Division in Ireland restored; the respondents to pay to the appellants the costs both in this House and below, and also to repay to the appellants the costs paid to them by the appellants; cause remitted to the Queen's Bench (late Common Pleas) Division in Ireland.

Lords' Journals March 19th, 1888.'

1 The concurring opinions of Lords Herschell and Watson have been omitted.-ED.

CHAPTER V.

CONTRACTS PERFORMABLE IN THE ALTER.

NATIVE.

LAYTON v. PEARCE.

IN THE KING'S BENCH, MICHAELMAS TERM, 1778.

[Reported in x Douglas 15.]

By the Lottery Act of 1777 (17 Geo. 3, ch. 46) a penalty of £500 was given to be recovered in a qui tam action against any person who should receive any money whatsoever in consideration of repayment of any sum or sums of money, in case any ticket or tickets in the said lottery should prove fortunate, or in case of any chance or event relating to the drawing of any ticket or tickets in the said lottery, either as to the time of such ticket or tickets being drawn, or whether such ticket or tickets should be drawn fortunate or unfortunate." This was an action upon that statute against a lottery office keeper. The declaration contained three counts. The first stated that the defendant had received £1 6s. from one Robert Griffin, in consideration of repaying the value of an undrawn ticket if the above number should be drawn on the ensuing day. The second, that he had for the like sum and in the like event undertaken to deliver an undrawn ticket. The third only differed from the first, in stating the stipulation to have been to pay a precise sum (of £20) on the like event, and in following more accurately the words of the statute. The agreement proved at the trial was in the alternative-viz., that Griffin had paid to the defendant £1 6s. on condition that if the ticket No. 37,733 in the lottery then drawing should come up, either a blank or prize on the ensuing day, he (the defendant) would either deliver to Griffin an undrawn ticket or pay him £20. He had not, in fact, done the one thing or the other. The cause was tried before Lord Mansfield, at Guildhall, and, a verdict having been found for the plaintiff, Dunning moved for a rule to show cause why it should not be set aside, and a nonsuit entered. 1. Because the agreement proved did not

correspond with that stated in any one of the three counts in the declaration. 2. Because the agreement as proved would not maintain the action, for that, being optional, it was not within the provisions of the statute.

The rule was granted, and the Solicitor General and Lane showed cause.

Dunning and Davenport on the other side.

LORD MANSFIELD. We are of opinion that, if the option had been in the insured, and if he had made his election to take the £20, the contract would have been sufficiently stated, because he would thereby have converted the agreement into an absolute contract for the payment of money, and then the other part of the alternative in the original bargain would become surplusage. In an action on the statute of 2 Geo. 2; ch. 24, against bribery, the act of bribery laid was the corrupting a voter to give his vote for Mr. Lockyer and the Earl of Egmont, and the evidence was, that the contract was to vote for Mr. Lockyer and his friend. The Court held that by that part of the transaction by which the voter was corrupted to vote for Mr. Lockyer, the offence was complete, and that the rest was surplusage and needed not to be proved. But though the prac tice may be that the insured shall have the option in point of law, the person who is to perform one of two things in the alternative has the right to elect. This has been established by

a variety of cases. The present action, therefore, cannot be supported.

Judgment of nonsuit.

PLOWMAN & MCLANE v. RIDDLE.

IN THE SUPREME COURT OF ALABAMA, JANUARY TERM, 1845.

[Reported in 7 Alabama 775.]

ERROR to the County Court of Talladega.

Assumpsit by the defendant against the plaintiffs in error. The plaintiff declared on a promissory note for $300.

McLane appeared and pleaded non assumpsit, failure of consideration, want of consideration, payment, set-off, and a special plea, that by the note it was provided that it might be discharged in good leather, one third in sole leather, at 30 cents per pound, one third in skirting and harness leather, at 371⁄2 cents per pound, and the other third in upper leather, priced in proportion to the sole and harness leather, and averred, that at the

maturity of the note, he and the said Plowman were ready at their tan yard, and had a sufficient quantity of the kinds of leather mentioned in the note, to have discharged it according to its terms, and have ever since had at their tan yard a sufficient quantity of the kinds of leather mentioned in the note, to have discharged it according to its terms, and that he was, at the maturity of the note, and has ever since been, ready and willing to discharge the note according to its terms.

The plaintiff took issue upon the second, third, fourth, and fifth pleas. To the first he replied that Plowman & McLane did assume, in manner and form, as in the declaration is alleged, and this he is ready to verify.

To this replication the defendant, McLane, rejoined that he did not assume, in manner and form as the plaintiff in his declaration, and in his replication had alleged, etc.

The plaintiff demurred to this rejoinder, and also to the sixth plea, which were both sustained by the Court.

Upon the trial upon the issues the plaintiff read his note as follows:

"On or before December 25th, 1843, we promise to pay Alexander Riddle or bearer the sum of $300, which may be discharged in good leather, one third in sole leather at 30 cents per pound, one third in harness or skirting leather, at 374 cents per pound, and the other third in upper leather, price in proportion to the sole and harness leather, value received, this February 18th, 1842.

"PLOWMAN & MCLANE."

The defendant proved a dissolution in the summer of 1843, and a notice of such dissolution to the plaintiff, and by a witness offered to prove all the facts alleged in the sixth plea, but on the plaintiff's motion the Court excluded the testimony and the defendant excepted. After the opening argument, and while the defendant's counsel was speaking the Court permitted the plaintiff to take a judgment by default against Plowman, to which the defendant objected, and moved the Court for a discontinuance, which was overruled and to which the defendant excepted.

These matters are separately assigned for error by both defendants.

Rice for plaintiff in error.

L. E. Parsons, contra.

ORMOND, J. The last plea sets up as defence to the action a condition of the contract that the sum of money for which it was made "may be discharged in good leather; one third in

sole leather at 30 cents per pound, one third in harness or skirting leather, at 37 cents per pound, and the residue in upper leather priced in the same proportion," and averred a readiness. and willingness to deliver the leather at the maturity of the

note.

In the case of McMurray v. The State, 6 Ala. Rep. 324, this Court considered, at some length, the law arising upon contracts to deliver ponderous articles, and it was held that upon a contract to deliver plank upon a day certain, it would be a defence to the action, if the defendant was ready, and willing to deliver at the time agreed upon in the contract. See also Thaxton v. Edwards, 1 Stewart, 524.

The defendant appears to have considered this contract, as in legal effect, a promise to deliver leather of the kinds specified to the value of $300, at a particular time, but that is clearly not the contract of the parties, which is to pay $300 at a particular time with a condition superadded, giving them the privilege of discharging it in leather at a specified price. This is clearly for their benefit, and it was their duty, if they elected to deliver the leather in discharge of their contract, to give notice to the plaintiff of their readiness and willingness to do so. Having omitted to do so, their contract to pay the money has become absolute, and they cannot, when sued for the money, defeat the action by proving the existence of a fact which was peculiarly within their own knowledge.

The injustice of this defence will be apparent when it is considered that the defendants were under no obligation to deliver the leather, and if it had risen in price, doubtless would not have delivered it, but would have paid the money; being then a condition inserted for their benefit, it was necessary that they should have given notice of their election to pay in leather. McRae v. Raser, 9 Porter, 122; Stewart v. Donnelly, 4 Yerger, 177; Church v. Feteran, 2 Penn. 301; Erwin v. Cook, 2 Dev. 183. From this examination it appears that the plea was bad, in not averring notice of an election to discharge the obligation in leather.

The defendant, McLane, had the undoubted right to plead separately, and having pleaded the general issue, the plaintiff replied to it that he did promise and assume in connection with Plowman, his then partner. To this the defendant rejoined that he did not assume, etc., reiterating his first plea, to which there was a demurrer, which the Court sustained. In this the Court undoubtedly erred. He had the clear right to plead separately, as was held by this Court in Beal v. Snedicor, 8 Porter, 523. We do not indeed perceive that the rejoinder