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![handle is hein.slavery/ssactsengr0073 and id is 1 raw text is: FRNKLIIN V. MILLER
Edwards (7 B. & C. 586), as to what was the duty of the assistant [598] overseer in
the particular instance; and the case was sent down for a new trial, in) order that
this might be ascertained. Here the question arises on the record, and I think that
sufficiently shews the duty. Besides, the statute adds the words or other person
authorised as aforesaid.
Coleridge J. I think Mr. Channell was right in iiot insisting upon the pleas.
I will merely observe, as to the second plea, to prevent mistakes on the part of
overseers, that it appears, on comparing stat. 17 G. 2, c. 3, with stat. 17 G. 2, c. 38 (a),
that the duty applies as well to old rates as to any others, and that the public are
equally entitled to inspect all. As to the first objection to the declaration, it would
be strange if it were not sufficient to follow the Act. The Act (sect. 2) says all
and every the inhabitants of the said parish, and the declaration alleges that the
plaintiff was an inhabitant of the said parish. As to the other objection, the words
of the Act (sect. 3) are churchwarden or overseer of the poor, or other person
authorised as aforesaid, that is, by reference to the first section, authorised to
take care of the poor in every parish, &c. The statute is therefore applicable
in terms.
Judgment for the plaintiff (b).
[599] FRANKLIN against MILLER. Tuesday, January 26th, 1836. Declaration
'stated that defendant, being indebted to certain persons, agreed to repay plaintiff
the amount of all accounts which he should settle for defendant ; and also to pay
plaintiff 401. a quarter on stated days, till the said debts should be fully settled ;
and plaintiff agreed to advance to defendant 11. per week, and certain other sums,
out of the sums of 401. ; that, in consideration of plaintiff's promise, defendant
agreed to perform the contract on his part; that plaintiff paid debts for defen-
dant to divers persons (naming them) to the amount of 2811. ; that the whole
amount of debts was not yet settled ; and that several sums of 401. had become
due from defendant under the agreement, which had been paid to the amount of
1601. only, but the rest were unpaid. Plea, as to two of the sums of 401., that,
before they became due, plaintiff had omitted to pay certain of the debts due to
creditors of defendant (naming them), other than the creditors named in the
declaration, which he might have paid; and had also omitted, after the last
payment of 401., to pay defendant 11. per week ; wherefore defendant in a reason-
able time, and before the two sums in question were due, rescinded the contract.
Replication, that, before and at the time of the last payment of 401., defendant
was indebted to plaintiff in the sum of 501. and more, in respect of the monies
paid by plaintiff for defendant as in the first count mentioned ; and that the said
401. was insufficient to discharge the amount in which defendant was so indebted
to plaintiff, and for which the agreement was a security: Held, that the plea
was bad, or shewing, at most, only a partial failure of performance by the
plaintiff, which did not authorise the defendant to rescind the contract. QuEere,
whether the replication was good. Held, by Coleridge J., that it was bad.
[Applied, Corcoran v. Proser, 1873, 22 W. R. 223. Referred to, Ellis v. Pond, [1898]
1 Q. B. 450; Cornwall v. Henson, 69 L. J. Ch. 585; [1900] 2 Ch. 298.]
Assumpsit. The first count stated that defendant, being indebted to divers
persons, undertook, by a certain agreement, to pay plaintiff the full amount of all
accounts paid for defendant by him, with the expenses, and further to pay over to
plaintiff 401. per quarter of his (defendant's) salary, until the said debts should be
fully settled ; and that, by the said agreement, plaintiff agreed to advance a sovereign
per week, and the rent of 51. 5s., also Mr. Moxey 51. 3s. 2d., and Mr. Morrison 51.
per quarter out of the said 401., which would become due respectively on the first
days of January, April, July, and October. And that, in consideration of the
premises, and of plaintiff's promise to perform the agreement, defendant promised to
perform, &c. on his part. And although plaintiff on, &c., and on divers other days, &c.,
paid for defendant to divers persons, to wit, &c. (naming them), divers accounts,
(a) See sections 13, 14, 15.
(b) See Whitchurch v. Chapman, 3 B. & Ad. 691.
912
i AD. & E. 598.](ViewImageLocal?handle=hein.slavery/ssactsengr0073&div=1&collection=&method=preview&ext=.png&size=3)