McCallan v Mortimer
| Jurisdiction | England & Wales |
| Judgment Date | 21 February 1842 |
| Date | 21 February 1842 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 268
IN THE EXCHEQUER CHAMBER.
S. C. 11 L. J. Ex. 429; 6 Jur. 196. See 6 M. & W. 58; 7 M. & W. 20.
[636] in the exchequer chamber. (Iu Error from the Court of Exchequer.) M'CALLAN v. mortimer. Feb. 21, 1842.-Indebitntus assumpsit for stock sold and caused to be transferred by the plaintiff to the defendant, and by the defendant dilly accepted.-Plea, that the stock alleged to be caused to be transferred was so caused to be transferred by virtue of an agreement with the plaintiff' for the transfer of the same, in consideration of 4531, 5s. to be therefore paid to the plaintiff for the same; and that, at the time of making such agreement, the plaintiff was not actually possessed of or entitled to the stock in his own right, &c.; by means whereof the said contract became and was null and void :-Held, on error brought upon the judgment of the Court of Exchequer, that the plea 9B. &w. 637. m'callan v. mortimer 269 was no answer to the action, and that the contract was not within 7 Geo. 2, c, 8, s. 8 ; affirming the judgment of the Court below. [S. C. 11 L. J. Ex. 429; 6 Jur. 196. See 6 M. & W. 58; 7 M. & W. 20.] A writ of error having been brought on the judgment of the Court of Exchequer in this case,(a) it was argued in this Court in the vacations after Hilary and Michaelmas Terms, 1811, by Sir W. W. Follett, Solicitor-General, for the plaintiff in error: and by Cresswell, for the defendant in error. In addition to the authorities cited on the former argument, the following were referred to, on behalf of the plaintiff in error ;-Wilkinson on the Public Funds, 155 ; fii-own v. Turner (7 T. R. 630); Steers v. Lashley (G T. R. 61); Simpson V. Blasts (7 Taunt. 246); tilachford v. Preston (8 T. R. 89); Ttiomsmi v. Thomson (1 Ves. 470); J3e Begnis v. A mislead (10 Bing. 107; 3 M. & Sc. 511); and Ewing v, Ostialdiston (2 Myl. & Cr. 53). For the defendant in error:-Bullock v. Ridunrdmi, (11 Ves. 373); Wigan v. Fowler (I Stark. N. P. C. 459); Crespitjny v. Wiltenoom (4 T. R. 790); Shales y. Seignoret (I Ld. Raym. 440); Sheplierd v. Johnson (2 East, 211); Uownes v. Back 1 Stark. N. P. C. 318); [637] Rumbull v. Maddock (8 East, 304); Dorriens v. Hutdiinsm (1 Smith, 420); Cope v. Rowlands (-1 M. & W. 149); and De tiegnis v. Armisdeud;- and by the Solicitor-General in reply-Marcho.nl v. Evans (8 Taunt. 142); IVaymoll v. Reed (5-T. R. 599); and Foster v. Taylor (5 B. & Adol. 887). The Conrt took time to consider, and now the judgment of the Court (g) was delivered by- lord denman, C. J. This is an action of indebitatus assumpsit, by which the plaintiff alleges that the defendant was indebted to him in the sum of 5000, for certain, to wit, 5000 interest in the joint stock of three per cent, annuities, transferable at the Batik of England, called the Consolidated Three Pounds per cent. Annuities, then sold and caused to be transferred by the plaintiff to the defendant, at his special instance and request, and by the defendant then, to wit, on the same day and year aforesaid, duly accepted; and also upon an account stated ; and that the defendant, in consideration of the premises, then promised the plaintiff to pay. The declaration then alleges a breach in not paying. The defendant pleaded, 1st, that he did not promise; and 2ndly, to...
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