Wilkinson v Sharland
| Jurisdiction | England & Wales |
| Judgment Date | 01 May 1855 |
| Date | 01 May 1855 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 631
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 3 C. L. R. 619; 24 L. J. Ex. 116, 1 Jur. (N S)144, 3 W. R. 207. See further, 11 Ex. 33.
724] wilkinson v shaeland Jan. 26, 1853-A declaration stated, that " the plaintiff sues the defendant for freight for the conveyance by the plaintiff for the defendant, at his request, of goods in ships " Plea, never indebted -Held, that though, on demurrer, the declaration would have been bad, for not shewing j, debt payable in pnesenti, according to the form given by the Common Law-Procedure Act, 1H32, yet the defect was cured by pleading over. [S. C. 3 C. L R. G19 ; 24 L. J. Ex. 110, 1 Jur (N S ) 144, 3 W. R. 207. See further, 11 Ex. 33.] The declaration in this case was as follows -The plaintiff sues the defendant for freight, for the conveyance by the plaintiff for the defendant, at his request, of goods in ships , and for the demurrage of a ship of the plaintiff, kept on demurrage by the defendant, and for money paid by the plaintiff for the defendant, at his request: and the plaintiff claims 1501 Plea, never indebted , upon which issue was joined. The cause was tried before Martin, B , at the London Sittings after last Michaelmas Term, when a verdict was found for the plaintiff. 632 IN RE HILL 10 EX. 725. Knowles moved to ariest the judgment (January 16) The declaration does not disclose any cause of action. The form prescribed by the Common Law Procedure Act, 1852, Schedule (B ), is "money payable by the defendant to the plaintiff for fieight, &c. Here the woids "money payable" being omitted, it does not appear that any debt was due. In Place v. Pott*, (8 Exch. 705), the declaration stated that " the defendants are indebted to the plaintiff for freight, &c., and that was held bad on general demurrer. That decision may perhaps be consideied as overruled by Fagg \. Nitdd (3 E & B. 650); but the cases aie distinguishable. In the latter, the declaration was on a promissory note, for interest, and also "for money found to be due from the defendant to the plaintiff on accounts stated between them," and the Court held that equivalent to an allegation that the money was payable [Aldersori, B. There ought to be no equivalent, for the Act expressly says, "these woids, money payable, &c., should precede money counts." Parke, B There is good reason for the form being so expiessed, in-[725]-asmuch as otherwise the plaintiff might be suing for a debt not payable at the time of the commencement of the suit for there may be a debt in pr^senti, though solvendum in...
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