Webb v James and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 June 1841 |
| Date | 01 June 1841 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 1197
EXCH. OF PLEAS.
S. C. 1 Dowl. (N. S.) 36; 11 L. J. Ex. 38 For proceedings on demurrer, sec 7 M. & W. 279; 151 E. R. 771 (with note).
[645] webb v. james and others. Exch. of Pleas. June 11, 1841.-The stat. 8 & 9 Will. 3, c. 11, s. 8, does not authorize the assignment of breaches in a replication which traverses a material averment in the plea.-In debt on bond, the defendant, after setting out the condition of the bond on oyer, pleaded performance of part of the condition only, and matter of excuse for non-performance of the residue:-Held, that the replication, which commenced by assigning a breach which would have been a good answer to the plea at common law, and then, as a necessary introduction to the assignment of other breaches, proceeded to traverse the matter of excuse, was bad, on the ground that the statute does riot authorize any double pleading, except the multiplication of such breaches as | could have been properly assigned at common law :-Held, also, that a replication i traversing the matter of excuse, though affirmative, properly concluded to the country, without assigning a breach. [S. C. 1 Dowl. (N. S.) 3G ; 11 L. J. Ex. 38 For proceedings on demurrer, see 7 M. & W. 279 ; 151 E. E. 771 (with note).] Debt on bond. The defendants craved oyer of the bond, which was set out, and was as follows:-" Know all men by these presents, that we, Henry James, of the county of the borough of Carmarthen, victualler, William Morgan, of the same place, currier, and John Lewis, of the same place, timber-merchant, are jointly and severally held and firmly bound to Thomas Taylor Webb, of &c., the treasurer appointed by the commissioners acting under and by virtue of an act made and passed in the 32nd year of the reign of his late Majesty King George the Third, intituled, &c., in the (d) Not established iu 1751. See Kirk v. Bmad, Sayer, 7. 1198 WEBB V.JAMES 8M.SW.646. penal sum of 250, to be paid to the said Thomas Taylor Webb, as such treasurer as aforesaid, and his successors for the time being; for which payment to be well and faithfully made, we bind ourselves jointly, and each of us bindeth himself severally, and our and each of our heirs, executors, and administrators, firmly, by these presents, sealed, Ac." The defendants also craved oyer of the condition of the bond, which was as follows:-"Whereas, in and by the above-mentioned act, it was amongst other tilings enacted, that the commissioners therein mentioned, or any five or more of them, should and might from time to time nominate, constitute, and appoint one or more treasurer or treasurers, clerk or clerks, surveyor or surveyors, and such collectors of the rates thereinafter mentioned, and such other officers as they should find necessary for the execution of the said act, and might from time to time remove and displace all or any of them, and nominate and appoint such other person or persons in the room of him or them who should be so removed; and that the said commissioners should and might, and they were thereby authorized and required [646] to take such security from time to time, for the due execution of the said offices respectively, as the said commissioners should think proper: And whereas the said Henry James hath been duly elected and appointed a collector of the rates due and payable under and by virtue of the said act, and hath been called upon to give security for the due performance of the said office of collector of the rates : now the condition of the above-written obligation is such, that if the ahove-bounden Henry James shall from time to time and at all times during the continuance of the said appointment, or of any future appointment or appointments of him as collector as aforesaid, well and faithfully collect and get in all such rates as he may be directed to demand and obtain by virtue of his said office, and do and shall deliver to the said treasurer all books and papers, and a true and perfect account in writing of all matters and things committed to his charge by virtue of the hereinbefore recited act, and also of all monies which shall have been by him received by virtue and for the purposes of the said act, and shall and do pay all such monies as shall have been received by him to the said Thomas Taylor Webb, or his successors as treasurers for the time being, acting by virtue of the said act, relative to the collectorship of the said rates ; then this obligation to be void, or otherwise to be and remain in full force and effect." The defendants then pleaded- First, noil est factum. Secondly, that there was not any other or future appointment of him the said Henry James, as collector as aforesaid, except the appointment in the condition mentioned; and that he did from time to time and at all times during the continuance of the said appointment in the said condition mentioned, well and faithfully collect all such rates as he was directed to demand and obtain by virtue of his said office, and did deliver to the said treasurer all books and papers, and a true and perfect account in writing of all matters arid things committed to his charge by [647] virtue of the act recited in the said condition, and also of all monies which were by him received In* virtue and for the purposes of the said act, and did pay all such monies to the said T. T. Wabb, according to the said condition. Verification. Thirdly, the defendants say, that there was not any other or future appointment of him the said Henry James as collector as aforesaid, except the said appointment in the said condition mentioned ; and that during the continuance of the said appointment, no rate was made or in any way existed, which he the said Henry James could legally, or according to law, collect and get in, or could legally, or according to law, demand or obtain by virtue of his said offices ; and that he did not at any time during the continuance of his said...
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