IX. PRAYER FOR require. May it please your Lordship to grant unto your Orator Her Majesty's most gracious writ of subpoena to be directed to the said S. D., thereby commanding him at a certain day, and under a certain pain therein to be limited, personally to be and appear before your Lordship in this honourable court, and then and there full, true, direct, and perfect ANSWER make to all and singular the premises, and further to stand to perform and abide such further order, direction, and decree therein as to your Lordship shall seem meet. And your Orator shall ever pray, &c. SPENCER HORATIO WALPOLE.† [To illustrate the distinction between a Bill in Equity and a Declaration at Law, here follows a DECLARATION in SPECIAL ASSUMPSIT by a Vendor of an Estate in fee, sold by Public Auction, against the Purchaser, for DAMAGES for not completing the Purchase, and for not paying the Loss incurred on a subsequent re-sale of the Property. IN THE QUEEN'S BENCH. On the 1st day of May 1845. MIDDLESEX TO WIT.-Stephen Dreddlington (the plaintiff in this suit, by Arthur Runnington, his attorney,) complains of Henry Annesley (the defendant in this suit), who has been summoned to answer the said plaintiff in an action on promises. FOR THAT WHEREAS the plaintiff heretofore, to wit, on the 1st day of April in the year of our Lord 1845, by one Peter Winstanley, his auctioneer and agent in that behalf, caused to be put up and exposed to sale by public auction, a certain messuage, orchard, garden, and premises, with the appurtenances, situate and being in the parish of Yatton in the county of York, [here describe the premises shortly from the particulars of sale,] upon and subject to the following amongst other * In America-"The most gracious Writ of Subpoena of the State of -,” or, “ of the U. S. of America.” +i. e. the counsel drawing the Bill. From Chitty on Pleading, vol. ii. pp. 179 et seq. (6th ed.) 1836. conditions of sale, [here are to be set out such parts of the conditions as have immediate reference to the cause of action and the breach,] that is to say, that the highest bidder should be the purchaser; that the purchaser should immediately pay down into the hands of the auctioneer, that is to say, the said Peter Winstanley, five per cent. in part of the purchase-money, and enter into an agreement for payment of the residue of the said purchase-money on the 15th day of April then next ensuing, at which time he should have possession of the premises on having a good title, and that the auction duty payable to Government should be paid and borne by the vendor and purchaser in equal shares, and the purchaser should pay down his share thereof to the auctioneer at the time of sale; and that in case the purchaser should fail to comply with the said conditions the deposit money should be forfeited, and the vendor be at liberty to resell the said tenements with the appurtenances, and the deficiency, if any, together with all charges, should be make good by the defaulter, as by the said conditions of sale (reference being thereunto had) will amongst other things more fully and at large appear. And the plaintiff saith, that on the said exposure to sale, to wit, on the 1st day of April in the year aforesaid, the defendant was the highest bidder for and then became and was in due manner declared to be the purchaser of the said messuage, orchard, garden, and premises, with the appurtenances as aforesaid, at and for a certain large sum of money, to wit, the sum of £90,000. And thereupon afterwards, to wit, on the said day and year last aforesaid, in CONSIDERATION THEREOF, and that the plaintiff at the request of the defendant had then promised the defendant to perform and fulfil all things in the said conditions of sale contained on the part of the vendor to be performed and fulfilled, he the defendant then PROMISED the plaintiff to perform and fulfil every thing in the said conditions of sale on his part as such purchaser to be performed and fulfilled. And ALTHOUGH the defendant in part performance of the said terms and conditions of sale and of his said promise did then pay down a certain sum of money, to wit, the sum of £4,500, being at and after the rate of £5 per cent. as a deposit upon, and in part payment of, the said purchase-money, and did then APPENDIX. sign an agreement for the payment of the remainder of the said purchase-money on or before the said 15th day of April in the year aforesaid on having a good title, and although the plaintiff for a long time before, and upon and after the said 15th day of April in the year last aforesaid, was ready and willing to make and did make to the defendant a good and sufficient title in fee-simple of, appear in, and to the said tenements, with the appurtenances, so as to enable him the plaintiff to convey the same to the defendant in fee-simple as aforesaid, and to execute and cause to be executed proper conveyances thereof to the defendant, and afterwards, to wit, on the day and year last aforesaid, offered to the defendant to make and convey to him such good and sufficient title in fee-simple to the said tenements, with the appurtenances, upon payment of the remainder of the said purchase-money according to the said terms and conditions of sale, YET the defendant, not regarding the said aforesaid, terms and conditions of sale, nor his said promise, did not, nor year would on or before the said 15th day of April in the on having such good title as aforesaid, or at any other time, pay or cause to be paid to the plaintiff the remainder of the said purchase-money or any part thereof, but then wholly neglected and refused so to do, and wholly refused then or at any other time to complete the said purchase, or to accept a conveyance of the said tenements, with the appurtenances, to him the defendant. And thereupon the plaintiff afterwards, and after the said 15th day of April in the year last aforesaid, to wit, on the 28th day of April in the year of our Lord aforesaid, the day of re-sale or about, according to and by virtue of the said conditions of sale, again exposed the said tenements, with the appurtenances, to sale by public auction under and subject to certain terms and conditions of sale, and the same were then, at such last-mentioned exposure to sale as aforesaid, re-sold for a much less price or sum of money than the said price or sum same had been so sold to the defendant as for which the aforesaid, to wit, for the sum of £80,000, whereby there then was a deficiency between the said price for which the said tenements, with the appurtenances, were so sold to the defendant as aforesaid, and the said price for which the same were so sold on such respects this Defendant submits to act as the Court shall direct upon being indemnified and paid her costs of this suit; And DENIES all and all manner of unlawful combination and confederacy wherewith she is by the said Bill charged, without this that there is any other matter, cause, or thing in the said Complainant's said Bill of Complaint contained material or necessary for this Defendant to make answer unto, and not herein and hereby well and sufficiently answered, confessed, traversed, and avoided or denied, is true to the knowledge or belief of this defendant, all which matters and things this Defendant is ready and willing to aver, maintain, and prove as this Honourable Court shall direct, and humbly prays to be hence dismissed with her reasonable costs and charges in this behalf most wrongfully sustained. THOMAS TURNER.* (III.) A DEMURRER FOR MULTIFARIOUSNESS. + IN CHANCERY. The Demurrer of Jacob Johnson (Defendant) to the Bill of Complaint of Timothy Snooks. This Defendant by protestation not confessing or acknowledging all or any of the matters and things in the said Complainant's Bill contained to be true, in such manner and form as the same are therein and thereby set forth and alleged, doth DEMUR to the said Bill, and for cause of demurrer sheweth, that it appears by the said Bill that the same is exhibited against this Defendant and J. H., J. C., T. S., and W. T., for several and distinct matters and causes, in many whereof as appears by the said Bill this Defendant is not in any manner interested or concerned, by reason of which distinct matters the said Plaintiff's said bill is drawn out to a considerable length, and this Defendant is compelled to take a copy of the whole thereof, and by joining distinct matters together which do not depend on each other in the said Bill, the pleadings, orders, and proceedings will in the progress of the + 2 Van Heyth. Eq. Dr. p. 79. Counsel's signature. said suit become and be intricate and prolix, and this Defendant put to unnecessary charges in taking copies of the same, although several parts thereof no way relate to or concern him, for which reason and for divers other errors appearing in this said Bill this Defendant doth demur thereto, and he prays the judgment of this Honourable Court whether he shall be compelled to make any further or other answer to the said Bill, and he humbly prays to be hence dismissed with his reasonable costs in this behalf sustained. W. P. WOOD.* (IV.) A GENERAL DEMURER FOR WANT OF EQUITY.+ IN CHANCERY. The Demurrer of Gabriel Garsill Defendant to the Bill of Complaint of Henry Stephens Complainant. The Defendant by protestation not confessing or acknowledging all or any of the matters and things in the said Bill of Complaint contained to be true, in such manner and form as the same are therein and thereby set forth and alleged, doth demur in law to the said Bill, and for cause of demurrer sheweth, that the said Complainant hath not by his said Bill made such a case as entitles him in a Court of Equity to any discovery or relief from or against this Defendant touching the matters contained in the said Bill or any of such matters. Wherefore, and for divers other good causes of demurrer appearing in the said Bill of Complaint, this Defendant doth demur to the said Bill and to all the matters and things therein contained, and prays the judgment of this Honourable Court whether he shall be compelled to make any further or other answer to the said Bill, and he humbly prays to be hence dismissed with his reasonable costs in this behalf sustained. R. HEATHFIELD. * Counsel's Signature. + 2 Van. Heyth. Eq. Dr. P. 79. |