Whitaker against Harrold
| Jurisdiction | England & Wales |
| Judgment Date | 03 December 1847 |
| Date | 03 December 1847 |
| Court | Exchequer |
English Reports Citation: 116 E.R. 437
IN THE EXCHEQUER CHAMBER.
[163] in the exchequer chamber. (error from the queen's bench.) whitaker against harrold. [Friday, December 3d, 1847.] For note, see Harrold v. (Vhitaker, ante, p. 147. Error was brought in the Exchequer Chamber, upon the judgment in the preceding casa The only error specially assigned was that the declaration was not sufficient in law. Joinder in error. The case was argued in Trinity vacation last (June 15th and 23d), before Wilde C.J., Coltman, Maule, and Cresswell Js., and Parke, Alderson, Rolfe, and Plait Bs. Peacock, for the plaintiff in error (defendant below). First: the plea is good. Tha principal grounds of demurrer to the plea are that it does not confess and avoid ; that it is double; and that it does not shew that the mortgage has been redeemed. But the plea does confess that the rent claimed is in arrear, and avoids this by shewing that it is no longer payable to the plaintiff. The plea is said to be double, because it alleges the payment of the mortgage debt, and also a release to the mortgagor of all claims in respect of it. But, where (a) 1 Wins. Saund. 155 a. note (c) (6th ed.). And see p. 154, note (a). (b) Ibid. 235 a. Note (8), and note (k), 6th ed. 438 WHITAKER V. HAREOLD 11Q.B. 164. an obligation to pay money arises by covenant in a deed, payment after the day without acquittance by deed is no answer; Blake's case (6 .Hep. 43 b.); the whole plea, therefore, offers but one defence. The objection, that the plea does not shew that the mortgage has been redeemed, [164] probably means no more than that the plea does not state a reconveyance of the mortgaged premises. It is necessary, therefore, to consider the meaning of the reddenduin. The rent is reserved to the mortgagee, " his executors, administrators and assigns, during the continuance of the said hereinbefore recited mortgage, and, after payment and satisfaction thereof," to the mortgagor; and the covenant is with both mortgagee and mortgagor to pay the rent accordingly. The plea alleges that before the rent in question accrued the mortgagee was " paid and satisfied all the principal moneys and interest due to him " " under or by virtue of the said mortgage." It will be said that the mortgage would continue until reconveyance to the mortgagor, and, consequently, that the rent is still payable to the mortgagee and his assigns. But, if this be the meaning of the reddendum, the express reservation to the mortgagor was unnecessary, for on reconveyance he would at once be entitled to the rent under the prior reservation to the mortgagee's "assigns," The meaning, therefore, must be that the rent was to be paid to the mortgagee so long only as the mortgage debt should be unpaid. [Parke B. The plea does not state by whom the payment was made; and, if the release is relied upon, the plea does not precisely state when it was executed : it might have been just before plea.] " Where a sum, a time, or any matter is material, the sum, the time, or matter, though mentioned under a videlicet, shall be taken to be the true sum, the true time, or the true matter ; " Nightingale v. Wihoxson (10 B. & C. 202, 215). The doctrine on this subject is explained also by Sing v. Roxbrough (2 C. & J. 418 ; 2 Tyrwh. 408), note (i) to [165] Dakin's case (2 Wms. Saund. 290 c. (6th ed.), Hague v. French (3 B. & P. 173), and Giles v. Bourne (6 M. & S. 73). In Down v. Hatcher (10 A. & E. 121), a plea that 01. 10s. was paid and accepted in satisfaction of a residue, stated in the declaration to...
To continue reading
Request your trial