Todd and Another v Emily and Another
| Jurisdiction | England & Wales |
| Court | Exchequer |
| Judgment Date | 13 January 1843 |
| Date | 13 January 1843 |
English Reports Citation: 152 E.R. 691
IN THE EXCHEQUER, AND EXCHEQUER CHAMBERS,
S. C. 2 Dowl. (N. S.) 570. See further, p. 610, post.
[1] reports op games aroejed and determined in teck courts of exchequer, and exchequer chamber, hilary term, G vegt. todd and another . emly and another. Exch. of Pleas. Jan. 13, 1843.-To a plea of a release by the plaintiffs of a co-contractor with the defendants, the plaintiffs replied non est factum, to which the defendants rejoined "that the said deed is the deed of the plaintiffs," on which issue was joined. Semble, that this isue would he supported by the production of the release in a cancelled state, it having been cancelled by the releasee after the plea was pleaded, but before the issue joined. [8. C. 2 Dowl. (N. S.) 570. See further, p. 610, post.] A new trial of this cause having been directed, on the ground that the plea puis darrein continuance of the release of Mr. Stewart, which the defendants proposed to plead at the last trial, ought to have been received (see 9 M. & W. GOG), the cause was tried again (for the fourth time) before Lord Abinger, C. B., at the last Surrey Asakes : when it appeared, that on the '25th of June last, after the rule for a new trial wasiinade absolute, but before issue was joined on the plea of release, Mr. Stewart had cancelled the release by tearing off the seal. The plaintiff's afterwards (L4th July) delivered a replication of rion est factum; to which the defendants rejoined, that " the said deed is the deed of the [2] plaintiffs," upon which issue was joined. The defendants called upon Mr. Stewart, under a subpoena duces tecura, to produce the release, when it appeared that he had delivered it to his clerk, to be given to...
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