ment, says, "In every case that has been cited there was a positive inconsistency. It is contended here that there may be an inconsistency; but, in order to show a variance, there must be an actual inconsistency, not a possibility of a variance." That authority must rule the present case. Duggan in reply. The case last cited does not apply. The point there decided was that an action of assumpsit is not improperly described as an action upon the case; but the question raised in the present case did not come before the court, viz. that the scire facias should have alleged the judgment to have been obtained by reason of the defendant's, not the plaintiff's, act. PIGOT, C. B.-Certainly the latter point does not appear to have been raised by counsel, or noticed by the court in that case, and the defendant is therefore entitled to rely upon it; but we must take the meaning of the two things to be the same. If the plaintiff obtain execution upon the present sci. fa, it is clear that such would be a sufficient defence to a second scire facias brought upon the same judgment, and that would be sufficient to guard against a second execution. We must, therefore hold the scire facias sufficient. GREENE, B. concurred,* Plea disallowed with costs. WHITMORE v. LAMBERT.-Nov. 21. Pleading-Duplicity-Foreign judgment. To a declaration in debt upon an English judgment the defendant pleaded that he was not at any time arrested on or served with any process issuing out of the court in which it was stated in the declaration that the judgment had been recovered at the suit of the plaintiff for the cause of action alleged in the judgment; nor had he any notice of the issuing of such process; nor did he appear; nor was he during the proceedings resident within the jurisdiction, nor subject to the law of England; that the judgment so obtained had been obtained fraudulently; that he had before the commencement of the action paid and satisfied all the plaintiffs claims and demands upon him; that he was not indebted to the plaintiff; and the plea concluded by averring that by reason of the premises, the judgment had been obtained contrary to natural and universal justice. Held, upon demurrer, that the plea was bad for duplicity. DEBT, upon a judgment recovered in the Court of Exchequer in England. Plea, that the defendant was not at any time arrested upon, or served with, any process issuing out of the said Court of Exchequer at Westminster, at the suit of the plaintiff, for the cause of action upon which the said judgment was obtained, or for any other cause of action; nor had he at the time, knowledge or notice of the issuing of such process; nor did he at any time appear in the said court to answer the plaintiff in the action in which the judgment was so ob. tained; nor was he at any time during such proceedings in such court, resident in any part of England; nor was he born or domiciled at any place • Pennefather, B. was presiding in the Consolidated Nisi Prius Court. within the jurisdiction of such court; nor was he then or at any time subject to the law of England as administered in that court; that the judgment so obtained had been obtained by the plaintiff against him fraudulently; that he had before the commencement of the action paid and satisfied all the plaintiff's demands upon him; that he was not, nor is he now indebted to the plaintiff, "by reason of which premises the defendant saith that the said judgment is contrary to natural and universal justice and wholly inoperative and void against him.” Verification. Special demurrer to the plea as showing more than one matter of defence. J.O'Hagan in support of the demurrer.-The action of debt was proper in such a case as the present. Harris v. Saunders, (1 Camp. 63.) Although the judgment of a foreign court cannot be impeached by shewing that the debt did not exist at the time the judgment was recovered, yet it may be shown that the judgment was obtained without the knowledge of the defendant, and is contrary to natural justice. Buchanan v. Rucker, (1 Camp. 63); Ferguson v. Mahon, (11 Ad. & El. 176.) The allegations in the first part of the present plea, before the averment of fraud, constitute a complete ground of defence to the action. Cowan v. Braidwood, (1 Man. & G. 882.) Therefore, if the plea had stopped there it would have been unimpeachable, but it contains other distinct averments; and it has been held that fraud is of itself a sufficient defence to a foreign judgment. The Duchess of Kingston's case, (2 Sm. L. C. 441,) and in Don v. Lippmann (5 Cl. & Fin. 20,) Lord Brougham, in giving judgment, says— "Then comes the question whether the French judgment cannot be sued upon as a substantive cause of action. It is, in fact, tendered as one of the grounds of suit here. A foreign judgment is good here, for such a purpose, provided that it has not been obtained by fraud or collusion, or by a practice contrary to the principles of all law." Therefore a foreign judgment is not, when fraudulently obtained, an estoppel upon the record, but may be met with a plea of fraud; although to obtain redress against a judgment obtained in this country fraudulently, recourse must be had to a court of Equity. The pleadings also contain a plea of payment, and a plea amounting to the general issue. The latter might be open to a special denurrer for departing from the established form, but it is in substance a plea of nil debet. The only grounds upon which the present plea could be sup ported would be, that the latter pleas were immaterial; their being ill-pleaded would not save the pleading from the fault of duplicity (Steph. Pl. 287,) but it is plain that the several averments are not immaterial. It cannot be urged that these several matters constitute but one entire proposition as in Robinson v. Rayley, (1 Burr. 316), where the plaintiff traversed that the cattle were the defendant's own cattle, and that they were levant and couchant upon the premises, and that they were commonable cattle; the allegations in the present plea referring to distinct matters. It is also allowed to adopt this mode of pleading in stating grounds of suspicion for an arrest, but under the conditions before mentioned. It may be argued that these several averments do point to but one conclusion, viz. the allegation, that the judgment was obtained against natural and universal justice; but this is not, as in the case where such pleading is allowed, a conclusion of fact, but of law, and consequently not traversable-Cowan v. Braidwood. In p. 889, Maule, J., says, alluding to the conclusion that the plea was contrary to natural justice. "Could that have been traversed? As I read the plea, it is only a conclusion of law from the facts stated, and not an allegation." The plaintiff could not reply de injuria to the plea, and was therefore obliged to demur. It would be the same thing to plead to an action, infancy, duress, and payment, and then to aver that such a proceeding would be against the law of the land. PIGOT, C. B.-The court is of opinion that the plea in the present case cannot be sustained. At an early period of the argument it appeared to me that the several allegations in the plea might be regarded as cumulative, each a separate matter of fact, but all necessary to the one conclusion; and that the allegations of fraud might be considered as nothing more than a repetition of the averments, that the defendant had not been sued, and did not reside within the jurisdiction of the court in which it was alleged that the judgment had been obtained; but it has been very strongly pressed by counsel that the allegation of fraud is a substantial allegation, which might be relied upon alone as sustain. ing the allegation that the judgment had been obtained contrary to natural justice. Even if this was not so, yet there is another allegation appear J. M'Mahon, (with him Napier, Q.C.,) in support of the plea. In pleading several matters which amount to but one proposition, it is not an objec-ing upon the plea, namely, that the defendant was tion that any or each of the matters pleaded, would not indebted, which must be regarded as amounting separately have amounted to a good defence. to the general issue. If this plea were met by a Steph. Pl. 297, (5th. Ed.); Carr v. Hinchliffe, (4 Bar. general traverse on the part of the plaintiff, I cou& Cr.) In pleading title nothing is more usual than ceive it would be competent for the defendant at to set forth both a will and a fine, although either of the trial of the case, to contend that he was not them alone would have been sufficient. Rowles v. in any way indebted to the plaintiff, and thus to Lusty, (1 Moo. & Pay. 102.) [Pigot, C. B.-In embarrass the latter by relying upon any such matter justifying an arrest upon suspicion of felony, you of proof in his defence. Now the defendant has no cannot plead that the party arrested was guilty of right to adopt such a course, nor is the plaintiff felony, and also other grounds for the suspicion, bound to impose such a difficulty upon himself by a although the fact of the party being guilty is the general traverse of the allegations contained in the best possible reason for suspecting him to be so.] plea. If this be the true construction of the plea, A foreign judgment cannot be questioned in the then there are clearly two allegations upon the face courts in this couutry. Martin v. Nichols, (3 Sim. of it, each amounting to a complete defence; first, 458,) referred to in Ricardo v. Garcias, (12 Cl. that he did not reside within the jurisdiction of the & Fin. 392.) The plea should have shown the law court, and was not served with its process, together of the country in which the judgment was obtained, with other allegations which I need not state at as the court cannot take judicial notice of that. length: and secondly, that he was not indebted to Cowan v. Braidwood, (ante.) [Greene, B.-That the plaintiff; and under the second defence he might might shew that first portion of the plea ill-pleaded, have proved the first. There is therefore a duplibut no more.] The averment that the proceedings city in the plea; and independant of the allegation are contrary to natural justice is not a conclusion of fraud, it is plain that the case is one in which of law, but a conclusion of fact. Lucas v. Nockels, the plaintiff has taken the proper course by demurr(10 B. 159.) The reason why these several aver-ing. This is probably the last case of special dements were introduced into the plea, was merely to exclude any possible case compatible with natural justice, in order to show that the entire matter was contrary to natural justice; but the latter being but one proposition, the pleading cannot be regarded as double. It is submitted that there is no averment in the pleading which is not necessary in order to establish that fact. [Pigot, C. B.-The question is, whether when a conclusion of law can be supported by either of two propositions, the statement of both causes duplicity.] In the present case it is submitted that this question cannot arise. Suppose the defendant had not been served with process, still he may have owed the debt; and therefore it would not be contrary to natural justice that there should have been a judgment against him; it therefore became necessary for the pleader to negative every possible case in which justice might have been done. This being so, the plaintiff might have replied de injuria, and we should have then proved all the facts stated in the plea. There is no averment that the judgment was obtained by fraud, the statement being, that the judgment so obtained was obtained fraudulently. [They also cited Sunderland's case, (Lewin's Cr. Cas. 111.)] murrer that will appear in this court, as the Act of Parliament which will shortly come into operation, has struck the last blow against such proceedings. I feel much satisfaction in contemplating such an alteration in the law, for I confess I never pronounced a decision in favour of a special demurrer without pain, nor against one without pleasure; and I think the public are much indebted to those through whose instrumentality this change in the law has been effected. GREENE, B.-Taking the argument urged by the defendant's counsel as correct, the defendant, upon the issues raised by the plea, would have two defences, one depending on the invalidity of the judgment recovered by the plaintiff; the other assuming and admitting its validity. Pennefather, B. was absent. Demurrer allowed.t Act, 16 & 17 Vic. c. 113, which will come into operation Although by the Common Law Procedure Amendment on the 1st of January, 1854, special demurrers, as such, will be abolished: yet section 83 of that statute provides that either party may apply to the court to strike out or amend any pleading "so framed as to prejudice, embarrass or delay the fair trial of the action;" an enactment which may become applicable to such cases as the present.-REP. COURT OF CHANCERY.-1853. [Reported by WILLIAM HICKSON, Esq. Barrister-at-Law.] LAMBERT U. LAMBERT.-May 3, 4, 7, and July 30. Deed-Covenant against the acts of heirs-Eviction by tenant in tail -Fraud-Voluntary deed· Insolvency of grantor. A deed of 1817 contained a covenant that the profits of certain lands should be given to A, and if they should not that A should be indemnified out of the personalty of the grantor. The deed also contained a covenant for quiet enjoyment under the grantor, his heirs and assigns. In 1844 the grantor, by a voluntary deed, conveyed his personally to M, and died three days after. D, the heir, who was also tenant in tail of the estate, evicted A-who was in possession of the landsnot in his character of heir but of tenant in tail. There was no evidence of the grantor being indebted in 1844. Held, that the deed of 1844 was not a fraud upon the covenant in the deed of 1817, such as to enable a Court of Equity to set the former aside. * Semble, that a covenant against the acts of heirs and assigns, does not regard the tenant in tail. THIS was a bill by Ellen Lambert, the widow of Walter Lambert, on behalf of herself and of all other creditors, to set aside a deed bearing date the 8th day of January, 1844, which was a post nuptial settlement executed by Peter Lambert for the benefit of his wife Mary Lambert, the defendant, and for the administration of the real and personal estate of Peter Lambert, deceased. It appeared from the statements of the bill and from the evidence that Walter Lambert being seized of the lands of Killenbeg and Lecarrow, and possessed of a sum of £900, due on foot of a mortgage upon the lands of Raheen, by will bearing date the 1st day of December, 1768, devised same to his grandson Walter Lambert for life, with remainder to the first and other sons of the said Walter, the younger. By the same will and by a codicil thereto, a suin of £5000 was directed to be laid out by the trustees of the will in the purchase of land, to be held upon the same trusts as the lands previously devised. Walter Lambert, the elder, died in the year 1768, and the testator's grandson, Walter Lambert, attained his fuil age shortly after the testator's decease, and entered into receipt of the rents of the lands devised, and about the same time married the plaintiff, Ellen Lambert, upon whom no settlement was made. There were issue of the marriage several children, of whom Peter, the eldest son, attained his full age prior to the year 1810. On the 3rd day of February, 1810, by indenture of settlement executed upon the marriage of Peter Lambert with Ellen Seymour, by which, after reciting that P. Lambert was seized of an estate tail in the lands devised to his father, and of an estate in quasi tail in the money secured by mortgage, and also in the lands of Castle Ellen, In the progress of the suit Ellen Lambert died, and the guit was continued in the name of her personal representa tive, but it was not deemed necessary to embarrass the facts with this statement.-REP. which had been purchased for £4,200 by the trustees of the will of his grandfather, Walter Lambert, all these lands were conveyed to trustees to hold after the marriage, for the joint lives of Peter and of Ellen Lambert, and for his own life, if he should survive her, with remainder to the first and every other son in tail male. The settlement contained a covenant on the part of Peter Lambert to suffer a recovery for the uses of the settlement, which also contained a power to lease for three lives or thirtyone years, and no longer, at best reserved rent, without fine, and was registered on the 25th of July, 1810. There was issue of this marriage, of whom Walter Peter Lambert was the eldest son. By an agreement entered into in the year 1812 between Peter Lambert and Walter Lambert, his father, whereby it was agreed that Walter Lambert should give up to his son Peter the immediate possession of the mansion-house of Castle Ellen, and in consideration thereof that Peter Lambert should make a provision for the plaintiff, in case she should survive her husband. The bill charged that the possession was accordingly given up, and that by an indenture of lease bearing date the 1st day of January, 1817, after reciting the previous agreement, and that the purpose of the indenture was the carrying out of that agreement, and that no provision had been made for the plaintiff. The said Peter Lambert did agree for himself, his heirs and assigns, that in case the said Ellen Lambert should survive the said Walter Lambert, she should receive the rents and issues of Killenbeg, and Lecarrow, St. Ellens, and Gurtmore, during her natural life, and the said lands were for this purpose by said deed conveyed to trustees. The deed also contained a covenant for quiet enjoyment, without eviction, by Peter Lambert, his heirs and assigus, and that if the plaintiff should, during the term that said rents should be so received, be prevented from so receiving them, he, the said Peter Lambert, bound his personal for tune to the amount in value such rents should amount to, in case of such hindrance. The deed was registered on the 10th of February, 1844. That by indenture of lease bearing date the 20th day of January, 1817, made between Walter Lambert and Peter Lambert of the one part, Thomas Stubbs of the other part, the parties of the first par demised to Thomas Stubbs that part of the lands of Cahir called St. Ellens, as then in the possession of Walter Lambert, with the house and lands, to hold for the lives therein named, and the survivors of them, at the yearly rent of £20, and after the usual covenants in such a lease there was a declaration by all the parties that "this demise is made to said Thomas Stubbs, one of the trustees in said indenture executed on the 1st of Jan. inst. between Peter Lambert, John T. Kenny, and Thos. Stubbs, for the use of Ellen Lambert, the wife of Walter, agreeable to the true intent and meaning, and for the purposes mentioned in said deed. That in pursuance of the agreement mentioned, Peter Lambert remained in possession until his father's death, which took place in the year 1836, when the plaintiff, in pursuance of the agreement and of the lease, entered into the Ꭰ having been evicted by Walter Peter Lambert out receipt of the rents and profits. That by an inden- per annum to plaintiff. There was no evidence of ture executed the 3rd day of February, 1840, made Peter Lambert being indebted to any considerable between Peter Lambert, Walter Peter Lambert, amount. the eldest son of Peter, and the trustees of the mar- The Attorney General, Francis Fitzgerald, Q.C. riage settlement of 1810, the estate tail of Wal-and Charles Kelly for the plaintiff. The plaintiff ter Peter Lambert was barred, and subject to an indenture of mortgage of equal date therewith, the estates were re-settled to the use of Peter Lambert for life, with remainder to Walter Peter Lambert in tail. This deed was registered. Ellen Lambert, the wife of Peter, died previous to the year 1829, leaving issue Walter Peter Lambert and several younger children. Peter Lambert, in the year married Mary Lambert, otherwise Carroll, one of the defendants, and by an indenture bearing date the 8th day of January, 1844, between Peter Lambert of the first part, Mary Lambert, his then wife, of the second part, and Edward and Charles Lambert, brothers of the said Peter, of the third part, after reciting that a marriage had taken place, and Peter Lambert's desire to make a provision for his wife, and for the children of the second marriage, and also reciting that he was entitled to a judgment obtained against Burton Persse as of Easter Term, 1842, to secure the sum of £2000, Peter Lambert assigned that sum to the parties of the third part, with all "benefit and advantage thereof, together with all his goods and chattels of which he should die seized and possessed, of every nature and kind, whether household furniture or otherwise, for the berefit of his said wife aud children as aforesaid," according to the certain shares and proportions in the deed provided. Peter Lambert died on the 13th day of January, 1844, intestate, leaving his wife Mary, and younger children him surviving, and Walter Peter Lambert his heir. That on the death of his father, Walter Peter Lambert brought ejectments for the lands of Killenbeg and Lecarrow, which plaintiff was advised she could not defend at law; and no defence being taken thereto, Walter Peter Lambert went into possession. The plaintiff claimed by her bill to be entitled under the deed of the 1st of January, 1817, to be compensated out of the personal property of the said Peter Lambert for the loss of the rent, and in case said personal property was not sufficient, to be compensated out of the money due upon the judg. ment against Mr. Burton Persse. The bill also charged that there was a judgment for £1,500 against Mr. Peter Handcock, which, Mary Lam- Christian, Sergt., Martley, Q. C., and Robert bert having taken out administration, had taken Ferguson, for the defendant Mary Lambert, conpossession of, as well as other personal property of tended that, first, on the true construction of the her husband; that Peter Lambert was consider- covenant in the deed of January, 1817, Walter ably indebted at the time of his death; that his per- Peter Lambert was not bound. The covenant was sonal property, exclusive of the judgment against Mr. merely binding on heirs and assigns, and not on Burton Persse, was not sufficient for the payment| Walter Peter Lambert, who was but tenant in tail; of these debts. The bill prayed an account of the and secondly, that there had been no eviction by personal estate of Peter Lambert, received by said him. The deed of 1847 granted an annuity of Mary Lambert, or which ought to have been received £90 per annum in consideration of the surrender an account of his debts, an account of the sum due of the lease of January, 1817, and £90 per annum to plaintiff, and that the deed of the 8th of January, was full value for such surrender. The deed of 1844, should be declared fraudulent and void as 1844 is a good disposition against every person, against plaintiff and the other creditors. It also unless a special case of fraud be made. Randall appeared that in the year 1847, the plaintiff and v. Willis, (5 Ves. 266); Lewis v. Madocks, (8 Thomas Stubbs, the surviving trustee of the lease Ves. 150; s. c. 17 Ves. 48.) As to the amount of of 1817, assigned that lease to Walter Peter Lam-insolvency necessary to invalidate the deed. In Leech bert, in consideration of his granting a sum of £90 v. Wilkinson, (5 Ves. 384), it was held that the party must be indebted to the extent of insolvency; and in Skarff v. Soulby, the Lord Chancellor directed an inquiry as to the amount of the debts. It is not here shown by the plaintiff what the extent of the debts were. In Evans v. Vaughan, (4 B. & Cr. 271; s. c. 6 D. & Ry. 349), all the court took it as being too clear for argument that the eldest son is not as heir bound in a breach of covenant, and the case was argued on the words "claiming under him." In Hurd v. Flet her, (1 Doug. 43), the covenant was against the covenantor's acts, and all those claiming under him, which was held to bind executors. Gainsford v. Griffith, (1 Saund. 51). July, 30.-THE LORD CHANCELLOR now delivered judgment; and after, alluding to the inden tare of 1817, the apparent breach of covenant by Walter Peter Lambert in evicting the lands, and that the scope of the bill was for satisfaction of debts out of assets, and that it particularly prayed that the deed of the 8th of January, 1844, should be set aside, said-Several questions have arisen in this cause. The first of these respects the covenant in the deed of 1817, which was a covenant against eviction by Peter Lambert, and his heirs and assigns. The eviction was by W. P. Lambert, who was the heir of Peter Lambert, but it was not made by him qua heir. It struck me at first, that the eviction was not one that came within the meaning of the covenant, but on consideration I think that view is open to great doubt, but I do not think it now necessary to determine that question. For I think there is enough in the deed, independent of that covenant to support the plaintiff's case, inasmuch as the deed contains an express contract, that the arrangement was for her benefit, which within the decision of Gainsford v. Griffith, (1 Saund. 51,) would not be restrained by the subsequent covenant against eviction by heirs and assigns, and I think that if that were all that was to be considered in the case, the plaintiff would be entitled to maintain her suit. Whether any substantial eviction took place was also much discussed during the progress of the cause, and that would also be a very serious question at law. But in my opinion the real question is, supposing the plaintiff to be entitled to maintain her suit on the grounds I have stated, whether she can do so as against the deed of 1844. strongly argued that the deed of 1817, bound the personal property in specie, and that the deed of 1844, was a fraud upon the covenant in the previous deed. I cannot take that view. I do not think it was more than a covenant for the breach It was does vitiate it. It is not at all like the case of Rider v. Rider, and besides in this case no evidence whatever of any debt being due by Peter Lambert, has been given to the court, nor is there any evidence as to the state of his affairs. He may not have owed one single shilling, at the time he executed the deed in March 1844. The question then comes to this, is the court, in case of a subsequent debt arising out of a breach of covenant, which in the covenantor's mind might never take place, considering that it was to depend upon the eviction of a mother by her son, to treat the subsequent deed as being intended to be a fraud upon the former covenant of the grantor. I do not think there was that fraudulent design which would defeat the deed, and this petition being not sustainable except upon the technical grounds of the testator's being indebted at his death, and as to these I have not the materials before me for granting an inquiry. RIDDICK V. GLENNON AND OTHERS.' Specific Performance-Agreement-Notice-Possession of Tenant-Registry. In a suit for specific performance of an agreement which was taken out of the Statute of Frauds by part performance, the petitioner having pleaded an agreement in writing which omitted to state the term of the lease to be mude, Held, that parol evidence could not be received to supply the term. Semble, a purchaser for valuable consideration without notice prior to his purchase, but who afterwards receives express notice, is notwithstanding entitled to register his deed, and obtain all the be. nefits of the Registry Acts. THE petition in this case prayed to have a certain agreement specifically performed, and to restrain the respondent Glennon from proceeding with an ejectment against the petitioner, to recover the premises in question. The petition stated that John Tomlinson, being entitled to certain lands called Westfield, near Dublin, containing about five acres, held under lease of lives renewable for ever, in consider. ation of £150, entered into an agreement in the month of February, 1845, with the petitioner, to make him a lease for the same lives renewable for ever, of about three roods thereof, at the yearly rent of 12s. 6d., and that afterwards the following memorandum was drawn up and signed by the petitioner, and said John Tomlinson. "Mr. John Riddick proposes to take a slip of ground from Mr. John Tomlinson, to commence at the bound of which an action of damages might be brought, ary wall between said Riddick and Tomlinson, and run in a straight line to the far ditch opposite the and not at all like the case of Jones v. Martin, and forked oak tree, Mr. Riddick paying for same £160 the other decisions of that class. The scope of the in three bills, at six, twelve, and eighteen months, bill is not of that character which would raise that last bill to bear interest for six months at the anquestion of fraudulent intent, as it does not seek nual rent of 12s. 6d. Mr. Tomlinson to pay one compensation for that particular breach of agree-pound towards making the fence two rows of three ment. It is simply a creditor's bill on behalf of the plaintiff and of all other creditors. That being so, the case is reduced to the general question, whether this deed is a fraudulent one as against creditors. I think that the deed of 1817, did create that species of obligation, which would entitle the plaintiff to sue if the deed was fraudulent, but I do not think there exists that amount of fraud which years' old quicks, the ditch to be five feet wide at top, and two feet six inches at bottom; rent to commence 25th March, 1845, the ploughman to run a straight line in the morning." The agreement having been signed by the respective parties, Mr. Riddick got possession of the lands under it, and retained the • Ec relatione G. O. Malley, Es., Barrister-at-Law, |