Wake against Tinkler
| Jurisdiction | England & Wales |
| Judgment Date | 02 June 1812 |
| Date | 02 June 1812 |
| Court | Court of the King's Bench |
English Reports Citation: 104 E.R. 1002
IN THE COURT OF KING'S BENCH
wake against tinkler. Tuesday, June 2d, 1812. The defendant cannot plead by way of set-off a bond-debt of the plaintiff, assigned to the defendant by another, to whom and for whose use it was originally given. The plaintiff declared in assumpsit as indorsee of a promissory note made by the defendant; as also for goods sold and delivered, and upon the common money counts; and laid his damages at 1601. The defendant pleaded, first, non assumpsit. (a)1 Cald. 1. (a)2 Rex v. Stock and Another, 2 Taunt. 339. (V) Le Blanc, J. was absent at Lancaster. 16 EAST, 37. DUDLOW V. WATCHORN 1003 2dly, that before the making of the promises stated in the declaration, to wit, on the 2d of December 1809, the plaintiff executed a [37] bond to one W. Atkinson in the penal sum of 2601., conditioned for the payment of 1301. and interest on a day long since past; and that the bond being unsatisfied, Atkinson, before the commencement of this suit, to wit, on the 14th of January 1811, by a certain indenture under seal, made between him and the defendant, for certain good and valuable considerations therein mentioned, assigned, transferred, and set over to the defendant the said writing obligatory and all sums of money then due and-owing, or to become due and owing by virtue thereof, and all the right, title, interest, property, and claim, &c. of him Atkinson of and in the same, &e.; and that the defendant has from thence hitherto remained and still is the assignee of the said writing obligatory, and entitled to all the money due thereon, &c.; and that the said writing obligatory is still in full force, &c.; and that at the time of commencing this suit there was and still is due and owing from the plaintiff, by virtue of the said writing obligatory so assigned, &c. to the defendant, more money than is due and owing from him to the plaintiff upon the supposed promises in the declaration mentioned, to wit, 2001.; which the defendant offered to set off and allow according to the statute, &c. To this there was a general demurrer. Bayley, who was to have argued in support of the demurrer, was stopped by the Court. Eeader, contra, relied on Bottimly v. Brook (a)1, and Budge v. Birch (b)1, which he said were not overruled in [38] Winch v. Keeley (a)2, and other cases, where it had been held that the...
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Forth and Others v Stanton, Widow
...But the assignee of a bond, originally given by the plaintiff for the use of another, cannot set it off in an action against himself. 16 East, 36, Wake v. Tinlder. [So where the plaintiff had bargained with one J. E. for the purchase of houses, and the defendant, in consideration that the p......
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Clark and Others v Cort
...between the parties, which, but for their equitable nature, might be set off at law; Whyte, v. O'Brien (1 S. & S. 551), Wake, v. Tinkler (16 East, 36), Tucker v. Tucker (4 Barn. & Adol. 745). [157] Mr. Stuart and Mr. W. T. S. Daniel, contra. The Vice-Chancellor's order may be supported upon......
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William Tucker, Surviving Executor of George Tucker, against Emmeline Tucker, Executrix of Charlotte Tucker
...observations apply to Budge v. Birch, And the law laid down in those eases have been looked upon with jealousy since. In Wake v. Tinkler (16 East, 36), Lord Ellenborough said he was " much more inclined to restrain than to extend the doctrine of those cases;" and Bayley J. said, " We have n......