James v. Cochrane.

and above, why were not the same provisions extended to claimants in ejectment under the 208th section?]

That argument is unanswerable.

The judgment of the court1 was now delivered by –

Cur. adv. vult.

PARKE, B. This is a question whether bail in error is to be given by a plaintiff who is bringing a writ of error to reverse a judgment for the defendant for costs. We think upon the true construction of the 151st section of the Common Law Procedure Act, that it is not meant to alter the law of all the preceding statutes, in which it is invariably the case that statutes requiring the bail in error, do not apply to the case where the plaintiff in error brings the action, and they have adopted, in the conclusion of this section, the words which are applicable only to the case of the defendant below: "No execution is to be stayed unless the party be bound unto the party for whom any judgment is or shall be given by recognizance, to be acknowledged in the same court in double the sum adjudged to be recovered by the said judgment, except in case of a penalty, and in case of a penalty in double the sum really due"-(there the stop ought to have been placed) -" and double the costs." That applies only to the case in which there is judgment for the sum recovered, and also for the costs; "to prosecute the proceedings in error with effect;" that can only be the judgment for the plaintiff; "and also to satisfy and pay (if the said judgment be affirmed or the proceedings in error be discontinued by the plaintiff therein) all and singular the sum or sums of money and costs adjudged or to be adjudged upon the former judgment;" that can only be in the case of the plaintiff where the sum recovered is adjudged to be recovered, and also the costs. That is applicable to the case of the defendant. We think that although the commencement of the section is general, "any judgment hereafter to be given," the context shows that it is only to be applied to some cases in which the statutes requiring bail in error are provided for. The rule, therefore, will be absolute to set aside the fieri facias. I may observe that Mr. Wise, in his work on the Common Law Procedure Act, observing upon this section, says, that in his opinion it is not to be construed as extending to the plaintiff in writs of error at all. I concur in that opinion. There will be no costs, because there was sufficient doubt about it to make it right to apply to the court.

Rule absolute, without costs.

1 PARKE, B., ALDERSON, B., PLATT, B., and MARTIN, B.

45*

Bracegirdle v. Hincks.

BRACEGIRDLE v. HINCKS.

January 27, 1854.

Debt Carriage of Goods.

An action of debt is not maintainable upon an agreement that the defendant would carry certain goods for the plaintiff, in consideration that the plaintiff would carry a like quantity for the defendant.

THE declaration stated that the defendant was indebted to the plaintiff for the carriage of timber, and upon an account stated. Plea- Never indebted.

At the trial, before the under-sheriff of Middlesex, it appeared that there had been an agreement between the plaintiff and the defendant, that the plaintiff would carry a certain quantity of timber from Alston to Derby for the defendant, and that the defendant would carry a certain quantity of timber from another place to Derby for the plaintiff. The plaintiff carried the timber for the defendant, but the defendant not having performed his part of the agreement this action was brought. It being objected that the plaintiff could not recover, because no promise to pay in money was proved, a verdict was found for the plaintiff, and leave reserved to move to enter a nonsuit.

J. Addison obtained a rule accordingly, and cited Harrison v. Luke, 14 Mee. & W. 139.

Lush now showed cause. The defendant has broken his contract, and the plaintiff is entitled to be paid for the value of the work done. There is no authority that the claim is not recoverable in the present form. In Harrison v. Luke, a contract for the exchange of goods was held not to support a count for goods sold, but an exchange is altogether different from a sale.

Addison was not called on to support the rule.

PARKE, B. The defendant never was indebted to the plaintiff for money, and the action is not maintainable. It is the same in principle as the case cited of a contract of exchange.

POLLOCK, C. B., ALDERSON, B., and MARTIN, B., concurred.

Rule absolute.

123 Law J. Rep. (N. s.) Exch. 128; 18 Jur. 70; 9 Exch. Rep. 361.

Figg v. Wilkinson.

COUNTY COURT APPEAL.

FIGG, Appellant, v. WILKINSON, Respondent.1

January 11, 1854.

County Court Appeal― Signing and Sealing Case - Assent of Party to signing Nunc pro Tunc.

A county court judge, after settling a draft case for an appeal, signed it on the understanding that the plaintiff was to furnish to the defendant, the appellant, a copy of a certain document, which was to be set out in the case, and that then the judge would sign the fair copy of the case. The draft case was also sealed with the seal of the county court. Three days afterwards the plaintiff sent the document to the defendant, who immediately inserted it in the case and sent two copies of the complete case to the rule office of this court within three days from the day that he had got the document and perfected the case, but more than three days after the draft case had been signed. The judge, when applied to, refused to sign the fair case, thinking that he had no power to do so, and the appellant thereupon entered the draft case signed by the judge, with the document appended to it, as the case to be heard on appeal. The respondent contended that the court had no jurisdiction to hear the appeal, on the ground that if the draft case were considered the case the copies had not been sent to the rule office within three days, pursuant to rule 163 of the New County Court Rules, and that there was no signed case at all unless the signed draft case were the case:

Held, that, as the respondent had assented to the judge's signing the draft case provisionally, the case as against him was not to be considered as signed and sealed until the day on which the document was inserted; and that, as on that view the service of the copies was in due time, the court had jurisdiction to hear the appeal.

A MOTION was made last term in this case, which was a county court appeal, to strike it out on the ground that this court had no jurisdiction to entertain it.

The defendant, Figg, appealed against the decision of the judge in favor of the plaintiff, Wilkinson, in an action for breach of warranty of a horse, and on the 1st of July presented to the judge a draft case for him to settle. The parties not agreeing in their statement, the judge then settled it, but directed that a copy of a certain document in the plaintiff's possession should be set out in it; and he then signed the draft case, and it was then sealed with the seal of the court, on the understanding that the plaintiff should furnish the defendant with a copy of the document, that it should be inserted in the case, and that after that had been done the judge should sign a fair copy of the whole case, which he promised to do. It was not until the 4th of July that the plaintiff furnished the defendant with the document required. The latter prepared the case immediately, inserting the document, and a copy of it was deposited with the clerk of the county court on the 4th of July. In a day or two after the defendant presented it again to the judge for signature, according to the arrangement. The latter, however, then refused to sign it,

1 23 Law J. Rep. (N. s.) Exch. 129; 9 Exchequer Rep. 475. Before POLLOCK, C. B., PARKE, B., ALDERSON, B., and MARTIN, B.

Figg v. Wilkinson.

saying that whatever he might have proposed to do before, he then considered himself functus officio by having signed the draft case. The defendant thereupon entered the draft case already signed, with the document appended to it, (which bore the seal of the county court when produced in court,) as the case for the appeal. Two copies of the case containing the document were transmitted to the rule office of the court on the 6th of July.

The case was argued on the 14th of November, 1853, and the court expressed an opinion that the county court judge ought to have signed the perfect case, and the rule was enlarged to give time for an application to him to sign the case, which it was presumed that he would do, according to the intimation from the court. The motion now, however, came on again for argument before the court, as the county court judge, notwithstanding the direction of this court, had still declined to sign any other case.

Bramwell showed cause. The objection is, that two copies of the case were not transmitted to the rule office within three days after the case was signed, pursuant to rule 163 of the New County Court Rules of Practice. It is true that the copies were not sent within three days from the time the case was signed if the 1st of July is to be counted as the day on which the judge's signature was affixed; but they were sent in due time if the time runs from the 4th of July, the day on which the case was completed by the insertion of the document.

[PARKE, B. The case is to be settled by the county court judge. He did not settle it on the 1st of July. He left a blank to be filled up.]

Yes, there was no case at all until that blank was filled up. The judge only signed it provisionally. It was not, in substance, signed and sealed until the 4th of July.

Cripps. The case ought to be struck out. The rules of practice are as obligatory as an act of parliament. Rule 163 was not complied with, for two copies of the case were not sent to the office within three days after the judge's signing it, for it was signed on the 1st, and the copies not transmitted until the 6th of July.

[PARKE, B. The judge signed it on the 1st, de bene esse, with the understanding that it was not to be a complete case until the document was added.]

The case was either signed on the 1st of July, or there was no signed case at all. On either view the court has no jurisdiction to hear the appeal.

POLLOCK, C. B. I am of opinion that this rule must be discharged, with costs; and the more especially so as the rule was moved with costs. Mr. Cripps tries to put the other side on the horns of a

1 See the report, ante p. 411.

Metzner v. Bolton.

dilemma, for he says that the case either was signed on the 1st of July, or was not signed at all. But that is not the only way of looking at the facts. No doubt the judge signed the case manually on the 1st of July, but he did so with a perfect understanding, to which the plaintiff was a party, that there remained something to be done, and that until that was done the signing and sealing were not to be considered complete. What was to be done was the insertion of the document, and that was not done until the 4th of July. The ground on which I think the rule ought to be discharged is, that the plaintiff was a party to the whole proceeding. He consented to the matter standing over until the document was inserted. He impliedly consented, therefore, to all that was necessary to give effect to what was apparently the intention of the parties at the time. For this reason it appears to me that it is not in accordance with a right view of the transaction that the plaintiff should be permitted to make this objection.

PARKE, B. I think that the plaintiff in this case, by the course which he took, has admitted that the case was not to be considered as complete until the 4th of July, and he agreed that the signature was not to operate until the case was complete. If so, all the proceedings were in time.

ALDERSON, B., concurred.

MARTIN, B. I am of the same opinion. What the judge did in signing the case was merely signing it de bene esse until it was perfected by the insertion of the document. That document passed through the hands of the court and has the seal of the court on it. The case appears to have been perfected on the 4th of July.

Rule discharged.

METZNER V. BOLTON.2

January 17, 1854.

Amendment Variance — Contract, Statement of — Usage of Trade.

The declaration stated that the plaintiff entered into the service of the defendant as a com mercial traveller at a yearly salary, and that the defendant agreed to continue him in his employ for a whole year, and then alleged that the defendant discharged him. It was proved that there was a usage in the trade that commercial travellers should be dismissed with a three months' notice:

1 The court, on a subsequent day, heard the appeal, and directed a nonsuit to be entered in the cause.

2 23 Law J. Rep. (N. s.) Exch. 130; 9 Exch. Rep. 518.