on or before the 3d of May, 1830, or within one month after the decease of the testator, whichever period should first and next happen, together with interest for the same, at the rate of £5 per cent. in the mean time. That final judgment was signed in this cause for want of a plea, on the 20th of December last, which was set aside for irregularity in the last Term, and that a rule to that effect was accordingly obtained, which also ordered, that the defendants should have a week's time to plead. That in pursuance of such rule the defendants pleaded, first, plene administraverunt, and secondly, a judgment recovered, which were duly filed; but that the latter plea having been signed by Counsel instead of a Serjeant, the plaintiff treated it as a nullity, and signed judgment on the 13th of February, as of Hilary Term last, on which he issued execution, and levied on the goods of the defendants. That no rule to plead was given in Hilary Term last, nor any demand of plea made before the signing of the final judgment. The learned Serjeant founded his motion on three objections: First, that a suggestion was necessary, as the bond was within the statute 8 & 9 Will. 3. c. 11, s. 8. Secondly, that a rule to plead ought to have been entered in Hilary Term; and lastly, that a plea should have been demanded before the judgment was signed. Mr. Serjt, Copley now shewed cause on an affidavit which stated, that the declaration in this cause was delivered on the 22d of November last, and that on the same day, a rule to plead was duly entered. That on the 8th of December, the defendants obtained a Judge's order for ten day's time to plead after delivery of the particulars of the plaintiff's demand. That the particulars were delivered on the 9th of December, and final judgment for want of a plea was signed on the 20th. That on the 7th of January, Mr. Justice Park made an 1818. CARDOZO V. HARDY and another. order, that all proceedings on the judgment should be stayed till the next Hilary Term, on the first day of which the defendants obtained a rule nisi, that the judgment should be set aside for irregularity; and that on the 4th of February following, it was accordingly set aside, the defendants undertaking to plead within a week from that day, and that in case a verdict should be found for the plaintiff, he might be at liberty to enter up final judgment as of that Hilary Term. That on the 7th of February, the defendants confessed a judgment in an action against them as executors, at the suit of one Mary Taylor, (the mother of one of the defendants) in the Court of King's Bench, by pleading plene administraverunt to such action, except as to £215. That on the 11th of February, the defendants pleaded plene administraverunt, and the judgment so confessed by them in favor of Taylor, in bar to this action; but that the latter plea not having been signed by a Serjeant, final judgment was signed on the 13th. As to the first objection, the learned Serjeant contended, that a suggestion was unnecessary, as the instru ment in question was in the nature of a post obit bond; and that in Wardell v. Fermor (a), where there was a suggestion under the statute, in an action of debt on a similar instrument, it was considered quite superfluous; and as to the second and third, he submitted, that as the defendants had obtained time to plead on a Judge's order, a rule to plead was unnecessary (6); and that the same rule was applicable to the demand of a plea, and he referred to the cases of Baker v. Hall (c), and King v. Taylor (d). The plaintiff, therefore, has been guilty of no irregularity, and as there was no signature of a Serjeant to the latter (a) 2 Camp. 282. 219.- (b) See Impey's C. P. 6th edit. (d) Impey's C. P. 6th of the defendant's plea, the judgment was properly signed. Mr. Serjt. Vaughan, in support of the rule, insisted, that a suggestion was necessary, as this was not a post obit bond, as it was conditioned for payment, either on the 3d of May, 1830, or within one month after the decease of the obligor. Besides there was nothing on the record to shew that he was dead, and it was not only necessary to be averred, but proved. In Wardell v. Fermor, the bond was payable on one event, namely, the death of the party; but here, in case he survived till May 1830, it would be payable at all events. Even although a rule to plead was unnecessary, still a demand of plea was absolutely requisite. But, Per Curiam. This is not like the case of an annuity, which ceases after the death of the party. Here, the condition of the bond was to pay a certain sum within one month after the decease of the obligor. It was unnecessary to suggest his death on the record. The defendants had not pleaded in time, but afterwards confessed a judgment against them as executors. They therefore became parties to the record as such. This judgment too, was confessed after time to plead had been given, and it is quite clear that under the circumstances, neither a rule to plead as of Hilary Term, nor a demand of plea was at all necessary. Rule discharged with costs. 1818. CARDOZO บ. HARDY and another. 1818. Wednesday. By charter party it was covenanted that the owner should take on board a cargo of mahogany at Honduras, and carry the same from thence to GIBBON . YOUNG. THE plaintiff declared, that by a charter-party dated the 1st of April, 1816, and made between the himself, part owner of the ship Fortune, then lying at Aberdeen, and bound for Cork, of the one part, and the defendant as freighter of the other part; it was witnessed, that the plaintiff, as such owner, for the considerations thereinafter mentioned, reserving to himself the liberty of loading the ship at Cork, with a cargo for Barbadoes, on ship's Norfolk, in account, did thereby covenant with the defendant as Virginia; and there make freighter, that the commander, or some other proper pera true delivery son in his stead, should set sail with all convenient speed, and proceed direct to Cork, thence for Barbadoes, and thence for the Bay of Honduras, with liberty to call at Kingston, Jamaica, on her way to Honduras, and there to er covenanted load such goods as might offer for Honduras, on freight, on to pay freight for the same ship's account, and that on the ship's arrival at Honduras, on such true the commander should give notice thereof to the agents of the freighter, and take on board from them at any port of the cargo agreeably to bills of lading; and the freight delivery at the rate of £3. 8s. per ton, of four hundred superficial feet, freight measurement. In an action of covenant for non-payment of freight, the defendant pleaded, 1st. That by the usage of the Honduras trade, an account for the freight of the cargo called a freight measurement, should be produced to the freighter by the owner or master on receiving the cargo, before the freight is payable; and that no such account was delivered by the plaintiff to the defendant, of the cargo in question: and 2dly. That it was the duty of the plaintiff to deliver a freight measurement of the cargo, and that he had not done so. On demurrer, Held, that both these pleas were bad, as the supposed condition precedent of delivering an account of the freight measurement could not be added to the charter-party, and as the usage might have been admitted in evidence at the trial, to explain the terms on which such measurement was to be made. of loading in the said bay, a full and complete cargo of mahogany, together with a sufficient quantity of dye-wood, to fill up the broken stowage, and having received the same on board, and being dispatched, should immediately set sail therewith, and proceed to Norfolk in the state of Virginia, and being arrived there, give notice to the agents of the freighter, and make a true delivery of the cargo in the usual and customary manner, and agreeably to bills of lading, which the commander should sign for the same; and that thereupon he should take on board there from the agents of the freighter, a full and complete cargo of lumber, and being dispatched therewith, should proceed direct to the Bay of Honduras, and there make a right and true delivery of the cargo, freight free, and agreeably to bills of lading, and then take on board from the agents of the freighter a full and complete cargo of mahogany, together with a sufficient quantity of dye-wood to fill up the broken stowage, and being dispatched therewith should set sail and proceed to the port of London, and being arrived there, give notice thereof to the freighter, and make a right and true delivery of the cargo agreeably to bills of lading, and there end the voyage. Then followed covenants by the plaintiff to allow the defendant lay days at Honduras, for the purpose of loading the mahogany, and running days from thence to Norfolk and back.-In consideration whereof, the defendant as freighter covenanted to load and unload the ship in the manner and within the periods limited, and that he would well and truly pay or cause to be paid to the plaintiff freight for the said two cargoes of mahogany and dye-wood as follows: that is to say, for the first of the said cargoes to be discharged at Norfolk, at the rate of £3. 8s. sterling per ton, of four hundred and eighty superficial feet, freight measurement, and for dyewood at the rate of £1. 14s. per ton, of twenty hundred 1818. GIBBON v. YOUNG. |