1842. DoE dem. ROE. Fryer, to whom he delivered and explained another copy of the declaration and notice, and who threatened to have the deponent locked up if he annoyed his tenants. TINDAL C. J. The service may be good as against Fryer, but not as against the others, for the women are not shewn to be part of the family. The affidavit is altogether very loose. Per curiam; Rule granted as against Fryer; refused as against the other parties. Nov. 16. Writ of summons in assumpsit indorsed for 150l.; particulars for the same amount. Da TEBBS v. BARRON. TALFOURD Serjt. on a former day in this term (a), obtained a rule nisi to amend the issue and the record by increasing the damages laid in the declaration from 10l. to 150l., or for a new trial. The action was brought to recover a compensation for ser vices; the writ was indorsed for 150l, and the particulars claimed that sum, but, by a clerical error, the damages at the end of the declaration (which was in asonly. Verdict sumpsit), were laid at 10l. The plaintiff had recovered a verdict for 150l. The learned serjeant cited Tomlinson v. Blacksmith. (b) mages in de claration laid at 10%. for 150l. The court refused to amend the issue and the record by increasing the damages laid Bompas Serjt. now shewed cause. The amendment prayed for certainly cannot be granted in the present in the declaration to 150l., but granted a new trial on payment of costs, with liberty to the plaintiff to amend. stage of the proceedings. In Clevely v. Morris (a) where a jury on a writ of inquiry had assessed more damages than were laid in the declaration, and the judgment was entered accordingly, the court of King's Bench would not allow the record to be amended by taking judgment for only the amount of damages in the declaration, or by suffering the plaintiff to enter a remittitur for the surplus. (b) But on the authority of Tomlinson v. Blacksmith, the rule for a new trial cannot be resisted, with power to the plaintiff to amend the declaration, but it must be upon payment of costs. In the report of that case nothing is said about costs; but upon a search at the rule office, it appears the rule was so drawn up. (c) In Wright v. Lainson (d) where a wrong plea had been pleaded, the court would only grant a new trial with liberty to amend, on payment of costs. [Maule J. suggested that the damages might be reduced; but the learned serjeant said he would prefer having a new trial.] Talfourd Serjt., in support of the rule. Tomlinson v. Blacksmith was an action for unliquidated damages on a special contract. Here, by reason of the particulars of demand, the defendant could not have doubted what sum the plaintiff claimed. TINDAL C. J. The defendant on the other hand may have known he could not be called upon to pay more (a) W. Bla. 1300. (b) The reporter states, as the reason why the court refused the motion, as follows: "It being out of time, and the plaintiff having acted oppressively in suing out execution and taking the defendant's books (who was a gentleman at the bar), in a very insolent and invidious manner. The judgment was consequently reversed in error." As to entering a re- (c) The learned serjeant 1842. TEBBS v. BARRON. 1842. TEBBS than the 10%. We shall adopt the rule in Tomlinson v. Blacksmith as a precedent. The plaintiff may take a rule for a new trial, on payment of costs, with power to BARRON. amend his declaration by enlarging the amount of da v. mages. Per curiam; Rule absolute accordingly. Nov. 16. B. being in debted to A. in a large sum of money, signed a document in these terms: "I engage to ship for LAWRENCE PHILLIPS and Another v. AFLALO. ASSUMPSIT. The first count was upon a bill of exchange for 8751. at six months, drawn by the plaintiffs upon and accepted by the defendants. The second count was upon a similar bill at nine months. The third upon a bill for 1250l. at fourteen months, between the same parties. There were also counts for goods sold and delivered, for money lent, money paid, interest, and upon an account stated. your account at M., in any vessel you Pleas: first, as to the first, second and third counts, may engage and as to a certain sum to wit, the sum of 4010l. 7s. 4d. &c., from forty to sixty parcel of the monies in the fourth and subsequent counts tons Morocco of the declaration mentioned, actionem non, because that produce, on the following heretofore, and after the making and the acceptance by terms, &c. And I also engage that the above shall be shipped by my agent there, within thirty to fifty days from the time of the said vessel being ready to take in her cargo &c. I do further engage to ship produce on similar terms to the above, to the amount of what I may remain indebted to you after the first shipment as above, within six months from the sailing of the first vessel.” A. sent out a vessel, and received the goods first mentioned. In an action to recover the residue of the debt, held that the agreement could not be set up as an answer, as it was optional on the part of A., whether he would send out a second vessel; and therefore that it did not support a plea, alleging an agreement on the part of A. to send out a second vessel, and receive the goods in liquidation of the debt. him of the said several bills of exchange, and after the said sum of 4010l. 7s. 4d. parcel &c., became due from him to the plaintiff, to wit on the 19th of May 1837, it was proposed and agreed by and between the defendant and the plaintiffs, that the defendant should ship for the account of the plaintiffs in certain parts beyond the seas, to wit at Mogadore, in any vessel the plaintiffs might engage in part, or dispatch for that purpose, as might best suit their convenience, from forty to sixty tons of Morocco produce which should be ready for shipment on the following terms free on board, videlicet, wool at 128 (dollars) per quintal of 100 pounds, Mogadore weight and sheep skins at 638 (dollars) per dozen of twelve skins. And the defendant did then engage and agree to and with the plaintiffs, that the above mentioned articles should be shipped by his agent at Mogadore aforesaid, within from thirty to fifty days from the time of the said vessel being ready to take in her cargo; that the defendant's account with the plaintiffs should be credited with the amount of invoice on the date of the bill of lading, at the exchange of 4s. 3d. English per dollar; any other goods that might be shipped with the above mentioned, should be for the account and at the risk of the shippers; and it was also then further agreed by and between the plaintiffs and the defendant, that the defendant should ship, for the account of the plaintiffs, produce on similar terms to those above mentioned, to the amount of what the defendant might remain indebted to the plaintiffs, after the first shipment, as above, within six months from the sailing of the first vessel. And the plaintiffs then, in consideration of the said agreement on the part of the defendant to be by him performed and fulfilled, agreed with the defendant, that they, the plaintiffs, would accept, receive and take payment of the said three several bills of exchange, and the sums of money thereby secured and due and owing thereon to the plaintiffs, in 1842. PHILLIPS v. AFLALO. 1842. PHILLIPS v. AFLALO. the said first, second and third counts, &c., and of the said sum of 4010l. 7s. 4d. parcel &c., in the introductory part of this plea mentioned; and that the same might be liquidated and paid to them by the said shipments so agreed to be made by the defendant as aforesaid. Averment: that the defendant from the time of making the said agreement in manner and form aforesaid, and thence continually hitherto, hath been ready and willing to perform and fulfil the same in all things on his part and behalf to be performed and fulfilled; and to ship such produce as aforesaid upon the terms and in the manner aforesaid. And that the defendant, confiding in the said agreement of the plaintiffs, afterwards, and within a reasonable and proper time and without delay, to wit on the said 19th day of May, did purchase and provide at Mogadore aforesaid, the said produce, that is to say, sixty tons of Morocco produce, ready for shipment, on the terms and conditions in the said agreement mentioned; and that pursuant to his said agreement, his agent there, to wit, at Mogadore, was at all times after the making of the said agreement, ready and willing to ship the said sixty tons of Morocco produce on board any vessel engaged by the plaintiffs, or despatched by them for that purpose, at Mogadore, within from thirty to fifty days, from the time of any vessel engaged or despatched by the plaintiffs for that purpose being ready to take in her cargo, according to his said agreement; and further that from the time of making the said agreement thence hitherto, he, the defendant, has been always ready and willing to ship produce on similar terms to the above to the amount of what the defendant remained indebted to the plaintiffs after the first shipment as above, within six months from the sailing of the first vessel: and that the defendant relying on the said agreement of the plaintiffs, did afterwards, to wit, on the said 19th day of May, and on divers days &c., lay out and |