Michaesl v Myers
| Jurisdiction | England & Wales |
| Judgment Date | 17 November 1843 |
| Date | 17 November 1843 |
| Court | Court of Common Pleas |
English Reports Citation: 134 E.R. 1075
IN THE COURT OF COMMON PLEAS
S. C. 7 Scott, N. R. 444; 13 L. J. C. P. 14.
michael v. myers. Nov. 17, 1843. [S. C. 7 Scott, N. E. 444; 13 L. J. C. P. 14.] In an action by an indorsee against an indorser of a bill, it was held to be no defence that the plaintiff, before the commencement of the suit, had consented to a judge's order,-in an action against the drawer,-that upon payment of the debt and costs within one month, all further proceedings should be stayed, and that unless such payment were so made, the plaintiff should be at liberty to sign final judgment; ~(a) Erskine J. was absent. 1076 MICHAEL V. MYEBS 6 MAN. & G. 703. although the plea also stated that the plaintiff could have obtained such judgment before the expiration of the month; inasmuch as such order did not amount to an absolute stay of proceedings.-The defendant also pleaded, that the plaintiff, before the commencement of that suit, had recovered judgment against the drawer, had taken him in execution, and released him from custody without the consent of the defendant. The plaintiff replied, that he did not release the drawer without the consent of the defendant: Quaere, Whether this replication involved a negative pregnant 1 Assumpsit, upon a bill of exchange for 381. 18s. 3d., dated the 29th December 1842, drawn by Samuel Braham upon, and accepted by, Schrimer Wolf, payable [703] at two months after date, and indorsed by the drawer to the defendant, and by him to the plaintiff. Third plea, that, after the bill of exchange in the said declaration mentioned became due, and before the commencement of the suit, to wit, on the 9th of March 1841, the plaintiff commenced an action on promises in the court of Queen's Bench at Westminster, against Braham for the recovery of the amount of the said bill, and the damages sustained by the plaintiff by reason of the non-payment thereof; that such proceedings were thereupon had in the said action, that afterwards, and before the commencement of this suit, to wit, on the 5th of July, 1841, by an order, then made by Sir John Williams knight, one of Her Majesty's justices, &c., upon hearing the attorney for the plaintiff and Braham in person, and by consent of the parties, it was ordered that, upon payment of 391. 16s. the debt due from Braham to the plaintiff, and for which the action was brought,-being the amount payable by the said bill and of the damages by the plaintiff sustained by the non-payment thereof,-with costs to be taxed, and paid in one month, all further proceedings in the said action should be stayed; and that, unless the said debt and costs were paid as aforesaid, the plaintiff should be at liberty to sign final judgment and issue execution for the amount, with costs of judgment and execution, &c.; that the plaintiff could and might have obtained a final judgment of the said court in the said action against Braham for the amount of the said bill, and the damages by him sustained by the non-payment thereof, and of the costs and charges by him about his suit in that behalf expended, and obtained and issued execution thereon, long before, to...
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