ASSUMPSIT, upon a bill of exchange for 117. 18s. drawn 7th of May 1839, payable three months after date, brought by the drawer and payee against the acceptor; and upon an account stated. Pleas: to the first count, non acceptavit; to the second, non assumpsit; and further to the first count, that before the bill became due, and whilst the plaintiff was the Dec. 3. In an action by the payee against the acceptor of a bill of ex change, the defendant pleaded, that before the bill became due, and whilst the plaintiff was the holder thereof, and before the commencement of the action, the plaintiff released the bill; without alleging that the release was after the acceptance. Held, on demurrer, that the plea was bad for not averring that the release was after the acceptance. An instrument set out upon oyer must be read as forming part of the declaration (or other pleading) in which profert has been made of such instrument. 1840. ASHTON V. holder thereof, and before the commencement of the suit, the plaintiff, by a deed poll, sealed with his seal, and bearing date the 1st day of July 1839, prolat. in curiam, FREESTUN. remised, released, and for ever quitted claim (a) unto the defendant, the bill in the said first count mentioned, and all manner of actions, cause and causes of actions and suits, controversies, damages, claims, and demands whatsoever, which the plaintiff then had, or at any time or times thereafter could, should, or might have or be entitled to, from, upon, or against the defendant, his heirs, executors, or administrators by reason, or on account of the said bill, or the non-payment thereof. Verification. "To The replication set out the deed-poll upon oyer: all to whom these presents shall come, we, whose names and seals are hereunto subscribed and affixed, being creditors respectively who have proved our respective debts under a fiat in bankruptcy which issued against H. M. Freestun, of &c., bearing date the 11th day of September 1832, severally send greeting. Whereas a proposition having been made by a friend of the said H. M. Freestun to pay to us respectively a composition of 2s. 6d. in the pound upon our respective debts, which we have consented and agreed to accept in full discharge thereof, and to release the said H. M. Freestun of and from payment of our respective debts in manner hereinafter mentioned; now know ye, that we the said several creditors of the said H. M. Freestun, in pursuance of the said recited agreement, and in consideration of the said dividend of 2s. 6d. in the pound upon the amount of our said several and respective debts, being paid, by the aid of a friend of the said H. M. Freestun, unto us respectively, for and on behalf of ourselves and our several respective partners, do and each and every of us (a) More correctly, "quit-claimed," quietum clamavit. doth, by these presents, absolutely remise, release, and for ever quit-claim unto the said H. M. Freestun, his heirs, executors, and administrators, all and all manner 1840. ASHTON v. of action and actions, suit and suits, cause and causes of FREESTUN. action and suit, controversies, damages, claims, and demands whatsoever which we the said several creditors of the said H. M. Freestun, or any of us alone or jointly with our respective partners, now have, or which any of us or our or their respective heirs, executors, or administrators at any time or times hereafter, can, shall, or may have or be entitled to from, upon, or against the said H. M. Freestun, his heirs, executors, or administrators by reason or on account of any debts, sums of money, bills, notes, securities for money, contracts, promises, agreements, reckonings, accounts, dealings, or transactions whatsoever, owing from, or made or given or entered into by, the said H. M. Freestun to or with us respectively, either alone or jointly with our respective partners, or transacted, done, or depending by and between him and us respectively, or any of us, from the beginning of the world to the day of the date of these presents. (a) (Here followed the signatures of the releasing creditors, amongst which was that of the plaintiff.) The plaintiff then joined issue upon the (a) The plaintiff may have been under the necessity of craving oyer of the deed, for the purpose of obtaining a copy of it. The expediency of setting out the deed in hæc verba does not appear to be equally clear. The recital in the release shews that the debt which had formed the subject of the release, had been proved under the fiat, and must therefore be taken to have been contracted before the release. Then the plea alleges that the release applied to the bill. And though, where a deed is set out upon oyer in the re- 1840. ASHTON v. FREESTUN. first and second pleas, and demurred to the last plea, assigning for cause-that it did not appear in or by the said last plea, that the said bill of exchange, in the first count mentioned, was accepted by the defendant before the said deed-poll was made by the plaintiff, or that the said deed-poll was made by the plaintiff after the defendant accepted the said bill of exchange; and that it was quite consistent with the allegations in the said first count, and in the said last plea, and with the said deed-poll, that the said bill of exchange was not accepted by the defendant until after the making and date of the said deed-poll; and also, for that the said deedpoll is untruly stated and described in the said last plea; and that in describing the said deed-poll, the names of all the parties to the deed-poll ought to have been stated in the said last plea, and that it ought to have truly appeared by and between whom the same was made; and also for that it appears that the said deed-poll does not refer to the said bill of exchange and cause of action in the said first count, the said deed-poll only referring to bills made by the defendant, and not to bills accepted by him. Joinder in demurrer. Spankie Serjt. in support of the demurrer. This plea is not pleaded with due precision. The deed-poll should have been pleaded as a release. But it applies only to a particular class of debts; for the recital in the deed-poll qualifies the general words which follow, and restrains its operation to debts under the fiat. The defendant, therefore, has not brought the debt for which he is sued in this action within the release. The deed-poll cannot apply to this bill of exchange, inasmuch as it is not averred in the plea that the bill was one of the debts intended to be released. The language of every plea is to be taken |