Lake v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 05 February 1805 |
| Date | 05 February 1805 |
| Court | Court of Common Pleas |
English Reports Citation: 127 E.R. 426
Common Pleas Division
4 2 6 LAKE V. SMITH 1 BOS. & PUL. (N. R.) 173. to arrest the judgment, on the ground of the declaration not stating to whom the forbearance was given (a). The first count of the declaration in this case stated, that whereas the Plaintiff heretofore, to wit, on, &c., at, &a., at the special instance and request of one E. B. and one M. B., sold and delivered to the said E. B. and M. B. divers goods, wares, and rnerehandizea of the said Plaintiff of great value, to wit, of, &c., whereof the said Defendant then had notice, and thereupon afterwards, to wit, on, &c., at, &c., in consideration thereof, and also in consideration that the said Plaintiff, at the special instance and request of the said Defendant, would forbear and give day of payment of the said sum of money, he, the said Defendant, by a certain note or memorandum in writing, signed by him, the said Defendant, undertook and faithfully promised the said Plaintiff, amongst other things, to pay him the [173] said sum, &c. (proceeding to state money due from E. B. and M. B. and the time and mode of payment for which the Defendant undertook). The declaration then alleged that the Plaintiff, relying on the above promise of the Defendant, "did forbear, and from thenceforth hitherto bath forborne and given day of payment of the said sum of 1401. and the same, and every part thereof, still remains due and unpaid to the said Plaintiff." The Plaintiff having obtained a verdict upon this count, Vaughan Se*. now moved to arrest the judgment, because the declaration did not state to whom the Plaintiff forbore and gave day of payment, and in support of the objection relied upon the case of Jones v. Ashburnham, 4 East, p. 455. But the Court refused a rule to chew cause, observing that by necessary intendment E. B. and M. B. must have been the persons to whom the Plaintiff forbore, and that, though not specifically alleged, yet it appeared to be so with sufficient certainty, viz. certainty to a common intent; they also intimated that at all events the defect in the allegation, if any, was cured by the verdict. Vaughan took nothing by his motion. [174] LAKE v. SMITH. Feb. 5th, 1805. In debt for double the yearly value, under 4 G. 2, c. 28, the Plaintiff, after stating a demise to the Defendant's wife, and her subsequent intermarriage with the Defendant, alleged in the first count a notice to quit and demand of possession delivered to the defendant and his wife, and in the second count alleged a notice to quit and demand of possession delivered to the wife previous to her intermarriage with the Defendant. Held that to support the second count the wife need not be joined for conformity, and that to sustain the action it was not necessary to have given notice to the husband subsequent to the intermarriage. Debt for rent. The first count of the declaration stated, "that heretofore and before the intermarriage hereinafter next mentioned, and before and at the time of the giving of the notice to quit and making the demand of delivery of possession hereinafter also next mentioned, one Maria Smith, the wife of the Defendant, but then Maria Pettit, had been tenant to the Plaintiff for a term of years (to wit), from year to year, of a certain tenement, consisting of a messuage, dwelling-house, garden, and yard, with the appurtenances, situate in the parish of Saint George, Southwark, in the county of Sarry, of the said Plaintiff, theretofore demised by the said Plaintiff to the said Maria, determinable at the will of the said Plaintiff, or the said Maria, on the 24th day of June in every year, upon a due notice being given by either the said Plaintiff, or the said Maria, to the other, half a year previous to the said 24th day of June in any year, at and under a certain yearly rent, to wit, the yearly rent of twenty-two pounds of lawful money of Great Britain...
To continue reading
Request your trial
-
Ewing v Davis
...I will analyse in due course, are Coles v Coulton [1860] 24 JP 596, Back v Homes [1887] 51 JP 693, Giebler v Manning [1906] 1 KB 709 and Lake v Smith [1911] 76 JP 71. The editor goes on to observe: "In modern language, the test may be restated by identifying a requirement that the prosecuti......