Orton against Butler

JurisdictionEngland & Wales
CourtCourt of the King's Bench
Judgment Date03 May 1822
Date03 May 1822

English Reports Citation: 106 E.R. 1329

IN THE COURT OF KING'S BENCH.

Orton against Butler

orton against butler. Friday, May 3d, 1822. A count stating that defendant had and received to the use of the plaintiff a certain sum of money, to be paid by the defendant to the plaintiff upon request; and the non-payment upon request, and that the defendant converted and disposed thereof to his own use, is bad upon demurrer. The declaration in this case contained three counts. The two former of which were framed in case for a deceit by the defendant, in fraudulently asserting that he (having been employed in purchasing for the plaintiff a certain fish, and having purchased it for twelve shillings and sixpence,) had purchased it for one pound two shillings and sixpence, whereby he obtained the last-mentioned sum from the plaintiff. The third count was as follows. And, whereas also the said defendant afterwards, to wit, on, &c. at, &c. had and received for the use of the plaintiff, a certain sum of money; to wit, the sum of ten shillings to be paid by the defendant to the plaintiff upon request. Yet the defendant not regarding his duty in that behalf, but contriving, &c. hath not, although often requested, paid to the plaintiff the last-mentioned sum of money, or any part thereof, but hath wholly omitted so to do ; and on the contrary thereof, afterwards, to wit, on, &c. at, &c. converted and [653] disposed thereof to his own use. The defendant pleaded to the two first counts the general issue, and demurrred specially to the last count. E. Alderson, in support of the demurrer. A similar question to the present came before the Court in Samuel v. Judin in Error (6 E. 335. 1 New R. 43, S. C.). There the ground of the demurrer was the misjoinder of a count like the present, with other counts framed in tort, and though the Courts of Common Pleas and King's Bench both held that the objection was not sufficient, yet the Judges seemed to intimate strongly, that the count, if particularly demurred to, would be bad. This is in fact, a count for money had and received, framed in tort. And if this be allowed, there will no longer be any distinction between case and assumpsit. The consequences of this will be productive of great inconvenience. A party may be thereby deprived of his plea in abatement, and his set off may be defeated by so framing the count. For 1330 OBTON V. BUTLER 5B.&ALD.654. the Statutes of Set Off speak only of mutual debts. So again, if a cause of action...

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6 cases
  • Duppa, Executor of Baskervile, v Mayo
    • United Kingdom
    • Court of the King's Bench
    • 1 January 1845
    ...Johnstone v. Hudlestone. 7 D. &. E. 411, S. C.] (h) Ante, p. 207, note; and see 1 N. E. 43, Judm v. Samuel. 6 East, 333, S. C. and 5 B. & A. 652, Orton v. Butler. See also 11 East, 565, Powdick v. Lyon, in which case the plaintiff declared in scire facias upon a judgment in K. B. wi......
  • Lipkin Gorman (A Firm)(Original Appellants and Cross-Respondents) v Karpnale Ltd (Formerly Playboy Club of London Ltd) (Original Respondents and Cross-Appellants)
    • United Kingdom
    • House of Lords
    • 6 June 1991
    ...from the solicitors until the solicitors claimed restitution. Conversion does not lie for money, taken and received as currency: see Orton v. Butler (1822) 5 B. & Ald. 652 and Foster v. Green (1862) 7 H. & N. 881. But the law imposes an obligation on the recipient of stolen money to......
  • Chandler v Vilett
    • United Kingdom
    • Court of the King's Bench
    • 1 January 1845
    ...demurrer, as it cannot be considered as a count in trover, but is an atterapt to convert an action of assumpsit into an action of tort. 5 B. & A. 652, Orion v. Butler. 1 Dowl. & Ryl. 282, S, C. [See 3 Q. B. 511, Bowman v. Brown. 2 Gr. & D. 793, S. C. ante, p. 117, note (?).] 836......
  • Hensworth against Fowkes
    • United Kingdom
    • Court of the King's Bench
    • 22 January 1833
    ...objection, being to the particular count, should have been taken advantage of by special demurrer to that count, as in Orion v. Butler (5 B. & A. 652). White, in reply. Misjoinder of counts, where it is apparent, is a ground of general demurrer to the declaration. Brigden v. Parkes (2 B......
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