1837. DEBENHAM V. CHAMBERS. Platt, in support of the demurrer.-First, the allegation Exch. of Pleas, that the defendant was indebted for money found to be due on an account stated between them, is not sufficient: it is quite consistent with that statement that the account should only have been stated between the plaintiffs themselves and Machin. The count ought to have alleged the account to have been stated by and between them. In Hooper v. Vestris (a), an affidavit of debt, stating the defendant to be indebted to the deponent "on an account stated between them," was held insufficient. [Alderson, B. The declaration pursues the form given for the account stated in the new rules of T. T. 1 Will. 4.] The word "them" leaves it equivocal between whom the account is stated. The second objection is to the breach. The allegation is, that the defendant "has not paid the said monies or any part thereof," which is too general, and only denies the payment to the parties mentioned. It can only be co-extensive with the promise, which is, that the defendant will pay Debenham, Storr, and Machin, who were the three partners. It is quite consistent that the defendant, although he has not paid the three partners, may have paid the two survivors, which is not negatived. [Parke, B.-The breach, too, is in the form given by the new rules.] That is only to be followed where there is one plaintiff and one defendant. PER CURIAM. We think there is nothing in either of the objections. We cannot assent to the case that has been cited. There is certainly no ground for saying that greater strictness is required in an affidavit of debt than in the forms of pleading laid down by the Judges. The word "indebted" seems to have been quite overlooked in that case. Judgment for the plaintiff. The Court refused leave to amend. (a) 5 Dowl. P. C. 710. Exch. of Pleas, 1837. Trover for certain gold and silver watches. Plea, that the defendant was a pawnbroker, and that they were deposited with him as pledges and security for a sum of money advanced, and which had not been repaid. Replication, that before NICKISSON and Another, Assignees of THOMPSON, TROVER against the defendant, a pawnbroker, for cer tain gold and silver watches, and other property; the first count laying the property to be in the bankrupt; the second laying the property in the assignees. Pleas-First, not guilty. Secondly, to the first count, a denial of the possession of the bankrupt. Thirdly, to the second count, a denial of the possession of the assignees. On these pleas issues were joined. The fourth plea was to the first count, (so far as related to some of the watches), that the defendant was a pawnbroker, and that Thompson, before he became a bankrupt, to wit, on &c., deposited the said watches with the defendant to be corruptly agreed kept as pledges and security, as well for the repayment of 937. 11s. 7d. then lent and advanced to Thompson on the they were so pledged, it was that the defen dant should lend and ad. vance to the plaintiff a sum exceeding 10., to wit, 771. deposit and security of the said watches, as for the payment to the defendant of certain interest by the said Thompson then agreed to be paid to him, upon and for the loan and forbearance of the said monies so lent and advanced and that when Thompson became bankrupt, and from thence hitherto, the said principal sum and interest were due and owing to the defendant. The fifth plea, which was to the second count, was similar to the fourth, and related to the remainder of the watches. Replication to the fourth plea, as to five gold and seventeen of the twenty-nine silver watches therein mentioned, that before more than law- they were so pledged and deposited with the defendant to 11s. 7d., and that defendant should forbear and give day of payment thereof to the plaintiff until the expiration of one year next after such loan and advancement, and that plaintiff for such loan &c. should give ful interest, &c.; and that for securing the repayment of the sum, with interest, the plaintiff should pledge the watches with defendant: that in pursuance thereof the watches were deposited and the money advanced, and the interest agreed to be paid exceeded the rate allowed by law, whereby the agreement was wholly void. Issue thereon. At the trial it was proved that the watches were deposited, but that no agreement was made as to the time they should remain in pledge. The Judge, upon application, amended the record by inserting, after the words "until the expiration of one year after such loan," the words "redeemable in the meantime." The plaintiff having recovered a verdict:-Held, on motion to enter a nonsuit, that this was a contract within the Pawnbrokers' Act, and that it was to be assumed from the circumstances that the plaintiff had dealt with the defendant in the character of, and upon the usual terms of dealing with, a pawnbroker. 1837. NICKISSON ย. TROTTER. be kept &c., to wit, on the 2nd day of May 1835, being Exch. of Pleas, one of the days and times in the said fourth plea mentioned, it was corruptly and against the form of the statute agreed by and between Thompson and the defendant, that the defendant should lend and advance to Thompson at certain sum exceeding 10%., to wit, 777. 11s. 7d., and that the defendant should forbear and give day of payment thereof to Thompson for a certain time, to wit, until the expiration of one year next after the making such loan and advancement; and that the said Thompson, for the loan and advance of the said sum, and for giving day of payment thereof, for each and every calendar month the same should be forborne payment by the defendant, should pay to the defendant more than lawful interest at and after the rate of 5 per cent. per annum, on each and every twenty shillings of the said sum so lent and advanced as aforesaid, -that is to say, the sum of three pence; and that for securing the repayment of the said sum, with interest as aforesaid, Thompson should pledge the said watches with the defendant. It then stated, that in pursuance of the agreement, the watches were deposited and the money advanced, and that the interest agreed to be paid by the defendant exceeded the rate allowed by the act of parliament, whereby the agreement was wholly void. There was a similar replication as to the remainder of the watches in the fourth plea mentioned; and also a similar replication to the fifth plea. The rejoinder took issue on the replications to the fourth and fifth pleas. At the trial before Parke, B., at the Summer Assizes for the county of Northumberland, it appeared that the watches had been deposited by the bankrupt, from time to time, with the defendant, but that no agreement was made as to the time they should remain in pledge: and with regard to the largest quantity of them, that Thompson, at the time of depositing them, said that he should only require them to remain in pledge a month or two. Upon this evidence the counsel for the defendant applied Exch. of Pleas, for a nonsuit, on the ground that the replication was not 1837. NICKISSON v. TROTTER. proved, inasmuch as it alleged the agreement between Thompson and the defendant to be that the latter should forbear and give day of payment of the sums lent to Thompson for a certain time, to wit, until the expiration of one year next after the making of such loan and advancement; whereas the proof was, that no time at all for forbearance was mentioned. The plaintiff's counsel applied to the learned Judge to amend the record pursuant to the provisions of the 3 & 4 Will. 4, c. 42, s. 24, which he did, by inserting in the several replications, after the words" until the expiration of one year next after the making of such loan and advancement," the words "reIdeemable in the mean time." There was evidence that more than 5 per cent. had been received upon the loan. The jury having found a verdict for the plaintiffs, Alexander now moved, pursuant to leave given for that purpose, to enter a nonsuit.-The evidence given did not prove the contract as laid. Instead of being a contract that the defendant should forbear for a year, as alleged, it was proved to be a general advance on the watches. It was nothing like a contract for forbearance for a year, and therefore not within the meaning of the Pawnbrokers' Act, 39 & 40 Geo. 3, c. 99, s. 17. [Parke, B.-Except that it was to be inferred that the watches were deposited with him in his trade of a pawnbroker. Mr. Watson applied to me to amend the replication, and I thought I had power to do so.] The amendment carried the case no farther; for, unless the defendant was also restricted from demanding repayment until the expiration of the year, the variance still remained. [Lord Abinger, C. B.-I think it must be assumed that the deposit was on the terms usual with pawnbrokers, and if so, that is an implied part of the contract. Would not the pawnbroker be liable to penalties in this case?] That depends upon whether it was or was not within the Pawnbrokers' Act; and upon the 1837. NICKISSON face of the replication it did not appear to be within the Exch. of Pleas, act. It ought therefore to have been tried as an ordinary case of usury; and, in such a case, which is a penal action, the Judge ought not to have amended. But, without an amendment, it is clear that the plaintiffs cannot re cover. Lord ABINGER, C. B.-The question for the jury was, whether the parties did not intend to apply all the terms of a pawnbroking contract, with the exception of the amount being beyond 107. PARKE, B.-It is clear the contract was meant to be on the usual terms of a pawnbroker. Until the amendment was made, it was indefinite on both sides, but it is now sufficient. ALDERSON, B.-I think it reasonable to infer that Thompson dealt with the defendant as a pawnbroker. Rule refused. V. TROTTER. LEWIS v. PARKES. DEBT by the assignee of a bail-bond.--The declaration, In an action by after setting forth the writ of summons, the arrest, the execution of the bail-bond, and the breach of it, in not putting in special bail, whereby the bond became forfeited, went on to allege that the sheriff, "at the request of the plaintiff, being the plaintiff' in the said suit, by an indorsement on the said writing obligatory duly made, and sealed with the seal of office of the said sheriff, assigned the said writing obligatory to the said plaintiff, according to the form of the statute in such case made and provided." Special demurrer, assigning for cause that it does not appear in or by the said declaration that the said sheriff an assignee of a bail-bond, the declaration stated that the sheriff, “by an indorsement on the said writing obligatory duly made and seal ed with the seal the said sheriff, assigned the of the officer of said writing obligatory to the said plaintiff, according to the form of the sta tute:"-Held, on special demurrer, that the declaration was good, and that it was not necessary to state in the declaration that the assignment was under the hand of the sheriff, and executed in the presence of two witnesses. |