Lord Arlington v Merricke
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 1215
COURT OF KING'S BENCH
Distinguished, Hickinbotham v. Leach, 1842, 10 Mee. & W. 361. Applied, Chapman v. Beckington, 1842, 3 Q. B. 703. Distinguished, Oswald v. Berwick Corporation, 1856, 5 H. L. C. 856. Applied, Skillett v. Fletcher, 1867, L. R. 2 C. P. 472. Referred to, Harper v. Godsell, 1870-72, L. R. 5 Ex. 242; L. R. 5 H. L. 418; Danby v. Coutts, 1885, 29 Ch. D. 515; Ratcliffe v. Evans [1892], 2 Q. B. 532.
2 WMS. 8AUHD. 3. PASCH. 24 CAR. II. REGIS 1215 [403] 68. lord arlington versus merricke. Hil. 23 & 24 Car. II. Regis, Rot. 665. [Distinguished, Hichinbotham v. Leach, 1842, 10 Mee. & W. 361. Applied, Chapman v. Beckington, 1842, 3 Q. B. 703. Distinguished, Oswald v. Berwick Corporation, 1856, 5 H. L. C. 856. Applied, Skillett v. Fletcher, 1867, L. R. 2 C. P. 472. Referred to, Harper v. Godsell, 1870, L. R. 5 Q. B. 427 ; Duke of Butdmch v. Metropolitan Board of Works, 1870-72, L. R. 5 Ex. 242; L. R. 5 H. L. 418; Danby v. Coutts, 1885, 29 Ch. D. 515; Ratdiffe v. Evans [1892], 2 Q. B. 532.] Debt on bond. London, to wit.-Be it remembered that heretofore, to wit, in the term of St. Michael last past before our lord the King at Westminster came the Right Honorable Henry Lord Arlington of Harbington, by Edward Meriweather his attorney, and brought here into the Court of our said lord the King then there his certain bill against Benjamin Merricke, otherwise called Benjamin Merricke of Woodstock in the said county, in the custody of the marshal, &c. of a plea of debt, and there are pledges of prosecution, to wit, John Doe and Richard Roe, which said bill follows in these words, to wit: London, to wit, the Right Honorable Henry Lord Arlington of Harbington, complains of Benjamin Merricke, otherwise called Benjamin Merricke of Woodstock in the said county, being in the custody of the marshal of the Marshalsea of our lord the King before the King himself, of a plea that he render to him 2001. of lawful money of England, which he owes to [404] and unjustly detains from him, for that whereas the said Benjamin on the first day of May, in the 19th year of the reign of our lord Charles the Second, now King of England, &c., at London aforesaid, to wit, in the parish of St. Mary Undershaft in the ward of Lyme Street, by his certain writing obligatory sealed with the seal of the said Benjamin, and to the Court of our said lord the King now here shewn, the date whereof is the same day and year, acknowledged himself to be held and firmly bound to the said Henry Lord Arlington in the said 2001. to be paid to the said Henry Lord Arlington, when he should be thereunto required, yet the said Benjamin (although often required) has not yet paid the said 2001. to the said Henry Lord Arlington, but to pay the same to him has hitherto altogether refused and still refuses, to the damage of the said Henry Lord Arlington of 201., and therefore he brings suit, &c. And now at this day, to wit, on Tuesday next after the octave of St. Hilary in this same term, until which day the said Benjamin Merricke had leave to imparl to the said bill and then to answer, &c., before our lord the King at Westminster comes as well the said Lord Arlington by his attorney aforesaid, as the said Benjamin by John Gale his attorney, and the said Benjamin defends the wrong and injury when, &c., and prays oyer of the said writing obligatory, and it is read to him, &c.; he also prays oyer of the condition of the said writing, and it is read to him in these words, to wit, " The condition of this obligation is such, that whereas the above-named Henry Lord Arlington Postmaster-General to the King's most excellent Majesty, by his sufficient instrument or writing under his hand and seal, bearing date the thirtieth day of April one thousand six hundred sixty and seven, hath deputed the above bounden Thomas Jenkins to be his deputy-postmaster of the stage of Oxon in the county of Oxon abovesaid, to execute the said office from the twenty-fourth day of June next coming for the term of six months following. Now if the said Thomas Jenkins, his deputies, servants, and assigns do and shall, for and during all the time that he the said Thomas Jenkins shall continue deputy postmaster of the said stage, well, truly, faithfully, and diligently do, execute and perform all and every the duties belonging to the said office of deputy-postmaster of the said stage, and shall faithfully, justly, and exactly observe, perform, fulfil and keep all and every the instructions, rules, orders, payments, and directions mentioned, contained, specified, and included in the paper annexed to this obligation, intituled Instructions for the several Deputy Postmasters from His Majesty's Postmaster-General, according to the true iiiten t and meaning of the said instructions, and every of them ; the true copy or counter- 1216 LORD ARLINGTON V. MERRICKE 2 WMS. SAUND. 405. part whereof is delivered upon the sealing of these presents unto the said Thomas Jenkins subscribed by the said Henry Lord Arlington, and examined before the witnesses to these presents; and also if the said Thomas Jen-[405]-kins, his deputies, servants, and assigns, shall well and truly observe, perform, fulfil and execute all such other orders, rules, directions, and instructions as the said Henry Lord Arlington, his executors, administrators, or assigns, or his deputies in the General Post-Office in London, shall from time to time give or send to the said Thomas Jenkins, his deputies or assigns, signed by the said Lord Arlington, or by his deputy in the said General Post-Office for the time being, for or concerning the management of the place of deputy-postmaster of the said stage of Oxon ; that then this obligation to be void, or else to stand and remain in full force and virtue." He also prays oyer(l)of the said instructions mentioned in the said condition, and they are likewise read to him in these words, to wit, " Instructions for the several Deputy Postmasters from His Majesty's Postmaster-General: 1. You shall keep sufficient able geldings or mares for no other service but for the post of the mail of letters passing to and from His Majesty's post-office in the City of London, from the stage at Oxford unto the stage of Abingdon, to and fro, and you shall carefully and faithfully send or carry the said mails to the said several stages three times in every week during your continuance to be deputy-postmaster of Oxford in the county of Oxon, upon the several days and hours as the same shall come or be sent unto the said several stages for that purpose : and you shall in like manner send or carry with all care, diligence, and faithfulness, the said several stages, all and every such expresses as shall come unto the same to be dispatched for His Majesty's special service; and you shall also provide and maintain a sufficient number of able mares or geldings, with furnitures for the same, for the use and service of all such posters as shall have lawful warrant or commission to ride post from your said stage. 2. You shall cause all and every such servant as you shall trust to ride with and carry the said mails and expresses the said several stages, to ride at least five English miles winter and summer, in every hour that he or they shall ride or carry any of the said mails and expresses, and the rest of his time according to that proportion of speed : and you shall truly and exactly indorse upon a label the hour and time of the night or day, with the day of the month on which every of the said mails and expresses shall come unto the stage of Oxford; and you shall also enter the same in a book to be kept by you for that purpose, and you shall have your horses and furniture for the carriage of the said mails on the re-[406]-apective days and times in such readiness and expectation, that you shall not detain, stay, or delay any mail in its postage from the City of London above one quarter of an hour at the most, neither shall you stay or delay any mail in its postage unto the City of London above one quarter of an hour at the most. A 3. You shall employ only such servants for riding post to carry the said mails (1) The praying of oyer of the instructions seems to be improper; because there is no profert made of them by the plaintiff, and it does not appear that they were in Court; but they are only referred to in the conditions as the instructions which the defendant had obliged himself by his bond to perform; in the same manner as if the condition had been to perform covenants in an indenture, iu which case it has been decided, that the defendant cannot pray oyer of the indenture, but must set out the whole substance of one part of the indenture, and make a profert of it, otherwise it will be bad on special demurrer. 1 Saund. 8, Jeveiis v. Harridge. 2 Salk. 498, Cook v. Bemmington.(a) (a) If instead of setting out the indenture with a profert, the defendant content himself with setting out the condition of the bond on oyer and pleading general performance, the plea will be bad on demurrer; for non constat but that there may be negative or disjunctive covenants in the indenture, to which the defendant, if he had set out the indenture, could not have pleaded general performance; at all events, the plea will be bad, unless it aver that there are not any such negative or disjunctive covenants. 4 East, 340, Lord Kerry v. Baxter, and Plomer v. Jlaine, cited in the note there. See ante, Vol. I. 9, 10, note (3). 2 WMS. SAUND. 7. PASCH. 24 CAR. II. REGIS 1217 and expresses, for whose faithfulness, care, and diligence, and riding with the expedition in these instructions required, without stop or stay, saving by some act of God or force or absolute necessity, as you will be responsible, and thereupon answer the damage that may by your servants' failure happen either unto His Majesty's affairs or unto the post-office; and you shall employ none that you are not sure is...
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... ... limited to the predetermined boundary in the recital of the bond: See cases in Note (h) to Lord Arlington v Merricke [1672] 85 ER 1215 at p 1226. Note (h) says, inter alia, that Liverpool ... ...
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