Q. Emmitt, and seized goods and chattels of G. Emmitt, aa and for goods and chattels of G. Emmitt, in the said messuage, &c., and divers crops and effects, so wit of G. Emmitt, as and for the crops of G. Emmitt on the farm : and, Acton being in possession, one William Emmitt, claiming the farm, messuage, dwelling house, goods and chattels, crops and effects, as his own property, had, with other persons, to wit the said G. Emmitt, W. Ward, J. Atkinson D. Hodgson, G. Atkinson, and J. Cromack, assaulted Acton, and others his followers and assistants, and forcibly and violently ejected and expelled them from the messuage and dwelling house, [372] and from the possession of divers of the goods and chattels, and kept the same in the dwelling house, and, by shutting the outer door, excluded Acton from the dwelling house and from the possession, &c., till Acton, in order to retake possession, bad necessarily and unavoidably a little broken the outer door, and thereby had re-entered and taken the goods, &c.: that W. Emmitt commenced an action of trespass in the Queen's Bench against the sheriff and Acton, for the entry and seizing. The declaration then set out the pleadings and issue Joined in the action, involving, among other things, the title to the messuage, dwelling house, goods and chattels: thai the issues came on to be tried at the Yorkshire Summer Assizes, 1842, when W. Emmitt set up an assignment by G. Emmitt to trustees, arid by the trustees to him, W. Emmitt, which assignment the sheriff and Acton insisted upon was fraudulent and void : that a verdict was found for W. Emmitt on an issue of not guilty, and for the sheriff and Acton on all the other issues : that the plaintiff had indicted W. Emmitt; G. Emmitt, Ward, J. Atkinson, Hodgson, G. Atkinson and Cromack, " for riotously assembling to disturb the peace, and for assaulting tha said G. Acton, and others his followers and assistants, to wit on the occasion of his, the said G. Acton's, entering the said messuage and dwelling house, and seizing the said goods and chattels," in execution of the writ and warrant: that the indictment had been found at the Yorkshire Lent Assizes, 1842, and stood for trial at the Yorkshire Summer Assizes, 1842: and plaintiff, after the verdict in the cause between W. Emmitt and the sheriff and Acton, and before and at the time of the making the promise by the now defendants, after next stated, was " about [373] to proceed further on such indictment," "and to try the same, and to adduce and offer evidence in support thereof:" that, before and at the time of making the promise, &e., the sheriff, and Acton, his bailiff, were and had been, and continued, in possession of the crops, &c. seized by virtue of the execution, &c.; and, subject to the execution and possession thereby, W. Emmitt was and had been and continued in possession of the eame; and divers costs and charges had been incurred in the seizing and remaining in possession, &c., and a large balance of the costs and charges, and of the principal money, damages and costs recovered against G. Emmitt, remained unsatisfied: that the action by W. Emmitt against the sheriff and Acton had been defended in the name of the sheriff and Acton, but under the indemnity and on the retainer and at the coats and expenses of the now plaintiff, and divers costs and charges were due to the attorney about the defence of the suit: that the prosecution and indictment had been preferred and conducted on the retainer, and at the costs and expences, of the now plaintiff, and divers costs and expences were due to the attorney; all of which several premises defendants had notice : and thereupon afterwards, to wit 1st September 1842, "In consideration that the prosecutor, to wit the said prosecutor the now plaintiff, of the indictment, to wit the said indictment against the said G. Emmitt and others, to wit, &c." (naming them), " would, to wit at the request of the defendants, not proceed further in such indictment, and of the Sheriff of Yorkshire " (to wit the said, &c.) " withdrawing, to wit by and with the consent and direction of the now plaintiff, at the request of the now defendants, from the possession, to wit the said possession of the crops and effects, [374] to wit," &c., "that is to say the said crops and effects so claimed by the said W. Emmitt to be the crops and effects of, and to be ao assigned to, the said W. Emmitt as aforesaid, and so in his possession, subject to the said execution as aforesaid, at the farm, to wit," &c., "under the execution, to wit the said execution," &c., " the now defendants undertook and promised the now plaintiff to pay him, on or before the last day of Michaelmas term next thereafter, the balance, to wit the said balance of the principal money and costs then remaining unsatisfied, to wit the said principal money, damages and costs so recovered by the now plaintiff against the said G. Emmitt as aforesaid, and which then so remained unsatisfied as aforesaid in the original cause, to wit Keir against Emmitt," &c. (iden* Q. B. 375. KEIE V. LEEMAN 1317 tifying the parties), "and the balance of costs and charges incurred in and about the execution, to wit the said balance of the said costs and charges incurred in and about the aid execution of the warrant of fieri facias, to wit," &c. (identifying): averment " that, confiding in the said promise of the defendants, the prosecutor of the said indictment, to wit the now plaintiff, against G. Emmitb and others, to wit," &c., " for riot and assault, to wit the said riot and assault, did not proceed further on such indictment ; and tbat afterwards, to wit on," &c., " at the said Summer Assizes and sessions of oyer," &c., "then holden for the county of York, at," &c., "before Thomas Lord Denmau," &c., "and Sir William Henry Maule," &c., "the said prosecutor of the said indictment, to wit the now plaintiff, did, by and with the assent of the said George Acton, and his said followers and assistants, so being the person so assaulted as aforesaid, instruct counsel to inform, and by such counsel did inform, the said justices so as-[375]-signed as aforesaid, in open Court, at the said assizes and sessions, of and concerning the premises, and did then and there, by and with the assent and leave of the said Court, thereupon forbear to proceed further, and to offer any evidence, upon the said indictment; and thereupon the said persons so indicted, to wit the said G. Emmitt," &c., " were, in due form of law, by a jury of the said county, acquitted of the premises in the said indictment charged upon them :" of which the said defendants afterwards had notice: averment, that plaintiff, confiding in the said promise, &c., did forthwith afterwards, to wit on, &c., withdraw the said execution, to wit, &c., and give notice and directions to the Sheriff of Yorkshire, and to the said Acton, his bailiff, to withdraw, and the sheriff and his said bailiff immediately did then withdraw, from the possession of the said crops and effects; of which defendants afterwards had notice. Averment, that the balance of the principal money, damages and costs, at the time of the promise by the defendants remaining unsatisfied, amounted to a large, &c., to wit, 841. 12s.; and the balance of the costs and charges incurred in the execution, at the time of the promise remaining unsatisfied, to a large, &c., to wit 631. lls. lid.; of which defendants afterwards had notice: and, although the last day of the said Michaelmas terra hath elapsed, and G. Emmitt did not, before the said last day, &c. or tince, pay...
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