Wilkinson v Sharland

JurisdictionEngland & Wales
Judgment Date01 May 1855
Date01 May 1855
CourtExchequer

English Reports Citation: 156 E.R. 631

IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER

Wilkinson
and
Sharland

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...

To continue reading

Request your trial
9 cases
  • Davies, Executor of Elizabeth Davies, Deceased v Davies
    • United Kingdom
    • Exchequer
    • 11 June 1862
    ...counts for money paid and received were bad for not shewing a present debt, citing Place v Potts (8 Exch. 705); fFilkiiwon v. Shcaland (10 Exch. 724).) Thirdly, the declaration is bad for misjoinder. The counts for money received and money due on an account stated disclose causes of action ......
  • Russell v Moore
    • United Kingdom
    • Queen's Bench Division
    • 2 March 1880
    ...v. ButcherUNK 1 M. & R. 221 n. Barnett v. Earl of GuildfordENR 11 Exch. 32. Liford's CaseUNK 11 Rep. 51 b. The Earl of GuildfordENR 11 Exch. 33. Davis v. EytonENR 7 Bing. 154. Kelly v. WebberUNK 11 Ir. C. L. R. 61. Nugent v. PhillipsUNK 8 Ir. L. R. 17. Kenna v. NugentUNKUNK Ir. R. 6 C. L. 5......
  • O'Riordan and Others v Walsh and Others
    • Ireland
    • Exchequer (Ireland)
    • 19 November 1873
    ...O'RIORDAN AND OTHERS and WALSH AND OTHERS. Gregory v. CotterellENR 5 E. & B. 571, 583. Wilkinson v. SharlandENR 11 Ex. 33. Richardson v. MellishENR 11 Moore, 104. Mellish v. Richardson 1 Cl & F. 224. Short v. CoffinENR 5 Burr. 2730. Webber v. Adams Unreported. Martin v. M'CauselandINTL 2 I.......
  • Strydom v Fenner-Solomon
    • South Africa
    • Invalid date
    ...plaintiff's memory had failed. At that committee meeting the committee accepted the resignation and agreed to let him off the term's notice (ex. 33). What occurred at that committee meeting after plaintiff was called in to A attend it had best be stated in view of plaintiff's allegation tha......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT