all. It would deceive a defendant, if he could be turned round upon in the manner which had been suggested. 1840. Moss tion for goods sold and de livered, and work done, ASSUMPSIT for the price and value of goods sold To a declaraand delivered by the plaintiffs to the defendant, at his request; and for the price and value of work done, and materials for the same, provided by the plaintiffs for the defendant, at his request; and for money paid by the plaintiffs for the use of the defendant, at his request; and on an account stated. and materials provided at the defendant's request, a plea that the goods were sold to the defendant as the agent and broker of F. and M., to whom the that the work Plea, that the said goods and chattels in the first count mentioned, so alleged to have been sold by the plaintiffs to the defendant, as aforesaid, were certain goods and chattels, to wit, 100 tons of iron, sold by the plaintiffs to the defendant, as the broker and agent in that behalf, to certain persons, to wit, F. and M. of plaintiff conNew York, as the principals in the said sale, and to signed the whom they were consigned by the plaintiffs, (they, the goods, and plaintiffs, well knowing that the said F. and M. were such principals, and the parties really contracting in the same, and that the defendant was only the broker agent in that behalf.) And, further, that the said work and materials were done and provided, and the money was paid, in and about the shipping and consigning of the said iron to the said F. and M.; that the said account was stated, of and respecting the said and and materials were done and provided in and about the shipping and consigning of the goods to F. and M. is bad, as not shewing that the work and materials were not done and provided on the defendant's credit. 1840. CRAWSHAY V. BARRY. same, and not otherwise. And that the defendant, after the debt therein mentioned became due and payable, and before the commencement of the suit, made a certain order upon or direction to the superintendent of the London Docks, who then had in his possession divers large quantities of tea, to wit, 200 chests of the defendant's, and, by the said order, the defendant directed the superintendent to deliver the said tea to the plaintiffs or their order on demand, which order the defendant deposited with the plaintiffs, as security for the iron so sold and delivered as aforesaid, with liberty for the plaintiffs to sell such tea on the same being delivered to them in pursuance of the said order. Yet the plaintiffs wrongfully delayed and neglected to make such sale for a long and unreasonable time after they received such order, to wit, ten months, and thereby lost the market for the same. And the said tea was subsequently sold by the plaintiffs at a much lower rate than it would have been, but for the negligence of the plaintiffs; and that if sold in such reasonable time as aforesaid, the plaintiffs would thereby have obtained full satisfaction of the debts and causes of action in the declaration mentioned. Verification. Replication, de injuriâ. Special demurrer, and joinder. Stephen, Serjt. in support of the demurrer. The question is, whether the plaintiffs can reply de injuriâ to this plea. (a) It is not contended that the plea is good; it was impeachable at the proper time. In substance, however, and laying aside the part relative to the deposit of the order for the tea as a security, it is a sufficient answer to the declaration. [Tindal C. J. The plea does not go to the whole declaration, which states (a) Vide Jones v. Senior, 4 M. & W. 123., 6 Dowl. P. C. 701.; Reynolds v. Blackburn, 7 Ad. & Ell. 161., 2 N. & P. 136., 6 D. P. C. 19. [Tindal C. J. 1840. v. BARRY, that the work was done at the defendant's request. That the defendant does not deny: he says, the goods were sold to him as the agent of other parties, but he CRAWSHAY does not allege that he acted merely as an agent with respect to the work. It is perfectly consistent with the plea, that the work was done at his request. Erskine J. You may make yourself personally liable for work done to another man's goods.] The plea first avers that the goods were sold to the defendant as the agent of parties at New York, to whom they were consigned by the plaintiffs; and it then alleges that the work was done in and about the shipping and consigning of the goods: taking it to be true that the work was so done, it could not be done at the defendant's request. The plea consequently amounts to a denial, that the defendant was the party to whom credit was given. The plaintiffs might be willing to trust the principals at New York up to a certain point, but not further, and might say that they would furnish the goods on their credit, but that with regard to the work they would look to the defendant.] The plea must be construed according to a reasonable intendment; and although it might have been more formally worded, yet its allegations, when fairly understood, mean that the goods were supplied, and the work was done, for the parties at New York. In Regil v. Green (a), the plea was not very dissimilar to this; and there the Court, by deciding the replication to be bad, held in effect that the plea was good. So in Parker v. Riley (b), where the plea more nearly resembled the present, it was held good, and the Court ruled, that when a plea to a contract amounts to the general issue, the replication de injuriû is bad. [Bosanquet J. But this plea does not amount to the general issue.] (a) 1 M. & W. 328. (b) 3 M. & W.230. 1840. CRAWSHAY V. BARRY. TINDAL C. J. In this case the plea is no answer to the count for work done and materials provided. It does give a kind of answer to the first count of the declaration, which amounts to the general issue. Judgment for the plaintiff. Butt appeared for the plaintiff. April 29. Where the tenant in possession had rendered the premises in accessible, DOE dem. RICHARD BARROW v. ROE. EJECTMENT, brought to recover about 500 square feet of land, on which Messrs. Gardners, the tenants in possession, who are brewers, had erected a wing of their brewery. (a) and had evaded personal service of a declaration in ejectment, service by leaving it at the counting house of the tenant in possession, was held sufficient. (a) For this erection Barrow had brought an action of trespass quare clausum fregit against the Gardners, in which Barrow obtained a verdict with nominal damages. The case had been taken as an undefended cause, and the defendants having obtained a rule nisi for a new trial on the ground of surprise, that rule was discharged on the plaintiff's "undertaking not to plead or offer in evidence the judgment in that cause, in any other action which might be brought by the plaintiff against the defendants, touching the matters in dispute in that cause." If in any subsequent action judgment had been pleaded in violation of this undertaking, the court would, no doubt, have set aside the plea as contrary to Wilde, Solicitor-General, moved for a rule to shew cause why the service of the declaration and notice to appear should not be deemed good service under the following circumstances, disclosed in an affidavit made by two clerks of the attorney for the lessor of the plaintiff. The spot in dispute was rendered inaccessible by a wall which Messrs. Gardners had built. Several attempts were made to serve the defendants at the counting-house, but the clerk who went to serve the process was always refused an interview, and the defendants ultimately caused him to be removed from their outer countinghouse by one of their draymen. On which last occasion, the clerk left the declaration and notice upon the desk of that counting-house. The Court granted a rule nisi, which was afterwards, in the same term, no cause being shewn, made remedy would be an attachment for the contempt, in acting in breach of the undertaking. So, in cases in which a court of equity has given directions as to the production or non-production of evidence on a trial at law, such directions are binding on the parties (who must obey at their peril), but do not bind the common law court, and have therefore no effect directly upon the proceedings in that court. Vide post, 308. (a). (a) And see Anon. 1 Chitt. Absolute. (a) Rep. 100. (a); Anon. 1 Chitt. Rep. 505. n.; Doe dem. Batson v. Roe, 2 Chitt. Rep. 176.; Anon. 2 Chitt. Rep. 177.; Anon. 2 Chitt. Rep. 186.; Doe dem. Pugh v. Roe, 1 Scott, 1064., 1 Hodg. 6.; Doe dem. Turncroft v. Roe, 1 Harr. & W. 371.; Doe dem. Visger v. Roe, 2 Dowl. P. C. 449.; Doe dem. Frith v. Roe, 3 Dowl. P. C. 569.; Doe dem. Morpeth v. Roe, Ibid. 577.; Doe dem. Dickens V. Roe 7 Dowl. P. C. 121.; Doe dem. Scott v. Roe, 6 New Cases,207. 1840. DOE dem. V. ROE. |