alcorn executor versus Westbrook b r special action upon the case upon a  promise to deliver up a bind pledge upon payment of money borrow of the  defendant breach assign that defendant refuse to deliver up the bind and hold  well enough although it be not lie that the money be pay or tender it have be  prove at the trial that the money be tender and refuse special action upon the  case the declaration set forth that whereas the plaintiff testator Manby  deliver to the defendant a certain write Obligatory whereby one Lord viscount  give become bind to he in c he the defendant upon payment of by the say Manby  to he promise to redeliver the say bind to Manby upon request and that the  defendant notwithstanding he be request do not deliver the bind to the say  Manby in his lifetime nor to the plaintiff since his death to the plaintiff  damage the defendant plead Wilson king bench non assumpsit and upon the trial  at Guilhall before lee c j the evidence to support the plaintiff case be that  Manby deposit this bind in the band of the defendant as a pledge or security  for the payment of together with another security that Manby tender the to the  defendant and demand the bind of he which he refuse to deliver and it be  object for the defendant at the trial that the evidence do not agree with the  plaintiff case for it be not lie in the declaration that Manby either pay the  to the defendant or tender the money to he and he refuse it and dly that the  bind be not right describe in the declaration for there it be Lord viscount  give whereas the bind deposit and prove to be demand be enter into by Lord  viscount gage this be make a case for the opinion of the court and be argue by  sir John strange for the plaintiff be it that the evidence give sufficient  prove the plaintiff case and be cite price brown at Guildball before Lord  Raymond after Hilary term geo which be debt on a bind condition for the  payment of money at a future day the defendant plead that after the day and  before the bring the action be pay the principal and all interest due thereon  the plaintiff reply that he have not pay off all the principal and interest  and thereupon issue be join and it come out in evidence that he have not pay  the whole there have be a small mistake in calculate the interest but it be at  the same time prove that the defendant pay a sum in gross which be accept by  the plaintiff in full satisfaction of all principal and interest due upon the  bind and though it be object that the defendant ought to have plead accord to  the truth of his case videlicet that be paidi a gross sum which the plaintiff  have accept in satisfaction yet my Lord Raymond overrule the objection and say  the substance of the issue be with the defendant and he have prove his plea  sufficient as to the d objection that it be give in the declaration instead of  gage he argue that it be only surplusage and may be reject and it be gage  afterward throughout and the bind will be well enough set out if this word  give be leave out the date of a bind need not be set out in trover for it cro  car Mr Martin for the defendant insist that the plaintiff have misconceive his  action and that there be no precedent of a assumpsit to deliver up a pledge in  alt the book but the proper action be trover or detinue which latter be now  much out of use because of the tedious process as to garnishment but suppose  the present action will lie it must be support upon the foot of a special  agreement and it be universal lie down that every special agreement must be  prove in every tittle as it be lie cro James Leon Mod roll Abr and many other  case Wilson king bench dly be insist that a recovery in the present action  upon this declaration can be plead in bar to another action to be lie proper  accord to the truth of the plaintiff case and the rule for plead recovery in  bar be well lie down in sir though raym which be that where so ever the same  evidence will maintain both the action there the recovery or judgement in one  may be plead in bar of the other but otherwise not and a bind give by one give  be a different bind from that prove which be by one gage Wilson king bench er  p declaration throughout afterward and I do not see why the word give may not  be reject wright I I shall be Willing to go as far as possible to assist the  plaintiff but this be a special action upon the case which ought to be lie as  prove now upon the evidence it appear that the case lie in the declaration be  not the plaintiff case but the true case be that Manby borrow of the defendant  and deposit the bind in his band as a collateral security to be redeliver upon  payment of the and that Manby tender the and defendant refuse to accept it and  deliver up the bind now if this case have be lie in the declaration accord to  the truth there can have be doubt the plaintiff will have be entitle to  recover but the tender and refusal be make no part of the case and as to the  variation I think it a very material one and difficult to be get over however  I desire time to consider and give no opinion at present Dennison I if a man  agree to build for another a house to be pay for it and afterward build the  house in this case he have two way of declare either upon the original  executory agreement as to be perform in going to be or upon a indebitat  assumpsit or quantum to deserve when the house be actual build and the  agreement execute in the present case as the money be tender and refuse I  consider it as pay then the promise to deliver up the bind rise by operation  or construction of law therefore say the plaintiff I do not declare upon the  original agreement but upon the promise arise by operation of law and as to  the point of the variation I think the word give may be reject and there be  sufficient evidence to prove the bind describe in the declaration be true the  bind in question and it be well enough after a verdict however it may have be  upon a demurrer but as there seem to be some doubt in the court give noopinion  Wilson king bench foster I incline to be of opinion with the chief justice and  Dennison for the plaintiff the court take time to consider and afterward on  the that of November this term give judgement for the plaintiff unanimous that  this action be well lie and the evidence support the case as lie and that the  word give be only surplusage Savil Lutw postea order to be deliver to the  plaintiff