Bragg v Batt

• Jurisdiction: Ireland
• Judgment Date: 21 November 1849
• Date: 21 November 1849
• Court: Court of Exchequer Chamber (Ireland)

Exch. Chamber.

BRAGG

and

BATT.

Webster v. Crouch 2 Ex. Rep. 555.

Rex v. Horne Cowp. 672.

Coles v. HulmeENR 8 B. & C. 573.

Stephenson v. Hardy 3 Wils. 388.

Marriott v. Lister 2 Wls. 141.

Lesenbery v. EvansUNK 3 Scott, N. R. 476.

Hickinbotham v. LeachENR 10 M. & W. 361.

Barker . ThoroldENR 1 Wms. Saund. 48.

Frost v. LioydUNK 11 Jur. 59.

Woodcock v. Cole Sid. 215.

Jowett v. SpencerENR 15 M. & W. 667.

Burgess v. Beaumont 7 M. & Gr. 962.

Whitmore v. WilksENR 3 C. & P. 364.

Hulme v. SaundersENR 2 Lev. 4.

Clothworthy v. ClothworthyENR Cro. Car. 436.

Heyford v. Hobson Stylesƒ€™ R. 136.

Cryps v. Baynton 3 Buls. 31.

Church v. BrownewickENR 1 Sid. 334.

Higgins v. WisemanENR carth. 110.

Cornwallis v. Savery 2 Bur. 772.

Shum v. FarringtonENR 1 Bos. & Pul. 640.

Barton v. WebbENR 8 T. R. 459.

Calvert v. GordonENR 7 B. & C. 809.

Gale v. ReedENR 8 East, 85.

Craig v. Byrne 7 Ir. Law Rep. 500.

Lord Arlington v. MerrickeENR 2 Wms. Saund. 410.

Rolte v. SharpENR Cro. Car. 77.

480 CASES AT LAW. M. T. 1849. Exch. Chain. ercbtqurr ebambtr. BRAGG v. BATT.* (Error from the Court of Queen's Bench.) Nov. 14, 21. A count in a declaration stated that in consideration that the plainÂtiff would adÂvance money for the expenÂses of a pier, the defendant undertook and ASSUMPSIT, on the following undertaking :- " Belfast, 1st November 1843. "TO THE DIRECTORS OF THE BELFAST BANKING COMPANY. " GENTLEMEN.-In consideration of your advancing money for "the expenses of the Whitehouse pier, Whitehouse, we jointly and " severally bind ourselves to see you paid the same with interest, promised the " when called on plaintiff to pay so to do. the advances with interest (Signed) " J. R. R. when called on " H. B. and Son." so to do ; it then averred The declaration contained two special counts and the consoliÂthe making of the advances dated money count. by the plain tiff, and a re- The first count stated that the plaintiff, who had been duly nomiÂquest of the defendant to nated and appointed and now is one of the public officers of certain pay the same, and concluded persons in co-partnership, and carrying on the trade and business of with a breach, "but the de- bankers in Ireland, under the name of the Belfast Banking ComÂfondant hath not, although pang, under and by virtue of the provisions of the statute in that so requested, paid the said case made and provided, by, &c., complained of Henry Bragg, the sum of £433 f deendant in this action, trading under the style and firm of Henry or any part thereof, but Bragg and son, Sze., of a plea of trespass on the case upon promises. bath hitherto wholly neglec- For that whereas heretofore, to wit, on the 1st of November 1843, ted and refused so to do, to wit, at &c.; of all which said premises the defendant, to wit, on &c., had notice ; and the defendant, not regarding his said promise, hath not as yet paid the said plaintiff the said sum or any part thereof," &c., and the said sum still remains due and unpaid. Heal, on demurrer, that the count was sufficiently certain, and that it charged an original liability on the defendant, there appearing nothing in it to infer a promise to answer for the debt of a third person. CRAMPTON, J., and JACRSON, J., dissentecntibus. * Absceitibus TORRENS, J., PENNE FATHER, B., and RICHARDS, B. CASES AT LAW. 481 at &c., in consideration of the Belfast Banking Company at the request of the said defendant advancing money for the expenses of the Whitehouse pier, Whitehouse, the said defendant then and there bound himself to sec the said Belfast Banking Company paid the sums advanced, with interest, when called on so to do. And the plaintiff avers that the said Belfast Banking Company, confiding in the said undertaking and promise of the said defendant, did afterÂwards, to wit on the 2nd November 1843, and on divers other days, between that day and the 1st day of April in the year of our Lord 1848, to wit, at &c., advance money for the expenses of the said Whitehouse pier, Whitehouse, to wit the sum of £433. Os. 2d., and although the said Belfast Banking Company afterwards, to wit, on &c., requested the said defendant to pay them or see them paid the said sum of £433. Os. 2d., so advanced as aforesaid, yet the said defendant hath not, although so requested, paid, or seen the said Belfast Banking Company paid, the said sum of £433. Os. 2d. or any part thereof, but hath hitherto wholly neglected and reÂfused so to do, and still neglects and refuses so to do, to wit, at &c. The second count averred that on &c., at &c., in consideration that the said Belfast Banking Company, at the request of the said defendant, would advance money for the expenses of the WhiteÂhouse pier, Whitehouse, the said defendant then and there promised and undertook to pay the said Belfast Banking Company the money so advanced by them, with interest for the same, when called on so to do ; and that the said Belfast Banking Company, confiding in the said last mentioned promise and undertaking of the defendant, did afterwards, to wit, on the 2nd of November 1843, and on divers other days, between that day and the 1st day of April, in the year of our Lord 1848, to wit, at &c., advance money for the expenses of the said Whitehouse pier, Whitehouse, to wit, the sum of £433. Os. 2d. ; and although the said Belfast Banking Company afterÂwards, to wit, on &c., at &c., requested the said defendant to pay them the said last mentioned sum of money so advanced as aforesaid, yet the said defendant bath not, although so requested, paid the said Belfast Banking Company the said last mentioned sum of £433. Os. 2d., or any part thereof, but bath hitherto wholly neglected and 482 CASES AT LAW. M. T. 1849. refused so to do, to wit, at &c.; of all which said premises the said Exch. Cham. defendant, to wit, on &c., at &c., then had notice; and the said de BRAGG fendant, not regarding his said last mentioned promise, bath not V. BATT. as yet paid the said Belfast Banking Company the said last menÂtioned sum of £433. Os. 2d. or any part thereof, although he was requested, on the day and year, and at the place last aforesaid, so to do, but bath hitherto wholly neglected and refused, and still wholly neglects and refuses so to do ; and the said last mentioned sum of £433. Os. 2d. still remains wholly due and unpaid to the said Belfast Banking Company, to wit, at the place aforesaid. Third count-the money counts. The defendant joined issue on the money counts, and demurred specially to the first and second counts, assigning as cause First.-That it was not stated in the first or second counts, what were the sums advanced, which it was alleged the defendant bound himself to see paid to the said Belfast Banking Company, or for what purpose, or to whom said sums were so advanced, or whether said sums were advanced previous to or at the time of making the contracts or either of them by the defendant, in said first and second counts mentioned, or were afterwards to be advanced ; and because it did not appear by either of said counts to whom the expenses therein mentioned were to be advanced by the Banking Company ; and because it was not stated in what manner, or whether by deed or parol, the defendant bound himself to see the Company paid the sums advanced. Secondly.-Because the promises in the first and second counts mentioned were not, nor was either of them, co-extensive with the consideration of the promises, or either of them, in first and second counts mentioned ; and because it was not stated to whom or to whose use the said sums or any part thereof were or was advanced, or to whom the said Whitehouse pier, Whitehouse, belonged, or who was the owner thereof when said moneys were so advanced, or wheÂther said pier belonged to the same person or persons at the time said contracts were made, or when said sums were advanced, or whether it belonged to the Banking Company or not at the respective times aforesaid, CASES AT LAW. 483 the said Banking Company...