A = A ^ - A^ J — m oi 7 M 3i ===; 2 = — ^ ' 6 = ■^■^ -c nabtaa^as: 4 = I^^^^^^H' = ™"^ — t ^^^^^^^^Hr = -< 8 = ^^^^^^K ^^H ^^^^B . iiiiliiliiiiililillliliillil iiillftiliiniiilliiip li ■All Hi IpllHpi "ii iiiiiiii iiiiiii iiiilii imMmmiuu mmWWkltMM iiliiiliiiiitejj. iiiiiiilii '■'ilil-^i'i'iiiir ■''■iU'U'i'UiU'it mmmmmm mm wU iiili|liliPiiii^iii|i|iiilii|iii'iii'i iiijiiiiik'' ' iiiiiliiiiliiiil 'imw iiiiiiiiiiiiilli iiiiilii) '*^ :n| L,,,„,l iJil J isiiiiiiii 1 Wiiffl'fc lili miim UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A SELECTION OF LEADING CASES ON PLEADING AND PARTIES TO ACTIONS, WITH ^ractifal ^om. ELUCIDATING THE PRINCIPLES OF PLEADING (AS EXEMPLIFIED IN CASES OF MOST FREQUENT OCCURRENCE IN PRACTICE), BY A i^efertncc to tl)c lEailiest ^utfjovitics, AND DESIGNED TO ASSIST BOTH THE PRACTITIONER AND THE STUDENT. BY W. FINLASON, Esq. OF THE MIDDLE TEMPLE, SPECIAL PLEADER. LONDON: V. & R. STEVENS AND G. S. NORTON, Eato 33ooi^scncr^ anU ^iuilt^ljcriS, (Successors to the late J. Sf W. T. CLARKE, of Portugal Street,) 26 AND 29, BELL YARD, LINCOLN'S INN. MDCCCXLA^I. T S3z f rr T,ON'noN: WII.I.IAM STKVKNS, PlllNTKR, HKM. VARII, i.ixcoi.n's-inv. to TO SIR FREDERICK POLLOCK, LORD CHIEF BARON OF HER MAJESTY'S COURT OF EXCHEQUER, THIS WORK IS, BY HIS KIND PERMISSION, JBetricatetr, WITH PROFOUND RESPECT AND ADMIRATION FOR THOSE ENDOWMENTS AND QUALITIES BY WHICH HE LONG ELEVATED AND ADORNED THE BAR AND NOW DIGNIFIES THE BENCH, PREFACE. It is unnecessary to point out the advantages incident to tlie plan upon which these pages have been composed ; advan- tages, so well illustrated in the Leading Cases of the late learned and lamented Mr. Smith.* It was conceived that such a plan (affording at once the best means of elucidating principles^ and of illustrating their practical operation,^ would be especially applicable with respect to pleading, in which the principles and the practice are peculiarly associated, and in which a work on such a plan appeared likely to be of some use both to the student and the practitioner. In proportion, however, to the -Author's sense of the value of the design, is his apprehension of the manner in which he may have executed it. He can now but throw himself upon the kindness and the candour of the profession, who will generously judge how far industry and research have com- pensated for deficiencies in ability and experience. The Author has endeavoured to illustrate the system of pleading revived by the new rules, by references not merely to the decisions pronounced since those rules, but to those ancient authorities which originally established that system ; and with the view of at once elucidating the principles of * The Author ventures to congratulate the profession on the announce- ment of a new edition of this excellent work, edited by two gentlemen (Mr. Willes and Mr. Keatinge) whose names and reputation promise a valuable accession of legal learning and practical knowledge. Vi niEFACE. pleading for the student, and of enhancing the value of the work to the practitioner, every opportunity has been taken to supply ilhistrations from the Year Book and the older reports. These citations will, it is believed, not only be found of value (for instance) with respect to the pleas in actions of debt for rent (as surrender, eviction, kvie per dis- tress, Sec), but will afford some useful illustrations even on points such as that of the argumentative traverse of an in- dorsement.* And to save the practitioner the trouble of frequent references to authorities so obscure, they are usually cited fully — one reason for the length to which the notes have been necessarily extended. It was deemed proper to confine this selection of cases to subjects of most common occurrence in practice ; such as the nature and application of the actions on an account stated, for money had and received, for use and occupation, and of debt for rent, together with the mode of pleading the usual defences in the latter actions, and in actions on bills of exchange — the form of pleading certain defences partaking of the nature of accord, &c. As it may appear that the notes extend to a length not, in every instance, exactly proportioned to the intrinsic im- portance of the cases illustrated, it may be observed that this has arisen not only on account of the reason already referred to, but from an anxiety to elucidate thoroughly the principles involved, and to render the notes as complete as possible, by applying those principles to every practical * 111 a recent case (Brifiain v. IJo>/d, l.'J L. J., Ex. 4.3), Pollock, C. B., called attention to the fund of information derivable from these early autho- rities with respect to an action commonly supposed to have been peculiarly of modern origin — /. c. (lie count for money paid. PREFACE. VU question likely to arise. By a careful analysis of contents, in addition to the ordinary indexes, it is hoped that any objection as to length will be obviated, both as to reference and perusal ; but it is with deference submitted that to a work of this nature justice can scarcely be done without perusal: although no pains have been spared to render it useful for reference. The large amount of litigation which has recently arisen (as to the liability of " provisional committee-men "), by reason of a perplexing problem in that most difficult depart- ment of the practice of pleading, the determining of parties to actions, induced an attempt to apply to the solution of such questions the principles elucidated in various classes of previous decisions. The Author is deeply, painfully conscious of the defects with which the work is chargeable — many of them almost necessarily incident to a frst attempt at legal authorship, — and most of them, he ventures to hope, such as he would be enabled to avoid should he be encouraged to offer an extended application of a design at present so imperfectly developed. He has pleasure in mentioning that his friend Mr. Beresford kindly assisted him in the revision of some of the cases. 5, Essex Court, Temple, Jan. 12, 1847. ANALYSIS OF CONTENTS. EGLES V. VALE, Cro. Jac. Of the action on an account stated, and of the application of the principle on which it is founded, either with respect to declarations or pleas. Origin of the count ; ancient action for arrearages of an account; cases from the Year Books, 1 — 4. Gradual approxi- mation to the present form of the count, which in purport is substantially the same as its ancient original {Brinsley v. Part- ridge, Homes v. Savill), 4. One account- ing sufficient {Kennedy v. Withers, High- more V. Primrose, Knowles v. Michel), and that is most frequently proved by the admission of a single sum ; which, however, is only evidence of the account- ing (Irving v. Veitch), 5. This principle exemplified {Pountney v. Hammond, Tucker v. Barrow, Burgh v. Legge), 6. Acts as well as acknowledgments may be evidence of the accounting (as payment of interest), the same principle applying in either case {Purdon v. Purdon, Perry v. Slade), 7. An offer is not necessarily an admission ( Wayman v. Hilliard, Chisman v. Count, Evans v. Verity), 8. Some cer- tain sum must be admitted, either by express statement, or by reference to some document {Green v. Davis, Hughes V. Thorpe, Chisman v. Count, Lobb v. Stanley, Mosley v. Read, Allen v. Cook), 8, 9. As the accounting is the ground of the action, the rules of evidence ap- plicable to the original cause of action, do not attach to the proof of this count (Singleton v. Barrett, Newhall v. Hall, Arthur v. Dartch), 9, 10. Even written acknowledgments, as an I. O. U., are only evidence of the accounting {Gould V. Coombs, Jacob v. Fisher, Ham- mond v. Bay son), 10, 11, One conse- quence of the principle that an error is admissible imder the general issue {Thomas v. Hawkes, Truman v. Hurst, Ross V. Savory), 11, Another result is that the statute of 9 Geo. IV., as to ac- knowledgments of a debt, operates to prevent the proof of an account stated by any acknowledgment not in writing, though the legal effect of an accounting may be payment {Clarke v. Alexander, Ashby \. James), 11. Accounting must be between the parties themselves or their agents, and query as to the effect of admissions to a stranger; illustrations of this rule chiefly arise in cases of I.O.U.s or bills {Breckon v. Smith, Ashby v. Ashby, Jardine v. Payne, Baynham v. Holt, Curtis V. Richards, Lewin v. Edwards), 12, 13. Accounting by agents, 13, 14. A promise to pay, to be proof of an ac- count stated must be absolute, and with obvious reference to an antecedent debt {Burgh v. Legge, Clark v. Webb, Seago v. Deane, Lubbock v. Tribe), 14. Bat the accounting may be of claims in the nature of a debt, though they would not sup- port an indebitatus count {French v. French, Barker v. Birt), 15, 16. The promise itself first creating the liability, may be evidence of an account stated of it ; but the consideration must, as in the case of bills or notes, appear executed; or there will merely be an agreement {Jar- vis v. Wilkins, Shenton v. James), 16. As to instruments purporting to be promises to pay money, but so far partaking of the nature of agreements, that they cannot X ANALYSIS 01' CONTENTS. be declared on as notes or bills, nor be given in evidence under the account stated {Ayrcy v. Fcaniside, Home v. Red- fearn, Morgan v. Jones, Clarke v. Per cival, Carlos V. Fancourt, Blanckenhagen v. Blundell, Robins v. May, IVorley v. Har- rison), 17, 18. Mode of declaring thereon, as in Egles v. Vale, Davis v. Williinson, Hopkins v. Logan, and Ani- fiehl V. Bate, 19. Ancient cases no- ticed, Johnson v. Collemore, et alia, 20. Account stated, how available in cases where the original cavise of action, or the remedy, is barred by the Statute of Limitations, by bankruptcy, infancy, or coverture, 21, 22, 23. Hopkins V. Logan considered in connection with Kirkpatrick v. Tattersall ; account stated of debts contracted under age {Harrison v. Fane, Williams v. Moor, Sutherton v. Whitlock, Stone v. Withypool, Pickering v. Gunnery, Truman v. Hurst, Cowper V. Garbett, and Scott v. Chapellow), 24, 25 ; or during coverture, (Drew v. Thorn, Lee v. Muggeridge, Littlefield v. Shee), 25, 2G. Actions collaterally con- nected with that upon the account stated ; consideration of forbearance of suit {Bedwellv. Catton, Smith v. Monteith), 26; or adjustment of unsettled claims (Llewellyn v. Lcwellyn, Edwards v. Bough, Jjongridge v. Dorville), 28. Principle of the account stated; viz., the adjustment of unsettled claims, and reducing cer- tainty to uncertainty — a good consi- deration, whether in a count or in a plea, 28. Connection between the action on an accounting, and the pleaoi an accord; where an accounting amounts to payment or set-oflF, 29. Mode of pleading the same defence to the count on account stated, along with another count, 29, 30, 31. PEACOCK V. RHODES. Pleading in Actions upon Bills of Exchange. Count on a bill or note; discloses no consideration ; cause of action the in- strument itself, 37 : which must be pleaded to ; common law principles of pleading, leading to the same course of pleading as that prescribed by the new rules, 37, 33. Effect of a traverse of an indorsement; prima facie, the allegation imports a direct and special indorsement, 39, 40. Analogy to the allegation of making of a bill, or of a deed, 41. Traverse admits only of evidence of what occurred contemporaneously with the making or delivery, 42. Cases considered {Churchill V. Gardner, Smith v. Maclure, Jones v. Corbett, Musgrave v. Drake, Lewis v. Reilly, Adams v. Jones, Marston v. Al- len, Hayes v. Cuulfield), 42, 43, 44. Ap- plication of the authorities to the prin- cipal case, in which a special plea would have been necessary to raise the defence, 45. Essential allegations of the plea, 4G : with reference to the doctrine in the text as to bills stolen {Goodman v. Har- vey, Arbouin v. Anderson), 47. Gruund of that doctrine, peculiar nature of nego- tiable instruments ; pervading all the pleadings thereon, 48. Nature of the de- fence ; notice of the essence of it, 48. The same principles illustrated in the pleadings in trover for a bill, 49. Notice, or want of consideration, 50. Replica- tion to the plea, and burden of proof thereon, 51. Mode of pleading defences analogous to that in Peacock v. Rhodes j unauthorized transfer of the instrument ; distinction between such transfer and a deposit for discount (Noel v. Rich, Cranch v. White, Goggerly v. Cuthbert, Bramah v. Roberts), 52, 33, 54. Such a defence generally equivalent to a denial of consideration ; examination of the cases as to consideration ; right of action founded on the custon ; old cases noticed, 55, 56. Easlon v. Pratchctt, 57. Mode of plead- ing the defence of no consideration, 58. Atkinson v. Davies, King v. Phillipps, Thompson v. Chubley, Dalton v. Macin- tyre, Slurtevunt v. Ford ; objections to the defence when pleaded according to its ANALYSIS OF CONTENTS. XI legal effect as to an agreement not to sue rather a ground for cross action, 49. Old cases noticed, 60. Pleas of failure of consideration, distinguished from no con- sideration, 61. Distinction between de- fences founded on fraud, and on the ab- sence of consideration, 62. Considera- tion between all the parties must be nega- tived ; Knowles v. Burwood, Emmanuel v. Randall, 63. Unless an intermediate transfer be wholly destroyed {Watkins v. Benusan), 64, No necessity for pleading to indorsements not disclosed on the re- cord {Steele v. Harmer), 65. Pleas as to indorsement of a bill after due, 67 ; or dishonoured, 68 ; or after payment (Lazarus v. Cowie, Mitchell v. Crugg, Mor- ley V. Culverwell, Herbert v. Sayer, Cripps V. Davis), 69, 70, 71. CHAMBERLYN v. DELARIVE. Mode of pleading defences founded on the transfer of, or acceptance of an authority to receive a debt ; and, generally, of pleading in accord : and of the action for money had and received. Defence of the party assigning, correl- ative with the right of the party ac- cepting the transfer, to sue the inter- mediate debtor ; origin and nature of the action for money had and received ; in its earlier and more simple form ; as a re- medy for money actually received by another for the plaintiff', 79- Distinction between a receipt for him, and for his use, i. e., as his agent ; Hewlett v. Os- borne J case from the Year Books, illus- trating the principles on which the action is founded ; how far the principle of bail- ment is applicable to money, and in- fluences the right of action ( Tollett v. Shenstone, Sewell v. Baby, Shillibeere v. Glynn, Orton v. Butler, Stephens v. Bad- cock), 81, 82. Cases where the receiver is a creditor ; early cases {Harris v. Ber- voir. Brand v. Lisley, Harrington v. Deane, Atkins v. Berwick), 82, 83. Mo- dern cases {De Bernales v. Fuller, Wil- liams V. Everett, Yates v. Bell, Wedlake V. Hurley, Brind v. Hampshire, Baron v. Husband, Howell v. Batt, hilly v. Hays), 84 — 88. Cases where a debtor is directed to pay his debt to a party to whom his creditor is indebted ; authorities from the Year Books, 89, 91. Cases from the old reports as to the right of action on the part of the creditor appointed to receive the debt, 92 ; Mouse v. Ebney, Dawson v. Haslip, Oble v. Dittesfield, Chips ham V. Morris, Forth v. Stanton, Prideaux v. Rawlins, Woodward v. Righy, Case v. Barber, Hough v. Roe, Russell v. Had- dock, Potter V. Turner, Morton v. Burn, 92 — 96. Deduction from the authorities thus reviewed ; that the transaction takes no effect until the assent of all three parties ; the result of which must be the extinguishment of the sold debt ; so that the result must be the creation of a new, and not the transfer of the old right of action, 96, 97. Modern cases considered, in which the principle is illustrated ( Wood v. Evans, Tatlock v. Harris, Israel v. Douglas, Wilson v. Coupland, Lacy v. M'Neile, Hodgson v. Anderson, Cuxon v. Chadley, Wharton v. Walker, Fairlee v. Denton, Crowfoot v. Gurney, Hutchinson v. Heyworth, Walker V. Rostron, Tibbetts v. George), 97 — 101. Doctrine of the preceding cases applied to defences such as that in the text, 102. Old cases, as to accord ; mere promise to pay at a future time, even by a third party, only the substitution of one chose in action for another, 103, 104. Cumber V. Wane, Sibree v. Tripp, 104, 105. If by the delivery of an instrument either plaintiff would derive benefit, or defend- ant sustain detriment, good consideration for an accord, 106. Mere laches no de- fence, except on a bill, note, or cheque (Griffiths V. Owen), 107- Distinction be- tween a defence founded on the receipt of the money represented l»y a cheque, XI 1 ANALYSIS OF CONTENTS. and the receipt of an instrument {Hough V. May), lOS. Laches only evidence that it was received in satisfaction ; unless it were so, there would only be ground for cross action (Francis v. Baker, Thomson V. Reilman); bad form of plea upon facts such as those in the text {Gifford v. JVhittaker), 109- Distinction between mere negligence and a constructive satis- faction of the original debt by a wrongful dealing with the debt transferred, 110. Form of plea proper to raise a defence such as that in the principal case, 110, 111. Baillie V. Moores setting otF of the debt assigned against a debt due to the intermediate debtor, Stewart v. Aberdeen, Learmouth v. Grandine. KEARSLAKE v. MORGAN. Of pleading the defence of the receipt of a bill or note. Defence that the bill was taken in sa- tisfaction, founded on the principle of the acceptance of one debt in exchange for another, 113. Necessary to such de- fences that the instrument should be transferable, unless the plea show an ex- ecutory accord ; old cases considered, and Hardman v. Bellhouse, 114. The receipt of this instrument in satisfaction constitutes the defence ; which is, there- fore, unaffected by any subsequent deal- ing with it; however that may either afford evidence of an acceptance in satis- faction, or, may exonerate the party from liability on the instrument, 115. Cases considered {Ward v. Evans, Hill v. Lewis, Smith v. Wilson), 116. Practical result of this principle with respect to the pleadings {Lewis v. Lyster, Goldshed v. Cottrell, Sard v. Rhodes, Edwards v. Greenwood), 117. With reference to du- plicity, lis. As to an instrument on which defendant only was liable, and which, though negotiable, has not been negotiated, 1 1 9. Cases {Simon v. Lloyd, Lumley v. Musgrave), 1 20. Taking of an in- strument /or and on account of a debt, 121. Principles of the defence {James v. Wil- liams, Mercer v. Cheese, Huxley v. Bidl), 121, 122. Replication, return of the bill, &c., and rejoinder, negotiation, &c.; sur- rejoinder disclosing departure, &c. 123. Duplicity in pleading the defence {Mail- lard V. Argyle, Wright v. Watts), 123, 124. Rejoinder disclosing that defend- ant was discharged on the instrument, open to objection as a departure, 124, 125. Duplicity by reason of an allega- tion of payment of the bill, 125. Dis- tinction between taking a bill after a previous cause of action had accrued, and by reason of its having been i)art of the previous contract that it should be so taken, 125. AGARD V. KING. Of pleading in debt on a demise, or in use and occupation. Every occupation of land, with per- mission of owner, either a license or a lease; mode of pleading ; old cases no- ticed, 127. Principal distinction between license and lease, express or implied •. stipulation for remuneration ; constituting a binding executory contract, either as a lease or as an agreement, 128. Leases originally rather at ivill; old cases cited as to the form of pleading, 129, 130. Debt on demise at will, or a quantum meruit ; Farmer v. Lawrence, Mason v. Willard, and cases from Year Books, 131, 132. When rent reserved, each re- servation a distinct and entire contract {Welbie v. Phillipps, Hunt v. Stone, Slack V. Sharp); cases from Year Books, 133. Legal effect of this as a demise for each ANALYSIS OF CONTENTS. Mil period of reservation {Leic/hton v. Teed, How V. Kennetty SimpMns v. Ashurst, Willdnson v. Hall), 133, 134. Mode of pleadiing tenancy from year to year, Pofkiil's case, 134, 135, 136. Bishop of Bath's case, Bellasis v. Barbridge, 137. Principle — that the demise maybe pleaded as having originally been for the entire period of tenancy, 138. Birch v. Wright, Berry v. Lindley, Stomfit v. Hicks, Legg V. Strudwick, Harris v. Evans, Rex v. Hurstmonceaiix, Buckworth v. Simpson, 139, 140. Exemplification of the prin- ciple ; agreements under the Statute of Frauds {Savage v. Dupiiis, Doe d. Rigge V.Bell), 140. Distinction between tenancy arising by implication of law, and by ex- press or implied agreement of the parties. Effect of reservation of annual rent in modern cases considered ; Braithwaite v. Hitchcock, 141. Richardson v. Langridge, Knight v. Bennett, Wilson v. Abbott, Bi- shop V. Howard, 142, 143. Practical ap- plication of the principles with respect to pleading, 144 ; distinction between the original tenancy and that subsequently created by implication of law, Tempest v. Rawlins, Heegan v. Johnson, Regnart v. Porter; deduction from the doctrine thus elucidated, as to the almost universal applicability of debt on a demise ; form of the declaration therein, 145. Im- plied allegation of a title in reversion ; plea of nil habuit, 145, 146. Leivis v. Willis, Sullivan v. Stradling, old cases. Page v. Lownes, Cheitle v. Pound, 146. If demise declared was by indenture; demurrer for the estoppel disclosed, 147. So if entry be disclosed in the declaration or replication ; as to the latter, possi- bility of departure, 147, 148. Effect of the common allegation, that lessee en- tered, Hawkes v. Orton, 148, Replication to the plea of nil habuit {Gylle v. Glass, Aylett v. Williams, Parker v. Harris, Wilson V. Field), 148, 149. Defeasible estate as at will : sufficient title, 149. But some legal estate sufficient, 149, No estoppel against disclosing a determin- ation of the lessor's title, 149, 150. De- claration by assignee of the reversion, 5 Henry VII. fol, 14, Walker's case, Thursby v. Plant, 150. Venue, 151, De- claration against assignee of the term, 151, 152. As to the necessity for the allegation of entry, either in the case of lessee or assignee, 152. Bellasis v. Bur- bridge, duplicity, 153. Defence founded on lessee's inability to enter by reason of act of lessor (Hawkes v. Orton, Neale v. Mackenzie), 153, 154. Disclosing title of lessor to assign {Cawick v. Blagrave), 154, 155. Traverse of assignment of reversion {Hare v. Cater, Hughes v. Row- botham. Matures v. Westwood, Burton v. Barclay, Wright V. Burroughs), 155. Tra- verse of assignment of the term ; distinc- tion between assignment and underlease, {Holford V. Hatch, Poultney v. Holmes, Palmer v. Edwards, Smith v. Mapleback), 156. Improper to introduce allegation tending to show the right to rent depend- ant on occupation, 156. Allegation of rent in arrear ; old cases in great degree inapplicable as to the strictness of con- struction formerlyapplied(f7wi6/ev. Fisher, Carpenter v. Collins, Tompkins v. Pincent, Stagg v. Hind, Kenyon v, Buckly, Hen- neker v. Turner, King v. Greenhill, Bright V. Beard), 157, 158. Effect, in point of pleading, of the principle that each reser- vation constitutes a distinct right of ac- tion ; the reservations, if there be more than one, must be distributively pleaded to a denial, 158. And each maybe sepa- rately pleaded or demurred to (Hopkins v. Helmore, Watson v. Hartshorne), 158,159. Old cases cited from the Year Books as to the form of pleading. Colored v, Skipton, 3 Henry VI. fol, 19; et alia, 159. Effect of pleading, as to different reservations riens en arrere, and ne lessa pas, 160. Misstatement of the reservations avail- able on a denial of the demise ; distinc- tion between non dimisit and riens en arrere {Wigg v. Shuttleworth, Vavasour V. Ormond), l60. Old plea of riens en arrere now inapplicable as equivalent to nil debet, Wariier v. Theobald; effect of the plea in its present form {Baden v. Flight, Bright v. Beard), 161, Special pleas of 7-iens en arrere, or payment of XIV AX.U.YsI.* OF CONTR.VTS. charges on the land ; old case from Fitz- herbert's Abridgment, 162. Moderncases, Sapsford v. Fletcher, Taylor v. Zamini, Cleniicll V. Read, 163. Deductions on account of rates or taxes, Stubbsv. Parsons, Andrews v. Hancock, Bramston v, Robins, Waller v. Andrews, Carter v. Carter, Dyerv. Bowley, 164, 165. What species of deduction thus pleadahle, Davis v. Sfacey, l65. Cases from the Year Books, 166. Form of pleading, Johnson v. Jones, argumentative!}' amounting to riens en arrere ; old cases upon the conclusion " et sic," 166, 167. Plea of levie per dis- tres : cases from the Year Books, 167, 16S. Modern cases, Hudd v. Ravenor, Lingham v. Warren, Lear v. Edwards, 169. Replication to the plea, Aldridge v. Howard, 169, 170. Pleas of eviction, 170. Distinction between actual and construc- tive eviction, 171- Form of pleading actual eviction ; cases from the Year Books and old reports, 171, 172. Evic- tion from part of the premises, Cherborne V. Ri/e, Cibes v. Hills, Dornell v. Andreivs, Hunt V. Cope, Roper v. Lloyd), 172, 173. Eviction by a third party ; necessary to show by what title ; case from Long Quinto, 173, 174. Must show a possessory title {Proctor v. Newman, Buckley v. Wil- Hams, Pincombe v. Rudge, Cooper v. For- tescue, Jordan v. Twells, Foster v. Pierson), 174 — 176. Pleas of cowsfrMC^Jre evictions; importance of the distinction between the lessor's absolute estate, and that arising by estoppel as against the lessee, 176. Distinction between an estate defeasible, and an estate determined (Lilford's case, Doe v. Harlow, Selby v. Brown), 176. Lessee's interest continuing by disseisin or estoppel until entry, as till then the tenant would only for rent be liable to his immediate lessor, 177- Old cases ; claim of rent equivalent to actual entry (Hill v. Saunders), 177, 178. Where lessor, as in the common case of mortgagor, was in possession at the time of the lease, the plea can confess a sufiicient estate, out of which he could demise ; the want of which confession may render the plea bad as argumentatively amounting to nil habuit {Alchorne v. Gomme), 178. De- fence can only be sustained as to the rent accruing due after the claim ; Pope v. Biggs considered as to the law, 179. Recent cases as to the form of pleading ( Rogers v. Humphreys, Partington v. JVood- cock, Johnson v. Jones, Boodle v. Camp- bell, Selby V. Browne), 179 — 1S5. Eviction by title paramount, allowed to apportion- ment, 185, 186. Prior lease of the same premises to another (Neale v. Mackenzie, Butler v. Swinnerton), 186. Good repli- cation to plea of eviction that plaintiff en- tered under title derived from defendant ; lease to lessor; cases from Year Books and other old cases, 186, 187. Pleas of assignment by lessor or lessee {Paddon v. Bartlett, Pargetter v. Harris, Mortimer v. Preedy), 187. V\e2iS oi surrender ; cases from the Y'ear Books ; whether surrender were in fact or in law form of pleading the same, 188. Cases as to pleading a surrender according to its legal effect (JPeto v. Pemberton, Swaine v. Holman, Leach v, Thompson), 189. Surrender in law ; acceptance of a new lease ; old cases, 190. Modern cases establishing same doctrine, 191. Substitution of one tenant for another ; old cases, 191, 192. Entry of substituted tenant not essential, 192. Modern cases {I\Iathews v. Sawell, Stone V. Whiting, Thomas v. Cook, Doe d. Huddlcstnne v. Johnston), 192 — 194. Re- linquishment of possession to the land- lord ; old cases, 295. Modern cases {Mollett V. Brayne, Stone v. Whiting, Whitehead v. Clifford, Grimman v. Legge), 195 — 197. Recent cases illustrating the form of pleading {Gore v. Wright, Tur- ner v. Hurdy), 197, 198. Mode of plead- ing defences of a doubtful character; eviction or surrender {Dunn v.Nuovo), 199. Surrender or notice {Johnson v. Huddle- stone), 199, 200. Plea of notice and re- plication thereto {Cadby v. Martinez), 201. Action for Use and Occupa- tion ; only the exclusive remedy where the occupation has been without plain- tiff's assent, 202. When the common count is allowable with one on a demise 202. Origin of the common count ; ANALYSIS or CONTENTS. XV ancient cases examined ; distinction be- tween a demise and a collateral agreement {Brett V. Read, Slack v. Bowsal, Read v. Johnson, Symcock v. Payne, Acton v. Simon, Chapman v. Southwick, Johnson v. May), 202 — 204. Distinction between common count and one on a demiseCJSc/jre v. Straf- ford), 205. Special counts amounting to the common co\ini{Boot v. Wilson); to sup- port which, entrj^alone is sufficient, (AV/^/ow V. Tozer, Pinero v.Judson, Smith v. Twoart), 206. Effect of the allegation that de- fendant "held" or "became tenant" (recent cases), 207. Form of special counts (Richardson v. Gifford, Wallis v. Broadbent, Brydges v. Lewis, Reeve v. Bird, Bird v. Higginson) ; special count necessary, not where lessee has merely ceased to occupy, but where he has ceased to hold, as by assigning ; distinction be- tween assignee and under lessee {Naish V. Tatlock, Bull v. Sibbs, Gibson v. Court- hope, How v.Kennett, Atkins v. Humphrey), 208 — 210. Distinction between co-tenant and under tenant {Ibbs v. Richardson, Christy v. Tancred), 212. Pleas to suit special counts, 213. Quaere if the com- mon count is supportable where the pre- mises have been destroyed, &c. {Baker v. Holtzapphel, Irvon v. Gorton, Surplice v. Farnsworth, Hart v. Windsor), 213, 214. The count does not imply that the pre- mises are plaintiff's ; nil habuit inadmis- sible {Lewis V. Willis, Curtis v. Spitty), 214. Essential allegation, as to the per- mission of the plaintiff {Davis v. Morgan), 215. But it must be his permission as principal {Evans v, Evans), 215, 216. Transfer or determination of title ; proof of, when necessary ; defence available under the general issue {Mortimer v. Preedy, Waddilove v. Burnett, Newport V. Harley), 216 — 218. Distinction be- tween mere 2)ermission to occupy, and re- linquishment of possession, obviating the objection as to absence of legal title, {Morgell v. Paul, Hull v. Vaughan, Wilson V. Williams), 218, 210. Import of the allegations "held, used," &c., as aj)plicab]e to easements or incorporeal hereditaments {Davis V. Morgan, Palmer v. Gooden, Bird V, Higginson) ; apartments {Fenn v. Grafton, Monks v. Dykes), 219, 220. Where the occupation was withoiit the plaintiff's assent, he must be proved the owner ; and the count will not be sup- ported unless the understanding were that remuneration should be received for the occupation ; illustrated in cases of contracts of purchase {Kirtland v. Poun- sett, Howard v. Shaw, Winterbotham v. Ingham, Tew v. Jones), 220, 221. Where no rent fixed, remuneration accrues de die in diem {Packer v. Gibbins), 221. Where fixed, each reservation an entire contract, and any defence showing that the right of action thereon never accrued arises under the general issue (Prentice V. Elliott, Slack v. Sharp, Selby v. Brown), 222. WOODS V. ARGYLL AND LAKE v. ARGYLL. Of parties to actions on simple contract. General observations upon liability as principal or partner, or co-contractor, i. e. in law, or infact, 229. Cases exemplifying agency or apparent partnership for a par- ticular purpose with respect to liability of ship-owners, &c. {Garnham v. Bennett, Coe V. Rich, Farmer v. Davis, Eraser v. Marsh, Reeve v. Davis, Westerdellv. Dale, Young v. Brander, Frazer v. Hophins, Tinkler v. Walpole, M'lver v. Humble, Annett v. Car stairs, Briggs v. Wilkinson, Curling v. Robertson, Holcroft v. Hoggins), 230 — 236. Difference between the autho- rity of an agent and of a partner {Shepton v. Thornton, Arthur v. Barton), 236. Cases exemplifying the same principle in a reverse aspect, with respect to the right to sue {Skinner v. Stock, Garratt v. Hand- ley, Alexander v. Barker, Bonfield v. Smith, Boucher v. Murray, Sims v. Brit- tain, Smith v. Craven, Palmer v. Spar- shott, Hoggins v. Gordon), 237—239- XVI ANALYSIS OF CONTRNTS. Cases as to the effect of ivriling not un- der seal {Drake v. Beckham, Hirjgins v. Senior), 234—240. Cases in which, by the appearance of a partnership an ambi- guitj- arises as to the existence of a liability in law, dispensing with evidence of a lia- bility in fact ; distinction between an inchoate and a perfect partnership {Hoare V. Davis, Cooper v. Eyre, Savill v. Robert- son, Gouthwaite v. Duckworth, Young v. Hunter, Smith v. Craven, Helme v. Smith Gibson v. Lupton, Brown v. Tapscott, Elgie v. Webster), 241 — 243, Connection between these cases and cases of joint- stock projects (Holmes v. Higgings, Noc- Jiels V. Crosby, Kempson v. Saunders), 244. Further illustrations from cases of joint- stock projects partly come into operation {Perring v. Hone, Ellis v. Schmoech, Vice V. Anson, Dickinson v. Valpy, Bourne v. Freeth, Braithwaite v. Scholejield, Fox v. Clifton, Doubledoy v. Muskett, Pitchford V. Davis, Tredwen v. Bourne), 246 — 254. Illustrations from cases as to clubs, De- laney v. Strickland, Flemyng v. Hector, Todd V. Emley, 255 — 25/. Further con- sideration of cases as to preliminary ex- pences of joint-stock projects, cases in the text, Barrett v. Lambert, Reynell v. Lewis, Wylde v. Hopkins, 259 — 264. INDEX OF CASES CITED. 20 Edward III. fol. 9 28 90 29 25 29 25 40 24 43 6 43 28 44 22 45 16 45 8 45 24 47 27 4 Henry IV. fol. 12 . 4 18 11 4 . 12 17 18 1 . 8 Henry V. fol. 3 9 8 . 3 Henry VI. fol. 19 4 • 5 . 4 26 7 26 . 9 29 9 21 . 9 43 10 21 . 10 23 10 25 . 18 2 19 — 28 20 7 20 20 20 24 20 27 20 31 21 32 21 37 20 27 21 52 22 36 22 13 22 37 22 39 22 • 55 27 7 27 8 27 10 28 6 28 7 30 : 6 31 2 159 174, 133, PAGE 59 167 3 26 188 130 40 91 28 187 192 189 80 28 11 15, 187 131 188 186 37, 59 167 2 171 90 105 187 3 133 2 131 149 37 149, 167 3 132 168 59 129 132 59 2, 167 167 37 91 91 90 2 171,59 168, 129 127,90 79 192 32 Henry VI. fol. 32 33 33 33 34 34 34 34 34 35 35 35 36 36 37 37 37 37 37 38 38 3 9 44 3 33 17 7 31 43 48 63 . 5 25 . 10 11 . 7 8 . 35 . 10 18 . 5 27 . 1 Edward IV, fol. 3 2 6 . 2 11 4 6 . Long Quinto fol. 43 29 6 Edward IV. fol. 8 9 27 9 41 10 4 11 3 15 25 15 5 15 10 18 Edward IV. fol. 28 20 9 21 29 22 37 9 Edward VI. fol. 41 2 Richard III. fol. 22 2 Henry VII. fol. 10 5 19 6 11 7 3 14 7 21 8 14 Henry VIII. fol. 15 19 8 29 34 PAGE 59 90, 105 91, 127 157 192 2, 166 128 91 91 145 127, 139 146 79 90 129 190 129 168 172 79 129 167 130 186 2 130 1, 173 168 167 90, 127 127 129 129 1(58 60 129 172 189 90 114 96 147, 150 . 103 152 189 192 191 40 40 17 win INDEX OF CASES CITED. Abbott V. Hendricks, 1 M. & G, . Abraham r. Skinner, 12 A. & E. AcLesoa v. Fountain, 1 Str. Acton V. Simon, Cro. Car. Adams v. Jones, 12 A. & E, V. Wordley, 1 M. & W. Alcock V. Alcock, 3 M. & G. Alchonie v. Gomme, 2 B. Alderson v. Langdale, 3 B. & Ad. Aldridge r. Howard, 4 M. & G. Aleberry v. Wailey, 1 Strange Alexander v. Burcbtield, 7 M. & G V. Barker, 2 C. & J. Allen V. Cooke, 2 D. P. C. Allen V. Walker, 2 M. & W. Alsoj) i\ Scrimshaw, Salk. Arbouin v. Anderson, 12 B. Arden v. Pullen, 9 M. & W, , Arthur?'. Dartch, 9 Jur. V. Barton, 6 i\I. & W. Ashby V. James, 11 M. & W. Ashby V. Ashby, 3 M. & P. Atherstone v. Bostock, 2 M. & G. Atkins V. Owen, 4 A. & E. r. Barwick, Strange. V. Humphreys, 14 L. J. Atkinson v. Davis, 11 M. & W. . Austen v. Bewley, Cro. Jac. . Ayrey v. Fearnside, 4 M. & W. Aylett V. William, 3 Lev. B. Backhouse v. Harrison, 5 Bad. Baden v. Flight. 3 B. N. C. Bainbridge v. Firmstone, 8 A. & E Bailey v. Bidwell, 13 M. & W. Baillie v. Moore, 10 Jur. Baker v. Walker, 14 M. & W. V. IIoltzai>i)hel, 4 Taunt. lialfour V. Weston, 1 T. R. Balston V. Baxter, Cro. Eliz. V. Palmer Bainford v. Shuttleworth, 11 A. 8e Barker v. Birt, 10 M. & W. . V. Greenwood, 2 Y. & C. Barnaby v. Regalt, Cro. Car. . Barnett ». Lambert, 15 L. J., Ex. Barnard v. Dufiy, 5 Taunt. Barnwell )•. Williams, 7 M. & G. Baron v. Husband, 4 B. & Ad. Barton v. Barclay, 7 Bing. Beckham v. Drake, 11 M. & W. Beckwith v. Corrall, 3 Bi. liedwell V. Cotton, Hob. . ilees V. Williams, 2 C. M. & R. IJeech V. White, 12 A. & E. Bell V. Gardner, 4 M. & G. . Belliises ». Burbridge, 1 Ray. PAGE 40 . 107 39 . 203 37, 42 40 41 . 165 . 124 169 . 145 108 238 . 5, 9 38 . 60 . 45, 65 153, 202 9 236 . 11 12 . 141 . 44, 53 84 . 211 58 . 20 16 . 147 46 157, 161 106 52 . Ill 36, 113 154, 213 . 154 103 . 20 89 15 111 55 259 158 49 88 155 -59 46 27 189 207 87 137 E. 3(i Berry v. Ludley, 3 M. & G. . Betts V. Gibbins, 2 A & E. Bingham v. Stanley, 1 Q. B. . Bird V. Higginson, 2 A. & E. Bishop of Bath's Case, 5 Coke V. Howard, 2 B. & C. Blake's Case, Coke Blake v. Foster, 8 T. R. Blanckenhagen v. Blundell, 2 B.& Bolton p. Richards, 6 T. R. Bockenham v. Thacker, 1 Vent. Bonfield v. Smith, 12 M. & W. Boodle V. Campbell, 7 M. & G. Borough V. Moss, 10 B. & C. Boot V. Wilson, 8 East Bourne v. Freeth, 9 B. & C. Boucher v. Murray, 8 Jur. Bramah v. Roberts, 1 B. & C. Braithwaite v. Scholefield, 9 B. & V. Hitchcock, 10 M. i Brashier v. Jackson, 6 M. & W. Breckom v. Smith, 1 A & E. Brett V. Read, Cro. Car. Bradley v. Mason, 11 M. & W. Bramston v. Robins, 4 B. Brand v. Lisley, Yelv. Brind v. Hampshire, 1 M. & W. Bright V. Beard, 4 Q. B. Brinsley v. Patridge, Hob. Brill V. Crick, 1 M. & W. Britten v. Webb, 3 B. & C. Brown v. Tapscott, 6 M. & W. PAGE . 138 106 . 52 220 126, 137 . 143 105 149, 177 A. 18,36 110, 125 107 238 . 183 68 . 206 248 238 45, 51 C. . 248 W ■ V. Wilkinson, 4 M ■ V, Crump, 5 Ta. ■V. Loudon, 1 Lev. &G. Brydges i\ Lewis, 3 Q. B. Brewster v. Parrott, Cro. Eliz. Bromwick r. Lloyd, Lutw. Briggs V. Wilkinson, 7 B & C. Brooks V. Mitchell, 10 M. & W. Byers v. Wylie, 1 C. M. & R. Buckworth v. Simpson, 1 C. M. Bukley v. Williams, .'5 Lev. Burnell v. Curtis, 4 Jur. Burgh V. Legge, 5 M. & W. V. Preston, 8 T. R. Burchell v. Slocock, Ray. Burden v. Hatton, 4 B. Burmester v. Hogarth, M. & W. 15urton v. Barclay, 7 Bi. Butler V. Swinnerton, Palmer Cadby v. Martinez, 11 L. J. . Carlos V. Faucourt, 5 T. R. Camidge v. Allerby, 6 B. & C. Carter v. James, 13 M. & W. V. Carter, 5 B. Carrick v. Blagrave, 1 B. & B. Carpenter r. Collins, Yelv. Case ?\ Barber, T. Ray. 141 . 207 12 . 203 124 . 164 83 . 86 158, 161 4 . 40 123 242 . 40 207 . 56 212 . 189 55 68 . 61 &R. 140 175, 186 . 138 6, 14 . 60 102 . 123 38 155 186 . 201 18 . 124 37,44 . 165 155 . 156 94 INDEX 01' CXfilCa CITED. XIX Cecil V. Harris, Cro. Eliz. Cibel V. Hill, 1 Leon. Chater v. Bell, 4 Esp. Chapman v. Bluck, 4 B. N. C. V. Townes, 6 M. & W. V. Soutliwick, 1 Lev. Charles v. Marsden, 1 Ta. Chettle V. Pound, Ray. Cheethan ?;. Butler, 5 B. & Ad. Cherbourne ?'. Rye, Cro. Eliz. (^liurchill V. Gardner, 7 T. II. Chisraan v. Count, 2 M. & G. Christie v. Peart, 7 M. & W. . V. Tanored, 9 ib. Claridge v. Mackenzie, 4 M. & G. Clennell v Read, 7 Ta. Claston V. Swift, Lutw. Clarke v. Alexander, 13 L. J. V. Lazarus, 2 M. & G. V. Webb, 1 C. M. & R. V. Mundell, Salk. V. Perceval, 2 Bad. V. Palady, Cro. Eliz. V. Martin, Ray. Clipsham v. Morris, 1 Vent. . Coggs V. Bernard, Ray. Collins V. Blantern, 1 Wils. . Martin, 1 B. & P. Collett V. Robeston, 2 Leon. . Collingbourne v. Mantell, 5 M. & W. Colered v. Skipton, 3 Hen. VL . Connop V. Holmes, 2 C. M. & R. Cook V. Harris, Ray., Stra. Coomber v. Howard, 7 M. & G. Cooper V. Young, Fort. Copsey V. Turner, Cro. Eliz. . Cox V. Earle, 4 B. & A. . V. Bent, 3 B. . Cothay v. Fennel, 10 B. & C. Cooper V. Eyre, 1 H. B. Cowper V. Garbett, 13 M. & W. . Crook V. Jades, 5 B. & Ad. Cranch v. White, 1 B. N. C, Crawshay v. Barry, 1 M. & G. Crowfoot ('. Gurney, 9 B. Cripps V. Davis, 13 M. & W. Curling v. Robertson, 7 M. & G. Curtis V. Richards, 1 M. & G. V. Spetty, 1 B. N, C. 146, 1 Cumber ?'. Ware, Stra. . Cuxon V. Chadley, 3 B. & C. D. Dalby v. Cooke, 3 Croke Dartan v. Morgan, Cro. Jac. Daniel v. Coombs, 2 M. & G. Dann v. Spurrier, 3 B. & P. Darton v. Shurley, 1 Roll. Abr. Dangerfield v. Tliomas, 9 M. & W. Dalton V. Macintyre, 1 D. & L. Day V. Austin, Cro. Eliz. pa(;k 167 172 39 128 141 204 67 147 102 171 38 149 68 212 149 l(i3 55 11 61 14 116 17 134 53 93 81 56 43 79 91 159 62 104 141 175 45 125 141 242 241 51 . 46 49 231 . 101 68, 71 . 235 12 55, 214 . 104 100 3 . 132 64 . 138 20 94 58, 67 . 172 Davison v. Haslip, 1 Veutr. Davis V. Stacey, 12 A. & E. V. Wilkinson, 10 A. & E. V. Morgan, 4. B. & C. V, Warner, Cro. Jac. Davidson v. Cooper, 11 M. &W. De Bernalcs v. Fuller, 14 East. Dickinson v. Valpy, 9 B. & C. Deatli V. Serwonter, Lutw. Doe V. Harlowe, 12 A. & E. . Debers v. Harriott, 1 Show. Delavy v. Stodart, 1 T. R. . Deacon v. Stodart, 2 M. & G. Dixon V. Harman, Vaugh. Disborne v. Denabie, 1 Roll. Abr. Dorrell v. Andrews, Hob. . Douglas V. Home, 12 A. Sc E. Doe d. Parsly v. Day, 2 Q. B, . Lyster ii. Goodwin, ib. . Doorman v. Jenkins, 2 A. & E. . Doe d. Regge v. Bell, 5 T. R. Broom, 8 East, Shore, V. Porter 3 T. R. Drew V. Thorne, Aleyn. . Doe V. Harlowe, 12 A. & E. . Doe d. Rogers v. Pullen 2 B. N. C, Higinbotham v. Barton, 11 A. PAGT. 92 160, 165 19 , 219 203 . 124 85 . 247 55 . 176 67 94 . 68 177 80 173 . U 127 . 127 80 . 140 141 . 142 25 . 178 143 149 &E Huddlestone t> Johntone,l M.C.&Y.194 Dodge V. Bower, 2 M. & W. , . 141 Dodd V. Acklom, 6 M. & G. . 198 Drake v. Beckham, 11 M. & W. . 239 Dunn i;. O'Keefe, 5 M. & S. . . 68 Dudley v. Powle.s, 5 H. 7, fol. 1 . 127 Doubleday ». Muskett, 7 B. . . 252 Dutton V. Poole, Ray. . . 80 Dunk V. Hunter, 5 B. & Aid. . 130, 144 Dyer t;. Bowley, 2 B. . . 165 Dunn V. De Nevco, 5 M. & G. . 199 E. Earlv V. Crockford, 10 Bi. . .46 Easton v. Pratchett, 2 C. M. & R. 56 Edge 17. Pemberton, 12 A. &E. . 167 Egan V. Threlfall, 5 D. & R. . 46 Eaton V. Jacjues, Dougl. . . 154 Edmunds v. Grove, 2 M. & N. . 52 Edge V. Shafford, 1 C. & J. . 156, 203 Elgie V. M'ebster, 5 M. & W. . 242 Ellis V. Smoeck, 5 Bi. . 246 Elliott r. Cooper, 2 Ray. . . 57 V. Kemp, 7 M. & W. . 215 Emmanuel v. Randall, 8 D. P. C. 50, 63 Ereskine v. Murray, 2 Ray. . . 55 Evans t\ Verity, R. & M, . 8 V. Keymer, 1 B. & Ad. . . 104 V. Evans, 2 A. & E. . 215 Ewers v. Henchkin, Lutw, . , 55 Everett w. Williams, 14 East. . 85 Edwardes v. Hawkes. 8 M. & W. . 23 V. Baugh, 11 M. & W. . 27 XX INDEX OV CASES CITED. I'.dwarils r. 2 Y. & J. r. Greenwood, 5 B. N. C. V. Rose, 1 M. & W. Ey!es f. Ellis, 4 B. F. Farmer ». Lawrance, Styles V. Davis, T. R. Fancourt r. Bull, 1 B. N. C. Farrer v. Johnson, Cro. Eliz. Fairlie i'. Roach, Lutw. . r. Denton, 8 B. & C. . Fenn r. Harrison, 4 T. R. V. Grafton, 2 B. N. C. . Ferguson r. Carrington, 7 B & C Fidgett V. Penny, 1 C. M. & R. Foot V. Baker, 5 M. & G. Forster v. Allanson, 1 T. R. . V. Jolly, 1 C. & M. . • V. Pierson, 4 T. R. . Forth V. Stanton, 1 Saund. Fox V. Clifton, 6 B. . Fraser v. Welch, 8 M. & W. V. :Marsh, 13 East V. Hopkins, 2 Taunt. Francis v. Baker, 11 A. & E. . Field V. Carr, 5 B. . Fulmerstone v. Steward, Plow. G. Gardner v. Macmahon, 3 Q. B. Garnham v. Bennet, Stra. Garrett v. Ilandley, 4 B. & C. Gaskellr. King, 11 East Gore V. Wright, 8 A. & E. Greenman v. Legge, 8 B. & C. Gibbons v. Mottram, 6 M. & G. Gibson v. Minet, 1 H. B. V. Kale, 1 Q. B. V. Courthope, 1 D. & R. V. Lupton, 9 B PAGE 62 118 125 110 131 231 45 192 55 101 43 47 29 30 23 40 175 93 250 61 -231 233 109 110, 125 191 1, 131, Gifford V. Whitaker, 8 Jur. Gould V. Coomb, 1 C. & B. Gouthwaite v. Duckworth, 12 East Goss V. Nugent, 5 B. & Ad. Gore V. Gibson, 13 M. & W. Goodman v. Harvey, 4 A. & E. Goggerley v. Cuthbert, 2 N. R. Granger v. Collins, •. Harris, Salk. Parry v. Roberts, 3 A. & E. . V. Nicholson, 13 M. & W. . & E Partington v. Woodcock, G A. Paul V. Dodd, 10 Jur. V. Nurse, 8 B, & C. . Pearce v. Davis, 1 M. & Hob. Perry v. Slade, 10 Jurist . 55 92 29 49 82 123 154, 224 1S7 . 147 105 . 156 97,239 79 187 149 . 87 141, 148 , 80 121 180 . 125 151 . 123 Perring v. Hone, 4 Bi. Penruddock v. Newman, 1 Leon, Peytoe's Case, Coke , Peto ('. Pemberton, Cro. Car, Pickering v. Gunning, Palms. , Pigot's Case, 11 Coke Pigot V. Thompson, 3 B. & P. Pike V. Eyre, 9 B. & C. . Pillans V. Van Mierop, Burr, . Pincombe v. Rudge, Yelv. Pinkney v. Hall, 1 Ray, V. Winston Pinnel's Case, 5 Coke Pinero v. Judson, 6 B. Pitchford v. Davis, 5 M, & W, Pope V. Garland, 4 Y, & C. V. Biggs, 6 B. & C, Potter i>. Turner, Palm. Pountney v. Hammond, 8 Taunt. Poultney v. Holmes, Stra, . Potkia's Case, 14 Hen. VIII., Poole V. Longueville, 2 Saund, Prentice v. Elliott, 5 M. & W, Price V. Williams, 1 M. & W, Prevot V. Abbott, 5 Ta. Prideaux v. Rawlins, 1 T. R. Procter v. Newman, 2 Lev, Purchell v. Salter, 12 B. Purdon v. Pardon, 12 M. & W. Purssord v. Peck, 9 M, & W. R, Radford v. Harbyn, Cro, Jac, Raikes v. Todd, 12 A, & E. Rawlins' Case, Coke Rawlins r. Hawkshaw, 1 Stra. Rawlinson r. Shand, 5 M, & W, Read v. Johnson, 1 Lev. . Reeve v. Bird, 1 C. M, & R. . V. Davis, A. & E. Regnart v. Porter, 7 Bi, Rex V. Lambton, 5 Price V. IMelsom, 2 Camp. . V. Banbury, 1 A. & E. V. Hurstmonceau.x, 7 B. & C. Reynolds v. Blackburn, 7 A. & E, V. Prosser, Hard, V. Buckle, Hob, Reynell v. Lewis, 10 Jur, . Rich V. Coe, Cowp, , Richardson v. Langridge, 4 Ta. V. Giflord, 1 A. & E. Ridley?;. Tind:.I, 7 A, & E. Right d. Cutting r. Darby 1 T, R. Robins v. May, 11 A & E. Roe V. Lees, 2 W. B. Rogers v. Humphreys 4 A, & E. Roper V. Lloyd, T. J, PAGE , 245 195 . 105 189 . 24 42 , 80 149 . 97 175 , 55 . 81 207 . 252 141 . 179 95 6 15(i fol. 10 126, 134 . 148 222 , 127 . 37 93 . 175 90 7 61 Ml, 175 106 180 89 31 203 207 232 144 37 50 194 139 51 92 172 260 230 143 207 105 142 30 141 180 173 INDFX OF CASES CITED. XXIU Salmon v. Smith, 1 Saund Sapsford v. Fletcher, 4 T. R. Sard V. Rhodes, 1 M. & W. . Savage ;>. Diipuis, 3 Ta. Savill V. Robertson, 4 T. R. Saunders v. Musgrave, 6 B. & C. Scilly V. Dally, Salk. Scott V. Chapellon, 4 M. & G. Savage v. Deane, 4 R. Selby V. Brown, i) Jur. Serle v. Norton, 9 M. & W. . Sheldon v. Clipsham, T. Jones Shenton v. James, 5 Q. B. Shepherd v. Shepherd, 9 Jur. Shillibeer v. Glynn, 2 M. & W. Shipton V. Casson, 5 B. & C. Sibree v. Tripp, 15 L. J., Ex. Sinclair v. Baggaley, 4 M. & W. . Singleton v. Barrett, 2 C. & J. Simpkins v. Ashurst, 1 C. M. & R Sims V. Brittain, 4 B. & Ad. Simon v. Lloyd, 2 C. M. & R. Sison V. Kidman, 3 M. & G. Slade V. Thompson, 1 RoUe . Skinner v. Stock, 4 B. & A. . Slack V. Sharp, 8 A. & E. . V. Bowsall, Cro. Jac. Sleigh V. Bateman, Cro. Eliz. Smallman v. Agborrow, Cro. Jac. Smith V. Wilson, Andr. V. Craven, 1 C. & J. V. Monteith, 13 M, & W. V. Maclure, 5 East . V. Kendall, 6 T. R. V. Martin, 9 M. & W. V. Pickering, Peake V. Twoart, 2 M. & G. V. Ferrand, 7 B. & C. . Snow V. Peacock, 3 B. . Stone V. Whiting, 2 Stark. Swaine v. Holmes, Hob. . Symcock v. Payne, Cro. Eliz. Surplice v. Farnsworth, 7 M. & G. Tarbuck v. Bipsham, 2 M. & W. Tapley v. Marten, 8 T. R. Tate V. Lewen, 2 Saund. Tatlock V. Harris, 3 T. R. Taylor v. Herbert. Freem. V. Lobbin, Strange V. Mather, 3 T. R. V. Higgins, 3 East V. Needhara, 2 Ta. V. Zamira, 6 Ta. Teal V. Auty, 2 B. & B. Tempest v. Rawlings, 13 East Thompson ». Redman, 11 M. & W Thomas v. Cook, 2 B. & A. PAGE 145, 153 163 . 117 140 241 141 145 35, 50 14 176, 183 100 36 16 153 80 125 104 29 9 134 238 119 113 171 237 133 203 193 177 116 242 27 38 103 45 47 208 110, 125 46 194, 196 189 . 203 214 13 123 4 97 29 57 67 98 147 163 9 144 109 194 Thimbleby v. Barron, 3 M. & W. Tepper v. Bicknell, 3 B. N. C. Thoroughgood's Case, 9 Coke Tibbetts r. George, 5 A. & E. Tinkler v. Walpole, 14 East . Thorpe v. Wingfield, 3 Leon. . Thompson v. Giles, 2 B. & C. V. Clubley, 1 M. & W. Tiramins v. Rawlinson, Burr. Tottenham v. Bedingfield, 3 Leon. Truman v. Hurst, 1 T. R. . Todd V. Emley, 9 M. & W. . Toliett V. Shenstone, 5 M. & W. . Trickey v. Larne, G M. & W. . Trevor v. Roberts, Hard. . Tredwen v. Bourne, 6 M. & W. Trott V. Smith, 12 M. & W. Towne v. Chamberlain, 5 M. & W. Trevivan v. Lawrence, 1 Salk. Tucker v. Burrow, 7 B. & C. . Thursby v. Plant, 1 Wms. Saund. Turner v. Diaper, 2 M.& G. . V. Hardy, 9 M. & W. V. Robertson, 5 B. & Ad. Tompkins v. Pincent, Salk. Tomlinson v. Day, 2 B. & B. . U. Umble V. Fisher, Cro. Eliz. Uther V. Rich, 10 A. & E. Vernon v. Shipton, 2 M. & W. Vavasour i\ Orrarod, 6 B. & C. Victor V. Davis, 12 M. & W. . Vice V, Anson, 7 B. & C. W. Wain V. Bailey, 7 A. & E. Walker's case, 3 Coke Walker v. Rostron, 9 M. & W. Waller v. Andrews, 3 M. & W. . Ward V. Evans, Ray. Warman v. Faithful, 5 B. & Ad. . Warren v. Consett, Ray. . Warner v. Theobald, Cowp. Warwick v. Rogers, 5 M. & G. Watts V. Rosewell, Salk. Waddilove v. Barnett, 2 B. N. C. Wallis V. Broadbent, 4 A. & E. . Watkins v. Moule, 2 J. & W. V. Benusan, 9 M. & W. Watson V. Hartshorue, 4 B. N. C. Waywood v. Hilliard, 7 B. Weak d. Taylor v. Escott, 9 Price Webb V. Weatherby, 1 B. N. C. Webber v. Tivill, 1 Saund. PAGE 60 160 40 95 233 147 43 58,67 134 79 5 255 82 61 128 252 66 141 147 6 151 91 198 141 156 220 156 50 49 160 87 246 150 , 601 164 . 115 128 36, 145 161 . 86 40, 167 . 217 213 . 47 64 . 159 8 . 138 81, 114 . 212 XXIV IXDKX or CASES CITED. WcWne V. Phillipps, 2 Ventr. Weillaker. Iluilev, 1 C. & J. Wells r. Gregg, 10 A. & E. Werner r. Humphreys, 3 M. & G. Westerdell v. Dale, 7 T. R. Whaler r. Lenny, 5 B. Whaley v . Anderson, Keb. Wharton v. Walker, 4 B. & C. Whitton V. Peacock, 2 B. N. C. Wheeler v. Moatefiore, 2 Q. B. Whelpdales' Case, 5 Coke Whyddon's Case, Cro. Eliz. Whorwood v. Shaw, Yelv. Whitehead v. Walker, 9 M & W. V. Clifford, 5 Ta. 10 ib. White V. Spettigue, 13 M. & W. V. Nicholson, 4 M. & G. r. Teal, 12 A. & E. Wigg i\ Shuttleworth, 13 East. Wilder v. Stevens, 15 L. J. Ex. Wilson V. Field, Skinner PAGE 133 86 16 211 232 37 147 88 149 127 42 40 79 64 196 68 47 207 49 160 123 149 PAGE Wilson V. Brett, 11 M & W. . 81 V. Coupland, 5 B. & A. . 96 V. Abbott, 2 B. & C. . 143 V. Williams, 1 Price, P. C. .219 Williams v. Bosanquet, 1 B. & B. 154 V. Moor, 11 M. & W. . 26 r. Leper, Burr. . 97 ?;. Green, Cro. Eliz. . 40 Willis ?\ Whitewood, 1 Leon. . 191 Wilkinson t. Hall, 3 B. N. C. 134, 140 p. Wballey 5 M & G. . 44 Winch V. Keely, 1 T. R. . 95 Winston v. Pinkney, 2 Vent. . 191 2 Lev. . 187 Winterbotham v. Ingham, 14 L. J. . 221 Young V. Brander, 8 East . 232 1;. Hunter, 4 Taunt. . 242 LEADING CASES ON PLEADING. EGLES V. VALE, 3 Croke, 69. Easter Term, 1 Jac. I., JRoll. 131. Error of a judgment given in Coventry/ in an assumpsit. If two persons •n • t 1-11 1 1 • •«» have dealings The first Error assigned was, r or that the plaintiff and make up declares, Whereas the plaintiff and defendant, 4 March, "f if 'Y'°""/'' ' •*- all uSSulTlVSlc 43 £Jliz. accounted together for divers sums of money '''•'^^^ ^'^ against him who owes received by the defendant, and the defendant was found to the balance, be in arrear ten pounds; that the defendant, in considera- ygiy'^'-o.** tion thereof, assumed to pay that ten pounds on the 19th Cro. Car. 116; March following, and alledgeth in fact that he had not i Bulst. 208 ;' paid ; whereupon he brought that action : whereas there is q^' ^qq not any consideration nor cause to ground such an action ; 294, 565 ; ,,.<>,. . 2 Ter. Rep. for the being found in arrear is not any cause to make a 479. special promise ; nor is there any thing done on the plain- tiff's part whereupon this promise should be grounded, viz. the forbearing of the suit, or any such thing. — Sed non allocatur; for the debt itself, without other special cause, is sufficient to ground the action. Before noticing this decision in its nected, it may be proper to consider bearing upon the recent case of Hoj)- the nature of that count, which, it kinsv. Logan,7 M. & W.,with which it will be found, is in principle as ancient is apparently at variance, and which is as in practice it is important, of great practical importance with re- The original of the modern action spect to the application of the count on the account stated may be disco- on an account stated, and also to seve- vered in the ancient action for "arrear- ral kinds of actions with which the ages of an account," and which formed action on that count is collaterally con- the basis of the proceedings on the B 2 EGLES V. VALE, S Cuokk, 69. statute (West. 2, c. 1 1) upon an account a voluntary accounting was a ground "before auditors assigned." At com- of sim})le contract action — is confirmed nion law a man might have his action by other cases, as 22 Hen. VI. fol. 36, on an account " taken by consent of the and 34 lien. YI. fol. 17. In27 Hen. VI. party accounting ;" and the statute fol. 8, to an action upon the statute, only gave a summary mode of proceed- defendant pleaded that he had already iug by process of imprisonment. Co- accounted before auditors assigned, who myn's Digest, " Accompt," note, A 1. had committed him to prison; but The distinction between the action at Paston, C. J., considered the })lea did common law and that founded on the not sufficiently show whether the former statute is marked in all the ancient auditors had strictly pursued the sta- cases, which (however obsolete they tutable powers, so that their proceed- mav appear) not only exhibit the origin ings did not bar the present action, of the modern form of action, but illus- In 10 Hen. VI. fol. 25, in an action trate some of the principles which even " for arrearages of account before au- now, at the present period, have a most ditors assigned," Ae^«^ow said, "At corn- important ]n'actical application to it. mon law, before the statute of Vl^'est. 2, In 4 Hen. VI. fol. 26, where the plain- such an account was not a matter of tiff declared, o?« Me *^ff^?/^e, for "arrear- record, but by the statute they have ages of an account before auditors as- power to commit to prison;" and then signed," it appeared that defendant he argued that where they had not had accounted only before one auditor; power (as in a case he put) to commit on which, for tbe defendant, it was to prison, "the excess of account was objected, and appears to have been (recoverable) at common law as it was conceded, that by the statute the ac- before the statute." cownimViSihe " coram auditoribus,'" ?ca(\ In the following case the original that only "when they were in the of the present action is distinctly de- plural, i.e. two or three," should it be veloped not only in point of principle deemed a proceeding " of record," but but in point of pleading. 4 Edward that if it were before one it could not IV. fol. 6 : in writ of account, A«?/e, for be so, and that then defendant m.ight the defendant, said that he had ac- " wage his law," i.e., it became a mere counted before the plaintiif, &c. Gen- matter of simple contract. In 4 Hen. ney, for the plaintiff : " That is no VI. fol. 18, Paston, J., said, "At plea, for it is not certain whether it common latv if one accounts before was before auditors assigned, or be- auditors, and is found in arrear, there fore the plaintiff himself ; and if the liea a good writ of debt, to which the plaintiff himself it should say that he law may be waged at common law; accounted with the plainti^', &c. Nele: and the statute only gives the power of " To say that he accounted either Re- committing to prison ; and if they do fore or with the ])laintiff is sufficient ; not commit it is only on an account for if a man have accounted before a at common law ; for before they give plaintiff it must have been with the the judgment to commit to prison plaintiff ; or if he have either in law they are not judges of record," &c. or in fact accounted with the plaintiff. The inferences to be deduced from it cannot otherwise be imderstood than these cases — i. e. that at common law as accounting before the plaintiff in law EGLES V. VALE, 3 Crokr, 09. a or in fact." Genneij : "The issue of- fered ought to be certaiu, whether he accounted before auditors assigned or before the plaintifP," &c. Maule, J.: The plea is good : for lie says he had accounted before you yourself : and if he says he accounted with the 'plaintiff (and if the plea be certain to a common intent it is sufficient) then it shall be good enough, &c. But in writ of debt on arrearages there is a diversity of the account "before auditors assigned," or before one auditor and the plaintiff (see ante, 4 Henry VI. fol. 26), or be- fore the plaintiff himself. And if in writ of debt the plaintiff declare that the defendant accounted before him or with him, and was found in arrearages, it is sufficient ; but the defendant may wage his law ; and one of the judges, Andrew, J. declared that the books upheld this doctrine ; and "one of the prothonotaries said that the entries of the count of insimul comjmtaveruntwere so ; that it was either in the nature of a reckoning, so that in such case it was for the plaintiff to show that the ac- count was between him and the de- fendant, and that the defendant was found in arrears, or to declare that the account was before auditors assigned for the plaintiff, &c." It is important to observe that in the ancient action for arrearages of an ac- count the principle will be found recog- nized and illustrated, that the accounting was the cause of the action ; a principle pervading all the decisions on the modern form of action. Thus in 20 Hen. VI. fol. 24, it was held that the defendant might traverse the accounting, or plead nil debet, a decision repeated in 3 Croke, 234, Balby v. Cooke; and which it need hardly be said, though it would be opposed to the principles of pleading, as applied to the modem action on an insimid comput asset, was not so when the action had the cha- racter of a statutable specialty. Again in 10 Hen. VI. fol. 21, writ of debt on the arrearages of an account on the statute, Newton pleaded nil debet, and prayed that defendant might wage his law ; " plaintiff being exa- mined it was found that it lay in ac- count." Newton then pleaded a spe- cial plea, which was demurred to as amounting to nul tiel account, but was upheld as presenting matter of law : and when it was asked, arguendo, to what intent plaintiff was examined if such a plea could be pleaded, it was answered per Curiam "to the intent {i. e. only) that if it was not in account defendant might have his law." So, in 29 Edw. Ill, fol. 25, "One brought a writ of debt, and demanded ibl., and counted that \0l. were due by reason that he was bailiff of the manor of B., at which time he accounted before cer- tain auditors assigned to him by the defendant, on which account it was found that his expenses exceeded his receipts by 10^., &c." Fiff : "As to the 10/. he supposes the «cco?/h# as the cause of action, whereas the debt arose out of the payment, &c." Sed per Finch, J. Though the payments in this case commenced before the debt, pro- perly it (the debt) arose upon the ac- count ; for if there is no account there is no action on this debt." On which defendant pleaded as to the 10?. nil debet, and issue was joined. Obviously then the ancient action at common law for " the arrearages of an account" was not merely in principle, but in form of pleading the original of the present action. It will, however, be observed that the earliest applica- tion of the action was (as the form in the principal case expresses) to the re- B 2 4 EGLES V. YALE, 3 Croke, 69. covery of a balance due from a party ant was indebted to the plaintiff in on " w/o;?ey« r^'ceu'Sf? by tbe defendant," £ for money found due from tbe i.e. where defendant was "«cco;/w^a«^." defendant to the plaintiff on an ac- Coniyn's Digest, ".icco?«7>^." But the count then stated between them," and leading principle to which we have al- the effect of the old count (per Parke, ready adverted as pervading alike the B., Irving v. Veitch, 3 M. & W. ancient and the modern decisions on 113) which in the form it ultimately this count, viz., that the cause of action assumed, until the new rules, ran thus : is the accounting, resulted at length in " That the defendant on, &c. accounted the decision that the count need not with the plaintiff of and concerning di- state wherefore the money on the ac- vers sums of money from the defendant covmt was due, and might simply state to the plaintiff before that time due that defendant accounted for divers and owing, and vipon that account the sums due to the plaintiff from the de- defendant was found to be indebted to fendant {Brinsley v. Partridge, Ho- the plaintiff in £ ." And it is by a bart, 88), because bi/ the account the reference to the language of the count, debt was confessed good ; a reason especially in its ancient and more ex- analogous to that which in Tate v. panded form, that it is ascertained in Leiven, 2 Saunders, is assigned for not any case, whether the action will lie : specifying the nature of necessaries, i. e. whether the facts, as proved, will &c. declared for as "provided for de- support and satisfy the allegations as fendant at his request," — that it was pleaded. Thus (per Patteson, 3 ., Ke7i- "implied that he had notice of them." nedi/ v. Withers, 3 B. & Ad. 768) "a And in Homes v. Savill, Cro. Car. sum was demanded of defendant, and 1 1 G, where the declaration stated that he refused to pay it ; you cannot call " Wliereas divers reckonings and ac- that an ' accounting ' upon which the counts were between the plaintiff and sum demanded was ' found due ' from defendant, and they insimid computa- the defendant, according to the terms verunt for all debts, reckonings, and in pleading an account stated." And demands, and the defendant upon the ^oiAso {j^er ParJie,^.,Luhbock\. Tribe, said account was found to be the sum of 3 M, & W.), "Theyb?'Wi of the count 20/. in arrear to the plaintiff, in consi- is for money found due, &c. upon an deration whereof," &c. — the court said account stated, &c. ; whereas all that "that the account might be for divers passed was a special agreement, &c." causes, and several matters and things And again {^per Parhe, B., Irving v. may be included therein, which in pe- Veitch, 3 M. & AV. Ill,) "I doubt whe- de compoti is reduced to asum certain, ther there has been that species of ac- wherein it certainly appears he remains counting which the count charges" and stands indebted ; and it is a suffi- It is to be observed that in the ancient cient ground to maintain the action as well as in the modern count — though without expressing the particulars for tlie former made mention of " divers which they accounted." debts," Src. — only one accounting is It was never intended that there intended; the effect of which is, that should be any difference between the only one accounting can be proved legal import of this count, as it is now under the same count. {Kennedy v. concisely framed, "that the defend- JFithers, SB. &: Ad. 770.) And it has EGLES V. VALE, 3 Croke, G9. been held sufficcnt to prove an account of one item, a principle on Avliicli de- pends the chief practical utility of the comit ; as in most cases all that is proved is an admission of a single smn as due. (^Highmore v. Prhnrose, 5 M. & S. G7 ; Knowlesy. Michel, 13 East ; Alle7i V. Cook, 2 D. P. C.) In the first of these cases the reason is thus stated : "Though in form the count stated is of and concerning divers sums of money, the allegation of " divers " may be supported by e\idence of one, as in a count for goods sold." But as the accounting, and not the precedent debt, is the cause of action, the better reason may be found in the fact that all the advantages which constitute the new consideration on an account stated, i. e. the reducing matters to a certainty, and obviating the necessity for preserv- ing vouchers {Home v. Savil, 3 Croke, cited ante, Williams v. Moore, 1 1 M. & W.), apply as much to an account stated of one item as of several. For, " an account stated is an agreement by both parties that any items are true ; the only consideration, for the promise, is the stating the account." {Truman\. Hvrst, 1 T.R. 42.) So, {per Coleridge, J., 10 Jurist, 471,) "the account stated is fresh matter, and consideration for a fresh promise." And all this is obvi- ously as applicable to one item as several. But it is most important to obserA-e that the admission of an account as due, which is usually the only evi- dence under this count, is at the ut- most but evidence of that which the form of the count shows to be the real ground of action ; ^. e. an accounting. "On questions of account statedthere is a good deal of confusion, not in the older, but in the modern books, which may sometimes appear to lay down this, that where there is any promise to pay a sum as due from defend- ant to plaintiff, it is evidence of an account stated; which means this, that the simple promise if it stand unexplained and uncontradicted is evi- dence to go to a jury that the plaintiflf claims that sum to be due, and that there are matters of account between the parties ; it does not go further than that ; and it is only when one comes to look at the facts on which the pro- mise was made, that one is enabled to see whether it is an account stated or not." {Per Abinger, C. B., Lubbock v. Tribe, 3 M. & W. G13.) And it is only with reference to this prin- ciple that such incidental expressions as the following are to be construed. "An account stated is nothing more than the admission of a balance due from one party to another, and that balance being due, there is a debt." {Per Abinger, C. B., Irving \. Vetch, 3 M. & W. 107.) " It need not be stated as a balance ; but an acknowledgment of a debt due on any account is suffi- cient." {PerEllenborough,CJ.,Knowles V. Michel, 13 East, 230.) The admission will not sustain the count when surrounding circumstances show not merely that it was not in- tended as an accounting (which, how- ever, seems naturally to import some voluntary settlement), but that it could not operate as such — as not being equivalent to the distinct statement of the item in an account as due to the plaintiff. The simple yet certain test thus afforded by the primary significa- tion of the phrase itself, " account stated," will be found perhaps the most easy of application. Thus in a case where defendant admitted that he had bought goods of plaintiff for so much, {Knowles\. Michel, 13 East,) it was as though he had regularly EGLES V. VALE, 3 Croke, G9. entered the item to jilaintiff's credit in bis accounts. But in a case where "the plaiutiti' met the defendant and asked him if he had sold the ship, and the defendant answered that he had sold it for 1400/., and would make out the ac- cou»f and pay plaintiff the balance" (Pountncy v. Hammond, 8 Taunton,) though one judge hinted that the ac- count stated might be supported — that was a dictum quite obiter, for the ver- dict went upon the count for had and received, and wholly irreconcilable with princijjle, the accounting being alluded to as future, and the balance as yet to be struck. The distinction that an admission is not necessarily an accounting is well illustrated in Tucker v. Barrow, 7 B. & C, where the defendant merely admitted, on his examination before commissioners of bankruptcy, that he had received a sum of money on ac- count of the bankrupt (under cir- cumstances which might have been sufficient to render defendant liable in ' had and received,' to the assignees,) and it was said, per Bayley, B. "he did not admit that it was a subsisting debt, payable to plaintiff;" and per Little- dale, J., "defendant never ' accounted' with the plaintiff, but under compulsion made cidisclostire to the commissioners." The case, it will be observed, illustrates that obvious requisite of an accounting, viz. that it should have been with the plaintiff; a point which the origin of the count and its ancient form equally elucidate, and which is subsequently adverted to. But the main principle of the decision is that which runs through all the cases and is the only true test as to the validity of evidence on this count — p^>, that the ground of the action being the accounting, where the acknowledgment is the sole evi- dence of an accounting, and does not refer to any anterior account, so that unless the acknowledgment ^er«e prove the accounting, none is proved at all : it must comprise in itself the essen- tial requisites of an account, i. e. it must be substantially equivalent to the entry of an item to plaintiff's credit, in a regular account. Now in the first of the cases just cited there was some- thing to be done before the amount due could be ascertained, and in the latter case there was in the acknowledgment itselfno sufficient evidence even of a^/e^^; for it is not every receipt of another's money that constitutes a ground of action for money had and received, and though those circumstances were proved which would give such right of action that would only afford the proof of a fj debt, not an accounting (Stafford v. Clark, 2 Bingham), of which imperfect evidence can never be derived from ex- traneous sources, unless expressly re- ferred to, and so impliedly adopted by defendant himself, as when he promises to pay a prior account. Thus, again, in Burgh v. Legge, 5 M. & W. where defendant, the indorsee of a bill, said before it was due, " he doubted not it would be dishonoured, and that he would pay it," Maule, B. said, " that even if it had been proved that the bill had then been dishonoured, and that there had been due present- ment and notice of dishonour, the evi- dence would have been insufficient on this count;" an opinion it is appre- hended perfectly supportable on the distinction here adverted to between evidence of a debt and evidence of an accounting. This distinction is still more import- ant to be observed when the evidence is not an express acknowledgment, but an admission implied from the acts or con- EGLES V. VALE, S Choke, 69. 7 duct of a party. Thus it has been mitted that Tucker v. Barrow was held that the payment of interest may not decided alone on the ground, be evidence of an account stated of the that the admission there was compul- debt. {Purdon v. Pnrdon, 12 M. & W.) sory, but upon the ground that there These cases, as carrying the principle was not in fact evidence of an account- of the account still further beyond its ing at all, however it might be evidence original strict and simple import, are of money had and received. And obviously open to more difficulty and qucere, whether in Perry v. Slade, the doubt, as an act is more equivocal and admission amounted to more than this : more subject to explanation from sur- " In July last I owed plaintiff 117^." rounding circumstances than an express Now the Court do not appear to have admission : but the test to be applied considered that this admission itself in the one case as in the other is that constituted any statement of an account one which has been adverted to, and at the time the admission was made, perhaps were it applied to the case next and they only make that admission cited, the difficulty it appears to present evidence of the supposed statement of might be removed. In that case, account in July. " If one person say {Perry v. Slade, 10 Jurist, 31,) by to another, I pay you so much for a note dated August 8th, 1844 (before interest due, that is evidence of the debt action brov;ght) defendant promised itself being due ; and the note of August plaintiff to pay him a certain sum, is equivalent to a statement of the pay- " being the amount of interest due on ment of interest to the Gth July." It a note from the undersigned for 117^. may be submitted, however, that in up to Cth July last." The learned July there does not appear to have judge left it to the jury whether in July been any sort of admission of the inter- there was an account stated between est being due, still less anything ap- the parties on which 1 1 71. was found proaching to a payment or settlement of due ; the jury found in the affirmative, it, the note for the interest not bemg and a verdict for the plaintiff was up- given till August, and simply amounting held, the Court saying : " There is evi- to an acknowledgment that the princi- dence of an account stated between pal was due in July, and referring to no defendant and plaintiff on the Gth of previous statement or settlement, al- July. In August he states that he though it referred to the previous accounted vdth plaintiff, and that inter- e^?«^ewce of the principal debt. The est was due in July preceding ; the second note no doubt might show fact of interest being due is alone evi- that the principal was due at the dence of the debt being unsatisfied, time up to which it stated the inter- There is a direct admission of the exist- est to have been due, but not at the ence of a debt of 11 7/. on the 6th time at which it was given for such in- of July." It is added, " Tucker v. terest. The difficulty therefore ap- Barrow, 7 B. & C, does not apply : pears to be that when the interest there an admission was obtained under is stated to have been due, there was a compulsory examination that at a not the settlement, which it is neces- certain time he had received money on sary to show to support this coimt account of the plaintiff, not that there {perLittledale, J., 3 A. & E. 331), and was a subsisting debt." It is sub- that when the note was given for the 8 EGLES V. VALE, 3 Ckoke, 69. interest, tlicre is no evidence that the princiiial remained due. Tlie three cases next cited iUustratc, on the one hand, the difference be- tween an admission and an accounting, and, on the other, between an admis- sion and an offer ; they also show what nice distinctions arise on the con- structive sj)ccies of accounting here adverted to. In Wayman v. Jlilliarcl, 7 Bing., it appeared that when the plaintiff demanded the amount of his claim, " the defendant offered 1 71" and the Court said, "Here there has been no reference to any particular item of account or any admission of a debt. In all cases of accomit stated there must be an acknowledgment of a debt. "We do not controvert the prin- ciple that an absolute acknowledgment of debt may amount to an account stated. But here the defendant merely makes an offer to 'purchase peace.' " It may, perhaps, be presumed from the expressions of the judges that somethmg more than appears in the report must have transpired at the trial to attach to defendant's expressions the interpretation they put upon it — as an offer merely to purchase peace — though it is scarcely requisite to resort to that supposition to reconcile the case with the more recent authority of Chisman V. Count, 2 M. & G. where it was said per 3Iaide, J., " Is it not evidence of an account stated {i.e. of 10^) where one party says, 'You owe me IbL' and the other answers, ' I only owe yoii 10/.?'" because, though nothing could be conceived more closely analogous to the regular entry of a sum to a party's credit than the expression supposed in this latter case, the expressions used in the former case were clearly susceptible of the construction they received ; and so in Evans v. Verit>/, R. & ^I., the defendant's language, in answer to plaintifl"s demand, " Pay me the 10/. you owe me," " I would, if you had not removed the grates," — admitted of the interpretation a])parently at- tached to it by the Court ; " I shoidd have owed you the 10/. ?/" you had not removed the grates," which, of course, would have been altogether the reverse of a setting down of the 1 0/. as owing to plaintiff. It is ob^•iously of the essence of the statement of an account that some certain amount should be stated ; and here the principle id certum est quod certus reddi potest does not apply. Thus, where the defendant said, " Debit me with the amount of my calls due on my 200 shares ; I thmk it will be about 500/.!" the Court said, "To make this available as an acknowledg- ment of a debt, should it not state the amount ? The utmost the defendant says is, that he thinks he is indebted in a certain amount ; that he thinks so at the time. It is clear he did not know exactly how much was due from him. The evidence should be clear and certain on such a count, and it is here insufficient." {Ihighes v. Thorpe, 5 M. & W. (d(S7 .) So, where the de- fendant said he " would pay some inter- est soon," it was held, plaintiff was not entitled even to a verdict for "no- minal damages." {Green v, Davis, 4 B. & C. 240.) But on the other hand" the amoimt may be impliedly stated, as by reference to any actual and existing account, the correctness of which is expressly or tacitly admitted : for this, it is obvious, will satisfy the most strict interpretation of the ])hrase " an account stated ;" and where (as in Chisman v. Count, 2 M. & G.) defend- ant looks OA^er an account and objects to some items, but makes no remark EGLES V. VALE, 3 Croke, G9. with respect to the others ; he admits it correct except as to those items. So where a party promises to pay " an accomit" — at all events, if it appear to have been delivered to him — it is sufficient evidence on this count. (Per Patteson, J., Lohb v. Stanley, 5 Q. B.) The eifect of such a reference is obvi- ously to prove an adoption by defendant of the account referred to. It may per- haps be deemed doubtful whether the ac- counting can be considered as complete, and taking place at the time of the ad- mission or of the anterior account. In Moslerj V. Read, 10 Jurist, 18, an un- dated document in defendant's hand- writing was put in, which ran thus : " I will pay the balance on the hook ;" and the Court, although they said (without, however, assigning any reason, the point not being at all argued) " There is no evidence of an account stated," also observed, "The jury might infer that ' the hook ' meant the book in which an account was kept of goods supplied to the defendant;" so that, in accordance with previous cases, the e\idence would clearly have been sufficient, except in respect either to the document being undated or to its not having been addressed to the plain- tiff. The latter defect, it may be pre- sumed, was the ground of the decision ; for in Lohh v. Stanley the document (similar in terms) was undated, but ad- dressed to the plaintiff ; and in Allen V. Cook, 2 D. P. C.y where an admis- sion after action that a party owed so much was held insufficient, " because there was no evidence in support of the count until after action," the Court added, " It might have been other- wise if there had been an anterior account in evidence, to which the acknowledgment might have been applied." It may here be remarked, as one of the most imj)ortant practical results of the principle, that the yist of the count is the accounting ; — that as, if a party, according to the ancient form of de- claration, be " found in arrears," or, in the language of the present count, be "indebted for money found due " in a certain sum, by virtue of the account- ing alone, any previous agreements or accounts must be irrelevant ; the rules of evidence only require the proof thereof even if in writinc/, where, with- out reference thereto, the admission is incomplete, by reason of no amoimt being mentioned at the time of the ad- mission, as where {Teal v. Auty, 2 B. & B. 99) a party only admitted some- thing to be due, and where, of course, the written document was the only ac- counting, 2. e. assuming the defendant's admission to have operated as an adop- tion of it, which, perhaps, maybe doubt- ful, under the circumstances of the case. But in Singleton v. Barrett, 2 C. & J. 308, though the plaintiff's "particu- lars" expressly referred to a written account, as the evidence of the account stated, it was held, it need not be produced ; and " the ' accounting ' might be proved by a mere general ad- mission of a debt to a certain amount, though the account itself might consist of many writings." (Per Ahinger, C. B. Neivhall v. Hall, 6 M. & W. CG4.) In this latter case defendant was proved to have admitted he owed plain- tiff 9^. 10*. for lead, which was deemed sufficient on this count, though an a- greement in writing between the parties relating thereto was not produced. So in Arthur v. Dartch, 9 Jurist, 1 1 S, this case was confirmed ; and an admission of 6?. 10*. being due for rent was held sufficient on this count though there ap- peared a lease in writing which was not 10 EGLES V. VALE, 3 Cuokk, 69. produced. Per Parke, B. : " The parol /. 0. U. is the account stated as to the promise is evidence, irrespective of said sum of 18^., parcel, &c. (the plea the written agreement and without re- proceeded to show a failure of the con- ference to it, that 6/. lO*. is due." sideration on which the deposit had So in Gould v. Combs, 1 C. B., 10 been paid); whereby k. became, ac- Jurist, 15 L. J. (C. P.), an I. O. U. cording to the agreement, bound to re- was deemed sufficient independent evi- turn to defendant the said 18/., and dence of the account stated, although a defendant became exonerated from the billfor the amountofwhich it was given paymentofthesaidl8/.parcel,&c. That having been rendered by an alteration plaintiff then had notice of the premises, subsequent to the giving of the I.O.U. and had not paid the said 18/. to A., inadmissible by reason of the stamp who had failed to perform the agree- laws, could not have been resorted to ment long before suit, of which plain- had not the I. O. U. specified the sum tiff had notice. The plea was demurred for which it was given. to on the ground inter alia " that it The principle, that an acknowledg- amounted to the general issue, as show- ment of a debt, however absolute, is ing that in point of law there was no only evidence of an account stated, has statement of account at all between the a practical bearing on the qviestion as plaintiffand defendant, because it stated to the mode of pleading to the count, that the I. O. U. was the account It is very likely to be lost sight of stated, &c. ; whereas an I. O. U. is where the acknowledgment is, as in an not a statement of account, but may be I. O. U., in writing, and upon the face evidence only." The Court held the of it absolute and unconditional; yet plea bad on these grounds, saying, "It even in such a case a plea setting does not admit an account stated with forth the circumstances under which the plaintiif ; it is pleading evidence the instrument was given, and from only.'' It may be mentioned that in which it appears that it did not operate Hammond v. Daijson, 15 L. J. (Ex.), a as an account stated, will be bad as plea was specially demurred to on the amounting to the general issue. This precise ground above stated {inter alia) principle at all events was clearly esta- that it stated a note to be the account blished in the recent case of /oeoi* v. stated: and the Covirt did not give Fisher, 1 M. G. & S. 1!)0, where the effect to the objection; but the plea plea stated that an agreement had been not being demurred to as amounting to entered into between the defendant and the general issue, the point became one the plaintiff as agent to one A., by of mere technicality of expression, which defendant was to pay to plaintiff if indeed it was properly raised at all. as agent of A. a deposit of 18/. That And in Jacobs v. Fisher the judgment defendant in pursuance of such agree- proceeded upon the ground, not that ment " gave and delivered to plaintiff the plea stated that the I. O. U. was an instrument in writing, called an the account, but that it disclosed facts I. O. U., by which defendant acknow- showing that the I.O.U. was ?io# an ac- ledged to owe to the plaintiff 18/. instead count stated at all. The learned re- of the said deposit. That plaintiif then porters to that case observe in a note, as agent of A. accepted the said I.O. U. " Quere whether the facts if formally as and for the said deposit ; which pleaded would not have been matter in EGLES V. YALE, 3 Cuoke, G9. 11 confession of an account in fact, and in avoidance of such account by failure of consideration ;" but it is conceived that could not be so, as it is of the es- sence of an account stated that the consideration should be executed ; be- cause it is the accounting which is the consideration, and the accounting must necessarily be of antecedent debts ; so that anything which shows that there were no antecedent debts on defend- ant's part which could have been made matter of account only shows that there was no valid accounting, because it proceeded on a mistake : and it is apprehended the same objection must (had the demurrer raised it) have been deemed fatal to the plea in Hammond V. Day son, where it was of much the same character as in Jacob v. Fisher. The principle it is submitted must be the same whether the mistake shown by the facts presented renders the ac- count wholly or partially invalid ; and that the plea in the latter would be de- murrable as amounting to the general issue was held in Thomas v. Haivkes, 8 M. & W. 140, where defendant pro- posed to prove mistakes to his pre- judice in the account. The Court said, " It cannot be contended that from the mere statement of an account a debt arises. The averment is that defendant is indebted upon it. He is entitled then under the general issue to prove that the account did not show him indebted, because it was not cor- rect." And in Truman v. Hurst, 1 T. R. 40, Lord Mansfield says, " An account stated is an agreement that the items are true. But though this was formerly held conclusive, greater lati- tude has of late prevailed to remedy the errors which may have crept into the account in surcharging the articles." And so in Rose v. Savory, 2 B. N. C. 145. This is in conformity with the ge- neral rule of law, which permits a party to avail himself of an error in fact, into which he may have fallen. The distinction, that an acknowledg- ment of a debt is onlv evidence of an account stated, is especially impor- tant with reference to a large class of cases respecting the statute 9 Geo. IV. which enacts that " no acknowledgment or -promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of the statute of limitations," &c. Now if such " acknowledgment or promise " were an account stated, the statute would either be evaded or the prin- ciple must be departed from that the account stated constitutes a " new ground of action, with a consideration for a fresh promise," terms recently- adopted ^e?- CoZmJ^e, J. (10 Jurist, 471.) But the principle that the ac- knowledgment is only evidence obviates the difficulty; for thus the operation of the enactment alluded to is simply to make the acknowledgment or pro- mise alluded to inadmissible evidence only ; and if there have been such a mutual settlement of accounts and al- lowance of items one against the other as amounts to payment, it will but come within another exemption of the statute : a distinction illustrated in Clarke \. Alexander, 13 L.J. (C.P.), 136; 3 Jurist ; Ashley v. James, 11 M. & W. But again : — the practical import- ance of the principle adverted to, that the acknowledgment of a debt is only evidence of an account stated, is further illustrated by another large class of cases, showing that the ad- mission which may operate as evidence of an account stated must be in terms more explicit and distinct than that 12 EGLES V. VALE, 3 Croke, 69. which may be sufficient to take the case out of the statute of hmitations ; and with obvious reason : as in the lat- ter case the object is to revive an okl debt ; in the former, to create a new one ; and while, to satisfy the statute, it is sufficient that there shoukl be an acknowledgment of some debt which may be proved aliunde {Hartley v. Wharton, 11 A. & E.), even though the amount be not even agreed upon at the time, {Gardner v. Macmahon, 3 Q. B.) to be evidence of an account stated, the admission must either have been expressly of a certain sum as due, or must have referred to and impliedly adopted the amount specified in some account, or book, or bill in actual ex- istence, or which appears to have been delivered to defendant. {Lohb v. Stan- ley ; Mosely T. lieed ; Allen \. Cook, cited ante.) It will have been observed that in the form of the ancient declaration at com- mon law for arrearages of an account it was essential that the accounting should have been before or with the plaintiflF; and though the modern count alleges the account as stated between him and the defendant, perhaps a reference to the principle so distinctly expressed in the original forms of action would have obviated whatever of difficulty or doubt may have been felt in such cases as the following. In BrecJwnv. Smith, 1 A. & E. 408, where the defendant admitted to a third person that he owed plaintiff a sum named, it was said^jer Littledale, J,, "One item is sufficient, but the accounting must be Avith plaintiff. If a person, in an ofF-hand conversation with B., say I owe C. 10/., is that endence of an accounting with C. ?" And per Denman, C. J., in AshLy v. Ashfjy, 3 M. & P., ISfi (where the de- fendant had admitted owing plaintiff 150/.), " Though it did not appear that there was an actual accounting with plaintiff, there may have been circum- stances which ffave that character to the admission. There had been pay- ments of interest on the note;" and, jjer Addison, arguendo, " It does not appear in that case the acknowledgment was to a stranger." The point here adverted to most frequently arises in cases upon bills of exchange, &c, and in which the question often rather appears to be whether defendant accounted with any one. Thus, in Jardine v. Payne, 1 B. & Ad. 1G8, where the defendant caused to be intimated to the gentle- man who calls with the bill (of ex- change) a " regret that he was unable to take up the bill for o/Z. 10*. drawn by T." — not recognising any liability to plaintiff or any particular holder of the bill— the Court said, " The ques-i tion is, does this amount to an acknow- ledgment that the sum is due from de- fendant to ^/am/Z/f.^ But it contains an admission only of that sum being due to the person legally entitled to the bill, and does not import that the plaintiff is ; so that plaintiff must show that he is." In Baynham v. Holt, 8 Jur., where there was an admission of an amount being due on a bill in the hands of a })erson then unknown to defendant, who, subsequently to his being aware of plaintiff being the holder, made another admission of his liability by saying that he could not pay it ; the Court held that this was sufficient evidence of an account stated with the holder ; reserving their opinion, how- ever, as to whether an account coiddhe stated ivifh a party as the agent of an imknoivn princijml. Again, in the case of Curtis V. Richards, 1 ]M. & G. 48, the ])laintifiFwas permitted on an I.O.U. 7iot addressed to him to recover on a EGLES V. YALE, 3 Croke, 60. 13 I declaration containing loth the counts distinction between ordinary agency, j for money lent and on an account stated, such as may usually he implied from it being presumed that, as produced by, the position of a wife or a servant, &c. it had been given to, the plaintiff. In (as in the purchase of necessaries, &c.) Douglas V. Ho?ne, 12 A. & E. 641, and an agency (or accounti7ig. Though though the plaintiff on a similar in- if a wife state an account, it may be strument recovered on a declaration valid if ratified or recognised by the containing only the count for money husband {Styart v. Rowland, Shower, lent, the Court observed that, "though 215 ; Butler, N. P. 129 ; Per Parke, in Curtis v. Richards there was some B., Tarhuck v. JBij)sham, 2 iVI. & W.), independent evidence (as that theparties yet an account cannot be valid if stated had had prior dealings) the judgment by any agent not expressly authorized was decisive as to the effect of the instru- to state it, unless it lay in the course of ment itself y In Ciirtisv. Richards itvf as his duty so to do; thus, a wife cannot objected that the instrument should be bind her husband by admissions, " un- stamped as a negotiable instrument, on less they fall within the scope of the which Mr. Serjeant Planning observes authority which she may reasonably {in 7iotis), " To support this objection, be presumed to derive from him : and the instrument must be read ' I owe where she is carrying on a trade for bearer,' which, whether stamped or him her admission would be e\adence unstamped, would not prove an account as to the receipt of goods to bind him, stated ;" i. e. the presumption arising but not as to an antecedent contract" from plaintiff's possession would be {Per Curiam, Meredith v. Footner, 1 1 on the face of the note itself rebutted M. & W. 204.) The same principle is by its expressing that it was originally recognised in Tarhuck v. Bijjsham, 2 given with a view of its being circulated ; M. & W. 2, where the plaintiff sued as so that it would be no longer evidence administrator of a party who had kept of " an account stated ivith jAain- accounts with defendant, a banker, who tiff," the present possessor. So in after the customer became lunatic con- Lewin v. Edumrds, 9 M. & W., it was tinued to state balances to his credit, held that the holders of a bill indorsed the account being kept up by the in blank could not recover on this lunatic's family. The Court said, count against the blank indorser, nor " There is no ' account stated,'' but the holder of a cheque against the only a balance in the debtor's own maker. book, which was not and could not be It is an indispensable requisite of a stated to the creditor : there is no evi- count founded on an accounting, that dence of an accounting with the lunatic the accounting should have taken place — if with anybody with his agent or between the parties themselves or their his family ; but a lunatic cannot ap- authorized agents, a principle which is point an agent, and the account was strongly elucidated in the ancient cases, not stated with any one who was co7n- as wull already have been observed, petent to state an account on his piart." The principle is in modern cases per- Again, it necessarily results from the haps more frequently illustrated with very nature of an account, and also reference to defendants than plaintiffs ; from the form of the count, which, but these cases sufhciently show the both in its ancient and modern form. 14 EGLES V. VALE, 8 Croke, 69. alleges the account to have heen of debts "then" or " before then" due (per Jbinger, C. B., Hopkins v. Logan, 7 M. & W.), that there should be the acknowledgment of an absolute antecedent and subsisting debt, not a mere conditional promise, alluding to a liability not as already existing, but future and contingent. Thus, if the promise be that token a possible liability shall arise the money shall be paid — as where an indorser said before the bill was due that he did not doubt it would be chshonom-ed and he would pay it — the evidence will not be sufficient, as it not only does not allude to a debt as existing, but proves j^er se that it does not exist at the time ; and as it would be only on a certain event that any money would be due, there could be no account stated of money then due. {Burgh v. Legge, 5 M. & W. 422.) There is an obvious distinction be- tween such qualifications of the promise as make the debt itself contingent, and such as simply refer to the particular mode or period of payment — as where a man says he will pay in a week, these latter words " go for nothing" {Arthur V. Bartch, 9 Jurist), or where he says he will give a bill {Gardner v. Macmahon, 3 Q. B.) ; for in both these cases the debt is by implication admitted as existing. The distinction may be elucidated by a comparison of the cases of CTarA v. Webb, 1 C. M. R. 29, and Seago v. Deane, 4 Bing. 459. In both cases the original ground of action was an agreement to pay the money ; in the first case in consideration of being allowed to remove fixtures from a house which had been occupied by a bankrupt, of whom defendants were assisinees, and in the other in con- sideration of plaintiff's becoming tenant of and repairing a house of defendant's, but in the latter case there was proof of a subsequent admission (" I will pay you," &c.), whereas in the former case there was no such subsequent admis- sion : and the Court said, ** The pro- mise was a distinct and separate con- tract to pay the money ; and such a special agreement cannot be converted into an " account stated," in order to recover on which it ought to appear that the amount was stated with refer- ence to former transactions between the parties." So in Lubbock v. Tribe, 3 M. & W. 614, where plaintiffs re- ceived from defendant a cheque on ac- count of another party (to whom they thus became liable), and having lost it (so that defendant became ex- onerated) the defendant agreed with them to give a fresh cheque on receiv- ing an indemnity (on the agreement to give which it was admitted plaintiffs could have sued) ; the Court said, " This is only a special promise, for breach of which an action may have been brought, but the admission of a subsisting debt is necessary on this count, and there was no subsisting debt at the time." No point connected with the ac- count stated is of greater importance (both by reason of its perpetual recur- rence in practice and of the difficulty with which it is not unfrequently at- tended) than the determining when this count may be substituted for one upon a special agreement. And here, again, the true test is to be discovered by a close attention to the principles of the earlier cases and the ancient forms of declaration in this species of action. Although the original character of the action has been so far departed from that it has ceased to be applied exclusively to cases where defendant is a " party EGLES V. YALE, 3 Croke, 69. 15 accountant," and in which, as in the principal case, it could be stated that he had received monies of the plaintiff, the indebitatus form of the count, as ultimately settled, as it has already been seen, alleged the accounting to have been " of monies due and owing from the defendant to the plaintiff;" and thoiigh in some of the earlier cases, before the indebitatus form was adopted, the accounting is alleged to have been "of divers debts, reckonings, and demands," the latter words would doubtless have been construed in ac- cordance alike with the import attached in modern times to the words " debt or demand" in the statutes of set-off or bankruptcy — and with the construc- tion which appears in the ancient books to have been placed on the word "debt" (12Hen. IV.fol. 17 ; 3 M. & G. 175) ; viz., a debt or a demand in the nature of a debt. It seems sufficiently to satisfy the count, especially in its pre- sent form (which it is to be observed contains no allegation that defendant was indebted before, but "upon" — i. e. bv reason of an " account stated ") that the account should be stated of such a demand, although it might not be a de- mand which could formally be declared upon in the indebitatus form. Thus, the test here suggested would accurately distinguish between Seago v. Bean and Lubbock v. Tribe, supposing that in the latter case there had been, as in the former, the promise to pay a sum certain ; because though in neither case could the original demand have been declared on in the indebitatus form — in the former case it was in the nature of a debt, while in the other it was purely a claim for unliquidated da- mages. The same principle would have an obvious and easy application to the cases of French \. French, 2 M. & W. ; Barker v. Birt, 10 M. & W. In the first of these cases the count was held not sustained by a promise to pay the debt of another. In the other case (which, without reference to the principle adverted to, it would, espe- cially as no authorities were cited, be difficult to reconcile with the current of decisions upon this form of action) the defendant being director of a com- pany against the directors of which, before he became one, the original cause of action had accrued — a cause of action therefore on which no promise, how- ever express on his part, could make him liable (Savill \ . Robertson, 4 T.R.), induced plaintiff to withdraw certain proceedings commencedagainst the com- pany by giving him the following under- taking in writing : — "As a director, &c., I request you will accept 50/. on ac- count of your claim of 116/. against the directors ; and I agree on my own part, and on behalf of the other di- rectors, to pay you the balance," &c. The plaintiff was permitted to recover on the accomit stated, though it was objected that the ground of action, if maintainable at all, should have been on a special count on an agreement : the Court said, " The defendant's letter amounts to an acknowledgment that he and his brother directors were debtors to the plaintiff for the amount of the work, and that he promises to pay the balance. He admits by the letter that he was a member of the company when the debt was con- tracted, and in consequence of that admission got out of the hands of the bankers the money which plaintiff would have otherwise had." It may here be observed, that if the letter were construed as importing that the sum mentioned was originally due from the defendant jointly with the IG EGLES V. VALE, 3 Croick, 69. other directors, the decision would he sustainable on the principle stated in Wiggins v. Senior, 8 INI. & W.'; Magee \. Atkinson, 2 M. & "W. ; Jones V. Littledale, 1 A. & E., that "to allow evidence to he given that the party who appears on the face of the instrument to have been personally a contracting party was not such, would be to allow parol evidence to contradict the wTitten agreement, which cannot (he done." And whether the letter 'would bear that construction or not, if the whole transaction warranted the belief that defendant had led plaintiff to believe that he was liable for the original debt as having been a director when it accrued, the principle would apply thus expressed in Wells v. Gregg, \10 A. & E., " That a party who (rightly or culpably) stands by and allows ano- ther to contract on the faith of a fact which he can contradict, cannot after- wards dispute that fact in an action against the person whom he has assisted in deceiving." It is added, however, per Ahinger, C. B., " If the party {i. e. in such a case as this) acknowledges the correctness of a stated account, and, in consideration of an agreement to give him time, pays part of the debt and undertakes to pay the balance, that is evidence of an account stated ;" and the other judges evidently concur in this reason for the decision, and which, it is apprehended, may be supported on the ground that, as defendant had a direct interest in the procuring plain- tiff's assent to his proposal, the under- taking would create an original not a collateral liability ; and that it must be considered that the document showed a statement of account, not of the original debt, but of the debt so sub- sequently created as against defend- ant by his undertaking, on which his liability, though he must have been de- clared against specially, was in the nature of a debt. It may be observed, that the prin- ciple last adverted to, and the distinc- tion prcA-iously mentioned between the acknowledgment of an anterior and of a future or contingent liability, may be illustrated through the analogies af- forded by cases on bills. Thus, in Jarvis v. JVilkins, 7 ^I. & W. 410, whei*e, on an instrument in which defendant "undertook to pay 6/. for a suit ordered by" a third party, there were counts on a guaranty for goods sold and on account stated, it appeared the goods had been fur- nished subsequently/, and the Court said, " This is a memorandum that if plain- tiff luill sell the third party clothes, the defendant will pay for them. If it had been that he would pay for clothes be- fore supj)lied, it might have been im- portant to consider if the instrument could be construed as a note. But here the word ' ordered ' makes all the difference ; and we are enabled to collect from the instrument itself that the consideration was not executed." Had the instrument been in the exe- cuted form, it would not have supported the account stated, as the "account" would have appeared "stated" of a debt due from a third party. But hi Shentonv. James, 5 Q.B. 199, where the instrument declared on as a note purported to promise, " in con- sideration oi forbearing an action for damages, ascertained by consent to amount to that sum by reason of the injury sustained by him in respect of my liability," &'C., the Court said, " This is a promissory note on an executed and complete consideration ; ' forbearing ' an action for damage ' ascertained,^ by reason of injury ' sus- EGLES V. VALE, 3 CiioKE, 61). 17 tained.' All here is past. On the /ace of it is clearly ^;ay«5^^, at all events ;" and it is apprehended that it would have supported an account stated, though defendant must upon the ori- ginal cause of action have heen sued specially, for it should seem, from Barker v. Birt, that an aecotint may hestutedhy the very instrument creating the liahility in 7'espect of which the account is stated. There is a large numher of instru- ments with respect to the mode of de- claring on which we shall have more particularly to consider the hearing of the principal case, in connection with the decision in Hojikins v. Logan, and several other recent cases : we refer to instruments, which, though they sufficiently express the consideration to have heen past or executed, will neither support a count on an account stated, nor upon a note or bill by reason of the promise being (partly or entirely) conditional or contingent, or, in other words, by reason of its being, either more or less, than for the payment of a certain sum at a certain, or at any time. Thus in Ayrey v. Fearn- side, 4 M. & W., a note to pay a sum " and all faies according to rule^'' was held " an agreement to do specific things, requiring a consideration to be stated." Whereas, in Homer v. Bed- fearn, B. N. C. 434, " I have received from you £ , which I have borrowed of you, and I have to be accountable ybr the said sum," was held not a note, "as the words did not import a promise to pay but ' to be accountable' by way of set-off or otherwise. It should have been declared on as a special agree- ment," It is conceived that in this case the instrument would have supported a count for money lent. But in each of the cases next cited, it will be seen a count on an agreement was requisite. In Morgan v. Jones, 1 C. & J. 102, the instrument purported to "promise to pay 75/. provided D. shall not return, &c., or his death be duly certified meantime, value received." The first count stated "that in consideration plaintiffs would lend defendant, at his request, 75/., he promised to pay it them, &c., provided one D. should not return, &c., or his death, &c." aver- ments of the loan, and negativing the provisoes. The second count was simi- lar, but stated the consideration to be, " that plaintiffs would suffer defen- dant to receive 75/. then in the hands of another." There were counts for money lent, and on an account stated, &c. The only e^'idence adduced was the in- strument itself, and that the events al- luded to in the provisoes had not oc- curred, &c. The Court said " there was no more evidence to support the com- mon, than the special common counts. There was no evidence of an account stated between these parties of money due from defendant to plaintiff. A pro- missory note, payable absolutely, is evi- dence of money lent" (or of an account stated) " as between payee and maker. But this is payable on a contingency. If the money were lent, why should the payment be conditional ? It is an agreement to pay on a condition ; the value received might have been goods or work. Such an instrument would not at common law (independently of the requisites of a note) support the money counts." So in the case of Clarke v. Percival, 2 B. & A. 660, the instrument which was declared on as a note, ran thus : — " On demand, we promise to pay 1200/. (to plaintiff) or order, for value received in stock, &c., this being intended to stand against»23" (defendant's wife), "as a set- c 18 EGLES V. VALE, S Ckoke, 69. off for that sum left me in my father's the original consideration should be will," (signed by defendant and his stated in the declaration." And so in \N-ife). The Court said " the instrument Ayrey v. Fearnsides, (cited ante, p. 17) is not a note. It is not averred that where the note was declared on as plaintiff is her father. All we can collect such, it was said by the Court, " It is on the face of the declaration (as the no note within the statute, but is a note must speak for itself), is, that it specific agreement to do certain things ; was not payable at all events. It the consideration for doing which not would not he evidence on an account being stated, the declaration is clearly stated, or on goods sold" bad," and a venire de novo was If in such a case the instrument ex- awarded. So again in Robins v. May, press no consideration on the face of it, 11 A. & E, 214, the declaration stated it will be fatal to declare upon it with- the defendant, " by his promissory out stating a consideration whether note,'' promised to pay plaintiffs 500/., or not it be termed a note or bill ; to be held by them as collateral security for the count will be bad even after for any monies then owing to them by M. verdict, as in Carlos v. Fancourt, 5 T. whichthey might be not enabled to reco- R. 483, where the count set out an ver on realizing the securities they then instrument as a note, promising pay- held, andotherswhichmight be placed in ment of lOZ. out of defendant's money, their hands by him, the plea set forth that should arise from a certain pro- the instrument precisely as in the decla- perty when sold, and the Court (in ration : and on demurrer the declaration error) said, " if the promise {i. e. as was held bad, because the instrument declared upton) were on sufficient con- was improperly declared on as a note, sideration, an action might be main- Where, although the precise legal tained on it, as on a special agreement; effect of the instrument be doubtful, it but it is not within the statute, which is clear that it discloses a consideration alone gave the powerofsuing on such in- of some character, as to be legally struments {i. e. oi pleading them), be- implied from the facts it discloses, it ceiuse the co7isiderat ions donot appear on may not be unsafe, though perhaps them." So in Blanckenhagen v. Blun- unscientific, to declare vipon it in the dell, 2 B. & Aid. 418, where the instru- mode supported in Morison v. Trench- ment being for value received, and made ard, 4 M. & G., and exemphtied in payable to one or other of two persons Worley v. Harrison, 3 A. & E. 669, (and therefore payable to either of where the declaration stated that by them), only on the contingency of its an "instrument in writing, defendant not having been paid to the other, was promised" (setting forth the instru- not Avithin the statute, and was de- ment in terms) to pay plaintiff or her clared upon on the first count as a note order the sum of 50/. in the parts and within the statute ; the second count proportions on the several days, and at alleging only a general liability to pay, the times thereunder mentioned, being and not treating it as a note within for value received by sundry goods, the statute, the Court said neither &c. specijied in an inventory thereunto count could be supported ; " for ad- annexed, by way of instalments in mitting tbat at common law an action manner and form following, &c. ; but might be maintained upon the note, nevertheless it was by the said agree- EGLES V. VALE, S Croke, 69. 19 me7it or instrument declared to be intended by receiver and giver of the said tiote of hand, &c. And in con- sideration of the premises, and that plaintiff had (hen, at request of de- fendant, promised the defendant to perform the said agreement or instru- ment, &c., defendant then promised to perform it,"" &c. On this declaration, a plea that the defendant did not make the said supposed promissori/ note in the first count mentioned, 7nodo et formd, was on special demur- rer deemed bad : for, {^per Curiam) "the declaration does not call the instrument a promissory note, nor does plaintiff say that defendant ^ made a promissory note' It is true that the words 'note of hand' are used, and that defendant ' promised to pay ;' but the declaration sets the whole out, and it then appears to be on a con- tingency : it is not an engagement to pay at all events. The calling it a ' note of hand' is nothing : we see that it is not a promissory note." Wherever, however, an instrument which discloses no consideration, and which cannot be declared on as a note or bill, purports, either wholly or in part, to be an acknowledgment of a debt, or a promise for the payment of money, the principles involved in Egles V. Vale, among the ancient, and Hopkins v. Logan among the modern cases, will be found practically to apply. For in such a case, if the promise would support the common count on an accomit stated, it will always be allowable, and usually ad- visable, to add a special count on the instrument itself: and if it be at all doubtful whether the common count would be sustainable, such special count is of course requisite : and then, there being a necessity, as we have just seen, for stating some consideration on the face of the count, the question arises how it should be stated? the object being of course to secure, as far as possible, the benefit gained in de- claring on a note, i. e. to avoid the ne- cessity of resorting to the original con- sideration, and to declare in such a way that the only proof requisite may be the simple production of the instrument. The principal case presents one mode of declaring in such cases : and in point of proof such a count as was there upheld would be supported by showing oral or written promises in the terms such as those of the class of instruments adverted to: for, per Curiam, (^Davis v, Wilkinson, 1 1 A. & E.,) "he who says, 'I promise to pay 100/.' may be supposed to say, 'we have settled accounts, and I am to pay you 100/.' : and the promise supports the averment that the parties came to an account together :" the instrument there commenced thus, "I agree to pay you 100/. by instalments," &c. &;c., and contained a stipulation that a cer- tain sum should go as set-off against a certain claim — a stipulation which the Court said took from its character as a note, and made it an agreement. But in point of pleading the princi- pal case is at variance apparently with Hopkins v, Logan, 5 M. & W., 242, where the count (except in one parti- cular adverted to post, p. 26) was sub- stantially the same as in Daois v. TFil- kinson, and as the principal case : in Davis V. Wilkinson, the instrument being like to those in Ayrey v. Fearn- side, and other similar cases, cited ante. The Court, in Hopkins v. Logan, said " the declaration is bad, for the contract is not binding on both parties: the promise proceeds (it is true) both on the accounting and the agreement c2 20 EGLES V. VALE, S Cuokk, 69. to consider a certain sum as payment good in point of pleading is sliown by of so much by tbe defendant; but both Davis v. IJ^arner, Cro. Jac. 593 ; these considerations are executed. Tlie Austen v. Bewleij, ih. 548 ; WoUaston liability of defendant on the account v. Webb, Ilobart 18. That in point stated would be to pay the amount on of proof it is sujjportable by the mere request; to render him liable on the production of an instrument or evi- promise here alleged to pay on a fu- deuce of a promise of the character ture day there ought to he some new adverted to, is evident from Davis v. consideration. There is no considera- Wilkinson, Hopkins v. Logan, and the tion for any promise diiferent from that ancient cases cited ; in addition to which the law implies — to pay on re- which it may be mentioned, it has quest." Nowthough there may be found been held, that if it were alleged that in the old books authorities supporting defendant was indebted in so much, the principal case, upon the principle and that in consideration that plaintiff that the consideration of the debt is would forbear until such a day, he continuing ; or that the certainty of would pay then — the declaration would the day of payment is consideration be sufficient without any averment that sufficient : " for by reason of that de- plaintiff had forborne ; for the antece- fendant shall not be impleaded for the dent debt remaining unpaid of itself im- debt before the day," per Chamberlain, plied a forbearance.''' Godb. anon. 13. J., Barker v. Barker, Palmer ; Dar- There is another way also, in which ton V. Shurley, 1 Roll. Abr. 12, pi. 16 ; the requirements both of pleading and Symball v. Cork, 2 Keb. ; and though of proof may in such cases be satisfied, in Johnson v. Collomore, 1 Eolle, a simi- The objection to such a count as in lar count was heldgood, these cases were this principal case, is simply that the after verdict, and there is no authority consideration is taken to be executed, that the count would not be bad, if, as and would be obviated were it stated in IIop)kins v. Logan, it were specially as executory, per Maule, J., Tempest demurred to ; for though it would pro- y. Kilner, 9 Jurist. And it might pro- bably be considered that the accepting bably be considered that the fact of such a promise would be proof of an such an instrument or agreement being agreement on the part of the })laintiff accepted by plaintiff, proved a prior to postpone or forbear payment till the agreement to the accounting, and day named, {Baker v. V/all, 14 M. & would be sufficient, per se, to support W.,) this would be rather matter of a count stating it was agreed by and evidence than law, and the count to be between the plaintiff" and the defend- formal should state the legal effect of ant, that they should account to- the transaction. gether, &c. and that in consideration The objection might be obviated of the premises, &c., defendant then by declaring that defendant being in- promised to account, &c. and to pay debted to ])laintiff in so much, plain- the amount which might be found due tiff agreed to forbear, and to give from him on such accoiuiting, at such dav of payment until the day men- time or times as might thercuj)on be tioned. This is the mode of declaring agreed between hiin and the plaintiff, in Arnfieldy. Bate, 3 M. & S., and in averring that the plaintiff and defend- many of the earlier cases. That it is ant did then account together, &c., and EGLES V. VALE, 3 Croke, 69. 21 that the defendant was on such account- ing found in arrear, &c., and that there- upon and then, &c., it was agreed he- tween them that defendant shoidd pay, &c. the said sum at such a time, &c. It is important to observe that the difference between Hopkins v. Logan and the principal case is ])urely on a point of jAeading, and that in point of princi])le they are entirely consistent, and exhibit that great leading princi- ple of the action on an accounting, whether in the common or special form — \\z., that the accounting is a new cause of action. But it is here to be observed that though in respect to its bearing on the principal case, the point decided in that of Hopkins v. Logan is purely one o{ pleading, there is a large class of cases, in which there being no remedy for the original debt, the principle on which Hopkins v. Logan was de- cided, raises a difficulty only to be overcome by a recurrence to the pri- mary principles on which the action on an account stated is founded, as eluci- dated in those ancient authorities, of which the principal case is the repre- sentative. We refer to cases in which defendant has promised to pay a debt barred by the Statute of Limitations, or by a certificate in bankruptcy, or con- tracted during infancy or coverture. In the first three of these cases there are statutable enactments, the effect of which (as it has already been incidentally observed with respect to the Statute of Limitations) renders any oral acknowledgment inadmis- sible in evidence, so that where an oral acknowledgment is the only evi- dence of the accounting, the count cannot in such case be supported, and in those cases therefore written pro- mises are intended. It may be added that with respect to cases of guarantee, the operation of the statute of fraud is superseded by the effect of that prin- ciple of law which we have already alluded to as precluding recovery on an account stated, of debts for which defendant was never otherwise than collaterally liable. Now with regard to written pro- mises to pay debts affected by the other statutable or common law bars referred to, it is to be remarked, no count founded on the consideration either of a supposed forbearance to sue, as suggested in Hopkins v. Logan, or of the adjustment of open and un- settled claims — according to a class of cases presently to be ad^-erted to — could be supported : for as no proceed- ings could be taken, there could be no forbearance, and any allegation as to an adjustment of claims, disputes, &c., would require evidence of the existence of some reasonable doubts as to defend- ant's liability— a doubt which could not exist in the only class of cases upon which it is important to consider this subject, viz., those in which the legal bars referred to could be sup- ported. The cases of infancy and co- verture are affected by legal considera- tions peculiar to themselves. Witk respect to cases barred by bankruptcy or time, there is this distinction, that the debts are not barred, but only the remedy. (Briggsv. Lowry, 8 INI. & W,, Newton V. Scott, 10 M. & W., Phil- lips V. SherviUe, 10 Jurist, 14 L. J., Q. B.) But this distinction will be im- material, unless in such cases the cause of action upon the subsequent promise be — not the creation of a new liability, but the revival of an old one. It is conceived, however, that it is not so— for on the principle of Hopkins V. Logan, the past consider- 22 EGLES V. VALE, S Ckoke, C9. ation can support no promise, even though express, other than that which is impHc'd by law at the instant of the accruing of the original cause of action, (i.e., to pay on request) and •which promise is barred by the effect of time, or by the allowance of the certificate. The new consideration, therefore, which it is requisite to find, can, it is conceived, be discovered only in an accounting of which the promise to pay would be CAidence. The diffi- culty and the principles on which it is founded, or on which it can be obviated, obviously apply equally to a bar by efflux of time, and a bar by the issuing of a certificate. In Hojikins v. Logan, the Court incidentally alluded to the supposed bearing of the case in the Statute of Limitations, but only with reference to the requisition of vniting — on which, as we have seen, the operative question of pleading does arise, being superseded by a preli- minarv obstacle in point of proof. The recent case of Kirkpatrick v. Tatter- sall, (13 M. & W.,) affords an oppor- tunity of observing how otherwise than in the mode above suggested, it is possible to meet the difficulty. There the declaration being on the original cause of action, the Court declared the doctrine firmly established that a debt, although barred by the certifi- cate, is a sufficient consideration for a promise to pay it, and further decided that the promise is equally binding whether made before or after the certificate ; provided that if made before, it clearly appears that the defendant intended to bind him- self personally to pay, notwith- standing his certificate. The Court added: — "The mere acknowledg- ment of the debt, though implying a promise to pay, would amount to no more than an account stated, and I though in writing would be a promise which the certificate would bar." This observation must not be understood as implying either that the acknowledg- ment could constitute, per se, the ac counting, or that an accounting operates not as a new cause of action but as a re\-ival of the original debt : for in either of these senses it woidd be utterly in- consistent with the current of autho- rity ; and the context sufficiently shows that the Court meant only to lay down the principle for which we are now contending : viz., that the promise, if taken as in consideration of the old cause of action, would not be sup- portable : a principle, doubtless, not reconcilable with the incidental obser- vation, that the " promise was on the old consideration ;" but which, never- theless, it is apprehended it is necessary to resort to to preserve the decision from the objection thus presented by a learned writer in the Jurist (vol. 9, p. 482) : " There is a distinction between a promise made before the certificate, and a promise made after it. In the latter case, the promise implied by law from the ex'istence of the debt is barred by the certificate, and the only promise existing is, the express promise made by the bankrupt, for which the debt, though barred by the certificate, has been held to be a sufficient considera- tion ; but, in the case of the promise made before the certificate, the old debt is in existence, and with it also the promise implied by law to pay it on request ; and there is superadded to it another promise, founded on the same consideration, to pay it in a different manner, viz. after the certificate. Now, in Hopkins v. Logan, it was held, that an executed consideration, whereon the law im[)lies a promise to pay on re- EGLES V. VALE, 3 Cuoke, 69. 23 quest, is not sufficient to support a promise to pay at a future day. Now in the principal case the only consi- deration was, the executed considera- tion of the services, and the deht was payable in prceseiiti. The promise re- lied on was a promise to pay it in fiituro, without any new consideration. According to Ilopkinis v, Logan, that promise was bad ; it never had any valid existence, and, therefore, could not be relied on in an action brought after the certificate." Now it is in the first place submitted, that the objection here urged applies equally to such promise made after, or before the certificate ; on the ground that, as already stated, the certificate does not bar the debt, and therefore cannot extinguish the promise implied in law from its existence. And, in the next place, it is to be observed, that there is nothing inconsistent with the principle of Hopkins v. Logan, in the case of Kirpatrick v. Tattersall ; because, in the latter case, the decision was not as to the ^or»?, but as to the right of action : no objection was taken to the declaration ; and the sole point decided was, that the certificate did not bar the action — which accounts for an occasional inaccuracy of expres- sion as to the points oi pleading . But the objection founded upon the principle of Hopkins v. Logan, is all-important with reference to the mode of declaring in the cases re- ferred to, and can only be obviated, it is apprehended, by a recurrence to the leading principle already so much dwelt upon, that the acknow- ledgment is only evidence of the ac- counting ; and by reverting to the pri- mary theory, the legal effect of the "accounting" which is supposed to have taken place whenever the count on an account stated is supported. The objection alluded to is at once ob- viated, if it be considered that the plaintiflF recovers, not upon the ac- knowledgment or promise itself, but on an accounting, of which the promise is only evidence : because this accounting of which the promise is allowed as sufficient proof, cannot in law be taken as differing from that which of old must have been formally proved. Now it is obvious, that the very nature of such an accounting is to make a new contract, which cannot be impeached or affected by anything prior to such accounting, — except in the case of illegality, or fraud, or mistake vafact : — items being set off against items, claims consolidated, and the nature of the demand entirely altered, per Ashxirst, J ., Foster v. AUanson, 1 T. R. Now if on such a formal and regtdar accounting defendant had allowed a debt barred by the causes so referred to, vouchers would be destroyed {Bull. N. P. 129, 11 M. & W. 265), or the effect might even be payment (j)ost, p. 29). And it is in accordance vdth settled principles of law, that money paid cannot be recovered ex- cept on the ground of mistake in fact, — if voluntarily paid. It is in per- fect analogy with this principle to hold that an accounting which can be im- peached, as a payment can be recovered, by reason of a mistake in/ac^, {Edwards V, Hawkes, 8 M. & W.) should not be reopened on any objection or point of law, merely applying to the remedy and not to the original right of suit : and this is in perfect analogy with the principle which governed the ancient action on an account, — that no defence could be urged which might have been raised upon the accounting before the auditors. Looking therefore to the 24 EGLES V. VALE, 3 Cuokk, 69. account'niy which is supposed to be proved in every case in which a plain- tiff now proves an account stated, of which a promise to pay is primd facie proof, not only is the objection adverted to obviated, but it is submitted that it can only be so by a resort to the ac- count stated ; and hence it appears to follow that in all cases in which there has been a promise to pay a pre- cedent debt, of which the remedy is barred, the declaration should be on the account stated, not on the original consideration. Thus therefore the cases of debts contracted during infancy or coverture, it will be seen that the accounting so far constitutes a new cause of action, as to obviate the legal objection attach- ing in such cases, not merely to the remedy but to the original contract, or at all events to the right of action at the very time of its original inception. As to the first of these cases, it ap- pears that an infant cannot state an account, except before auditors assigned according to the ancient law already alluded to {Harrisoyiv. Fane,M. &G.). But his accounting is voidable, not void, and capable of ratification when of full age, {Williams x.Moor, 1 1 M. & W.,) and from the reasoning of the Court in the latter case, it should seem that it would be a bad plea to this Court that " the account was stated of and concerning debts contracted by the defendant during his infancy, and not otherwise :" and that such a plea would not re(juire a replication, that the debts as to which the account was stated were necessaries. It may be said that a re- ference to the strict language of the original form of count raises this dif- ficulty, that the account could not have been stated of debts due and owing from the defendant; it may be answered that the same objection would apply in the case of an account stated by a defendant during infancy, and ratified by him when of full age ; yet as to that case theCourtsaid, in Williams v. Moor, " an infant stating an account gets the same benefit as an adult in a simi- lar transaction : he makes certain the previously uncertain state of the trans- action between himself and the plain- tiff, and gets rid of the necessity of preser^ing vouchers :" for it might be with as much force as in the other case said that there could be no benefit to a party in rendering certain demands for which he was not liable to be sued. In Sutherfonx. Whiflock, Strange, 690, it was held that if goods not necessa- ries are delivered to an infant, w ho, after full age promises to pay, he is bound. In Stone V. Wethjpool, 1 Leonard, 114, where it was held that the infant's widow was not liable, even on her pro- mise, after his decease, the Court ap- peared to admit that if after coming of age he had promised to pay the action would have lain. Now, it seems, the better 0])inion is that such ratifications rather raise a new cause of action than revive an old one {IVilliams v. More), and it would appear that such new ground of action must be the statement of an account. luPic/cerinffv. Gunnet'i/, Palmer, 528, it was said {per Whit- locke), " If an infant promise to pay as much as it shall be worth (alluding to necessaries) and afterwards come to an account — he shall be liable to pay that sum, upon the account ;" and though, per Doddridge, J., it was said the infant shall not be liable on an insimul computaverunt even for that, the reason he irives is because he mav misreckon in the account : and Hyde, C. J., who appeared to consider (as seems neces- sarily to result from the principles laid EGLES V. VALE, 3 Choke, 69. 25 down by Doddridge) that even where the mfant promises a certain sum for necessaries there ought to be an aver- ment that it was worth so much — even- tually altered his opinion, and held, as did the rest of the Court, that plaintiff could recover on such a contract. And it is to be observed that the reason then (as in all the other cases) assigned for holding that an infatit cannot state an account at common law, although it be stated of debts contracted as neces- saries, is, that the cause of action must be on the accounting, to which he can- not, ivhile an infant, agree {Bartlett V. Emery, and Trutnan v. Hurst, 1 T. R. 40), and which cannot be called a necessary {perPai-ke, B. ; Williams v. Moor, 1 1 M. & W. 266) ; but this rea- soning does not of course apply to the case of an account stated by an adult, althouaih of debts contracted while he was under age. And the difficulty which applies to this case in common with that decided in Williams v. Moor, that the debts were not recoverable from de- fendant, {HopJiinsx .Logan, 7.M.&W.) maybe obviated by reference to the prin- ciple that infancy is a defence by oper- ation of law and not as a denial of the contract in /ocf. Cowperw Garbett, 13 M. &W.; Scott \.Chappellow, 4 M. &G. These principles would equally, it is obvious, apply to the case of an ac- count stated by a woman of debts contracted by her {i. e. in point of fact) while coverte ; for the differ- ence, if at all, is rather against the feme coverte, who is less favoured in law than an infant, for the obvious reason that a. feme coverteXxdiS the same reason as a. feme sole. We have seen that while coverte she cannot state an ac- count except as her husband's agent, and then if at all vahd it mnst be as against him. If she and her husband. however, state an account of debts due from her while sole, she must be joined. {Drev) v. Thorn, Aleyn, 72.) So that it should seem, that a plea to the account stated, that the account was stated of and concerning debts contracted by defendant during her coverture would not be good. Constru- ing the allegation of the debt as a debt in fact, this view would not be at all inconsistent with decisions that she could not be held liable on a count in consideration of forbearance to sue ; — because the coverture, though not destroying the contract in fact, in point of law prevented her from being liable to an action ; and though the distinction may appear technical, and one merely of pleading, it should be remembered, as remarked (per Cham- bre, J., in Lee v. Mvggeridge, 5 Ta.) that it is only the plaintiff's fault if, having it in his power to declare a sood consideration on the record, he fails to do so. In the case of Lee V. Lloyd, 1 Strange, plaintiff appears to have sued on a promise in consideration of her forbearing to sue the defendant on a note made by her as a feme sole while she was co- verte ; and it was held that plaintiff could not recover, the note being abso- lutely void ; and in Lee v. Mvggridge, 5 Taunton, the ground of the decision is pointed out as having been that the supposed cause of action, on which alone the forbearance was stated, arose while defendant was coverte, and therefore there coidd have been nothing to for- bear; hvit per Curiam, "it does not fol- low, that if another consideration had been stated plaintiff could not have recovered :" and in the case last cited, the declaration stated that the money sued for had been applied at the sole direction of the defendant while co- 26 EGLES V. A^ALE, 3 Choke, 69. verte, and that after her husband's death she promised to pay, without stating that she promised in consi- deration of the plaintiff's forbearance to sue. The Court held the action maintainable, a decision which has never been overruled, and which, on the prin- ciple above adverted to, appears to be wholly free from the objections applying to it when based on a supposed moral consideration ; and in Littlefeld v. 5Aee, 2 B. & Ad., on a similar declara- tion, the only reason assigned by the Court for holding that the plaintiff' could not recover was, that he had stated the debt as originally due and owina; by the defendant, instead of her husband. Now, in either of the latter cases, all that appeared to be disclosed on the declaration was, that defendant promised to pay, which would be primd facie proof that she stated an account of a debt, contracted in fact by her, but in law by her deceased husband, and was found on such accountinff in arrear. B at in these latter cases of infancy and coverture it appears that to the recovery on the original consideration, by virtue of the subsequent ratification or promise, there is not the objection before adverted to, as attaching in cases of debts barred by something subsequent to their accrual; as, if in- fancy and coverture operate not on the mere remedy, but on the contract itself, there never was apromise implied by law, so that the express promise could not be objectionable, — because the principle, that on an executed consideration no express promise different from that implied by law can be valid, obviously can only apply where there is a promise implied by law. Kaye v. Button, 7 M. & G. On the other hand, if there is no objection to resorting to the original consideration, — as to which, however, the better opinion appears to be that a new cause of action is created — (Jl il- Hayns v. Moor, 11 M. & W.) — at all events the account stated is (suppos- ing in the cases here alluded to there is a right of action at all) equally available on the principle already al- luded to as illustrated in Barker v. Birt, and Russell v. Shenton, that the same promise which frst creates a liability may operate as evidence of the statement of an account of and concerning the debt so then^r*^ ren- dered available. The action on an account stated has, it will have been seen, an inti- mate connection with a large class of actions on agreements in consideration of forbearance, or of the adjustment of unsettled claims. It is to be ob- served, that where, as in the cases cited, the declaration states the con- sideration to have been simply that " defendant was indebted,''' or that he and the plaintiff " accounted toge- ther of divers sums due and mving from defendant," &c., the evidence must be as strong of an absolute and unqualified admission of the debt to be recovered as could be necessary to support the common count on an ac- count stated, — a point already suffi- ciently discussed. It is further to be observed, that if in such special de- clarations the strict form of the old count on an account stated be departed from — as it was in Hopkins v. Logan, in not distinctly alleging that the ac- counting was of sums, " then due and Giving to the plaintiff from the defend- ant'' — the count will be demurrable : for, {per Curiam, in Hopkins v. Logan,) " it does not ap))car that any sums were in arrear, and the subsequent averments do not supply the defect, for it is not shown that there was any EGLES V. VALE, 3 Cuoke, 69. 27 foundation for the accounting," — an observation perfectly in accordance with the principles illustrated in the ancient action for " arrearages of an account." Therefore, where that alle- gation cannot be supported, it can only be dispensed with by the intro- duction of other allegations of a more special character. The relinquish- ment of a suit, actually commenced will be sufficient consideration : and it should seem it need not even be stated to have been a suit instituted to try a disputed question of law and of fact, still less that it was on a good cause of action. {Bedwell v. Caftan, Hobart, 216 ; Smith v. Monteith, 13 M. & W.) Where no suit has been commenced it will be requisite and sufficient to state that " there had been and were divers open and unsettled accounts between plaintiff and defendant, and divers dis- putes between them touching, &c., and plaintiff then claimed of defendant that defendant was indebted to plain- tiff in divers large sums, &c., and defendant then claimed of plaintiff, &c., and therefore it was agreed by and between them that they should respectively give up their respective claims each upon the other, and that thereupon in consideration that plain- tiff would give up and relinquish and forbear to prosecute to and against the defendant all claims and demands which plainaiff then had on or against defendant," &c., without stating ei- ther that plaintiff had commenced any proceedings, or that there existed any debt, because on such account the substantive allegation, that there " had been and were open and unsettled accounts," &c., and " that plaintiff claimed," &c., might be traversed, and, if proved, would show a plain benefit to defendant in the agree- ment in plaintiff's foregoing his claim — a claim shown to have had a probable foundation {LeweUyn v. Lewellyn, 15 L. J., C. P.) : whereas if the count simply state that there were disputes between the parties as to whether defendant was indebted to plaintiff, and that defendant promised in consideration that plaintiff" would promise never to sue him at any time for a certain sum (though such sum be stated as larger than the sum sought to be recovered), the declaration will be bad on general demurrer : as the ending of such disputes could be no detriment to plaintiff, there would not appear any consideration — any proba- ble foundation for the debt. {Edtoards V. Baugh, 1 1 M. & W. 646.) Indeed, in that case the Court seemed to consider that the declaration should state that defendant was indebted in divers sums, &c. ; on which he would be compelled to prove that there ex- isted some debt, though he need not prove the amount : but it would be sufficient to show that there were such claims as to lay a reasonable ground for the promise." But in the modern leading case upon the subject, Long- ridge V. Dorvill, 5 B.& Aid., although there a suit was actually commenced, the arguments and authorities cited go the length of showing that the relin- quishment of a demand, whether doubt- ful in fact, or in law, is a good con- sideration. And, in a case in which it has been recently held that the relin- quishment of a suit is a good consider- ation, although there was " no claim or demand, or cause of action, in re- spect whereof the plaintiff was en- titled to recover; and although the action was not brought to try any doubtful or contested question of law and fact" {Smith v. Monteith, 13 M. & 28 EGLES V. VALE, 3 Croke, 69. A. 434), the reasoning of the Court which has thus a close alhance with fully supports the cases oi Leivelhjn v. that of account) : and was recognised Lewelhjn, for it is said,^er Ciu-iam, "If in the earliest times, there was either a good claim, or a Thus, in 1 Henry VI. fol. 18, it is reasonably ilisputed yround of contro- said, aryuendo, " the nature of arbitre- versy, that is sufficient :" and the Court ment is no more in eifect than to make adopted the expression, "disputed ques- certain a thing which is not certain, as tion of law or fact." It seems, there- in trespass, &c.; but a debt is alivays fore, that the existence of reasonable certain ;" and Newton, J., assents to grounds for the claim on plahitiiF's this, " if it is solely a debt ; but other- part is sufficient, and that the only w'ise if I sue a debtor, and jmt in award difference between that and the actual a certain debt and other trespasses and existence of a suit is, that the latter disputes ; for in such case, though will afford prima facie evidence of a the debt is certain, the remainder is consideration, and dispenses with affir- not," &c. So in 22 Henry VI. fol. mative^?'oo/, at all events on plaintiff's 39, it was admitted to be a good plea part, that there was a ground for the in trespass, that where both parties action ; whereas, in the declaring on had trespassed, and that they had sub- an agreement in consideration of the mitted to the award of certain persons relinquishment of mere claims, plain- who had awarded that each should be tiff mvist plead and prove sufficient to quit of the other s demands. So in 45 show some reasonable ground; and Edward III. fol. 16, where defendant though he need not prove and plead ia trespass de bonis dejjortatis, pleaded the actual existence of any debt, it is that upon a certain dispute which obvious that practically it would be there had been between him and the difficult or impossible to prove the ]Aaintiff of "certain goods''' (not saying former without showing that a debt or whose they were), they put the same demavid to some amount existed ; and into arbitrement of one who awarded thus, practically, the distinction be- that defendant should retain the goods tween the action for arrears of an in the declaration mentioned ; it was account stated, whether in its general said, per Inyleby, J., " in debt on or its special form ; and that on the simple contract it is a good plea to mere adjustment of unsettled accounts say that they put it in arbitrement, or claims is, that in the former the and that the arbitrator awarded that amount of the account must be proved ; defendant should pay half, which he whereas in the latter that evidence is had jjaid, or which he had been not requisite ; and it is only necessary always ready and willing, and now to prove that there were some debts offered to pay, and brought into to be accounted for . court," &c. The same leading principle, it will And upon the same principle an be obsert-ed, pervades both classes of accounting may be pleaded ; and thus actions : viz., that the reduciny of ccr- a defendant may in debt or assumpsit tainty to uncertainty is a good consi- plead that since the cause of action deration. And this principle finds a arose he and the ])laintiff accounted collateral illustration in a large class together, and upon the accounting he of cases respecting accord (a sulyect was found in arrear so much, which he EGLES V. VALE, 3 Crokk, 69. 29 has paid. Com. Digest, Pleader, As- sumpsit, 2 G. II. It may here he mentioned, that though in an action on an account stated evidence under the general issue is ad- missihle to impeach the accoimting men- tioned in the declaration, the defence that a subsequent account has been settled between the parties, in which the balance due on the previous ac- count was included, must be specially pleiided : for if on the subsequent account no balance was due to plain- tiff, the defence would amount to pay- ment or set-off, and should be pleaded as such {Fidgett v. Penny, 1 C. M. R.) — as set-off if the items were all against the plaintiff, or as payment if items on both sides were allowed against and extinguished by each other, and a ba- lance struck. {Oliver v. Barton, 1 C. M. & R. ; Sinclair v. Baggaley, 4 M. & W. ; Ashby v. James, 1 1 M. & W. ; Clark V. Alexander, 13 L. J., C. P.) If plaintiff desires to meet such a plea by showing that the action is brought on the subsequent accounting, and that on that accounting defendant was in- debted to him ; he can only do so by a new assignment stating, not that " he sues in that action not only upon the accounting mentioned in the plea, but a^«o for another and different," &c. (for it has been seen that the declara- tion can only be taken as intending one accounting {Kennedy v. Withers, 2 B. & Ad.), but, " that he sues not upon the accounting mentioned in the plea, but in respect of another and different accounting, &c., upon which defendant was found indebted to him in modo et formd as mentioned in the declaration. It should be borne in mind that, though an account stated is a fresh cause of action, it does not do away with the original cause of action, and that therefore the defence of a subsequent accounting is only in the nature of an accord, and is subject to the general principle pervading de- fences of that nature — that unless executed it is no answer to the action ; thus, in the Mayor of Scarborough v. Butler, 3 Levinz, 238, where defendant to an action for money had and received pleaded that after the accruing of the said cause of action he had accounted with the plaintiff, and had been found in arrear the said sum, and had promised to pay it, after verdict the whole Court were agreed that, there being a debt confessed as due to plaintiff, the new promise on the subsequent accounting was only a chose in action of the same nature, and judgment was given for plaintiff. \ This appears the appropriate place to notice (as a consequence of the principle that the accounting docs not do away with the old right of action, though it creates a new one), that to avoid the necessity of repeating, to a count on an account stated, precisely the same defence which has previously been pleaded to a count on the original consideration, it is usual to make it part of the special plea to the prior count that "the accovmt in the last count men- tioned was stated of and concerning the monies''' in the other count mentioned. In Taylor v. Herbert, Freeman, 3G7, this mode of pleading was recommended per Hale, C. J., in preference to the form there adopted, " that the indebi- tatus and the computasset were for the same cause of action," the inac- curacy of which was pointed out by the Court ; " for that the ground of the indebitatus is the debt, and the ground of the computasset is the ac- count, and so it cannot be averred that there is the same cause of both :" 30 EGLES V. VALE, 3 Croke, 69. another practical deduction from that which we have seen is the leading principle of the action on the account stated. In Sheldon v. Clipsham, J. Jones & T. Raymond, where defendant in a similar case pleaded, that the said several sums were for one and the same cause of action, for one sum only, &c. ; on demurrer, the plea was held good — " for though it is frequent to lay a declaration for a debt several ways, it is not a good plea to say that several sums are only for the sum lirst men- tioned, and to go no further; yet, when defendant pleads over that the very sum demanded is satisfied, it is a good plea ; and if the two sums were distinct plaintiff might have replied so, and taken issue thereon ; but when he admits that there was but one of the sums due, and that satisfied, the plea is good." Here, however, there being no account of the grounds of demurrer or of the argument, it does not appear that the attention of the Court was called to the inaccuracy of expression alluded to in the former case. In Mee v. To?nlinson, 4 A. & E. 260, the plea was " that the said sum so found due on an account stated, &c., is the same sum, &c., and that the said two sums are one and the same debt,'" &c., and there was a special demurrer, " for that the defendant attempted to confine j)laintiff to one cause of action," &c. Sed per Cu- riam, " the new rules allow an account stated to be joined with any other count for a money demand, though there be not distinct subject matters of complaint : therefore a sum due on a consideration mentioned in another count may be the same as that claimed in the count on an account stated." In Rmjnor v. Wright, 3 Q. B. to in- debitatus counts for work, for money paid, and on account stated, defendant pleaded as to the first and last counts that the moneys therein mentioned were claimed in respect of work done, &c. (stating a special answer) : de- murrer for that, though the cause of action stated in the first count is a debt therein alleged to be due for work, &c,, and the cause of action stated in the last count is for money due on an account stated, yet the plea alleges that the moneys in the frst and last counts are claimed for work, &c., which allegation is wholly inconsist- ent with and contradictory to the cause of action claimed in the last count, &c. The Court said, " The plea does not allege that the account was stated in respect of work done as mentioned in the first count. Can it be assumed that the moneys are claimed by plain- tiff on the same account? The de- fence might have been pleaded to both counts," (per Wightman), "with an averment that the two counts are for the same identical sum of money," or {per Coleridge, J.) "that the ac- count was stated of and concerning the money in the former count men- tioned." It will be observed that in these cases the plea is pleaded both to the ac- count stated and to the counts upon the original consideration. And though in Foot V. Baker, 5 M. & G. where to two counts, one each for 8/. — one for money lent, and the other on an account stated — it was pleaded that the SI. in the first count mentioned was borrowed by defendant and lent by plaintiff, &c. (stating an illegal purpose,) and that the account in the last count men- tioned, was stated of and concerning the said 8/. As., in the said first count mentioned, and so borrowed and lent as aforesaid, and for and in respect of no other debts or moneys whatsoever, and EGLES V. VALE, 3 Croke, 69. 31 the learned reporter remarks in a note, not the plea to have been pleaded as to "The plea appears bad for duplicity: 4/.inthefirst count,and4/.iuthesecond? as plaintiff claims two sums of 8/. As. The plea answers two sums : though the account stated must be understood it is ])leaded only as to one. The plea as alleged by plaintiff to have been is bad for duplicity." It must not, stated of sums other than that sepa- however, from this be inferred that rately demanded in the first count, where the defence is pleaded sejiarately whether so expressed in the count or to each count the unavoidable allega- not : thus, the plea, besides the spe- tion in the plea to the count on the cial answer operates as a plea of nun- account stated of the facts constituting quam indebitatus to the last count, the defence previously pleaded to the or to an undivided moiety of both comit on the original consideration will counts :" this objection seems not sus- render the plea to the account stated tainable : for, on the principle stated double. In Hammond v. Dayson, 15 per Curiam in Mee v. Tomlinson {ante), L. J. (Ex.) 278, the defendant having so it does not appear that it can be assumed pleaded there was a special demurrer, that the plaintiff claims in such a case for that though the plea was pleaded tivo sums, as it may well be that he as to one count only it answered both ; claims 07ie sum by reason of two dif- and that the mode of pleading was ferent causes of action ; added to which, prolix, &c. The Court supported the in either view, the plea does not pre- plea, saymg, on the first point. It is no sent two answers to the same sum or objection to a plea that it happens cause of action, but gives an entire (unavoidably ?) to show a good defence answer to two sums or causes of action : to a count to which it is not pleaded : a course no more open to the ob- and, on the other point, that if the jection of duplicity than common mode of pleading was prohx it was pleas, such as payment, &c. pleaded attributable to a useless introduction to several counts; and not only is of the count on the account stated, such a course free from the objection It is here well to observe that it is and duplicity, but the contrary course not always prudent to have recourse to would be liable to it : thus, in Raiolin- the mode of pleading above adverted son V. Sha?id, 5 M. & W., wherein to: for in Hurtley x. Manton, 5 Q. B. a similar case the plea was pleaded vrhere that mode was adopted, the Court '^ asto il. parcel of the monies in the de- having held the defence as to the claration" that the sum of 4Z. parcel of original consideration bad, added, "as the sum in the first comit mentioned, regards the account stated, the plea and 41. parcel of the sum in the second would probably be good if it had been count mentioned, are one and the saine pleaded to that count only ; but as it debt of 4/., and not other or different is pleaded to both counts and is bad debts of 4/., and that the same is the as to one, it is according to the uui- said 4/. parcel, and become due, kc. the versal rule bad as to both Court, on special demurrer said, "Ought J > ( 32 ) PEACOCK V. RHODES AND ANOTHER. A bill of ex- I.\ an action upon an inland bill of exchange, which was a blank In- tried before Willks, Justice, at the last Spring Assizes for dorsement, Yorkshire, a verdict, by consent, was found for the plaintiff, being stolen ' ' •' _ * _ and negotiated, subject to the opinion of the Court on a special case, stating an innocent ^ o ^^ ■ p ~ indorsee sball the lollowing tacts : recover upon it ,, rpj , jjj ^^.,^g j^.^^^^.j^ ^^ Halifax, on the 9th of August, against the •' ' '^ drawer in blank. 1780, by the defendants, upon Smith, Payne, and Smith, payable to William Ingham, or order, SI days after date, for value received. It was indorsed by William Ingham, and was presented by the plaintiff for acceptance and pay- ment, but both were refused, of which due notice was given by the plaintiff to the defendants, and the money demanded of the defendants. The plaintiff, who was a mercer at Scarborough, received the bill from a man not known, who called himself William Brown, and, by that name, indorsed the bill to the plaintiff, of whom he bought cloth, and other articles in the way of the plaintiff's trade as a mercer, in his shop at Scarborough, and paid him that bill, the value whereof the plaintiff gave to the buyer in cloth and other articles, and cash, and small bills. The plaintiff did not know the defendants, but had before, in his shop, received bills drawn by them, which were duly paid. William Ingham, to whom the bill was payable, in- dorsed it; John Daltry received it from him, and indorsed it ; Joseplt Fisher received it from John Daltry ; and it was stolen from Joseph Fisher, at York, (without any in- dorsement or transfer thereof by him,) along with other bills in liis pocket-book, whereof his pocket was picked, before the plaintiff took it in payment as aforesaid. The plaintiff declared as indorsee of Ingham."" Wood, for the plaintiff, argued, that the bill w'as taken, by Peacock, in the ordinary course of business, and there was no pretence that he had notice that it had been ob- PEACOCK V. IIFIODES AND ANOTHER, Doug. G32. S3 tained unfairly. If he had, he admitted that he could not I'^^J- recover. A bill indorsed by the payee is to be considered Peacock to all intents as cash, unless he chooses to restrain its '"• currency, which he may do by a special indorsement, as, ^^^^ " Pay the contents to William Fisher (a)." The very object Another. in view, in making negotiable securities, is, that they may ^") Doug. 637. serve the purposes of cash. The case of Miller v. Race(b), {l')\ Burr. 452. although the question there arose upon a bank note, es- tablishes the principle just stated. If this bill had not been stolen, but lost, the owner might have maintained trover against the finder, but still the bona fide holder would have been entitled to recover upon it. This was determined, with respect to a note upon a banker payable to A. or bearer, in the case of Grant v. Vaughan (c.) Here, (^) 3 Bu;t. the bill was indorsed blank, but that was the same thing in effect, as if it had been made payable to the bearer. A blank indorsement is an indorsement to all the world ; to any body who shall happen to be the bearer. There was a case of Francis v. Mott, directly in point to the present, tried before Lord Mansfield, two or three years ago. There, a bill with blank indorsements had been picked out of the holder's pocket, at Manchester races. Being offered in payment to a house at Manchester, who did not know the persons whose names appeared upon it, they sent to inquire about their credit, and, finding them responsible, gave a valuable consideration for it, and sent it to their correspondent at London. He carried it to the drawee for acceptance, who detained it, and said it was stolen ; upon which the house at Manchester brought an action against the drawer. The Attorney -General was for the defendant, and INIr. Dunning for the plaintiff. The Attorney- General attempted to show, that the plaintiff knew the bill had been unfairly obtained, and having failed in that proof, he gave up the cause, and the plaintiff recovered. The argument on the part of the present defendants would extend to all cases of fraud and imposition, as well as theft, and would stop the currency of bills of exchange, because it would render it necessary for every indorsee to insist upon proof D 34 PEACOCK V. RHODES AND ANOTHER, Doug. 632. i"8i. of all the circumstances, and the manner in which the bill Peacock came to the indorser. As the negligence, in this case, was ^' on the part of the person who lost the bill, the loss ought to fall upon him ; not upon the plaintiff. Another. Feamley, for the defendants. — The cases on this subject are all modern, but all of them establish a distinction be- tween bank notes, or banker's cash notes payable to bearer, and indorsable bills or notes. The two first sorts only are considered as cash. No case that I have found is exactly {(1) 3 Burr. in point to that before the Court. In Price v. Neale (d), 1354. which was the case of a forged bill, that had been accepted and paid to the defendant in the course of trade, your Lordship held, that the acceptor, having given credit to it by his acceptance, should not recover back what he had paid to a honajide holder ; but, in the present case, there was (e) iVez.34l.no acceptance. Walmsley y. Child {e), before Lord Hard- wicKE, was upon cash notes payable to bearer. Lord Holt makes the distinction between bills and cash notes, in Tassel (/) L(l. Raym. and Lee v. Lewis{f). So in Hodges v. Steivard (y), bills pay- (g) Salk. 125. ^ble to bearer, and bills payable to order, are distinguished. Every indorsement of a bill of exchange is considered as a new bill. This was laid down by your Lordship in Heylin (A) 2 Burr. 669. V. Adamson (h) ; and in Miller v. Mace a bill is considered as being only a security or document for a debt. - The case of (i) 9 Mod. 44. the Executors of Devallar v. Herring (i) seems exactly in point for the defendants. It is there laid down, that, if the indorsee of a promissory note lose it, and the finder pay it away in the course of trade, the indorsee may maintain trover against the person to whom it has been so paid. The arguments from inconvenience are in favour of the defend- ants. No man is obliged to take a bill of exchange in pay- ment. A trader should not, in prudence, take a bill, unless he know the person from whom he receives it. Rut, if the law were as contended for on the part of the plaintiff, the temptations to theft would be increased. Lord Mansfield told Wood he need not reply, and deli- vered the opinion of the Court, as follows : Lord Manisfield. — I am glad this question was saved, not PEACOCK V. RHODES AND ANOTHER, Doug. 632. 35 for any difficulty there is in the case, but because it is important that general commercial points should be publicly decided. The holder of a bill of exchange, or promissory note, is not to be considered in the light of an assignee of the payee. An assignee must take the thing assigned, subject to all the equity to which the original pai'ty was subject. If this rule applied to bills and promissory notes, it would stop their currency. The law is settled, that a holder, coming fairly by a bill or note, has nothing to do with the transaction between the original parties ; unless, perhaps, in the single case (which is a hard one, but has been determined) of a note for money won at play. I see no difference between a note indorsed blank, and one pay- able to bearer. They both go by delivery, and possession proves property in both cases. The question of malajides was for the consideration of the jury. The circumstances, that the buyer and also the drawers were strangers to the plaintiff, and that he took the bill for goods on which he had a profit, were grounds of suspicion, very fit for their consideration. But they have considered them, and have found it was received in the course of trade, and, thei-efore, the case is clear, and within the principle of all those Mr. Wood has cited, from that of Miller v. Race, downwards, to that determined by me at Nisi Prius. The Postea to be delivered to the plaintiff. 1781. Peacock V. Rhodes AND Anothek. Although apparently this is an au- thority rather on the law than the pleading in actions on bills or notes, as, when it was decided, almost any evi- dence was admitted in such actions, under the general issues of non-assximp- sit or nil debet, the principles on which it was decided sufficiently show that the facts above stated could only have been properly proved uuder a special plea, and also show what would have been the essential requisites of such a plea, and the mode of replying to it. The declaration in substance stated D " that the defendants, on &c., made their bill of exchange in vrriting, and di- rected the same to S., and thereby re- quired S. to pay to William Ingham or order, £ 31 days after date ; that Ingham then indorsed it to the plain- tiff, &c., that the same was then pre- sented to the said S. for acceptance, and the said S. then refused to accept the same ; of all which the defendants then had due notice, and then pro- mised the plaintiff to pay him the amount of the said bill on request." Now there is, it will be observed, no 2 36 PEACOCK V. RHODES AND ANOTHER, Doug. G32. consideration stated on this count, be- are decided in opposition to the usual yond %\hat is imphed in the hability rules of law applying to written con- created by the bill itself ; consequently tracts not luider seal. {Yates \. Sher- if, as set out, the instrument appeared rinyham, 12 jNI. & W. ; Bawden v, to be HO bill or note, the count would Howell, 3 M. & G.) This principle is be bad, not only on general demurrer deducible indeed from the doctrine in {Blanchenhagen v. Blundell, 2 B. & the text: for it Avas not even sug- Ald. 4 1 8), but on error {Carlos v. Fan- gested that consideration need be shown cov.rt, 5 T. R.) ; or if pleaded as a bill for the original making of the bill ; and or note, and when in fact it was not as to the indorsement, though the such an instrument, if it were set out looseness of the pleadings in the prin- in the plea the same result would fol- cipal case precluded the precision with low {Robins \. May, 1 1 A. & E.) ; and which a more accurate course of plead- if when so declared upon the instru- ing now adjusts the burden of proof ment produced appeared to be no note between the parties in such actions, the or bill, the plaintiff would be non- language of the Court, that " the pos- suited. {Russell v. Shenton, 5 Q. B.) session proves property in" (i. e. evi- Because in any case but that of a note dently implying the right of action on) or bill it is ground of error in the de- such instruments, indicates the doctrine claration upon a contract not under which has since become established, seal that no consideration appears for " that the mere indorsement (and con- the promise {Galloioay v. Jackso7i, 3 sequently the mere allegation of it) M. & G.) ; and so essential is the con- imports " that the indorsee came fairly sideration, that even in executory con- by the instrument" {Goodman v. Har- tracts it is put in issue simply by a vey, 4 A. & E.) ; and that he gave con- traverse of the promise {Sutherland v. sideration for it. {Fancourt v, Bidl, 2 Pratt, 11 M. & Y/.) ; therefore the B. N. C.) As the instrument then was ground of action on a bill or note must in " the nature of a sjyecialty," it re- be on the instrument itself, which must suited from ancient and established consequently be "in the nature of a principles of law, that the general sjjecialty,'^ the very definition adopted issues, nil debet or non assumpsit, were in a recent case. Baker v. Walker, 14 inadmissible, and that the instrument M. & W. Nor is this at all inconsistent zVse^/" should be pleaded to. {Warren v. with the doctrine lately established, Consett, Ld. Raymond, 5.0. Strange ; that at common law there is no dif- Nichols' case, 5 Coke, 43, and Croke, ference between a written contract not Eliz. 4.o5 ; and so 28 Edw. IH. fol. 90 ; under seal and one merely by parol ; 29 Edw. III. fol. 2").) And at common for in that very case bills and notes are law it would be double ])leading to mentioned as exceptions to that rule deny both the making and the indors- {Beckham v. Brake, 1 1 INI. & W.) ; and ing, the disproof of cither being the this principle, that the ground of action destruction of plaintiff's right of action; is on the bill or note itself when the the first destroying his title in its in- action is to recover the amount, is re- ception, and the second in its transfer. cognized as the basis of the decisions Thus it would have been double to on questions as to the right of, or the plead in avoidance of a descent "con- parties to, such action — qucstionswhich tinual claim" by defendant's predecessor PEACOCK V. RHODES AND ANOTHER, Doug. 632. 37 and by himself. (22 Hen. VI. fol. 37 ; see also 20 lien. VI. fol. 7.) So, in debt u}3on a lease, to plead that a less rent than that declared for was re- ceived ; and that before it became due plaintiff re-entered and evicted. (3 Hen. VI. fol. 19.) And in the case which at common lavv- affords the nearest ana- logy to that of a bill declared on by an indorsee — vis. a demise declared on by the assignee of the reversion — it seems clear that apart from the statute of Anne the defendant could not plead non est factum, and also traverse the assignment toplaintiff. {Gully v. Bishop of Exeter, 4 Bi. 525, 5 Bi. 42 ; Whale V. Lenny, 5 Bi. 12.) Thus then it is obvious, that it is not alone by the ex- press directions of the new rules (which in this as in other instances have but revived the ancient and more accurate system of pleading), " that in actions on bills and notes the plea of non assumpsit is inadmissible, and a plea in denial must traA^erse some matter of fact ; e.g. the drawing or making or indorsing or accepting, &c. (Chitty on Pleading, vol. i. ed. 7, Appendix ; Jer- vis' sNew Rules ; Kennedy' s New Rules ; Tyrwhitt on Pleading; Archbold on Pleading, vol. ii. ; Byles on Bills ; Greening's Forms.) For according to the most anciently established prin- ciples of law, a plea including more than one of those traverses would have been bad for duplicity, and the plea of non assumpsit in the principal case was demurrable, therefore, on that ground as well as on the other, viz. that it was wholly inapplicable. Now in order to ascertain if it would be requisite, in any case similar to Peacock v. Rhodes, to resort to the statutable liberty of pleading several matters — it is of course necessary to see what in that case would have been put in issue by the traverse, " that Ingham did not indorse the said hill to the plaintiff.''' Now though in a plea in confession and avoidance, the word "indorse" being susceptibleof a stricter and more simple signification than that which in legal effect is attached to it, the allegation in the declaration may receive a different meaning — as that of mere writing — according to the nature of the circumstances disclosed in such a plea {^per Alderson, B., Carter v. James, 13 M. & W. ; per Parke, B., Gore V. Gibson, 13 M. & W.), on a traverse, the import of the allegation must be taken as it appears on the face of the count, for the traverse is that the indorser did not indorse " in man- ner and form as the plaintiff hath in that behalf alleged," and the effect of the "modo et forma" is to include in the issue whatever is material to the allegation traversed. (2 Anderson, 182, and cases there cited ; and Chitty on Pleading, vol. i. p. G39, note (^]7), who for this pur- pose become merchants indeed by the drawing, accepting, or indorsing, &c. (1 Salkeld, 125 ; Bromwich v. Llorjd, 2 Lutw. Q^7.) Now it is very observable, 56 PEACOCK r. RHODES AND ANOTHER, Doug. G32. that in the case last cited the declara- delivery as an escrow, or of something tion, by which (according to the ordi- in the nature of a defeasance, or of nary form, as above alluded to) it was illegality and fraud ; and moreover it is stated that, by reason of the mere evident that from what immediately making, indorsing, &c., and the custom, followed the observation alluded to the party accepting, &c., became liable ("the defendant ought not to be pre- to pay, was objected to on that very eluded from showing that the consider- ground, for "that it too/c away the ation is in fact a bad one") indicates proof how the money hecatne due;" that it was only intended to lay down but the Court "were of opinion that that the contract might be impeached the custom was good notwithstanding ;" by proof of fraud or illegality, to which and in that case the distinction was extent the rule is equally applicable to draAvn, " that on a general indebitatus specialties. {Collins v. Blantern, 2 Wil- for money, the bill may be left to the son.) And the doctrine that these in- jury to determine whether it was struments import their own considera- for value received or not" {per Powell, tion is thus confirmed in the judgment J.), implying evidently that in the oi Eyre, C^., {Gibson \. Minet, 1 H. action on the bill itself the question of Black. 601,) "The theory of a bill is consideration was irrelevant. And so that the bill is an assignment to the in later cases the same principle is re- payee of a debt due to the drawer, &c. cognised — that the action on the in- But in an action wherein the declara- strument is in the nature of a specialty ration is on the bill — the bill itself {per Holt, C. J., Clarh v. Martin, creating a duty by the custom of mer- Raym. 758 ; per Parke, B., Baker v. chants — all this is out of the case. In Wall, 14 M. & W.) ; so that the only atiy other action founded on a bill, it is way in which it was considered allow- offered as evidence only of the duty." able to admit evidence of the absence And the Court refers to the cases de- of consideration, was by showing that ciding (i. e. before it was settled that the instrument was not delivered abso- the custom is to be taken as implied in lutely, but as an escrow. {Jeffries v. the declaration) that a general inde- Austen, 1 Strange, 694 ; et per Heath, bitatus would not lie on a bill, but that J., Goggerly \. Cuthbert,2T^.'R.) And the custom must be stated, which it in a late case, the Court took time to was afterwards held would be neces- consider whether evidence of illegality sarily implied. {Hodges v. Steward, 1 even were admissible; and though it is Salk. 12") ; Brown v. Loudon, 1 Lev. there observed, per Mansfield, J., that 298.) The only ground then of an "the law allows bo7ids and notes to be action on a bill or note itself, is, that prima facie evidence of a good consider- the custom supposed to be stated in ation," {Guichardy. Roberts, \^\?Lc\i. the declaration gives to the instvu- 44.0,) — the very mention of bonds and mcnt the force of a specialty. hills as synonymous supports the view It w^ould appear to result from this that they are to be considered substan- principle that no defence (not in dis- tially in the same light in this respect ; charge) can be pleaded in an action on and in that view consideration would a bill or note, unless it disclose ille- not be material, and it could only Ije gality or fraud ; and that if (in the Ian- admissible to adduce evidence either of guage of the old counts) a bill be taken PEACOCK V. RHODES AND ANOTHER, Doug. G32. 57 "bond Jide and without covin" and uncondilionuUij delivered, no consider- ation is necessary. This however is inconsistent with Easton v. Fratchett (2 C. M. & R.), where, after verdict, a seneral pica of no consideration was supported, in an action by indorsee against his immediate indorser. It was admitted however there that on special demurrer the plea would have been bad. And even after verdict it was upheld only on the ground that the general words "without any consider- ation,'''' must be construed as excluding everything which could give a title to sue upon the instrument ; so that even with the doctrine above adverted to the decision would not perhaps be in- consistent, understanding the plea as in fact an argumentative denial of any v(did transfer ; such being the legal import of the word "indorse- ment," according not only to Marston V. Allen, cited ante, but to older autho- rities, as Elliott v. Cooper, 2 Raym. 1377 ; Taylor v. Lobhin, Strange, 399. It may be observed that it ap- pears to have been admitted that the plea in Easton v. Pratchett would have been bad even after verdict, had the action been against the acceptor, but that it would have been substan- tially valid in such case if it had al- leged that the acceptor received no con- sideration. " If a man promise to pay money, he cannot be sued on such promise" {i. e., without consideration), and (such) a promise in writing, not under seal, cannot have any binding eftect. If a man give to another a negotiable instrument on which other parties are liable, he cannot recover the bill back : and he to whom it is given may recover against the other parties on the bill: but it is a very different question whether the giver bind himself by the indorsement so as to make himself liable thereupon to the person to whom he gives it. It appears therefore that on the suppo- sition of a gift the action would not be supported." Now apart from the doubt whether this doctrine is consist- ent with previous authorities (see llol- liduy v. Atkinson, 5 B. & C, and per Parke, B., it is observed that " the point is not settled,") it is difficult to see how the indorsee, who could not recover against his own indorser, can recover against the acceptor, except by virtue of the principle above adverted to : viz. that the instrument (i. e., till impeached by fraud of some kind) not merely lyroves, but per se imports consideration, and confers a right of action. This view appears virtually upheld by the decisions as to the mode of pleading the defence here adverted to, of an accommodation transaction. For it has never been decided that a general pleaof no consideration between even immediate parties would not be generally demurrable, though there are obiter dicta to that effect. And it is conceived that the real objection to such a plea is founded upon the prin- ciple above contended for, in con- junction with the known rules of pleading, viz., that as the instrument itself, or its indorsement, confers the risht of action, it is for the defendant to plead and prove the facts which show either fraud, illegalitj^ or an in- dependent and collateral contract con- stituting a defence by taking away the right of action, which the instrument per se must import. For if the instru- ment were only evidence of a consider- ation distinct from itself, it seems dif- ficult to explain why the consideration should not be declared upon, and why 58 PEACOCK V. RHODES AND ANOTHER, Doug. 632. it should not be put in issue by a general denial. Yet it is clear that the plea must affirmatively and ex- phcitly state the circumstances under which it is alleged that there was no consideration {Easton v. Pratchett, ante, Atkinsonv. Daries, 1 1 M. & W.), and the defence that the bill was given for accommodation is the ordinary mode of allegation adopted. That in this form the plea is inaccurate and inarti- ficial is to be collected from the late case of Kingx. PhiUipps, 12 M. & W., where it is said that " accommoda- tion" is only a mercantile phrase : that the plea substantially amounts to that of no consideration, that it is therefore substantially answered by the averment that there was good consideration : and that in legal effect the defence is, — (thedefinition of an accommodation bill) that the bill is one on which, by agree- ment, the maker or acceptor was not to be sued, or for which the plaintiff was to provide. So in Easton v. Pratchett it is said, per Parke, B., that the proper form of the plea was " that the bill was drawn, indorsed, &c., in order to give plaintiff the pro- perty in the bill, and right of action against the third person, and that it was intended that the defendant should not be liable on the bill to the plain- tiff." In conformity with this view, in a case occurring soon after, {Thompson V. Chuhley, 1 M. & W.) the defence was thus pleaded, in that, its more correct form, according to what is con- ceived to be its legal effect. " That the bill was made, &c., for the accom- modation, &c., and that at the time of making, Xc, it was expressly agreed by and between the said parties (in- cluding plaintiff, the drawers' indorsee) that if the bill should be outstanding at the time when it became due, it should be taken up and paid by the plaintiff, and that no claim in demand should at any time be made against the acceptor or drawer upon or in respect of it." After verdict, the objection was taken that it was not averred, and had not been proved that the alleged agree- ment was ill writing ; and that it was inconsistent with the terms of the bill, and made it an entirely different con- tract : — the case is but short and appears not to have been fully ar- gued, and the Court got over the ob- jection only by holding that the agreement as to the payment was no part of the original contract ; but a collateral agreement that the plaintiff would not enforce the contract on the hill. It could only be on similar prin- ciples that, even on general demurrer, such a plea as the following could be upheld, though it seems to have been considered as an argumentative traverse of the acceptance ; (and it will be observed, that it is more open to the objection urged in the preceding case, as being rather inconsistent with the tenor of the bill, than collateral to it,) "that defendant accepted Avith- out consideration, and on the terms that he should not be called upon to pay it when due, but that it should be renewed when due by another bill to be accepted by him, &c. ; that drawer drew the bill declared on as agent for plaintiff, and on his behalf ; and that there was no consideration for the in- dorsement to plaintiff, and that defen- dant hath always been ready and will- ing to renew the bill," &c. On special demurrer to the replication de injurid, a rule to set the demurrer aside as fri- volous was discharged ; and the Court said, the point seemed fit to be argued. (Dalton V. Macintyre, 1 D. & L.) And as to the necessity for pleading analo- PEACOCK V. RHODES AND ANOTHER, Doug. G32. 59 gous defences (supposing them to be venant," and that the lessee should pleadable at all, byway oi agreement), have an action on the covenant, if the HtQSturtevanty.Ford,AM..!kG!.,c\icdi lessor punished (sued) him for waste post; Mitfordv. Finden, 8 M. & W. against the grant; on which Paston, Now, assuming that such an agreement C. J., said, "The lessee shall take would not be open to the objection that advantage of those words in the action it was not in writing, by reason of the of waste if they are in the same deed ; rules of evidence — though as to that, to which Feltham, J., and Askew, J. qucere — it not being subsequent to, but assented. See also 27 Henry VI. fol. contemporaneous with the issuing or in- 1 0, where a similar decision is founded dorsingof the bill, with which it is surely upon the same principles, that a co- inconsistent, or the operation of which venant, unless it be a condition pre- it surely controls, — {Goss v. Lord cedent, though it may give the defen- Nugent, 5 B. & Ad.) — and that it dant a right of action, does not consti- would not be open to the objection tute a defence on his part. So again in point of law, founded on the prin- in 21 Henry VI. fol. 52, plaintiff ciple that a deed cannot be avoided having declared on a deed, the defen- but by some contract of as high a dant pleaded that it was indorsed with nature, where the action is on the a condition upon which it was to be deed (as to which see 21 Henry VI. void, &c. Newton, J., and Paston, fol. 32, and 32 Henry VI. fol. 3), be- J., held the plea in substance good, cause though a bill is in the nature But per Broivne, J., it was not well of, it is not a specialty ; and as re- pleaded, for it ought not to have been gards its efficacy as a written in- pleaded that the deed was made on strument, apart from the custom of conditions, &c., but that it appears by merchants, is subject to the principle the same deed plaintiff had covenanted pervading all written instruments at that if a certain thing w ere done the common law, that unless under seal obligation should lose its force, and they are not "of a higher nature" that it had been done; to which the than contracts by parol (Beckham v. reporter adds a " quod nota." So, Drake, 11 M. & W.), it is appre- 20 Edward III. fol. 9. in debt on an ob- hended that the plea of an agreement ligation, it was pleaded by Starkey, not to sue might be open to the objec- that there was a defeasance, that if de- tion that it constituted not a defence, fendant would pay 201. by such a day but a right of cross action, unless it he should not be sued till the money operates as a defeasance, by reason of was paid, and that the money was express stipulation, that in a certain paid. Gurney demurred, " for it is event the acceptance, &c., should be repugnant in itself; for that he ought deemed void ; according to the principle to pay the 20/. by such a day, and thus illustrated in the early authorities, yet that he is not to be sued till the In 21 Henry VI. fol. 47, it is said, money is paid ; so that we cannot arguendo, that if the lessor inserted have the action nor the debt." m a lease words that the lessee should Brian, J. : " You say well." Towns- not be punishable for waste, as of end, J., differed ; urging that the pro- common right he would be, those viso might be taken as void, and the words would merely " sound in co- remainder good, as more beneficial to 60 PEACOCK r. RHODES AND ANOTHER, Doug. 632. the grantee. Brian, J. : " You say well of a deed not indented, but as to an indenture, it is the deed of each to my intent ; so that it cannot be more beneticial for one than the other. As if a man grant to me 20/., and in the same deed indented I grant to him that I will not sue him, which shall be intended most beneficial? There if you recover asrainst him in debt he shall recover against you in writof covenant." But a Cur. adv. vult is added. In later cases, however, it appears to have been held that, though in a different deed, the defeasance might be pleaded, to avoid a circuity of action {Hodges v. Smith, Cro. Eliz. 623), this rests only on the construction of a covenant not to sue as a release. But it was always held, that to constitute a defeasance there must be express words expressly making the original obligation void, as the effect of a de- feasance is to make the instrument void in toto {Lacy v. Kinaston, Salk. 375, Raym. 690), on account of which the contract will not be so construed a de- feasance when it is only not to sue for a limited period, as the defeasance must either be a total discharge or a mere ground of cross action ; and construing it in the former sense is so repugnant to the obligation that it is if possible to be avoided {Alsopp v. Scrimshaw, Sal- keld, 57), principles adopted in Comyn' s Digest, " Defeasance," and in the mo- dem case of T'himblelji/ v. Barron, 3 M. & W., where, it is said, the breach of the agreement to forbear suing renders the party lialdc in damage?, but is not pleadable in bar. In Burgh v. Preston, 8 T. R. 486, the doctrine to be deduced from the old cases is recognized, that, unless in the same instrument, the agreement not to sue is collateral, and only the ground of a cross action. Upon these principles it appears that the j)lca of an accommodation transaction should, correctly, not only state such an agreement as above adverted to, but allege that it was expressly stij)ulated that if the bill should not be duly paid by the party for whose accommodation it was ac- cepted, &c., the acceptance should be deemed void. And it shoidd seem that it would not be possible to avoid the objection as to writing, (supposing theobjection valid), by statingtheagree- ment to have been "after the making," &c., as then no consideration would appear for it ; while, stating it as con- temporaneous, a good consideration might be disclosed, in the making or accepting, &c., without consideration for so doing. And the contract being 2)arol, {Beckham v. Brake, 1 1 M. & W.) such a plea would not be open to the objection founded on the doctrine applying in the case of a deed, that delivery to the party himself can- not be as an escrow, as to which see casescitedaw^e,p. 41. And that the plea would not be an argumentative denial of the acceptance, &-c., there are many authorities to show, such as the follow- ing, which, perhaps, may be consi- dered as illustrating, in its application to bonds, (the ancient originals of bills) — the principle of an accommodation transaction, 18Edw. IV. fol. 28, in debt on an obligation defendant said " that he deli\"ered it as an escrow to one John, on such condition that if the ])l;untiff would deliver to the said John three cloths, kc, that then the deli- very should be to the plaintitf as the defendant's deed, and that plaintiff had not delivered the cloths." Vavasor, J., and Brian, J., said that the plea ought to be nan est factum ; for it confessed no delivering to the plaintiff, so that it PEACOCK V. RHODES AND ANOTHER, Doug. G32. Gi co\i[A\\Qihc\\\sAG&(\;sed per Littleton, respect to similar pleas in actions on J,, " He need not show ilelivery to bonds, the analogy between which and the plaintiff, for it appears to the bills has been already alluded to, as Court by this action that the plaintiff exem])lified, in this respect, in such has the obligation" (as to the applica- ancient cases as that just cited. And lion of which principle to bills, see see what is here said as to the con- Fraser v. Welch, 8 M. & W. ; and struction of pleas showing failure of a?«?e, p. 39). It was agreed, however, consideration on bills, illustrated in that if the plea had shown a delivery Trickey v. Lame, 6 M. & W. ; Jones to the plaintiff it would have been v. Jones, ib. ; Wilson v. Leicis, 2 M. & good in confession and avoidance, G. ; Clark v, Lazarus, ib. ; Robinson though it was said by Choke, J. (and v. lieijnolds, 3 Q. B. Nor again are the conceded, it should seem), "If I seal an views above adverted to inconsistent obHgation, and he to whom it is made with the cases showing that on a bill take it against my will, it is not my or note expressed to have been for value deed and I may plead non est factum; received, it may be shown that there and so if there were no delivery to the was no value received ; for in any such plaintiff, but he took it from a stranger case it is disclosed on the face of the against my will." instrument itself, that the parties con- It must here be observed, that there tracted for consideration. {Holliday v. is nothing inconsistent with the views Atkinson, 5 B. & C. ; Abbott v. Hetid- here expressed (as to consideration not ricks, 1 M. & G.) And it may be being necessary to constitute a right of added that such is the strictness with action on a bill) in the cases in which which these pleas are construed, that if the action has been deemed defeated after showing a failure of consideration by showing a failure of consideration : it be alleged that " there never ivas on the contrary, it is conceived they as any consideration," &c., there wdl be much confirm those Adews as do the cases ground of demurrer for repugnancy as to the mode of pleading the defence {Byers v. Wylie, 1 C. M. &R. ; Purssord that there was no express consider- v. Peck, 9 ]M. & W.), i. e. unless it be ation. For the cases as to the failure added " except as aforesaid," as in Ro- of consideration are all decided on the binson v. Reynolds, 3 Q. B. ; and obvious principle, that if the parties Abbott v. Hendricks, 1 M. & G. contracted that the bill should not be Perhaps, again, the plea might be con- paid but on certain conditions, the bill sidered supported by the proof if it could only be enforced in perform- presented as the ground of defence, ance of those conditions : a doctrine that which in Bramah v. Roberts founded on the maxim expressum facit was described per Tindal, C. J., as cessare taciturn, and not at all infring- showing " that the acceptor had been ing on the legal implication above defrauded of the acceptance :" stating contended for, as attaching in the however (for reasons already stated) absence of anything express. And in not, as in that case, "that the bill was these cases the contract and the plea deposited by acceptor for a special pur- founded upon it seem true, with a pose, and not to be negotiated," but, strictness andacciiracy quite analogous " that he was induced to accept solely to that which would be exercised in on the express promise of the drawer 62 PEACOCK V. ilHODES AND ANOTHER, Doug. G32. (or the plaintiff,) that the bill should designed need not preclude a party be provided for when due by him the from taking it ; and even the fact of his drawer, and that he the defendant furnishing no funds, but taking it should not be called upon to pay the merely for a prior debt, would not same ; and that the drawer thus ob- sufficiently implicate him in the sup- tained his acceptance without consider- posed fraud, because his indorser, as atiou, and with the intention of de- pointed out in Noel v. Rich, might frauding him by negotiating the bill, then himself supply the funds, and at and by not providing for the same all events might provide for the bill when due, but allowing defendant to be when due, so as to prevent the ac- sued thereon, and that so the defendant ceptor from being called upon, and so was induced to and did accept by means thus perform the accommodation con- of the fraud and covin of the drawer, tract ; and it would be necessary at and not otherwise, &c. But it is to least to allege that the fraudulent in- be observed, that as the general plea of tention of the indorser was "in corrvipt fraud would not, it is conceived, admit collusion and concert with the plaintiff, evidence of such a defence ( Conwc|2) v. for their joint profit, and with the Holmes, 2 C. M. & R. ; Edwards v. — , preconceived design of wrongfully ob- 2 Y. & J.); so no fraud would be im- taining a right of action against the plied beyond that which was stated; and acceptor, and of suing him by means that therefore in point of effect it would thereof in violation of the contract on not impeach the bill or its transfer to which the acceptance was prociired." any greater extent than the ordinary Unless the plaintiff were thus, as in the plea of no consideration: and that if in cases analogous to Peacock v. Rhodes, an action by an indorsee the plea only imphcated in a fraudulent transfer, the avoided the indorsement to plaintiff by plea could not so avoid his indorsement the general allegations which would be as to supersede the necessity for avoid- sufficient in cases substantially analo- ing prior titles. Therefore if in that gous to that in the text, i. e. that the case there had been the plea of an ac- plaintiff received the bill with notice commodation transaction, it must be or without consideration, it would be stated that there was no consideration open to the objection already adverted for the drawing, &c., and if the action to as attaching to such modes of stating had been against the acceptor, as the the defence as have been illustrated in payee and indorser was a distinct the more special pleas previously re- party from the drawer — it would not ferred to, professing to state a frau- have sufficed to say that there was dulent negotiation of the bill, (Bramah none from one of those parties alone, V. Roberts; Noel v. Rich; Vther v. for the bill might have been accepted Rich, ante, p. 52,) the objection being on consideration from the other, and that the plea did not disclose the so the plea must have negatived con- utter absence of authority to negotiate sideration for both. {Robiyison v. Rey- — the very object of an accommodation nolds, 3 Q. B.) And such pleas always bill, or a bill designed for discount, allege the accommodation transaction being to raise money ; an object hardly to have been one in which the plaintiff attainable without its circulation. So was directly concerned — as that the that mere notice of its being so bill was accepted for the drawer's ac- PEACOCK V. RHODES AND ANOTHER, Doug. 632. 03 commodation, and indorsed for the plaintiff's, without any consideration for the accepting or indorsing. {Grif- fin V. Yates, 2 B. & C.) And it would be insufficient, after stating the accom- modation transaction between the previous parties, to allege simply that plaintiff took the bill "without notice" or "without consideration" — for as an accommodation bill is intended for circulation, it no more imj)eaches the plaintiff's title in pleading than in proof; so that when the fact has been pleaded and proved, the onus is still upon the defendant of proving that plaintiff gave no consideration for the indorse- ment to him. (Mills v. Barber, 1 M. & W.) If the defendant in the principal case had merely pleaded that he drew and indorsed the bill for the accommodation of Ingham, and without consideration, the plea would have been frivolous and un- issuable, and plaintiff might have signed judgment, as it left his title unanswered (Knoivles v. Biirwood, 10 A. & E.), and so it would have been, it should seem, had the plea merely alleged, in addition, that the plaintiff had notice of the fact so stated {Stur- tevant v. Ford, 4 M. & G. ; Mills v. Barber, cited ante), because the dis- tinction between such a plea and that which would have been framed on the defence in the principal case would be, that in the one the fact of which no- tice would be stated would not ap- pear to have been such as that notice of it should have deterred plaintiff from taking the bill, whereas in the other case it wotdd have so appeared. The case of Easton v. Pratchett, how- ever, appears to decide that a plea in the principal case, that the bill was drawn and indorsed without considera- tion, would have been good after ver- dict, — as to which however, see ante, page 57. But that does not appear to have been a decision that the plea would have been good on general de- murrer ; nor were any of the autho- rities cited, nor arguments adduced which have been here adverted to. And it seems clear, that had the de- fendant in Peacock v. Rhodes pleaded simply that there was no consider- ation for the indorsement to plain- tiff, the plea would have been bad after verdict ; yet if the doctrine of Easton v. Pratchett be m its full extent correct, and the word con- sideration be taken even after ver- dict to imply everything which in law would give a right of action, and would negative even the supposition of a gift, — it does not appear easy to explain how the one plea should not be as good as the other ; and if again consideration be necessary in the stricter sense of the word, then it is still less easy to see how a plea deny- ing that there was any consideration for the indorsement to plaintiff should not be as complete a destruction of his title to sue as a plea substantially re- sembling that which would be good in such a case as that in the text, viz., that the indorsement was obtained by fraud on the part of the plaintiff. Yet that the plea would not only not be good, but be frivolous, seems clear ; for had the plaintiff in the principal case declared that Ingham indorsed to Daltry, who indorsed to Fisher, who indorsed to plaintiff, — a plea "that the defendant made and drew the bill, and indorsed the same to Ingham respectively for the accommodation of Ingham, and not otherwise ; and that there never was any conside- ration for such making, drawing, and indorsing, or for the payment by de- 64 PEACOCK V. RHODES AND ANOTHER, Doug. C32. fendant of the amount of the bill, and that there never was any consideration for the indorsement of the hill by Ingham to the plaintiff, and that the plaintiff always held and now holds the same without consideration," leav- ing the titles of Daltry and Fisher un- answered, the plea would have been " manifestly sham and frivolous," and judgment might have been signed. (Emmanuel v. Randall, 8 D. P. C. 23t^ ; and seeDaniellsv. Coombs, 1 M. & G.) Yet if consideration, apart from that involved in the bill itself, and the custom, be requisite, and it be deemed that such consideration is implied in the statement of the bill in the declaration, the denial of the consi- deration from the plaintiff would de- feat the indorsement to him. And, it appears, to reconcile the decisions, it is requisite to resort to the doctrine above deduced from the older au- thorities, that the instrument per se is consideration sufficient, and that the only way of avoiding the effect of an indorsement, either as between immediate or intermediate parties (apart from illegality), is to plead and prove affirmatively, as already al- luded to, that there was an ac- companying contract defeating the right of action, or that there was some fraud in the transfer, and that the parties designed the instrument for another purpose than to pass such right of action. Thus in Wutkins v. Bensusan, 9 M. & W. 422, where the acceptor, under terms to plead issuably, pleaded, " that before and at the time of the indorsing by drawer he was and is indel)tcd to defendant, and that drawer indorsed to A., who in- dorsed to plaintiff after the bill was due, and to deprive defendant of his right of set-off in respect of the afore- said debt, and in fraud of defendant, and in collusion with A., B., and plaintiff, and without any considera- tion for any of the said indorsements ; and that plaintiff sued in this action as agent to drawer, according to such fraud and collusion," &c., the plaintiff signed judgment, which was set aside, for 2)er Curiam, " We cannot say that this is a bad plea, and therefore un- issuable. It says in effect, that the 2^laintiff'is not the real owner of the hill, and has no right to sue upon it." Yet the plea could not be held de- murrable, as amounting to a traverse of the indorsement ; for the import of that allegation has never been carried further than the intention on the part of the indorser to transfer to the in- dorsee the right of action, not the in- terest. (Marston v. Allen, 8 M. & W.) Such a plea is closely analogous to that before suggested (page G2),^s a form in which the accommodation de- fence might be pleaded : for a set-off due from an ividorser is, per se, no more a defence against the indorsee than the absence of consideration or the fact that the bill was given or pass- ed to the indorser for his accommoda- tion. {Whitehead V. Walker, 10 M. & W.) And therefore the whole efficacy of the plea just instanced must have been in the avoidance of the indorse- ment to plaintiff; by showing that it was not intended between him and his indorser that he should acquire (" bond fide, and without covin") the right of an indorsee : and (if the plea were good at all) that of itself must have consti- tuted a valid plea : and it is appre- hended that it would be so. Supposing that in the jnincijde case the defendant had pleaded " that there was no consideration for the making of the bill, or for the indorsement by PEACOCK V. RHODES AND ANOTHER, Doug. G32. Co Ingham to plaintiff, " concluding with proper in the principal case — would a verification, and supposing that the not be demurrable as an argumen- plaintiff, instead of demurring, as he tative traverse of the allegation that might have done, had replied, "that Ingham indorsed to the plaintiff (see there was a good and valuable considera- ante, p, 40, Gore v. Gihson, 13 M. tion for the said indorsement," conclud- & W. ; Carter v. James, ih.) And so ing to the country (Bramah v. Roberts, as to the other ground of demurrer 1 B. N. C), consideration to Brown mentioned — supposing the allegation would have been sufficient. The issue in the plea to have been either " that would have been on defendant of dis- plaintiffgave," or "that Ingham received proving (not on plaintiff of proving) no consideration ;" for though the in- consideration {Mills v. Barber, 1 M. & dorsement were referred to the time of W.), and it is apprehended, for the Ingham's blank indorsement, a con- reasons already referred to, that he sideration for an indorsement might could not have shown on such a plea be subsequent, and therefore there anything more than the absence of would be no necessity in order to sus- any valuable (or express) considera- tain the replication in point of form to tion ; and could not have shown an resort to the construction, that the accommodation agreement not to sue, indorsement took effect at the time of nor a collusive transaction, as in Wat- the delivery to plaintiff. Steele \. kins V. Benusan, &c. And, again, had Ilarmer, 15 L. J., Ex. In Arbouin v. plaintiff in such a case replied specially, Anderson, indeed, in which such a plea " that the indorsement by Ingham was of no consideration was so replied to, on blank, and that after such indorse- one or two of the judges dropped the ment, one Brown, who then appeared obiter observation that the plea was to be, and whom plaintiff then be- bad — for stating not "that the plaintiff lieved to be (or " who was," jPa?«coiit the substitution of CIIAMBERLYN v. DELARIVE, 2 AVils. O-JO. 103 one riiiht of action for another, which is no defence nnless that which is sub- stituted be of a higher nature. Thus in 6 Henry VII., fol. 11, the Court said, " if defendant had pleaded a con- cord that he should pay 10/. at a cer- tain feast, then if the day is passed, and the money is not j)aid, it is no concord." Ilussey, J., said, "if the de- fendant had pleaded a concord that he should pay to plaintiff 10/. at such a day, or after — which he had done, it would be no concord : for that it is no concord unless it he executed immedi- ately ; for if, in such case, the plaintiff brought his action of debt or trespass, it would be no plea — that they had agreed between them, that defendant should pay 1 0/. by a day not come, for that the action could not be determined without satisfaction." "It would be otherwise" (it was said) in an arbitre- ment, "on the principle — ' transit in rem judicatuni :' but concord without execution would be no plea;" which was conceded by the whole Court, who added, "That, therefore, as it would be no concord if the action were brought before the day — if the day were arrived before action, and the de- fendant had paid the money— it would not change the case : for the payment could not make it a concord which was no concord before. And so here, though the plaintiff hath received the money, that is no defence, for that it is not, by reason of anything a concord, according to the effect of his plea." Fairfax, J., and Tremaile, J., agreed, that if the defendant agreed to give to the plaintiff 10/. such a day, and before that day the plaintiff brought his ac- tion, that is not a concord, nor bar ; " for the plaintiff had no means of causing him to perform it ;" i. e. ex- cept by an action of no higher nature. So in Bulstone v. Baxter, Cro. Eliz. 304, in debt, on an obligation for the payment of 10/. at a day certain, plea, that plaintiff did agree with him, that if he would pay G/. before the day, and the 41. residue at a day after, he would acce})t it in satisfaction of the 10/. ; that he paid the 6/. at the day so agreed u[)on, and promised that he would pay the residue on the other day, so agreed upon, and that ])laintiff did then accept the said promise in full satisfaction of the 10/. On de- murrer the Court adjudged for the plaintiff, for it is a concord executory, and the promise to pay the residue is a thing in action, and can be no bar of a debt which is certain. So in Love- lace V. Cockef, Cro. Car. 85, & Ho- bart, 68, in debt on bond, defendant pleaded acceptance of another bond in discharge : ruled by the Court to be ill. Maynard^. Crisp, ib. 86, similar plea held bad. So Cro. Eliz. 716; Lutterford v. Le Maire, Cro. Jac. 579; Noyes v. Ilopyood, ib. 650; Rawden v. Strutt, Hobart, 69. So in Norwood V. Grype, Cro. Eliz. 727, in debt on a bond for payment of 8/., defendant pleaded that he and one J. made an obligation to plaintiff of 14/., for the payment of 71. at a day to come, in discharge of the said bond of 8/., and in discharge whereof the plain- tiff accepted it ; on demurrer, adjudged for the plaintiff : for one deed cannot determine a duty on another deed. And it will be observed, that a bill when given as that in Chamberlyn v. Delarive, till it be accepted, charges the drawer (if at all) as a promissory note payable by himself : which, when unuegotiable, would clearly come within the prin- ciple of these authorities. This ap- pears to have been the ground of the decision \\\ Cumbers. Wane, 1 Strange, 101 CHAMBERLYN v. DELARIVE, 2 Wils. 353. 425, though it does not distinctly ap- as the substitution of a chose in action pear in the report, which states that (for as a chattel it could not possibly defendant gave j)laintiff a ])roniissory be of any value save as carrying with note in satisfaction, and that the plain- it such new right of action), and there- tilf received it in satisfaction, and fore must be open to the objection the Court saying, " Why is a simple founded on the principle just referred contract to pay money a satislaetion to. But a bill or note, when it does for another simple contract of three not confer a right of action on the times the value ? In the case of a party taking it, may be considered as a bond, another has never been allowed chattel, and of value to the party giving to be pleaded in satisfaction without a it, {Yatesx. Sherrw(/hum, 13 1M.& W.) bettering of the plaintiff's case, as by and in that view its acceptance in satis- shortening the time of payment. Nay, faction wovdd not be open to the objec- in all instances the bettering his case tion alluded to. 1\\e proj^erty h\hW\s is not sufficient : for a bond with sure- or notes may be in others than those ties is better than a single bond ; yet, who have the right of action upon the that will not be a satisfaction, 1 Brownl. instruments, (Evans v. Keijmer, 1 B. & 47, 71; 1 Roll. Abr. 470." And, Ad.; Bull \. Fancourt, IB. N. C.) though the case went partly on the Trover will be for them : (see cases sum being smaller than that of the cited, Harrison's Digest, title, " Tro- debt, as to which it is overruled, (Sibree ver"), or special actions on agreements v. Tripp, 15 L. J., Ex.) yet, as observed to sell them, apart from any transfer of per Pollock, C. B., in the case last aright of action upon them. (Stavart cited, it does not appear that the note v. Eastwood, 11 M. & W). And it is was negotiable, and the argument of not clear that even where, as in James the defendant's counsel, assented to by v. Williams, 12 M. & W. it does not the Court, went as much on the point appear on the plea that either the de- " that where one contract is pleaded in fendant had, or that the plaintiff upon satisfaction of another, it ought to be of the transfer took, any right of action ahighernature, (Hob.GS,) andthatone on the instrument, and it is simply bond could not be pleaded in satisfac- stated " that defendant delivered to tion of another, 1 Mod. 225 ; 2 Keb. plaintiff at his request divers bills of 851." exchange for the payment of certain Although therefore laches, such as sums of money therein respectively occurred in Chamberhjn \. Belarive, mentioned, and amounting," &c. (queiy might be sufficient in any case to show if the amount could be material 1 Sibree that the instrument had been accepted v. Tripp, 15 L. J., Ex.) " which said in satisfaction, a j)lea to that effect bills the plaintiff then received,'" &c. if would have been specially demurrable it be added " in satisfaction and dis- if it did not disclose who were the par- charge,'' kc. the plea would not be ties to the instrument and what were analogous to those of the acceptance of its terms; and ifthe plea disclosed that, a chattel in satisfaction; which even as in that case,— the instrument in the times when pleas in satisfaction could only give a new right of action were construed most strictly were al- letween the same parties— \ico\Mox\\y, ways considered as good, even when forthe reasons referred to, be considered the demand was in the nature of a CHAMBERLYN v. DELARIYE, 2 Wu.s. 353. 105 debt and certain. Thus, in the ancient & E. ; Sibreev. Tripp, 15 L. J., Ex.) case already cited ante, p. 103, it was In the latter case, where the authorities admitted per totam Curiam, that a con- on the point were reviewed and recog- cord executed by the actual giving (or nized, it seemed to be supposed that doing) and acceptance of the thing there was something inconsistent with agreed for Vvould be a good defence, this well-established doctrine in Cum- and in 32 Henry VI. fol. 9, (in debt,) ber v. Wane, cited ante. But it is it was said per Moile, J., " If I am conceived there is no such incon- bouud to you in an obligation to pay sistency : for that the real point of you 201. — and I at the day assigned pay that decision was as to the substi- you a horse in satisfaction of the sum tution of a mere chose in action — and and you agree to it, you shall be barred of something which could onhj be a of your action." Danby, J. : " You say chose in action against the party giving true;" although he drew a diversity it, and that what is said as to the taking between the case of a duty for the of a less sum refers to the mere pay- mer e payment of money, and oxi^ioxihQ ment of money; in which case it is performance of a collateral act, a dis- undoubted law that a less sum is no tinction drawn in all the cases. {Blake s satisfaction of a larger. But there is case ; Pey toe's case ; and PinneVs case, not a syllable in Cumber v. Wane, in- Coke ; e^ ij«7e 2 R. Ill.fol. 23.) So in consistent with the well-established 9 Hen. YII. fol. 21, per Vavasour, J. : doctrine, that the acceptance of achattel If I am bound to you to pay you 107. at of some but uncertain value is a good such a day, and if I give you a horse defence, on the principle laid down by for the \Ql. and you receive it, I am Littleton in exact conformity with the discharged, for the property is charged, old authorities just cited. But when Xudper Banvers, i.: If I am so bound, per Alderson, B., in Sibree v. Tripp, and I p)ay you a horse for the 10/. I it is said that the mere acceptance of a am discharged — though the horse is piece of paper would be a good bar, it not silver nor gold. See precisely the is conceived that this must be taken to same language adopted j^er Maule, J., have been intended as a mere extreme Maillard v. Argyle, 6 M. & G. So illustration, not a deliberate deduction in Young v. Tixidd, 1 Raym. 60, in in- from the doctrine referred to ; for that debitatus assumpsit defendant pleaded is obviously carrying that doctrine to that he gave to the plaintiff a beaver a much greater extent than any of the hat in satisfaction of the promise, authorities warrant, as in all of them, and that the plaintiif accepted it in especially that cited by the Court from satisfaction. Plaintiff traversed the Littleton, the instances are of things acceptance in satisfaction. And the not merely of some but of substantial Court on demurrer held the traverse value (silver and gold — or a horse), good ; for if defendant had pleaded and further, things of which the Court the gift without averring acceptance of could see that they were susceptible of it it had been ill : the ^j/ea was also an extrinsic value, indefinitely above held good, though excepted to. (And their intrinsic money value, and though see Webb v. Weatherby, 1 B. N. C. ; perhaps the obiter dictum of Pratt, Paine \. Masters and Raivlinsv.Haw/c- C. J., in Cumber y. Wane (which is show, Strange ; Ridley v. Tindal, 7 A. perfectly separate from the decision in 106 CHAMBERLYN v. DELARIVE, 2 Wils. 353. that case) cannot be supported, that the Court must see that the satisfaction be reasonable, it is submitted that the plea cannot be good if it appear upon the face of it that the satisfac- tion is unreasonable, and that there is no reason in point of principle for the admitted necessity of distinctly disclosing on the face of a declaration on assumpsit that the consideration was of some value, which is not equally apphcable to the case of a plea of accord and satisfaction — if, indeed, it be not applicable in a greater degree. Now, (to apply this to the case in question) although counts in assumpsit have been held good in which the con- sideration was the mere delivery of soiue document conferring no right, and in which plaintiif could take no interest from the party giving it — such counts would undoubtedly have been bad had it appeared that the paper could be of no legal value, and in point of fact they always carefully disclose the circumstances giving it such value. Upon these grounds it appears that if in the principal case the instrument had been a note by Heddy in favour of the defendant a i)lea stating the facts would have been good, for it would have disclosed that defendant had a right to sue upon the instrument, so that his delivering it up would have been a good consideration for an ac- cord, as it would undoubtedly be for an action; even though it appeared (the instrument not being negotiable) that no interest in it was transferred to plaintiff beyond that of possession : for defendant would thereby have incurred a detriment, which would render it immaterial whether plain- tiflF received a benefit. {Meredith v. Chute, Raym. 7^9 ; and Loves case, Salkeld ; Fillansy. Mierop,hnrr.;Tij)- per V. Bichiell, 3 B.N.C. ; Bainhridge V. Firmstone, 8 A. & E. ; Griffith v. Owen, 13 M. & W. ; Raikes v. Todd, 12 A. & E.) For there is an obvious distinction between the surrender and the substitution of a right of action. Thus, also, had the instrument deli- vered up been one payable by the plaintiff to defendant, there would have been a good defence, disclosed by a plea stating that such an instrument (setting it out) was accepted by the plaintiff in satisfaction ; for it would have been exactly analogous to the species of defence exhibited in the cases adverted to in an earlier part of this note, and in which one debt is discharged bv another : but it is to be observed that in such a defence it would be an essential ingredient that the amounts were equal ; for debts are things as certain in value as money, and are not as chattels are of uncertain value. Again, had the instrument been one by which the plaintiff was liable to pay the amount to some third party, from whom the defendant had either received it as bailee, or had come casually, not unlawfully, pos- sessed of it ; it should seem that under special circumstances disclosed on the record there might be good considera- tion for a plea in accord, as certainly there might for an action. {Betts v. Gibbins, 2 A. & E. ; Griffiths v. Owen, 13 M. & W.) But to consider the case as that of the delivery of a mere chattel it would be necessar}^ that it should appear that the instrument neither involved any right of action against plaintiff", nor in favour either of plaintiff or defendant, and that it was one to which strangers alone were parties. In such case it is conceived a plea might be supportable provided it sufficiently stated special circumstances CHAMBERLYN v. DELARIVE, 2 Wils. 353. 107 showing a lawful consideration of some legal value. But, otherwise, as in any such case, prima facie there would be no legal consideration it is conceived the plea would not be sustainable. Considering the instrument in Cham- berlyn v. Delarive then, ?L?,per se a chose in action — i. e. as a bill, which it was by the drawing and indorsing {Miller v. Thomson, 3 M. & G. ; Abrahams v. Skinner, 12 A & E. ; Robinson v. Retj- nokls, 3 Q. B.), its acceptance in satis- faction by the plaintiff could have been no bar, and his laches, although amply sufficient to discharge defendant from the action on the bill, could be no de- fence as to the original cause of action, seeing that the instrument could be no legal satisfaction thereof. But taking the instrument, either as a bill or as a mere order or authority to receive the debt of Heddy, provided there had been any previous agreement on the part of the plaintiff to take it, a good plea perhaps might have been supported ; sed qucere ? upon the prin- ciple on which the declaration was sup- ported in Bockenham v. Thacker, 2 Vent. 71, 74, where the plahitiff de- clared that A. was indebted to him in a sum not exceeding 12/. and that de- fendant, as he the defendant said, was indebted to A. in 12/. or thereabouts : that defendant, in consideration that plaintiff at his request would procure an order from A. in writing to defend- ant for payment of the money which defendant owed A. or any part thereof to the plaintiff, promised to pay the money according to such order. That plaintiff procured such order, &c. which he showed to defendant, &c. It was held that the debt was sufficiently averred, "but that, if it were not so, the procuring the note at defendant'' s re- quest was sufficient consideration," and a fortiori it should seem the yiving such a note at the request of a party might be a good consideration tor an accord : for there appears the same distinction in the case of an accord as in that of an agreement between a con- sideration executed and executory ; in the latter case a consideration sufficing which in the former case might be inadequate. {PerMaule, J., Tempest v. Kilmer, 10 Jurist, 1039.) And whereas in a plea that plaintiff accepted such an order in satisfaction, its intrinsic value alone could be considered {i. e. as a chose in action simply) on a plea that it was agreed that if de- fendant would give plaintiff' such an order the latter would discharge the debt, the debt would on defendant's forthwith giving the order be dis- charged by virtue of the agreement, not of the acceptance. If, how ever, in a case like that in the text, there were no such executory or previous agreement on which the order was given, the defence could only be considered as founded on the princi- ples of the class of cases adverted to in the earlier portions of this note. In the principal case the distinction was not drawn perhaps with sufficient clearness between such a defence and one founded on the taking of a bill or note ; for all that is said in the judg- ment about laches is only applicable to the instrument considered as abill,note, or cheque ; and the distinction is more accurately drawn in recent cases where Chamberlyn v. Delarive has been re- cognized. Thus per Pollock, C. B., {Griffiths V. Owen, 13 M. & W.) : " If a debtor give his creditor a cheque for the amount of his debt, and the cre- ditor holds it for an imreasonable time without presenting it until the banker fails, the debt is discharged." And 108 CHAiMBERLYN v. DELARIVE, 2 Wils. 353. wlieu in the same case it is said, " the cases of Chamberhjn v. Belarive and Kearslake \.Morga7i establish tlus,that in the case of a money demand if the creditor accept a promissory note or an order {in loritiny) for the payment of money on account of his debt that is a sort of quahfied or conditional pay- ment," it seems clear from the context and from what is said in the subsequent caseo{Jar7nan v. Williams, 13, M. &W. that this is to be considered as applying only to a bill, note, or cheque nerjoti- ahle. And as a mere authority to receive or pay a debt ^vhen in writing, which it need not be, will usually not be negotiable even if amounting to a note or bill, it is important to con- sider the real ground of the defence founded on the creditor's dealing with such an authority. It will be proper previously however to observe that if the instrument in the principal case had been a cheque payable on demand upon a banker or a party who had cash of defendant's in his custody, and it could have been proved that the plaintiff "took the cheque as cash" (in common parlance) — a common plea of payment might have been supported, {ilowjh v. May, 4 A. & E. 954.) But then it is very important to draw this distinction — that such a defence would be totally irrespective of the instrument itself (which would only be evidence of it) : and that it would amount to this, that plaintiff consented to consider the cash appropriated by the cheque as paid virtually to himself; i. e. he consti- tuted the banker his ayent to hold the money " to his use :" the effect of which has been already elucidated : and that this would be the nature of the defence is apparent from this, that the plaintiff's remedy for non-payment would not have been against the banker (unless the latter had on the principles alluded to contracted a new liability to him), but against the defendant (see forms of counts against the maker of a cheque in books of pleading referred to p. 38,) who would have an action against the banker {Marzetti v, Williams, 1 B. & Ad.) that it would have been part of defendant's proof to show that the banker had the money: and that so long as the banker continued to have it, the plaintiff would not be precluded by any length of laches in non-pre- sentment : though if he delayed any lone;er than a reasonable time, it would be at his risk. {Serle v. Norton, 9 M. &W. ; Brook X.Mitchell, 110 ib.; Alexander v, Burchfield, 7 M. «& G.) The defence would, it will be observed, be totally different from, indeed the very reverse of that which has been alluded to, and with which the phrase adopted in common 'parlance, as to taking the cheque in payment, may cause it to be confounded — viz., the defence founded on the acceptance of a chattel as payinent; for the essence of such a defence is that the thing itself — not, as in the case of a cheque, the cash it represents — is the satisfaction. It is to be added that it does not appear that in Chamberhjn v, Delarive Heddy had money of defendant's in his hands — if that had appeared, the plea of payment on the principles here sug- gested might have been sustainable. Now it results from the doctrine established by the authorities already adverted to on this subject, that con- sidering the instrument given in Chamberhjn v. Delarive as an order to pay a debt, — until the intermediate debtor (as Ilcddy in the principal case) has assented to the conversion CHAMBERLYN v. DELARIVE, 2 Wils. 853. 109 of his debt, and the change of his creditor, he can only, if at all, be bound to pay, to any other than his original creditor, as to the agentoisvicla. creditor, and the party receiving the authority can only be considered as the agent of the party giving it. Therefore any negligent or improper dealing with the authority can only be a ground of action for damages against the party so dealing with it. For until the in- termediate debtor has assented, his debt is not discharged, and that, as we have seen, is the only consideration for discharging his creditor's debt to the party receiving the order. Then a plea merely disclosing facts showing such negligent or improper dealing with the authority, without showing distinctly that there occurred that assent of the intermediate debtor, must merely amount to an informal setting-off of uncertiiin damages for a breach of duty against a certain debt. (Francis v. Baker, 11 A. & E. ; Thomsoti V. Redman, 1 1 INI. & W.) Thus a plea was held bad on general demurrer (and would, it is conceived, have been unissuable), which, in a case substantially similar to that in the text, thus stated the defence, {Giford V. Whittaker, 8 Jurist,) " that, before the commencement of the suit, to wit, &c., defendant gave to plaintiff, and plaintiff then received from defendant, authority to receive for, and as the agent of defendant, certain monies to a large amount, to wit, to an amount exceeding the mo- nies in the declaration mentioned, then due to defendant, and out of those monies to pay himself money, to wit, to the amount of the monies in the declaration mentioned, in full satisfac- tion and discharge of the promises. &c. in the declaration mentioned, and of all damages that might be by plaintiff sustained by reason of the non-performance thereof ; and de- fendant, at the time of giving the said authority, did, at plaintiff's request, intrust plaintiff v.ith the sole collection of, and endeavouring to collect, the said monies, upon the terms then as- sented to both by plaintiff and defend- ant, viz., that plaintiff should use rea- sonable care, diligence, and skill in endeavouring to collect and receive the said monies, and that defendant should not collect or receive, or endea- vour to collect or receive, the said monies, otherwise than by the agency of plaintiff, so created and authorized as aforesaid ; and further, that, after- wards, and before the commencement of the suit, &c., plaintiff had the op- tion of receiving, and then might and ought to have received, the said mo- nies, to a large amount, to wit, to an amount exceeding the monies in the declaration mentioned, in pursuance of the said authority and trust, and had then also the option of paying himself, out of the said monies which he might so have received, the amount of the monies in the declaration mentioned in such satisfaction and discharge as aforesaid. Averment, that plaintiff did not use reasonable care, &c. in endeavouring to collect and receive the said monies, or any part thereof, &c., but on the contrary thereof, while the said authority and trust were in full force, and not in any way re- nounced by plaintiff, and after the making of the promises in the decla- ration mentioned, plaintiff so care- lessly, kc. conducted himself, &c., that, by reason thereof plaintiff did not receive the said monies, or any 110 CHAiMBERLYN v. DELARIVE, 2 Wir.s. 353. part thereof, and thereby, without any act or default of defendant, and with- out the ])rivity or consent of defendant before the commencement of the suit, to wit, &c., the chance of the said money, or any part thereof, ever being received by or on behalf of defendant became, and was, wholly desperate, and the said monies were thereby, and still are, wholly lost to defendant." This plea, even if it had not expressly stated that the plaintiff only dealt •with the order as the agent of the defendant, would equally have disclosed that fatal defect in the defence, by the absence of any allegation of the third party's acquiescing in the arrange- ment, which, the authorities already cited have shown, would be essential to the discharge of the defendant in such a case. And though under cer- tain circumstances an agent, as such, may make a debt his own, it is of the essence of that defence that the plea should distinctly show such act on his part as would in law have that effect {Bolton V. Richards, 6 T. R. ; Eyles V. Ellis, 4 Bi. ; Field v. Carr, 5 ib.) ; and though the plea just instanced was not so altogether open to the objection urged against that in Baillie V. Moore (cited post p. Ill), that it did not disclose that plaintiff might have received the money (Smith v. Ferrand, 7 B. & C), this woidd not have been sufficiently stated, no particular per- sons being named from whom money was due, and there being no specific averment that such persons had in their hands money of the defendant' s, or money which they were bound to pay to him or his agent in any cer- tain ascertained amount : the j)hrase, "that money was due to defendant" simply importing some amount, which might be wholly unsettled. {Brind v. Hampshire; Fairlie v. Denton, and Croiofordw. Gurney, ciiedi ante,'^. 101.) Now it is submitted that, considering the case of Chamberlyn v. Delarive only as one of authority to receive a debt, the only way in which the plea could have been rendered good would have been by taking the time which the plaintiff allowed to elapse, as evi- dence that he had induced Heddy to assent to the assignment, or the con- version, of his debt. That such delay would be such evidence is clear, for any jury would be warranted in pre- suming that had the plaintiff learnt from Heddy that no debt was due from him to defendant, or that, if there were, he would not consent to accept plaintiff as his creditor, that the plaintiff would not have hesi- tated to inform the defendant, and to re-enforce his claim against him. Thus construing the facts, the plea would have been (as to 18/. parcel, &c.), " That after the accruing, &c., it was agreed between the defendant, the plaintiff, and one Heddy, who was indebted to the defendant in the said sum of 18/., that the said Heddy should then be, and he then accordingly was, discharged by the de- fendant from the said debt due to him from the said Heddy ; and that the plaintiff should then, and he accord- ingly then did discharge the defend- ant from the said sum of 18/. so due from the defendant to the plaintiff. And that in consideration thereof, the said Heddy should thencefor- ward hold the said sum of 18/. to the use of the said plaintiff, and pay him the same upon recpiest ; and there- by and l)y reason of the premises, the defendant did then discharge the said CHAMBERLYN v. DELARIVE, 2 Wils. 853. Ill Hecldy from the said debt so due from him to the defendant ; and thereupon and then and by reason of the pre- mises, the said Ileddy did hold the said sum to the vise of the plaintiff, and the defendant became and was dis- charged by the plaintiff from the said causes of action as to the said sum of 18/. parcel, &c." When the Court, in the principal case, say that " in taking the note or order j)laintiff acquired an interest in the 1 8/. due from, and to be paid by, Ileddy," — (clearly implying an interest conditional on Heddy's assent,) and " that if plaintiff had received it he would have received it to his own use, and not to defend- ant's," — thev evidently had in their minds the species of defence which rests on the authorities before adverted to : but which authorities also show that the plea would not be good, unless in substance it were similar to that which has been just suggested. And the Court, it may fairly be considered, construed the facts as, in one sense, evidence of such a defence, because they observed, "the plaintiff substi- tuted himself" («". e. conditionally on Heddy's assent), "in the place of de- fendant, who has been deluded into the belief that the plaintiff' had got the money from Heddy ;" although, as already observed, there is great con- fusion in the reasoning : a confu- sion which, it will be observed, the precision of the present system of pleading has in recent cases detected. The doctrine in the former part of this note adverted to is also of import- ance with respect to a species of de- fence, differing from that last adverted to only in this respect : that there has been on the part of the creditor, not mere neglect, but a positive act, suffi- cient to preclude his recovering against his original debtor, i. e. provided the facts are properly pleaded. Thus in Bailliev. Moore, 10 Jurist, 592, de- fendant pleaded, as to -40^., that after the accruing, &c. one 13. was indebted to him in a larger amount than the said sum of 401. &c., and that defend- ant authorized plaintiff to receive the said sum so due [not "a* so due,"] to him from B. ; and that plaintiff, in- stead of recovering the said sum from B., elected to receive, and did receive and take from B. a bill of exchange for and on account of the said sum, and appropriated and retained the said bill in liquidation and discharge of the said debt'' (some irrelevant allegations are omitted). Now as the concluding words were correctly construed as im- porting a discharge, not of the debt due from defendant, but that due from B., and in that sense could not be carried beyond the effect of the other allegation — and as there were in the plea no allegations importing B.'s assent to a conversion of his debt, or to ac- cepting plaintiff as his creditor — the case appeared upon the record purely as one of agency ; and then the fatal defect in the defence was, that no au- thority was disclosed to take a bill ; so that the plaintiff could not be concluded by the taking of the bill : because though a creditor, if authorized to receive as creditor, may take payment in any way he pleases {Barkery. Greenwood, 2 Y. & C. 414; 1 Jurist, 541), an agent has no au- thority to take payment in bills. (Sykes v. Giles, 5 M. & W.) And though the fact that defendant had authorized plaintiff, being his creditor, to receive the debt from B. would have been sufficient e\T:dence of an authority to receive as such creditor ; that should have been stated : and even if it had 112 CHAMBERLYN v. DELARIVE, 2 AVils. oOo. been stated the plea would have been defective in not stating expressly the assent of B. to the accepting of plaintiff as his creditor, which would, as we have seen, been requisite to discharge B. as against defendant, and would have been necessary to give plaintiff a right of action against B. Thus it was re- marked, 2)er Patteson, J., when it was attem])ted to construe the plea accord- ing to the defence founded on the chain of cases from Israel v. Douglas to Crowfoot V. Gurney, " There is no averynent of an agreement between the parties to that effect; which agree- ment is thus shown by the latest as by the earliest cases to be essential to this species of defence. And, on the other hand, considering the plea as simply setting up a defence founded on the plaintiff having, as the agent of de- fendant, so acted as to make the debt his own, it would be open to the objec- tions already alluded to, in observing on the plea in Gifford v. Whittaker ; and both pleas would, moreover, it may be added, have been bad on this ground also, that assuming it sufti- ciently shown that plaintiff had made the third party's debt his own, there were no allegations of an asireement on his part with defendant to set off that debt against, and thereby to extinguish, the one due from the latter. There is another class of cases carrying the principle illustrated in Charnherlyn v, Belarive apparently further, but not beyond the extent to which it is su])ported in the earliest autliorities. This class of cases would have been exemplified if in the princi- pal case, or in Baillie v. Moore, or any similar case, the jdaintiff had been in- debted to the intermediate debtor, whose debt he was authorized to re- ceive ; and had agreed that, instead of receiving the money itself, his own debt should be set off against and be discharged by it. This, it is obvious, from the most ancient authorities as well as the most modern, would have been substantially equivalent to actual payment by the intermediate debtor on behalf of defendant ; though it may be doubtful if it would be prudent to plead it only as such {Taylor v. Hig- gins, 3 East) ; and it would be pre- ferable thus to modify the form of plea above suggested as proper in such cases : " That it was agreed by and be- tween the plaintiff, and the defendant and one B., to whom the plaintiff was indebted in, &c., and who was indebt- ed to the defendant in a like (or larger) amount, that the said several debts re- spectively then should be, aiid the same accordingly were then set off as;ainst and extinguished the one by the other, and that plaintiff, defendant, and the said B. should be, and they accordingly then were mutually exonerated from the pa3'ment of any or either of the said debts, and that the same should be considered thenceforward as re- spectively satisfied and discharged, whereby and by reason of the premises the said causes of action were then satisfied and discharged." That the agreement of the parties in such a case Avould be of the essence of the plea appears, it may be added, from Stewart v. Aberdeen, 4 M. & W. This species of defence has, it will be observed, a close connection with the subject of an account stated, the effect of which, as shown in the note to Egles v. J''ale, {ante, p. 11), may be payment or set-off, (See also, Learmouth v. Grandine, 4 M. & W.) KEARSLAKE v. MORGAN, 5 T. R., 513. 113 But if the instrument given in Cham- herhjn v. Delarive be considered as having been a bill (see ante, page 107), the case must of course be closely connected with that of Kearslake v. Moryan; and the defences grounded upon the giving of any such instru- ment will be found to rest on the principles deduced from the autho- rities cited in previous portions of this note (see ante, page 97). For the mere taking of such an instrument, even when accepted in satisfaction, can be, it has been seen, no discharge of a debt, unless it operated as the as- signment of another debt in exchange for it {ante, page 99), which, it will be observed, the law merchant affords the means of doing without resorting to what otherwise is requisite, viz., the assent of the party whose creditor is thus changed ; an assent which otherwise, it has been seen, would be of the essence of the defence, by reason of its being requisite jto avoid, by the creation of a new right of action, the fatal objection against the assigyiment of a chose in action. The mere draw- ing of a bill in favour of the creditor, if it be accepted, operates thus by creat- ing such neiv right of action against the acceptor. This is not like the giving of a note payable by the debtor and another person, which would only be creating a new right of action, and would therefore be only a substi- tution of one chose in action for another (see cases cited ante, p. 102). But the drawing of a bill necessarily in such cases, not merely creates a new right of action between the payee and the drawer, but transfers a new right of action against the acceptor ; for not only would it be no defence that the bill was for the drawer's debt, and without consideration, and that the party taking it^'^knew this, the ac- ceptance itself creating a debt to the payee (Sison v. Kidman, 3 M. & G. ; Baker v. Walker, 14 M. & W. ; Ro- binson V. Reynolds, 3 Q. B.), but on the face of the instrument he would appear, and, according to the theory of bills, would be presumed, indebted to the drawer. {Per Eyre, C. B., Gibson V. Minet, 1 II. B.) And it is by re- sorting to this principle, and thus bringing the case Avithin the doctrine of the authorities already alluded to, as to the assis;nment of one debt in ex- change for another, that the objection is obviated which applies to the mere substitution of a right of action even against additional parties. (See cases cited ante, page 103). So where, as in Kearslake v. Morgan, the case is the analogous one of a note payable to and indorsed by defendant. Of course the principle must neces- sarily apply wherever defendant has transferred an instrument payable to order or bearer. But it is to be carefully observed, that in the former of these cases the plea must state that he indorsed, as well as "delivered," where no previous executory agreement, or special circumstances are shown, whence it appears that the mere posses- sion was alone contracted for and obtained on condition of a discharge of the debt ; for without indorsement, only possession of an instrument pay- able to order would pass {Prevot v. Abbott, 5 Taunt. ; Cunliffe v. White- head, Z B. N. C.) ; and priind facie there could be no consideration in the mere possession of such instruments, any more than in the delivery of an instrument on which defendant alone could sue, which yet it has been seen might support a special plea {ante, page 106). The distinction has 114 KEARSLAKR v. MORCxAN, 5 T. R., 513. already been pointed out between mere Sed per Curiam : To constitute an ae- acceptance in satisfaction, and a pre- ceptance, there must be an act of the ■\aous executory accord {ante, p. 107); will. Y^y^xj receipt \s not an accept- for though the latter, unless executed, ance. But if a party accept the thing, would be no defence, lohen executed it though but for a moment, for that mav perhaps afford a defence which the for which the other pays it, no subse- mcre receipt of the thing in satisfaction quent dissatisfaction can get rid of would not. (SeeBockenham\.2'hac/cer, the effect of such acceptance. And 1 Ventris, cited ante, p. 107). And it is though there was abundant evidence of to be observed, that in Webb v. JT^ea- that here, it should have been left therby, 1 B. N.C.,it is said.^jer T???c?«/, distinctly to the jury, whether there C. J., that a plea in the common form, were such an acceptance. Arguendo, (in the principal cases) of receipt in it was intimated, per Alderson, B., satisfaction, is different from that of an that if any agreement could be inferred accord. (See also Prnxe/'.^ case, 5 Coke.) from the circumstance that plaintiff And in a later case, all that was deemed should receive and accept such a bill in requisite in the common form was, that satisfaction, that agreement should the plea should show the receipt in have been specifically pleaded, so that satisfaction to have been concurrent plaintiff might answer it. with, and not after the giving in satis- Now, in considering pleas founded faction. (Steady. Poyar, 9 Jurist; upon the receiving of such instruments 14 Law Jour., C. P.) Further, the in satisfaction, it is proper to observe, distinction here adverted to is upheld that where defendant transfers an by the analogy afforded in the doctrine instrument on which any other of mutual promises, as a consideration party is liable, there must neces- in assumpsit. (1 Roll. 336 ; Thorpe sarily be that assignment of a debt V. Thorpe, Ray. ; Martindale v. in exchange for and iii extinguishment Fisher, 1 Wilson ; Lampleigh v. of his liability to which a previous Braithwaite, Hob. ; Nichols v. Rain- part of this note has reference (ante, bred, ib.) The distinction seems also page 99.) And (as it has been seen), to have been anciently recognized in it being of the essence of such a de- accord. (Comyn's Digest, "Accord ;" fence that the one debt should be dis- 7 Edw. IV. fol. 16; 18 Edw. 4 fol. charged concurrently with the transfer IG ; 4 Edw. IV. fol. 44 ; 2 Rich. III. of the other, it must therefore be fol. 23. And it appears to have been in unaffected by any subsequent dealing the mind of the Court, in the recent case with t\iQdebt so assigned, and it follows, of JIardman v. Bellhouse, 9 M. & W. that in such a case the essence of the 497, where defendant pleaded delivery plea is the acceptance of the interest to plaintiff of a bill which he " accepted assigned in satisfaction, in satisfaction,'" which allegation was There are two deductions from traversed, and issue taken. It ap- this principle, of great importance, peared that the bill had in the ordi- as applied to this species of plea; nary course of business between the one has reference riither to the proof; parties been remitted to and received the other, more to the pleading. and retained by plaintiff. It was con- The first is, that anything occur- tendcd that this alone proved the plea, ring after the j)laintiff takes the bill KEARSLAKE v. MORGAN, 5 T. R., 51S. 115 can only be material as to the defence to the original cause of action, so far as it may prove that he took the bill in satisfaction of that cause of action. And on this point it may be observed, that in the earlier cases, perhaps, the distinction was (as in Chmnherlyn v. Delarive) very imperfectly drawn be- tween that which might be a defence on the bill and that which showed that it had satisfied the original cause of action ; thus in Ward v. Evans, 2 Raym. 928 ; 2 Salk. 442, the facts were, that F. owed plaintiiF 60^., and kept his cash with defendant : — that, when plaintiff sent his servant to receive the money, F. sent his ser- vant with plaintiff's to procure the money from defendant ; that defen- dant's servant gave plaintiff a note by one W., for the payment of 60/. to bearer, which plaintiff's ser- vant accepted : that W. was then solvent; but next day, when the note was presented, had stopped payment. It did not appear that the plaintiff had given his servant any authority to receive a note instead of cash, or had approved of it afterwards ; but this question was, it will be seen, im- material, according to the opinion of the Court, which gave judgment for plaintiff, who said, " The acceptance of such a note (i, e., by the cre- ditor himself), is no payment. Tak- ing a note for goods sold is payment, when it was part of the original con- tract ; btii paper is no payme7it where there is a precedent debt. For when such a note is given in payment it is always intended to be under this con- dition, — to be payment if the money be paid in convenient time. This note was demanded within convenient time ; but if the party who takes the note keep it by him for several days without demanding it, and the person who ought to ])ay becomes insolvent, he that received it must bear the loss." It is conceived that such laches, how- ever it might discharge the defendant in an action on tJie instrument, could, as to the original cause of action, only be a defence as showing it was origi- nally taken in satisfaction thereof. The distinction is likely to be lost sight of where defendant indorses. Thus in Hill v. Lewis, 1 Salkeld, 131, plaintiff declared on two bills of ex- change payable to bearer, (and alleged to have been indorsed and delivered to him by defendant,) and on the common money counts. It appeared that the defendant had indorsed and delivered the bills to plaintiff in satisfaction of a debt ; the maker stopped payment the day after they were received by plain- tiff, who it was found by the jury had not had a reasonable time to present them. Holt, C. J., held that the acceptance of the bills in satisfaction, did not discharge the defendant ; that every indorsement was a new bill, and that so long as a bill was in circulation every indorser was liable as a new drawer. And the indorser was not discharged without actual payment, until there was some neglect or default on the part of the indorsee. The rea- son for this decision, so far as respects the counts on the hills, was no doubt correct, but as to the counts on the original cause of action, it is appre- hended that the bills ha^ang been taken in satisfaction, it was as imma- terial that there had been no laches on the part of plaintiff as it would have been, had he not taken them in satis- faction, that there had been the greatest laches ; and that any defence to the original cause of action, founded on that laches, must have been one of i2 116 KEARSLAKE V. MORGAN, 5 T. R., 513. which that lac/ies was only evidence, und could only have heen (on the jninciplc already suggested in considering Chain- berlyn v. Belarire), that the instru- ment was accepted in satisfaction. On this principle, the decision in Clarke V. Mioidal, 1 Salkeld, 1 24, might have been different. " A., having a hill of exchange payable to him, and he being indebted to B., indorses and delivers the bill to B. Afterwards, A. being sued by B. for the debt, gave in evi- dence this bill indorsed, and that it had been long in B.'s hands after it was payable, and reckoned as money paid and in his hands. But it was disallowed, per Holt, C. J., " for a bill shall never go in discharge of a prece- dent debt, unless it be part of the con- tract that it should do so." On the other hand, in the case next cited, the principle referred towovddhave afforded a better ground for the decision which was given than that assigned by the Court, who appear to have con- sidered laches rather as the defence than as the evidence of it. lu Smith V. Wilson, Andrews, 187, the defendant had indorsed and de- livered to plaintiff (at the time of a purchase) a promissory note drawn by one J., for the payment by J. to de- fendant, on order, of 1 00/. An account was afterwards stated between the parties, in which the note was included, and a receipt was signed at the foot of it by plaintiff in these words : " Re- ceived the contents when the above mentioned bill is paid." Plaintiff in- dorsed the bill, which was subsequently also transferred by other parties. It became due 28th March, and on 13th May following, J, became bankrupt, the note then being unpaid, and he having up to that time been capable of paying it. It was held by Lee, C, J. {Prohyii, J., and Page, J.) that where a note is taken for a precedent debt, which is the present case, it must be intended to be taken by way of pay- ment, upon this condition, that the note be })aid in a reasonable time ; but if the person accepting it doth not endeavour to procure such payment, and the money is lost by his default, he must bear the loss. And per Probyn, J., as the note was indorsed by the plaintiff it must be taken that thereupon he received the money, so as to him the agreement is performed. But Chappie, J. doubted, because the receipt seemed a full agreement that the note should be not a discharge unless paid, to which the rest of the Court replied that the receipt was in- deed plain proof that the note was not accepted, as money, but it wovild be very hard to construe it in so strict a manner as to make the acceptance of the note quite insignificant where the party keeps it for a long time, and the money due thereon is lost through his own laches. For he might keep the note for 20 or 30 years, and then come and charge the other party with the original debt. Chappie, J., still hesitated, and the case was adjourned : but ultimately it was inti- mated that he had assented to a judg- ment for defendant. It will be seen that the dissentient judge took the correct view of the case, and it is pro- bable that his ultimate assent pro- ceeded on the ground above suggested — that the laches showed a receipt in satisfaction. The other inference from the prin- ciple on which this species of plea is founded, has reference to the plead- ings. In considering the authorities from which this principle is deduced, it will have been seen that as the KEARSLAKE v. MORGAN, 5 T. R., 513. 117 essence of the defence of the dis- charge of a debt, by the transfer of ano- ther was in the assent, it was imma- terial whether the assignee of tlie debt received it. So in this plea of the taking in satisfaction of a bill, on which another party as acceptor or indorser is liable, the same principle applies — with this qualification, that, by reason of the law merchant the assent of the party liable to pay the bill is not required. This will be illus- trated in the cases next cited. In Leivis x.Lyster, 2C. M. & R. defendant pleaded that he handed to the holders of the bill declared on, and they re- ceived from him a certain bill, &c. in full satisfaction, &c., and they then indorsed and delivered it to one to whom, when due, defendant paid it, in satisfaction of the sum in such bill specified, and of all damages, &c. On demurrer the Court said the plea would have been good if it had stopped with the allegation, that the second bill Avas given in satisfaction of the first ; •' all the latter part of the plea may be rejected as surplusage." So in Goldshed v. Cottrell, 2 M. & W. 20 : Plea that defendant at the request of plaintiff gave to him and he accepted two bills, &c., to take up the note and in lieu thereof, and that defendant on the said bills was and is liable to pay to plaintiff or his order, &c. and that the same are each not yet due and are outstanding in plaintiff^ s hands. Veri- fication. Replication, that defendant did not give to the plaintiff the bills or either of them in the plea mentioned for the purpose and on the terms therein mentioned 7nodo et forma, and that one of the same was due and un- paid at the time of the commencement of suit. Conclusion to the country, and issue thereon. The defendant proved an acknowledgment on plaintiff's part that the defendant had given him the bills " to take up" the note, which however defendant had not received back. The Court, after verdict for plaintiff for the whole amount, it having been proved that only one bill was over- due at the time of suit, said, "The whole turns on the meaning of the word ' take up :' is it not the party's coming with money or some security and taking away the note ? If the evidence proved that the bills ivere taken in satisfac- tion, then the plea is sustained icith out proof of the latter part of it. But, if they were given only to gain time, there is no answer to the action, because it should be shown that both were out- standing at the time of action : and the fact of defendant's not taking away the note raises a strong inference against him." So in Sard v. Rhodes, 1 Mees. and Wels. 153, the defendant pleaded that he made his promissory note, &C.. payable to order, and then delivered it to plaintiff, who received it in full satis- faction, &c. of the bill in declaration, &c. Replication, that the note became due on a daylong since elapsed, &c., and still remains in plaintiff's hands wholly unpaid and unsatisfied. Verification. Special demurrer, for that the replica- tion admitted that the note was taken in satisfaction, &c. and nevertheless attempted to put in issue a matter im- material — that it was unpaid : whereas if it w ere taken in satisfaction and dis- charge of the bill, its non-payment could not revive defendant's liability on the latter, &c. &c. The Court said, " The plea is in satisfaction, and the consideration is complete. The note is in plaintiff's hands overdue, and he can sue on it. It is averred and admitted he took it in satisfaction : and he took it therefore ' for better for worse.' 118 KEARSLAKE v. MORGAN, 5 T. R., 513. This is not like the second ])lea in party is hable, not merely jointly with Kearslake v. Morgan, where the note defendant as a joint maker, &c., but was taken only ' for and on account of collaterally as an acceptor, or inde- the debt :' and non-payment therefore pendently as an indorser {i. e. as a new would receive defendant's original lia- drawer, see ante, p. 113), it must make biUty if without laches on plaintiff's the plea double to add any other alle- part." (Asto /«t7'^^^^ *^® action was brought. The defendant pleaded non Co. Lit. 45 ; debet, and found ao-ainst him : and now moved in arrest of Yelv. 74 ; 1 Mod. 3;'l judgment, that this was but a lease at will, which deter- Mod 09 'l62 ■ mined by his death ; and so the action lay not for this third 12 Mod. 7; 2 year. — But Gawdv and Fenner held, although at the first Keb. 543; 3 " . , „ , , Lev. 359 ; 2 it was a lease certam but for two years, yet when he Rayiii. 746- 2* occupies and enjoys it part of the third year, it is then a Stra. 776 ; 2 lease certain for that year also ; so as neither the one nor the Salk. 414; 3 -^ . , . , , i j Bac. Ab. 434 ; Other can determine the wdl durmg that year which he had 3 Term Reii. ' begun to occupy. Wherefore the action well lies for the 13 ; and see the re,^^ of that year. — Popham held, that it w^as a lease at case of Hall v. j i i i • Richardson, 3 will for the other years after the two years ; and then it erm ep. . (]g^gj.j^^jj^g(| jjy ^]^g death of the lessee. — Et adjournatur. In a case prior, and similar, to that was originally founded, and especially in the text, and in which, (though it in the more simple cases represented does not appear to have been there by that in the text, cases in which referred to,) the question was discussed the action for use and occupation much more satisfactorily — if not settled is now perhaps too indiscriminately more decisively — it was truly said by substituted. one of tbe judges, " This is a good The phraseology of the count for case : for it is a common case, and the use and occupation " which alleges, case of every one in a manner." ( Per that defendant occupied by ihe permis' PoUard, J., Pot/mi's case, 14 Hen. «tow of the plaintiff," and the legal de- VIII. fol. 10, cited in the Bishop of tuition of a. demise, — would alone indi- Bath's case, 6 Coke, and subsequently cate tbe intimate association between a quoted in this note). And tbe question license and a lease. It appears that cannot be elucidated without a refer- any occupation of land by the permis- ence to those principles on which sion of another must necessarily be the action of debt on a pa7-ol demise either a license or a lease. And, indeed, AGARD V. KING, Cro. Euz. 775. 127 so nearly does the one approach in legal ancient, there are some distinctions effect to the other, that there is some drawn very material to be observed apparent uncertainty in the authorities, upon this point. Thus in 10 Ed. IV. as to what, in particular cases, may be fol. 4, in trespass, Brian, for defendant precisely the proper mode of pleading pleaded that plaintiff licensed him to such ])ermission. Thus in Lord Dud- enter the house, and occupy for a year leij V. Fotvles, 5 lien. VII. fol. 1, in thence ensuing, by force of which he trespass for taking a dog, defendant entered, &c. Cateshy demurred, for pleaded that plaintiff licensed him to that the license, appeared to have been take and retain it for a debt due to a lease, and that the plea should have him from the plaintiff (as to the effect alleged that \A-a\x\\a'^ leased, &c. Brian ; of which, see 9 Edw. IV. fol. 4 1 . ; 28 "I have pleaded according to the truth Hen. VI. fol. 7. ; 33 Hen. VI. fol. of the matter, and will not put it in 44, cited post.) The plea was spe- the mouth of the laymen to say if it cially demurred to for argumentative- were alease or not." (Fide jJerPrisot, 3. ness, in that it showed retention as a 35Hen. VI. fol. 63 ; Pricey. Williams, pledge, and 'per Keble, arguendo, " If 1 M. & W. ; Morrison v. Trenchard, defendant in trespass plead that the 4 M.& G.) CTo^e, J. : "If a man license plaintiff licensed him to enter and me to occupy his land for a year, then occupy for the space of a month, or a he may occupy it with me, for I have quarter of a year, it is good, {i. e. in only liberty to occupy. But otherwise substance,) but he ought to say that if he lease to me for a year, for there the plaintiff leased to him and not the lessor shall not occupy with me." ' Ucensed,' for the matter proves not (This is precisely the distinction taken a licence but a lease; and that was in the late cases of Wheeler \. Monte ■ grantedby the whole Court, ^/MOflfno^ff." fore; Doe d. Lyster v. Goodwin ; and But this dictum (recognized in 5 B. & Doe d. Parsly v. Day, 2 Q. B. as to the Ad. 694, per Taunton, J.) must be necessity for a right to ar\ exclusive pos- taken with certain qualifications. In ^esszra on the part of thealleged lessee.) Hall V. Seabright, 2 Keble, .561, Moile, J., ad idem : " For where the Twisden, J., said, " In 5 Hen. V. fol. plaintiff gives to me a Ucense to occupy, 1, it is said if one doth license another ut supra, if a trespass be done on the to enjoy his house till such a time it is land cannot have the action of trespass, a lease, but whether it may not be but here the plaintiff shall have it, &c., pleaded as a license, I have known it but otherwise it is of a lessee, &c. doubted :" and it is pointed out by the Cateshy : If a man license me to oc- learned reporters in a note to /iTffyawff^A cupy his land with my horses, &c. V. Gudge, 7 M. & G. 322, " the entry then he may occupy with me not- was under a right of possession abso- withstanding the license ; but when lute ah initio.''' And it is ohservetS. per the licenses are generally to occupy his Curiam in that case, that "assuming land such license includes in it a lease." the dictum to be correct, by such a Ultimately the Court found the license license to occupy an immediate in- was a sufficient matter on which the terest and right to the possession plaintiff could take issue, i. e., that he would be vested." It is to be observed did not license, &c. " and it is a matter also that in other cases, even more in law whether it be a lease or not, so 128 AGARD V. KING, Cro. Em/. 775. that the defendant shall not be forced to say that he leased ; but Choke, J., said the occupation was as strong to make it a lease as if he had said, " to hold to him," &c. Here may be inci- dentally observed the germ of a doc- trine in modern decisions so distinctly developed (especially with reference to the tenancy stated in the case in the text) as to the demises by operation of law, i. e., implied from occupation and acceptance of rent. Again, in Jepson V. Jackson, 2 Levinz, 1 94, in trespass for entering plaintiff's house, and continuing possession for three years (and the declaration, it is to be observed, probably stated that de- fendant expelled him, &c. and would disclose that defendant had exclusively occupied during all the time), there was a plea of hcense to enter and inhabit : and therefore the observation of the Court that " the license amounted to a lease," is quite supported by the facts. So in Wood V. Lake, Sayer (and see MS. report cited 13 M. & W. 848), it is said, jjer Dcnison, J. : If a license to enjoy lands for five years, there is a lease, becatise the whole interest passes." And the same distinction will be found supported in the exceedingly learned and elaborate judgment of the Court in Wood V. Leadhetter, 13 M. & W., the " leading case" on the law of licenses. So again in Trevor v. Roberts, Hard. 396, where in an action on a promise to pay such a sum in consideration that the plain- tiff had licensed and permitted the defendant to enjoy such lands, and where it was said, per Hale, C. B., This " present permission amounts to a lease," it will be observed, the count would necessarily allege that there had been an enjoyment, primd facie exclu- sive. But this case also presents another. and perhaps after all the essential dis- tinction, viz., that the count must also have averred, that the license and oc- cupation had been at tlie request of defendant, which would disclose the previous existence of a mutual under- standing, amounting to an im])lied promise on the one side, to give up possession of the premises for a certain period, and on the other side to pay for it : and this agreement would have constituted a valid executory contract on good consideration, which bound both parties, and might have been enforced by either {Nichols v. Rambred, Hob. 88 ; Lampluffh v. Braithwaite, ib. 105 ; Thorp v. Thorp, Ray. ; 3Iar- tindale v. Fisher, 1 Wilson ; and see Acton V. Simon, Cro. Car. ; Johnson v. May, 3 Lev. ; Boot v. Wilson, 8 East; Edye V. Strafford, 1 C. & J., cited 2')0st) ; and would have amounted to an actual demise, presuming it had been understood that its operation was to be immediate. {Doe d. Jacksonv. Ashhurnham, 5 T. R. ; Poole v. Be7it- ley, 12 East, 168; Morgan d. Dow- ding V. Basset, 3 Ta. ; Finer v. Jud- son, 6 Bi. ; Staniforth v. Fox, 7 Bi. ; Warman v. Faithfid, 5 B. & Ad. ; Chapman v. Blnck, 4 B. N. C. ; Doe d. Phillipp V. Benjamin, 9 A. & E.) And it seems that the distinction here adverted to, was in ancient times recognized as the true test by which to discriminate between a li- cense, which without a deed may be revocable, and a lease, Avhich like any other valid contract cannot be dis- charged without the consent of both parties. Thus in 34 Henry VI. fol. 7, where in trespass a license was pleaded, a revocation was replied ; and Billing said, arguendo, " The interest alleged is by way of license, — and that always depends on the will of the AGAllD V. KING, Cno. Euz. 775. 129 •plaintiff, and he can discharge it any- time at his will, — as if one leases land to hold at his ivill, the occupation is lawful, uulcss it he discliarged, and yet he can discharge it at his will," — a A'iew adopted by the Court, in deference to whose 0])inion the demurrer was withdrawn. (See Richardson v. Lang- ridge, cited |)05^.) The close connection thus ex- hibited between a license and a lease leads naturally to the inference that leases originally partook more of the nature of licenses in respect to the indefinite period of their du- ration. And it does in fact appear that leases at ivill were in early times the most common. The in- stances are innumerable in the old books in which such leases are pleaded, with as much formality as if they had been terms of long duration, — with the " per force de quel il fuit ent. pass." (11 Edward IV. fol. 3; 15 Ed- ward IV. fol. 25; 15 Edward IV. fol. 5; 28 Henry VI. fol. 6; 38 Henry VI. fol. 27; 35 Henry VI. fol. 5"; 35 Henry VI. fol. 63.) And that these were strictly leases at will appears clearly from the numerous contemporaneous decisions respecting the tenant's right to ejnhlements,—^ question which would have no more application to the tenancy from year to year, since allowed to be engrafted by operation of law npon an original tenancy at will, than to any regular tenancy for a term of years. (37 Henry VI. fol. 35 ; 37 Henry VI. fol. 7 ; 21 Henry VI. fol. 37.) And it may not be inappropriate here to introduce one or two ancient cases, in which the nature of this tenancy is elucidated, and in which also the origin of the doctrine of demises by implication of law will be observed. 20 Edward IV. fol. 9, in debt, the plaintiff counted on a lease by him made at the loill of the plairUiff. Brian, J., " Ceo est t(H marvelous entendment ! with these words, ' at the will of the plain- tiff,' or otherwise they are void ; for a lease at will shall be at the will of the lessee as ivell as of the lessor ; or otherwise the lessee shall have a free- hold by the assent of the lessor, which shall be against law." Littleton, J., contra : " For if that be law, there must be a great mischief to the lessor ; for peradventure the lessee Avould occupy, and then at the end of the term he would relinquish the occupa- tion." Cateshij : " I will prove by reason, that the lease shall be at the will of each of them without special words ; for you {i. e. the lessor) shall have an action against him who would disturb the lessee at will in the occu- pation of his term by the common law ; but if one disturb the tenant for terra of years, it is otherwise ; for whether he occupy or not he shall be charged, and then no action {i. e. of trespass) lies for the lessor. Then, if the tenant at will shall be at the will of the lessor, he cannot have the action (?. e. of trespass), for it is no damage to him." Brian : "As to the case put by Littleton, it seems to me that it shall be the folly of the lessor to make such a lease." Choice: " It seems to me that he shall be charged for the occu= pation of a year if he occupy : for that by his occupation he shall be charged ; but otherivise it is of a lease for a term of years, for there the occujoatioJi does not charge him, but the lease." Brian: " If you could charge him for a year, you might charge him for the life of the lessor ; but I conceive it is impossible that he should be charged, except at ivill as well of his lessor as of K 130 AGARD V. KING, Cro. Eliz. 775. himself: for otherwise he shall have a freehold at the vnW of the lessor, and that cannot be without liverie and seisin. Again in 35 Henry VI. fol. (53, in tres- pass, defendant pleaded that J., being seised, &c., and leased the land to him to hold at the will of the defend- ant, by force of which he was possess- ed thereof, &c. Wram/ford demurred, for that the defendant ought to have showa. of xvhat estate he was possessed ; for it might be that the estate was for term of life, and then livery should have been made, &c." Littleton: "If a man plead a lease, he ought to plead it according thereto, as if I enfeoff a man without words of inheritance, and deliver seisin, he has only an estate for life ; for it amoimts to no more in law ; and so he ought to plead that I leased to him, &c. {i. e, for life). And so here — it shall be intended a lease for life, if livery of seisin were made, and it ought to be pleaded, &c." Frisot, J. : " That is not so : for by that view a man should be compelled to deter- mine what might be according to law, and peradventure there may be a doubt in law. And in such cases, it is better to show the special matter to the Court, &c. And so here — as the plaintiff made defendant tenant at the will of the defendant^ it is better to show the lease, of which, perliaps, there is a doubt in law, &c." See, as to this doc- trine, Vrice v. Williams, 1 M. & W. ; Kavanagh v. Gudge, 7 M. & G. : and it may here be observed, also, that in a recent case was illustrated the im- portance of distinguishing between •words implying a lease for an uncer- tain time, and those implying an estate in fee. (Hughes v. Parkei-, 8 M. & W.) The principles on which a tenancy originallvat willvionXA be converted into a tenancy for some term certain, are, as already incidentally observed, clearly elucidated even in the most ancient cases. It was always understood that a lease might be by parol. Thus in Long Quinto, Edw. IV. fol. 43, "if in writ of debt or waste plaintiflF declared on a lease for years, and defendant showed that it was by deed indented, that would not abate the count nor the wTit, for a lease lohether ivith or without deed is good ; and equally a lease in law " (although if it be by deed indented lessee will be estopped from denying the lease, ib. fol. G7), and thus the issue might be " ne lessa pas," as in 43 Ed. III. fol. 6. There is, it is obvious, no distinction between an agreement by express words and one implied from acts of the parties, clearly indicating their tnictual understanding. {Baxter v. Gre]/, 3 M. & G. ; Winter- botham v. Ingham, 10 Jur.) And the payment of ren t at regular periods affords evidence whence such an vniderstanding may be inferred as to the continuance of the tenancy. Thus in 2 Edw. IV. 6, per Genney : The tenant at will can have trespass, and the lessor can have debt against him, or can distrain. Mar/iham and Yelverton (Justices) denied that he could have («'. e. even) debt. Sed per Genney : "Suppose I lease to a man for a year, or at my will, rendering rent, — cannot I have debt?" Markham : "There it would be well, for there is in a manner a term certain, limited by the lessor." And so the Justices agreed. The distinction here taken obviously has reference to the contract for the periodical payment — not the reservation of afxed amount ; which is for obvious reasons essential to a right io distrain . (Dun/i\. Hunter, 5 B. & Aid.), but neither according to ancient or modern authorities, ap- pears requisite to constitute rent, or AGARD V. KING, Cro. Eliz. 775. 131 support an action of debt. In Farmer V. Lawrence, Styles, 397, plaintiff de- clared in debt tbat he had let a cham- ber to defendant (by parol) from such a time to hold as long as she should please, paying therefore yearly as much as it should be reasonably worth ; averring that defendant held the chamber from such a time to such a time, and that for that term it was reasonably worth so much : and it was moved in arrest of judgment, that it was not alleged that defendant held it so long as he pleased. Roll, C. J.: "The old books are, if I let land to one for as long as he pleaseth, it shall be intended as long as both parties please : and here it shall be intended that the term was determined, unless you had showed that you would have held the chamber longer. And the time being determined, you ought to pay pre- sently as much as it is reasonably worth, if no time be expressed for the payment thereof, and the averment ought to be on defendant's side." So in Mason v. JFillard, Skinner, 238, 242, in assumpsit on consi- deration that plaintiff would permit defendant to occupy land of plaintiff's for one year, that he would give him for it as much as it was worth : though it was said, per Curiam, " It is a good contract to give for a lodging, &c., as much as it is worth : — an action of debt would not lie upon it because it is un- certain :" this was denied by Withens, J., and when after consultation the Court said, "Where a rent was reserved uncertain the law would not permit an action quite personal : but here debt would not lie because it was un- certain — and there could be no dis- tress because there was no rent :" their opinion is only supportable with refer- ence to the remedy bv distress; for counts on qua?itum meruit were, before the new rules, quite common in debt (and see per Coleridye, J., llatton v. Macready, 13 L.J., Q.B. ; and b Jurist) — and a contract may as well be to pay a reasonable as a fixed sum. {Ashcroft V. Morris, 4 M. & G. ; Hoadly V. Maclean, 10 Bi.) And therefore from these cases, and from that next cited, it not only appears that debt will lie on demise at will at a reasonable rent, but that it is doubtful whether on such a demise (see as to this Farmer v. Lawrence, just cited) it be necessary to aver occupation. Thus in 18 Henry I., fol. 1, in debt, Yelverton counted upon a lease of certain land to the defendant by the plaintiff to hold at will ; rendering 4 marks per annum, and for 8 marks in arrear for two years he brought his action. Markham demurred, for that it was not shown that defendant occupied for those years. "For (he said) there was a diversity between a lease for years and a lease at loill ; for the lease for years is imcertainty, and thougli the lessee never occupy, yet for the certainty which makes the lease ' un chose perfect ' he shall be bound to pay the rent. But the other is an uncertainty, because it cannot be said to be a lease if the tenant do not occupy by force of it, which causes a perfect action to demand the rent for the time he occupies." And he argued that a lease at will shall be intended as well at the will of the lessee as of the lessor : i. e., that the lease should not continue longer than at the will of both, and the vpill of the lessee cannot be intended if he do not occupy, &c. Fortescue on the same side. Yelverton contrd. : " For though the lease be at will, it is a contract between the lessor and lessee : and the lessee can occupy if he will k2 132 AGARD V. KING, Ciio. Euz. 775. by force of the lease, and if he will not", it is no default of the lessor ; unless it be shown that the lessor dis- agreed, &c." Paston, C. J. : " If the law were that the lease could not be effectual without the will of both this (objection) would be plausible. But I intend that after the lease it shall be solely at the will of the lessor : and as to the matter here, it appears to me that a lease for years and a lease at will shall be on the same condition ; for if in a lease for years lessee never occupies, but a stranger enters and trespasses, during the term, the lessee shall have trespass : and so, upon a lease at will ; ergo, the lessor shall have a right to recover his rent against the tenant at will, though he never occupied, and the tenant at will shall have a right against a stranger who trespasses — though he never occupied. And for that there were no other Jus- tices in court except Paston, he passed on to another matter." Paston could have intended nothing more than that while the will was undetermined the lessee had as much right to the pre- mises as if they had been let to him for a term of years : and that the law covild not presume that the will had been determined, but that defendant should have shown that in a plea : and this seems sustainable. Although, however, it appears clear from the preceding authorities, that debt on a demise at will is maintainable wherever defendant has occuj)iod for any time imder an understanding that something shall be paid for the occupation, but with no understand- ing as to the period of occupation, or the amount of payment ; and therefore, that in Gibson v. Kir/c, 1 Q. B., the Court in their learned judgment on this sid)ject, were not altogether ac- curate in observing, that in debt for rent the declaration always " showed the rent iincertain ;" and that " no instance is to be found among them of an action of debt for a reasonable retnuneration for the occupation of lands;" so that "the action of debt for use and occupation was wanted only where the occupation was for no certain time, at no fixed rent ;" it is, as may be conceived, quite true, (as in that judgment is observed) " that the occupation of premises by a per- son bound to pay some remuneration for it, without the amount and period of payment being fixed, was, and is, of comparatively rare occuiTence." And accordingly, most of the old cases were such as are now of most common occurrence, vis., where one lets pre- mises, not saying for what time, but at a weekly, monthly, quarterly, half- yearly, or yearly rent, which will im- port a letting for the week, &c., and so on from week, &c., to week, &c., i. e., the tenancy stated in the prin- cipal case. Thus, in 20 Henry VI. fol. 27, in debt, plaintiffs declared that they leased to defendant a warehouse, &c., render- ing to them by the week \2d., so long as he occupied, and that he occupied a certain time, which amounted to the sum demanded. MarJcham pleaded, that when jdaintiff leased, it was agreed between him and the defendant, that the j)laintiff should sufficiently repair, but that he suffered the house to be occupied, &c., without this, that he leased modo et form/}, as alleged, &c. And though in Dar- heud v. Morgan, Cro. Jac. 598, where the count (in assumpsit) stated that, whereas jdaintiff locdsset to defen- dant a warehouse, Sec, that defendant promised to pay him for every week AGARD V. KING, Cro. Eliz. 775. 133 thai he occupied it, 8s. ; and alleged that in fact he occupied it twenty-seven weeks, &c. ; and it was moved in arrest of judgment, that this is a lease at least at will, and that the 8s. weekly is in the nature of rent ; the Court said, This is not a lease, but a promise, that so long as he permitted him to occupy {qucet'e, so long as he occupied ?) the warehouse, he would pay it ; it is not any rent, but merely a promise in consideration of the oc- cupying, &c.;" — the decision obviously went on the terms of the promise as declared on, which imported that the consideration was the occupation, whereas as a demise it is the letting ; and the rent would be payable in many cases, where the occupation was put an end to, provided it were not by lessee's default. And that is illus- trated in Welbie v. Phillipps, 2 Vent. 129, where, in debt, plaintiff declared on a demise, made 25th March, &c., to hold thenceforth (piamdiu amhahus partibus placeret, yielding 111/, rent quarterly. Averment, that defendant entered by virtue of the said demise, and continued possessed of the pre- mises till Christmas then next follow- ing ; and for .'iO*., a quarter's rent, at the said Christmas-day, he brings his action. Demurrer, for that there were two quarters' due before Christ- mas, and which were not shown to have been paid. But the Court gave judgment for the plaintift"; for in such case, every quarter's rent is a several debt, and distinct actions may be brought for such. The principle here laid down, that where each periodical reservation of rent, constitutes for each period a separate and distinct contract, had previously been recog- nized in Htint v. Stone, Cro. Eliz. 118, and has in modern times become fully established. (Slac/c v. Sharp, 8 A. & E. ; Packer v. Gibbins, 1 Q. B.) And it is very observable, that in an older case a similar decision was pronounced in these terms : — "The duty is in a manner several ; for each term, or for each year" (the rent having been reserved annually), " he (the lessor) can have debt." {Per Strange, J., 7 Henry VI. fol. 2(i ; et vide 1 Henry VI. fol. 23, S. P.) And the manner in which thus by implica- tion of law a new tei'm is constituted by the entry upon each period for which rent is so reserved is elucidated in height on v. Teed, 1 Raym. 707 ; 3 Salk. 222 ; per Holt, C. J. : " If there be tenant at will, rendering rent quar- terly, the lessor may determine his will when he pleases, but then he will lose the rent that would be due for the quarter in which he determines his will. So the lessee at will may de- termine the will when he pleases; but then he shall pay the rent for all the quarter in which he determines his will. But if A. lease to B. for a year, and so on, de anno hi annum, quamdiu ambabus liartibus placuerit, A. may determine his will at the end of any year ; but if any new year be begun, it cannot be determined before the end of the year." The effect in any such case, therefore, is the same as if for the next ensuing period of reservation there were a distinct agreement for the occupation of the premises, and the payment of the amount periodically reserved. For if tenements be let to a man for term of half a year, or for term of a quarter of a year, &c., in such case (in waste) the writ shall say, quod tenet ad terminum anno- rum." (Littleton, s. (5b, chap. 7, " Tenant for Term of Years.") So, per Littledale, J., How v. Kennett, 3 134 AGARD V. KING, Cro. Euz. 775. A. & E. 662, " a tenancy from year to year" (and of course for any ana- logons tenancy, as from qnarter to quarter) " is a term." (See Simpkins T. Ashurst, 1 C. M. & R. ; Thmnins V. Raivlinson, 3 Burr. 1603.) And in a later case, it was held that a tenancy at so much ^;fr quarter was a tenancy by the quarter only. {Wilkin- son Y.'Hall, 3 B. N. C.) And the legal effect of this is shown in C/ark V. Palady, Cro. Eliz. 859, where, on an assumpsit, in consideration that plaintiff would permit defendant to enjoy such land for a year, defendant promised to give him 10/. for that year : alleging that defendant enjoyed it by his permission ; — in arrest of judgment, it was held ill by the Court; for that it was a demise, and debt lay, but not assumpsit. In illustration of the tenancy de- clared on in the principal case, and of which the creation, by implication of law, has thus been considered, it may here be proper to cite rather fully the case already alluded to, as one in which the principles applicable to this species of tenancy were discussed (with peculiar reference to the mode of pleading) more fully than in any other case, ancient or modern. In Potkiiis case, 14H.VIII. f. 10, plaintiffs declared that they leased to defendant for one year, to commence on, &c., and thence initil the end of the said year, et sic le prochein, and so the next year, from year to year, so long as the parties should please : virtute cujus ipse possession- atus, and occupied for twenty-four years. The action was for waste, which lay only against tenant for term of years, and it was moved in arrest of judgment, that, as objected per Pop- ham, J., in the principal case, the lease was only for a year, and after- wards at will ; and that the declara- tion was therefore bad, for not alleging the waste to have occurred in the frst year. (It may be observed here, that tenant for term of half a year, or a quarter, may in law be tenant for term of years. Littleton's Tenures, chap. 7, "Tenant for Term of Years.") Fitzherhert, J. : " It is a lease at will ; for a lease for years ought to be certain at the commencement, when the term is to begin, and when it is to end ; and if it be not a lease for years at the commencement, the occupation cannot make it a lease ; and a lease for years is not determinable except at a certain time, and not at the will of the lessor or lessee, &c. For the first year it is a good lease, not determina- ble by the will of one or the other; but as to the other years afterwards, it is ' de an en avk at the will of both parties ; and when it is said the will only operates before he enters on the occupation of each year, that is not so, for it extends to the entire year, and each part of it, so that he can deter- mine the will at any time of the year. And when it is said that the word ' will ' shall be void, that is not so, for it shall be in the nature of a con- dition" (i. e. precedent : but, as will be seen from the other cases, the con- dition is rather subsequent, and this fallacy pervades the whole of the reasoning of Fitzherhert, J.); "for if I let land to another for a year at my will, he cannot have it except at my will ; and so if I lease for years at my will. But put the will out, and say that it shall be as if he had said he leased for a year and so on, ' de an en an,^ and no years limited ; now that could not be a lease for years, for it has not any determination certain, and for that it shall be at will." (See dicta. AGARD V. KING, Cko. Eliz. 775. 135 cited j9t)5^, contra). "And if I lease for years, and do not limit them with cer- tainty ; now he (the lessee) cannot have it for more than two years ; for if he has had it for two years, he has had it for 'years.' And so a lease for twenty years at his will is determina- ble at his will. And if I lease for twenty years at my will, if a stranger oust him, he shall not pay his rent. And a lease which either of the par- ties can determine is not a lease for years, but at will. And if I lease land to commence at such a feast for years, it is no lease, for that it ought to show when it shall end, or be determined." Brooke, J., to the same intent : — "A lease for term of years ought to be by the first words a perfect lease. And at the commencement this was an entire lease, and not several ; for it all commenced at one time, and notwith- standing that he made a division after, ' de an en an;' as if I lease land to commence at the feast of St. Michael next ensuing (reserving rent) to endure until the feast of St. Michael, and so the next year until the same feast, and so the third year, it is a good lease, and a lease for three years, for it determines with certainty enough when it shall commence and when it shall end : and that, by the first words : and it is not to be determined by any- thing afterwards : and so of a lease for ten years, and so afterwards ten years — that is a good lease for twenty years. And tenancy at will is at common law, and it is at the will of both parties : for if it be not at the will of the lessor, the lessee shall have the estate for term of life : if livery be made deter- minable at the will of the lessor that cannot be. But if the tenant sow the land, now the lessor for that part does not determine his will, till he hath taken his emblement : but if it was a house he can determine his will at any time he pleases : then a lease for term of years ought to be certain by the first words : and if it be a lease of years it cannot be determinable at will, for that is repugnant. And I cannot agree that if I lease for ten years at will it is determinable at will : for that is repugnant, and therefore void : for any repugnance to the estate is void. But a lease for years may be determinable at will by condition and not otherwise ; as if it shall be that he shall have the land for years — on condition that if such a one shall countermand, &c. it shall cease and be determined : that is a good condition, yet it is at the will of a stranger : and then it is at the com- mencement certain : or, where certainty can be intended by the first words, it shall be so taken as a lease for ' years' — for two years ; for that is the utmost certainty that can be by the first words, &c. And if one lease for a year and show how it shall com- mence, and so the second year, and so the third year, and so the fourth year — that is a good lease for four years — for it is certain enough when it com- mences and when it ends ; but when it is ' de an en an' there is no certainty. And so it is of a lease for years so long as I live, that is only at will without livery ; for it is not certain by the first words when it shall be determined. And so here, &c. But when he says that he leased for a year, and so after- wards the next year, and sic ' de an en an,' by those words in English * I let the land for a year, and so for the next year, and so from year to year as long as both please ;' then, by those words, it is certain enough for the first year, and so for the next, as he says. ' And so for the next year ;' but 136 AGARD V. KTNG, Cro. Euz. 775. for the remainder it is only from yQ^x to year at the will of botli jiarties, and there is no certainty. And I cannot see a diversity between such a lease, (i. e. for the year after the two first) and ' a lease to you for as many years as we shall agree :' which is a good leasewhenthepartieshave agreed." See post. (It will be observed the reasoning of Brooke, J., rather leads to a result the reverse of that which he appears to have arrived at.) Pollard, J. : " If it be not a good lease many shall be incon- venienced. And therefore if it can be taken as a lease, it shall be more rea- sonal)le. And I intend that it can be construed well enough as a lease for years. I agree well that against lessee at will the action lies not. But in this case when he leased for a year, ' et sic de an en an,' those words ' et sic,' &c,, imply that he had those years as he had the first : but if I lease for a year, and so de an en an, it is at will ; for it is not determinable with any certainty : but if I lease to one for a year, and so de an en an, for so long as he serve me that is a good lease ; and if he serve me for ten years it is a good term for ten years : and the term de an en an has such an implication that he shall have the other years as he had the first ; when it is for a year ' et sic de anno in anno,' it has that implica- tion in itself. And so when he enters and occupies it is a good lease and proves his will ; and so the lessor de- termines not his will to the contrary, &c. And if I lease for ten years at will, the words ' at will' are void ; for a man cannot im.pose a greater limitation by the habendum than the estate given by the words of the deed : and when it is said that a lease for years must be certain, determinable with certainty by the first words— at the commencement, it may be deter- minable with certainty where it may be uncertain at the commencement, as in a lease upon condition, &c. But in this case — as it is de an en an at the will of the parties — then when the lessee has entered on any one of the years, the lessor cannot determine his will for that year, nor the lessee : but after that year or for the next year either of them can. And a lease for years (though it) ought to be certain ; yet may be determined by condition in deed or in law. And it is in this case, as in the case of a lease to one for a year, and so on from year to year so long as he shall serve me, when, if he serve me for ten years, it shall be an entire lease ; for it follows and con- tinues all upon the first words. And it appears to me that this is a good lease, and an entire lease. But as the writ is the plaintiff cannot have judg- ment : for the writ ought to have been in the teniiit, &c., for he shows that the lease was determined before the writ, &c." Briidnel, C. J., to the same effect : " I know well that a lease should have a certain commencement, and a certain determination : i. e. something by which it may be determined cer- tainly. And a lease for days is as good as a lease for years, for each is certain enough . And there is no diver- sity between a lease at will and a lease for years, except that the one has a determination certain, and the other has not— (being at the will of both parties) ; for if he enter on the oc- cupation, if any, of the years; then neither the one nor the other can de- termine it during that year, and it is a good lease ; as if I lease to you for twenty years — and so after those tAventy years, for another twenty years — it is good for forty years. And so if it be a lease de AGARD V. KING, Cuo. Euz. 775. 137 an en an, at will, it has a deter- mination certain; i.e., the will of tlie parties after each year, but so it is not a lease at ivill : for it is determinable at a certain time; when either of the parties will : and notwithstanding that it be 'de an en ayi so long as he and I agree — yet if he occuj)y for ten years it is entire, &c. So if I lease for ten years, reserving the first year 5s., the second year \^s., and so of each year, one several sum : yet all is one lease. So here, and those years having a de- termination at the will of the parties — so long as he occupies (notwithstanding the words ' de an en an'), it is one entire lease. A lease for years may be determinable at the will of one : well enough, as if an infant make a lease, then when he comes to his full age it is determinable at his will, and if a tenant for term of life make a lease for term of years — it is determinable by his death, and yet that is 7iot cer- tain. And when it is said that the will shall be determined at any time of the year, that is not so : for the lease is de an en an; by which, tvhen he enters on any one of the years, then for that year it cannot he determined, as he did not determine his will before the year commenced. And if a man make a lease for a term of years, proviso when he himself would occupy that then the term shall cease, it is good, and determinable at his will. And to make a lease for three years, and so on from three years to three years, is a common lease, and good enough. But nota all these leases are ' de triennio in triennium usque ad finem xxx. annorum,'' or as it is agreed between the parties, and then notwith- standing that here it is de an en an at volunte, &c., and so is not certain, yet it is good enough : for it is determin- able once, notwithstanding that it was not certain at the commencement : as if I lease to you certain land till you have levied 2QI., that is a good lease : and yet it is not certain at the com- mencement when it shall be detei'- mincd : but for that it is determinable upon that — viz., when he has levied &c. — it is good : although it might happen that he levied in a year : for it has a determination that is known ; and a lease for years is not more than a determination certain ; and though it may not be certain at the commence- ment, yet it has a determination by the first words : and when it is determined, it is certain enough, &c. And so here where he has determined his will after one of the years it is certain enough. And it is 'not at the will of the lessor, (i. e., only) for it is at the will of both and of each of them, &c. Therefore semble, it is a good lease. And if he had brought his action well, he ought to recover ; but he has abated his writ," &c. In the Bishop) of Bath's case, (i Coke, 36, where the preceding case was cited, " it was resolved, 2^er totam Curiam, that in such case after three years it was but a lease at will, because beyond that the term has not any cer- tain commencement or determination." This, however, it must be observed, was a decision on the nature of the original tenancy, as constituted at the commencement of the first year : a remark which equally applies to the decision in Bellasis v. Bnrbidge, 1 Eaym. 1/0, and 1 Lutw. 213; where on a similar count, stating the tenancy, as in Pofkins case, and as in Agard v. King, it was held that it was a good lease "ybr tivo years at least, and after that, at icill ;" — the latter words being however only in one 138 AGARD V. KING, Ciio. Eliz. 775. report, and the case is, per Bidler, J., in Birch v. IVriyhf, chedu'ifhout those words. The apparent inconsistency to he observed in these cases, is obviously to be attributed to the confounding the original tenancy with that subsequently created, on principles elucidated in decisions already cited, by operation of law. In Potkiris case this error ap- peared to be presented on the face of the declaration, which stated that for the whole twenty years the occupation was hy virtue of the original lease : and perhaps with reference to the difficulty thus presented in the count in the principal case, those words were omitted in the count in Agard^. King: althoudi in that case it might well have been considered that there was only an argumentative allegation of facts which ought rather to have been pleaded according to their legal effect — viz., a demise, — in the one case for twenty years, and in the other for three. For upon the principles above adverted to, upon entering into the third year the original tenancy was, so to speak, merged in a superior tenancy created by operation of law— t. e., for the whole of the then ensuing year {Mellow V. May, Moore, 636 ; Hamerton v. Stead, 3 ^. & C, per Holroyd, J.) ; and yet as the legal implication only took effect upon the original tendency from year to year, it might be truly stated as a demise for/owr years ; and so on, till the twentieth year was en- tered into, when it might be stated as having originally been a demise for twenty years. And this would appear to follow not only upon the principle of merger (as to which see Mr. Preston's learned treatises), but on an analogy which will be found pre- sented among the cases cited in the Bishop of Bath's case, viz., that of a lease for so long as both parties should agree upon : which, when they have agreed, is a good lease : though till then it is not so. (See this exempli- fied in Jones v. Reynolds, 3 Q. B.; Burnell v. Curtis, 4 Jur. 490.), Now upon the commencement of the third, or of any subsequent year of a tenancy from year to year, it might well be said, that the parties had agreed that the term should be four years ; or for whatever the num- ber of years might be, reckoning from the first and inclusive of the one just commenced. And this again ap- proaches to another analogy also pre- sented in the cases referred to on this question — viz., that of a lease for a certain term, and then at the end thereof for a similar term, at the option of the parties (as in Chapman v. Towner, 6 M. & W.) ; in which case, when the option is exercised, no doubt can be entertained that the demise might be declared upon as having originally been for the entire period. (TJ^ea/c d. Taylor v. Escott, 9 Price; Dunn V Spurrier, 3 B. & P. ; Goodright d. Hull V. Richardson, 3 T. R. 462 ; s^nAper Alderson, B., 6 M. & W. 103.) And there is no distinction between such a case and that of a lease for so many years, determinable at intervals by notice, as in Goodright d. NichoUs V. Marks, 4 M. & S. ; Brashier v. Jackson, 6 M. & W., except that in the latter case, which comes nearest to that of the tenancy from year to year, express dissent is requisite ; whereas in the other case, implied assent is sufficient. Again ; it has been already shown, that the original te- nancy from year to year itself might have arisen by operation of law, from an uncertain tenancy at a yearly rent : and it would obviously AGARD V. KING, Cro. Euz. 775. 139 not be a more argumentative and in- accurate mode of pleading to allege in such a case the terms of the original entry, and the fact of the sub- sequent occupation during the second year (instead of stating the legal effect of both those facts combined, viz., that the party was tenant from year to year), than it would be to plead, as in Pot kin's case, and in Agard v. King, the facts which in legal effect amounted to a demise for three (or for twenty) years — instead of pleading that demise itself in direct terms. Thus, therefore, by a process of rea- soning, and upon principle, we arrive at the deduction for which there is, in modern decisions, abundant authority, as in the dictum of Buller, J., in Birch V. Wright, 1 T. R : " If a tenant from year to year hold for four or five years, either he or his landlord may, at the expiration of that time, declare on the demise as having been made for such a number of years." (See this con- firmed. Berry v. Lindley, 3 M. & G 510, note.) The same learned Judge ftirther observes on Bellasis v. Bur- brick, — " It was unnecessary to say what would be the effect of the lease after the two years.'' He also cited Stomfit V. Hicks, 1 Salk. 413, where it is said, " If A. demise to B. for a year, and so on from year to year, this is not a lease for two years, and after- wards at will, but it is a lease for every particular year, and after the year is begun the defendant cannot determine the lease before the year is ended ; but in a lease at will the de- fendant may determine his will after payment of his rent at the end of a quarter" (or for whatever other less period the rent is payable) " but not the beginning, lest the lessor lose his rent." And upon that the learned Judge observes, — ' ' The expression, ' for every particular year,' does not mean that such a lease operates as a distinct demise for each year separately, but that when any year has commenced, it" (i. e. the original lease) "is good for the whole of that year," — i. e. for that year added to the years already elapsed. And he also cited and supported Legg v. Striidwick, 2 Salk. 4 1 3, where it was decided, that in such case " after" (i. e. at the close of) "the two years, the lessor or lessee might determine, but if the lessee held on, he was not then tenant at will, but for a year certain ; for his holding on must be taken to be an agreetnent to the original contract, and in execution of it ; and that was from year to year." This doctrine was also confirmed in Harnsv. Evans, in error (Wilson, 262), where, per Curiam, "a lease by A. to B. to hold for one year, and so on for two or three years, or any further term of years, as they shall agree, from and after the expiration of the said term of one year, is a lease for two years, and after every subsequent year begun is not determinable till that be ended." And so, in Rex v. Hurstmonceaux, 7 B. & C. 55, it is said, T^er Bayley, J., in delivering the judgment of the Court, " The legal effect of a tenancy for a year, with a proviso for deter- mining it in the middle of a year, is, that the party is in of the whole estate for a year, liable to a defeasance on a particular event." (This would obvi- ously apply to the whole interval elaps- ing between the first creation of a tenancy from year to year, and until the termination, for instance, of the three years in Agard v. King, or the twenty years in Potkin's case.) "And Coke, 1 Inst. 42 a, puts several cases of defeasible estates, as if a man grant 140 AGARD V. KING, Cuo. Eliz. 775. an estate qnamdiu se bene gesserit" (the analogy between which and the tenancy qxatndiu ambabus inirtilnis plu- cer^*; is ohvious), "and says, 'in all these cases the lessee hath, in judgment of law, an estate for life determinable; and in pleading shall allege the lease, and conclude that by force thereof he was seised generally for term of his hfc.' This is on the principle that when an interest is granted to him, liable to be determined on a particular event, the whole interest is vested hi him in the first instance, but it may be taken out of him by the occurrence of that event." On the same principle, Bidler, J., speaking of the effect of a lease from year to year, in Birch v. Wright, says, &c. {ut sujira), " This is on the principle that it is to be considered a lease for so many years as the party shall occupy, unless in the mean time it shall be defeated by notice on the one side or on the other." In Buck- worth V. Simpson, (1 C. M. & K., 842,) where the decisions were cited, itvifi?, %?i\()iper Abinger, C. B., "I do not wish to raise any doubt on those decisions." And though the Court there held that the tenancy in such a case was not improperly stated as a lease, only from year to year (/. e. as in Agard v. King, and in Fotkin's case), that was after verdict, and the fault is clearly one of fortn only. It was said per Abinger, C. B., indeed (as by Prisot, J., in 35 II. VI. fol. G3, ante, p. 130), "The rule is, a party may, in pleading, set forth his whole case, and the Court may determine the legal effect of it •,''sed vide Bayley, J., contra, 9 B. & C. 912; and sec Co- myns' Digest, " Pleader," C. 43. And these authorities are also upheld by the analogies afforded in the decisions, as the effect of occupation under leases void by the statute of frauds ; thus, under such a lease for four years, lessee, if he do not leave at the end of the third, may be declared against, as on an original demise for the whole period ; which will be proved, not by the document, but by the occupation under it. {Savage v. Bupins, 3 Taunt. 411; et vide Doe d. Rigge v. Bell, 5 T. R. and Smith's Leading Cases, vol. ii.) The views here presented have additional confirmation in the decisions which establish that the tenant from year to year may lease for a term of years certain. (JSlackay v. Mackreth, 2 Chitty.) Having thus seen how, from the original tenancy at will, arises, by im- plication of law, the tenancy from year to year, or the analogous tenancies from quarter to quarter, or from week to week, &c. according to the periods for which rent is reserved ; and having also seen how this tenancy may, by a similar implication of law, result in a demise for term of years certain, it is proper now to observe that a distinc- tion must be carefuhy drawn between an implication of such tenancy by law, and the creation of it by the original agreement or understanding of the parties, whether that be shown by acts or by express agreement, or partly by one, and partly by the other. It has been already observed, that in whatever way a tenancy or term may be created, it is, tchen created, attended by the saine legal incidents; and therefore it appeared ajipropriate to consider first what those legal incidents were, either with rcsi)cct to the tenancy at will, to the subsequent tenancy from year to year, &c., or to the ultimate tenancy for a term of years certain. The distinction between the legal impli- cation alluded to, and the effect of AGARD V. KING, Cko. Eliz. 775. 141 any actual agreement to be inferred (as matter of evidence) from the facts, is of practical importance. For whereas a general letting at so much per quarter, or free occupation and payment of a quarter's rent, could not raise any legal implication of a longer tenancy than for the ensuing quarter, during part of which the tenant occu- pied {Wilkinson V. Hall, 3 B. N. C), a letting at an annual rent, though payable quarterly, would, prima facie, indicate the original intentions of the party to constitute a tenancy, not from quarter to quarter, but from year to 5'ear — a presumption which would, however, not arise, if the expression adopted were only " at the rate of" so much a year. {Richardson v. Lan- gridge, 4 Ta. 131 ; and see Parher v. Harris, 1 Salk. 262, 4 Mod. 7(^; Turner \. Robinson, 5 B. & Ad. ; Ather- stone V. Bostock, 2 ]\I. & G. ; Coombes V. Howard, llay a fxed sum (as in Lyncoek v. Payne, Cro. Eliz. 7^^), and to re-deliver 2)Ossessio7i. In Chef fie V. Pound, Raym. 74(5, in debt for rent, on nil debet plaintiff proved an un- written agreement by defendant to hold for one year, rendering rent of 15^. ; and that he the plaintiff was grantee of a reversion expectant on the death of a party who died before the agree- ment, but had never been in posses- sion. And per Holt, C.J. , "defendant may give in evidence nil habuit in tene- mentis, the plaintiff having never been in possession. But if plaintiff had been in possession, though but tenant at will, defendant could not have given this in evidence, without being evicted." This case, it will be observed, illus- trates the close connection between the pleas of nil habuif and of eviction (as to which, see further, j30S^). It is to be observed, that if the plaintiff have declared upon a lease by indenture he can demur to the plea of nil habuit, as the estoppel appears upon the record. (5 Henry VII. fol. 19 ; Trevivianx .Lawrence, lSalk.227; and 2 Lord Raym. ; Kemp v, Goodal, ib. ; Whaley v. Anderson, 1 Keb, 874 ; Taylor v. Needham, 2 Taunt. 278 ; Boodle V. Campell, 7 IM. & G. ; 1 Wm. Saund. 325.) But if he have not so declared, and if he reply the in- denture by way of estoppel, it should seem it would be no departure : for in a case {Anon. 1 Leonard, 156) where the point was merely mooted, it is said, " It seemed to Periam and Leo- nard, that it was not a departure, for it is not contrary to the declaration, but rather doth enforce it," And this opinion appears to have been confirmed by the Court, in Thorp and Wingfield'' s case, 3 Leonard, 203. (See "Comyn's Digest, " Pleader," F. 7, & F. 8 ; 1 Rolle, 387; Plowd. Com. 103 (b) ; and cases cited ante, page .) It is con- ceived there would however be a clear departure, if — after a declaration on a demise not alleging entry or occupa- tion during the period in respect to which rent is demanded — the plaintiff were to reply such occupation to this plea : for this would be replying a count for use and occupation to a plea to a count on a demise. But it should seem that if the de- claration allege that the defendant en- tered or occupied, the defendant can- not plead nil habuit, in respect to the time for which such occupation occurred, for there may be a demurrer for the estoppel disclosed upon the re- cord; though, perhaps, in such case he might plead it with the additional allegation, that he did not enjoy or occupy under the alleged lessor. {Per Bathurst, J., Sidlivan v. Stradling, 2 Wilson ; Baynton v. Bobbett, 2 Vent.) On the same principle, if the declara- tion do not allege entry or occupa- tion, it might be replied by way of estoppel to such a plea of nil habuit, that defendant had entered during the alleged demise. Though if more than entry were alleged in the replication, there might be danger of a demurrer for departure, not only upon the ground just suggested, but because upon the principles referred to in an earlier por- tion of this note the replication would perhaps argumentatively disclose a de- mise by operafio7i of law subsequent L 2 148 AGARD V. KING, Ciw. Eliz. 775. to the original demise declared on and pleaded to. (See Plowcl. Com. 105, (h); Com. Dig. "Pleader," F. 7, 8.) If neither stated in the declaration, nor replied to the plea, the fact of such occupation will not avail in this action, although in use and occupation it ■^^"ould arise on the general issue, as it would under the old plea oinil debet to debt on a demise {Chettle v. Found, 1 L. Raym.) ; for the reason which pre- cludes the plea of nil habuit ; viz. that the gist of that action is the occupa- tion. But in point of fact, the decla- ration in debt on a demise always did allege, that by virtue of the said lease defendant was j)ossessed, &c., and for a long period — at least since the time of "Saunders's Reports" (see Salmon v. Smith, and Pole v. Longueville) — has averred, that defendant entered and was possessed ; the latter allegation at least, if not the former, being (see post) unnecessary ; and introduced, dovibt- less, for the purpose of raising the estoppel to the plea of nil habuit. The practical effect of this allegation is, that though {j)er Denman, C. J., Ilawke v. Orton), it only imports that lessee was possessed at the time of the entry, it discloses that he did receive p)osses- sion from the alleged lessor ; so that a plea of nil habuit would be demur- rable unless it either concluded by a traverse of the allegation of entry {Baynton v. Bobbet f,Yent.) or disclosed some new event occurring after this entry ; and determining not merely the lessor's absolute estate, but the lessee's estate arising by estoppel, i. e. it must disclose an actual or constructive evic- tion (see jiost) . It is essential to observe here, how- ever, that the plea of nil habuit will not be sustainable if it appear that at the time of the decease the lessor had anything in the premises out of which he cotdd demise: which is illustrated in the decisions as to the replica- tion to the plea. It is insutHcieut to rej)ly that the plaintiff at the time of the lease had a good and sulficient estate, in the tenements whereof he could make the said lease : for the plaintiff should show especially what estate he had, that it may appear to the Court that he had a sufficient estate to make the lease good ; but by verdict the defect is cured. {Gyll v. Glasse, Yelverton, 227 ; ^ylett v. Jrilliams,3hevii-\z, 123; 2 Croke,3I2.) After verdict it has been held suffi- cient to reply, " that A., being seised, demised to plaintiff for so many years, and that he being possessed of the said term demised to the defendant, &c. (Parker v. Harris, Skinner, 307.) But when it is there said, per Holt, C. J., " Having shown that he was possessed by virtue of a lease from A. it is well enough, and more than he needs ; for if he were only tenant at will, and demised for years, he might have replied that he was seised in fee, and demised ; and though it be found that he was not seised in fee, yet it being found quod aliquid in tenementis, it is found for the plaintiff; for the substance is, that aliquid habuitj'^ — it is to be observed, he is evidently speaking merely of the effect of verdict, for he adds, " so it appears by Gyll v. Glass, for there it was held cured by verdict :" and his dictum would other- wise be clearly inconsistent with the reasons of the decision so cited and recognized. In Wilson v. Field, 1 Skinner, G24, in debt for rent on a demise for years, the defendant pleaded nil habuit; replication, that he had a good and sufficient estate to make the demise to the defendant, to wit, that AGARD V. KING, Cm. Eu/. 775. 149 he was seised in his demesne as of fee, on which issue was joined ; and on evidence it was objected that he ought to show an estate in fee : non allocatur, for the issue is found upon the good and sufficient estate to make the de- mise, and any estate is sufficient for this piirjiose nut of which the estate demised may he derived : and all added after this, to wit, is mere form ; but if he had not said that he had a good and sufficient estate, but onl)'^ that he was seised in his demesne as of fee, then he had been restrained to prove such estate ;" ^jer Holt, C. J., Et vide, Loiv V. Burrows, 2 A. & E. These decisions are, it will be found, of great practical importance, as elucidating what is a sufficient confession of the title of the lessor to demise, to preserve a special plea of a constructive eviction from being deemed demurrable, as ar- gnmentatively amounting to nil habuit. They proceed upon the principle that an estate, however low, or however it may be defeasible, is, while it en- dures, sufficient. And tenancy at will is a defeasible estate. This is a prin- ciple of very ancient application : for a disseissor having a defeasible estate, determinable by entry, 19 Henry VI. fol. 28, was allowed to bring debt for rent against the lessee till the dis- seissee had re-entered ; 20 Henry VI. fol. 20. And see "Gilbert on Rent ;" and Moore, 50; and \id.c post, as to jdeas of constructive eviction. It may here be remarked, that in Neale v. Mackenzie, 2 C. M. & R., an analog)^ is per Abinger, C. B., drawn between the case of a lease by a disseissor, and of a lease by a person who has previously leased the same premises to another ; but the analogy is, it is conceived, clearly inaccurate, on account of the distinction here adverted to, that the disseissor has a freehold, though de- feasible : whereas when a pretended lessor has already leased the same premises, he has " nothing in them" to lease, at least during the first term. It is one of the most material dis- tinctive incidents however of this action, as distinguished from that for use and occupation, that the alleged lessor can thus be put to prove that he had some estate, out of which the alleged term could have been granted, and that must have been a legal estate: so that one case in which an action in assumpsit, either for use and occupa- tion, or on some special agreement, may be requisite or preferable is, where the plaintiff, at the time of the lease, had not a strict legal title. (Blake v. Foster, 8 T. R. 48/ ; Whitton v. Pea- cock, 2 B. N. C. ; Reeves v. Gill, 1 Beav. 375; Gouldsworthw. Knight, 11 M. &W, ; Morgan V. Paid, 12 Moore, 311; JFilson v. TJlUiarns, 1 Price's P. C; Iiull\. Vaughan,^ Price, cited p)ost. It is here also to be observed, that even where there is a demise by inden- ture, or where the defendant has occu- pied under the alleged lessor, there would be no estoppel against pleading the determination of the title of the lessor by some new event occurring after the lease and before the accruing of any part of the rent pleaded to, for such a plea admits that the lessor had title at the time of the lease, and that an intei'est did pass by the lease, so that it is not inconsistent with the deed to show that the title of the lessor and the interest of the lessee, have ceased. (Blake v. Foster, 8 T. R. 487 ; Parker v. Munning, 7 T. R. ; Neave v. Moss, 1 Bi. 360, 8-Moore, Ilopcraft V. Keys, 9 Bi. and 2 M. & S., 239 ; Doe d. Higginbotham v. Barton, loO AGARD V. KING, Cuo. Euz. 775. 11 A. & E. ; Claridije v. Mackenzie, signmcnts." (Com. Dig. " Pleader," 4 M. & G.,) ami for each of the periods C. 34, 30, 38.) for which the rent is reserved, there It is most important here to observe is a distinct cause of action. {Brook that the princij)le upon which nil V. Briggs, 2 B. N. C. 5/2, 2 Scott, kabuit is pleadable in debt for rent, is 803 ; and see cases cited ante, p. 133.) the princi})le upon which depends the It is proper here to observe that the applicability of the action in cases of estoppel by indentiwe equally applies, subsequent assignment of the lessor's as against the assignee of lessee. {Tag- estate. The principle is that rent is lor V. Needham, 2 Taunt.) incident to the reversion. (Littleton, The mode of pleading title requisite Chap. "Rents," Com. Dig.'titles "Rent" in the replication in such case will be and "Debt." Green\.James,(Jlsl.&,yf .) seen exemphfied in " Chitty on Plead- The operation of this principle in con- ing," vol. 2, "Title Pleaded" 403. ncction with that ;;n>iYy which is the It may be sufficient here to mention essential requisite of the action of debt that a tenant from year to year has is well illustrated in 5 Henry VII. fol. sufficient estate, as the principles al- 19, where it is laid down by the Court ready alluded to, to demise for a term that " where the reversion deveigner of years certain. {Mackagv.Mackreth, ' loxjahnent,'' a ascun, so that he shall 2Chitty'sR. ; P//i?v.£y;-e, 9B. & C.) have the rent with the reversion, he And although Littleton speaks of the shall have an action of debt, for that lessor being " seised of the same es- the law makes the privity as the tate," sometimes seistus is used for law gives him the rent, and so" (it possessionatus et e contra, Co. Lit. is added) "executors shall have debt, 17 (a). Com. Dig. : Pleader" C. 35 ; for the law gives them the debt. And and there may be a reversion in an so it is if the reversion descends : the estate for years, of which it could be heir shall have the action, for the law pleaded that plaintiff was possessed, gives him the reversion with the rent ; not " seised,'' see " Chitty on Plead- and so when the reversion is devised : ing," vol. 2, 406, note k. and so of the grantee," {i. e., assignee It will be observed nil hahuit applies of the reversion) and in each case only to the lessor's estate at the time where the reversion " fuit loial en of the lease : If the plaintiff declare auter, et nul mesne de faire privitie : that he demised, he need not set out he shall have an action of debt," (and any title, and it will be sufficient to the case is cited where lessee's feoffee, reply it to that plea. But if to such it was held, might have an action of a plea he replied that the premises debt against the lessor :) " And the after the lease came to him by devise, action lies by the grantee of the re- descent, or assignment, &c., there version come enters second granutee would, it is clear, be a rej)ugnancy and del lessee." It was laid down in departure on the record. Therefore it Walkers case, 3 Coke, 22 : " There is essential that he should state the are three manners of privities ; the lease in his declaration according to first in resjjcct of estate only ; the the fact, and if it a])pears that he was second in respect of contract only ; not the lessor, he must deduce his and the third in respect of estate and title, and disclose all the mesne as- contract. Privity of estate oidy, — as if AGARD V. KING, Cro. Emz. 77o. 151 lessor grants over his reversion &c. between the grantee and tlie lessee, is privity of estate only — so between the lessor and the assignee of the lessee (or between assignee of the reversion and the lessee) for no contract was made between them. Privity of contract only is personal privity, and extends only to the persons of the lessor and lessee : as where the lessee assigns his interest, notwithstanding the assign- ment, the privity of contract remains, &c. Privitrj of estate and contract — as between lessor and lessee.'''' In Tlmrshy v. Plant, 1 Wms. Saunders, 240 a., it is said "the action of debt by lessor against the lessee, is founded on the privity of contract ;" but it seems from Walker s case (there re- cognized,) that there is also privity of estate, while the lessor retains the reversion. It is there added, " for otherwise the venue would be local," upon which it may be observed that not only is it not necessary that the venue should at first be laid in the coimty where the premises are situated, but the venue cannot be brought back to that county by the usual aifidavit that the " cause of action arose in that county," as it can be in use and occiqmtion. (^Arden v. Morninyton, 4 Tyr.56;i?m-%v.7rc««,14L.J.,C.P.) And where the action is by the assig- nee of the reversion, the venue is local. (Pine v. Leicester, Ilobart ; Long V. Nethercott, Cro. Car. 143 ; Braid V. Cadman, Cro. Car. 183.) Upon the same principles the de- claration must disclose, if the fact were so, that the demise was not to the defendant, but to some one of whom he is either in law or in fact the assignee ; and debt is maintainable by the lessor against the lessee's assignee. In TFalAers case it was decided, " if the lessee assign over his term, the lessor may charge the lessee or his assignee at his election {i. e., in debt) : and if the lessor accepts rent of the assignee, he hath determined his election and, shall not have an action (of debt) against the lessee afterwards for rent due after the assignment." This was confirmed in Thursby v. Plant, 1 Wms. Sa. So debt lies by the assignee of the reversion against the assignee of the lessee. {Allen v. Bryan, 5 B. & C.) But it will be a good plea for the assignee, that before the rent sued for became due, he assigned his estates, &c., without alleging that the plaintiff accepted the assignee : {Paul V. Nurse, 8 B. & C.) though, as will presently be seen, that averment would be essential in the case of a lessee. To such a plea a replication of fraud will be bad. (Leroux v. Nash, 1 Strange.) As to the applicability of the action on a demise, or that for use and occupation, in the case of an assignment of the term, see further in a subsequent portion of this note, as to the latter mentioned action. It is sutficient, hi declaring against assiu'uee of a lease, to state, without showing mesne assignments, " that after the making of the said demise to wit on, &c. all the estate, interest and title of the said A . in the said demised premises by assignment then legally made, came to and vested in the de- fendant, whereupon and whereby de- fendant became and was possessed thereof for the residue of the said term." (Comyn's Digest, "Pleader" E. 23.) And if, upon this, the defend- ant traversed that the lessee did not assign to him— the plea would be bad, and an issue joined upon it would be so immaterial that a repleader would be awarded {Enys wMohun, Stra. 152 AGARD V. KING, Cro. Eliz. 775. But here arises nn important j)oint, as to the necessity for the allegation that the ])arty entertd and was pos- sessed, &c., an allegation which is usually inserted hoth in deducing the title of the assignee of the re- version in a term of years, and in disclosing the liahility of a lessee or his assignee. The definition of a lease by Littleton has often been referred to as showing the necessity for the allegation of entrv, even when the action is asaiust the lessee. " Tenant for term of years is where a man letteth land or tenements to another for term of certain years, &c., and when the lessee enter eth by force of the lease the)i is he tenant for years." It will be observed that it is not here at all intimated that before entry the lease is not perfect, or still less that the lessor is not bound by it ; but that fie is not tenant for term of years ; i. e. that the fidl and perfect estate is not in him; and therefore, even where the onus of deducing title is on the plaintiff, as where he declares, as assignee of the reversion in a term of years (Comyns' Digest, "Pleader" C.) it is not necessary to aver, that he before assip-ning entered and was possessed, &c. ; still less is this neces- sary in declaring against the assignee of a lessee, in order to support the subsequent allegation that " all his estate and interest came to be vested in the defendant;" for semhle, the word " interest" would be sufficient in the latter case ; and in sec. .52, Littleton says, "if the lessor die before the lessee entereth, yet he may enter after the death of the lessor, for the lessee by force of the lease hath riyht jtresenthj (/. e. at once) to have the tenements according to the form of the lease : and the rcasoii is, says Lord Coke, because the interest of the term doth vest in the lessee before entering." Co. Litt. 46 (b), adding "though for many purposes he is not tenant for years until he enter, as a release made to him is not e;ood to increase his estate before entering, the lessee, before entry, hath interese termini, grantable to another." The distinction is here pointed out between the interest and the estate. And in sect. 489, Littleton says, "If the lessor release to the lessee all his right, &c. before the lessee had entered into the land by force of the lease, such release is void, for that the lessor had not possession of the land at the time of the release, but only a right to have the land by force of the lease. But if the lessee enter into the land, and hath possession of it by force of the lease, then such release is sufficient." It is here to be observed, that even were it necessary in alleging an assignment by a lessee, to show that the lessee had a perfect estate in possession at the time of the assignment, it would be sufficient, according to the ancient and accurate svstem of pleading, to allege, without expressly averring entry, " that by force of the said lease he was pos- sessed:" (2 Jones, 24; 2 Buls. 203; 1 Lev. 28) which is the form of old invariably adopted, and it is not till comparatively later times (see^je/* Holt, C. J., Harris v. Cook, Ray) that the allegation virtute cujus intravit is observed : which might, perhaps, ori- ginally have been introduced on account of the inaccurate analogy apparently afforded in pleas deducing title, where it may be requisite to aver entry and pos- session, as where a lease and release is pleaded (7 Henry VII. 3) ; or again, in ploasof justification, whore, in order to confess the charge in the declaration. AGAllD V. KING, Cuo. Euz. 775. 153 it would generally be necessary to aver that defendant entered vnider the lease by whicli he justifies. (Wood V. Hamstead, 2 Cro. Eliz. 2G2.) Neither the averment of entry nor of possession can be necessary, how- ever, when the declaration is against a lessee, for the declaration alleging a demise to him discloses that he had the right to occupy ; and this he could not have unless the lease were binding: and if it be, the fact of his not exer- cising the right could not be any de- fence, as it would be his own default, and as to him, the estate and tenancy would be perfect. And in the common aver- ment, "by virtue of which the defendant entered and was possessed," there is an important departure from the original accuracy of pleading ; and one which tends to confound the distinction be- tween this action and that for use and occupation. If lessee for years will not enter, yet if the lessor waive the possession, debt lies for the rent. (Rolle's Abr. COS, "Dette, Extinguish- ment," C). The allegation of entry is not traversable, and is wholly imma- terial ; for the rent is due by the lease, not by the occupation {Salmon V. Smith, 1 Saunders, 201, a.) In the case there cited as an authority {B lla- sis V. Burbrick, Salkeld ; 5. C. Raym.) the lease was, as in Agard v. King, from year to year, but "rendering 12/. per annum, so long as the lessee should occupy ;" and lier Curiam, " The lessee is liable to pay the rent, whether he occupy or not." And not only is it inadmissible to traverse the allegation, (supposing it introduced) that defendant entered, &c. ; but it is not allowable to plead especially quod non habuit aut occupavit. Dyer, 146, unless the lease lie only strictly at will, per Fitzhcrbert, J. ; and as to that qucere {ante,\). 131). So in a recent case, it is said, per Lit- ttedale, J., " In an action by lessor against lessee, for rent, defendant cannot protect himself by simply tra- versing his own entry, because he had a right to enter by the lease. I think it would be a sufficient answer to plead that defendant was ready to enter upon the premises, but that plaintiff obstructed and would not allow him, thovigh I never saw such a plea." (Ilaw/ces V. Orton, 5 A. & E. 3/4.) In that case it is observed, ^je;- Lo?'d Denman, C. J., upon the legal effect of the allegation in the common form, — " that defendant entered on the said demised premises, and became possessed thereof for the said term so to him thereof granted:" — "for in that sentence does not mean ' during,' that would be nonsense. The posses- sion mentioned there must refer to the particular time of the entr)%" Qucere whether even this allegation, however, as it discloses that defendant could be sued in use and occupation {Arden v. Bullen, 9 M. & W. ; Smith v. Twoart, 2 M. & G.), does not render the count demurrable for duplicity — according to the latest definition of that defect, viz., the disclosing two grounds for the same claim. {Per Maide, J., Shepherd V. Shepherd, 9 Jurist.) The objection could not apply if the old form of allegation were adopted, that "hy virtue of the lease defendant was possessed," as that might only mean possession in law in its most restricted sense of a mere right to the possession. (Per Burrough, J., Pinero v. Judson, Bi.) At all events, it appears objectionable to allege that defendant not only entered, but occupied during the term. If, as in Neale v. Mackenzie, 2 C. M. & R., the alleged lessee pleaded " that before and at the time of the 154 AGARD V. KING, Ciio. Eliz. 775. demise, one A. was and thence hitherto has been in the possession and occu- pation of the premises as tenant thereof to the defendant, whereby the de- fendant could not enter, &c. and has always been kept out of the possession and occupation of the premises by the act and default of the defendant," — it might be held bad upon demurrer ; and though it would certainly be good in substance, if it were stated " that A. was tenant of the premises under and by virtue of a demise thereof made to him by the plaintiff before the alleged lease to the defendant, &c.," it might be specially demurrable, as amounting to nil hahuit, xx^on the principles on which the plea was deemed good on general demurrer in Neale v. Mackenzie, (in error), I M. & W. It is upon the principle adverted to that it is held to be no defence, in debt for rent, that the premises have been burnt down, and have not been rebuilt, except the lease makes the rebuilding in such case a condition precedent to the right to recover subsequent rent. {Balfour v. Weston, 1 T. R. ; Baker V. Holtzapnell, 4 Taunt. ; Ion v. Gorton, 5 B. N. C, ; Packer v. Gibbon, 3 Q. B). So of the premises becoming miinhabitable through want of repairs, unless in the case of some express pro- vision, as to which see Hart v. IVindsor, 12 M. & W. ; Surplice v. Farnsivorth, 7 M. & G. In actions against lessee's assignee, it is a fortiori unnecessary to aver entry on the part of the assignee, and the aver- ment "that all the estate, title and inte- rest of the lessee came to and vested in him by assignment" would imjjli/ entry even if it be assimied as necessary : which, however, it appears it is not, on the ])rinciples previously pointed out as a[)plying to the case of a lessee, viz. that " the assignee has the estate in him," (and the interest would be enough) " before entry," {Cook v. Harris, Lord Raym. 307.) In that case it is said, per Holt, C. J., that the allegation of entry was vmusual. This is denied per Buller, J., in Eaton V. Ja(pies, Douglas ; but, as already ob- served, the older forms (adverted to by neither Judge) undoubtedly omit the allegation. And in Williams v. Bosan- quet, 1 B. & B. 259, where all the cases are reviewed, and the authorities already alluded to confirmed, it is observed, per Curiam, that " assuming the allegation to be usual, it would leave the question undetermined, whe- ther it were to be considered an alle- gation." In Woolaston v. Hakewill, 3 M. & G., it is said, per Bosanquet, J., " Where the term is once well cre- ated it passes by assignment without actual entry." And it is to be observed that in all the cases where there has been any question as to whether entry be necessary to charge an assignee, the question has been purely one of proof, not of pleading, and has arisen on a traverse of the allegation of assign- ment, and moreover it is wholly inde- pendent of any question as to the necessity for entry, because entry is only one mode of testifying assent. As to the effect of entry, and as to the distinction between debt on a demise and the count for use and occupation, especially in the case of assignee of the term, sec observations, post, on the action for use and occui)ation. The assignee of the reversion must set out the title of the lessor also, that it may appear he had such an estate in the reversion as that it might be legally assigned to plaintiff. (Clift's Ent. 213, pi. 7. ; Lill. Ent. 132, 135; 1 Wm. Saund. 233, note a.) And AGARD V. KING, Ciio. Euz. 775. 155 even where the demise is stated to fendant was not assignee, but vuider have been by indenture, the lessee, lessee of tlie original lessee. {Ilol/ordy. or his assignee, can traverse the Hatch, Douglas.) But it might be allegation of lessor's title; upon the alleged, on a lease for ten years, that principle that the plea does not deny plaintiff was assignee of the reversion that an interest vested by the lease, for nine years, and that would give him but only that it was not such an a good right to sue the lessee or the interest as would pass by assign- lessee's assignee in debt for the rent ment : so that it is analogous to the during those nine years — for the rever- case of a lessee, showing his lessor's sion to which rent is incident does not title to have expired : and on this plea only mean the residue of the original again the issue will be analogous to estate expectant on the expiration of that which it would be on a replication lease by efflux of time, but the estate of good and sufficient title to the plea remaininff in the lessor diiring the lease : nil habuit, viz., " whether the lessor and also it may be added, the contin- had a larger term out of which gent reversion expectant on the pos- he could accrue the lesser term — it sible determhiation of the lease prior being wholly immaterial whether it to its expiration by efflux of time, as were for a year, a day, or a month by forfeiture, &c. {Hughes v. Row- longer than the derivative term — any botham, Cro. Eliz. 302. ; Matures v. term of years which left the reversion Westwood, ib. 599; Burton v. Bar- in him and enabled him to assign clay, 7 Bi. ; Wright v. Burroughs, 10 would satisfy the substance of the Jurist.) But qucere, whether, if he allegation." (Caivick v. Blagrave, 1 alleged that he was assignee of the B. & B. 536.) whole of the reversion, it would be a Now in considering what may be fatal variance to prove that he was only the effect of a traverse of any one assignee of ^;ar^, supposing the rent of the 7nesne assignments by which accrued during the period for which he plaintiff may deduce his title, it is to was assignee. It has been held that be observed that he claims as assignee this would be so with respect to the of the reversion, not of the tenn : so defendant's being assignee only of part that he may be alleged to be assignee of the premises demised. {Hare v. only of part of the reversion : whereas, Cator, Cowper, 7^^.) But that deci- as will be seen in considering the effect sion appears to have been upon the of traversing the allegation, that " all case of the assignee of a term, which is the estate of a lessee in the term came quite distinct from that of the assignee to defendant," it would be necessary of the reversion : and moreover in the to show that the whole term came to more recent decision in which that de- him (Hare v. Cater, Cowper, Curtis cision was confirmed, the Court seemed v. Spitty, 1 B. N. C.) ; and if it were to think it doubtfulwhether, apart from alleged that the whole interest or estate the question of mere vanance, the in the term for certain less number assignee of part of the premises could of years came to him, «Scc., the allega- be liable in debt, {Curtis v. Spitty, 1 tion would be demurrable for repug- B. N. C.) — a doubt, having a strong nancy, and for showing that the de- foundation in the doctrine that rent 156 AGARD V. KING, Cuo. Eliz. 775. issues out of all and every portion of the premises demised. Upon a traverse of the allegation, that all the estate, &c., of the lessee came to defendant, it is necessary to prove that the whole term came to him, or it will appear an under lease ; and if that appear upon the record, it will be bad on general de- mm-rer. {Holford v. Hatch, Douglas, 18G.) But it will be no objection to it as an assignment, that a rent is re- served to the original lessee ; for though it was held in Poultney v. Holmes, Strange, 404, that in sii\h a case if the contract were void by uie Statute of Frauds, as not being " in WTiting, it could be held an under lease, because the reservation was to the lessee, not to the original lessor." This reason seems overruled in Palmer v. Hdwards, cited Douglas, 187, where it is said, per Buller, J., that the true ground of the decision was " that what could not be supported as an assign- ment, should be good as an vmder- lease against the party granting it." And in the case last cited, it was held that where the whole term was granted, thoush a rent was reserved to the lessee, there was an assignment ; for, per Buller, J. : " There was no reversion left ;" the word reversion here, being understood in the sense of the residue of tlie lessee's estate expectant on the expiration of the term assigned by efflux of time, otherwise the dictum would be inaccurate ; for it has been seen, there is a reversion in a lessor pendiny the lease. (And see Smith v. Maplchach, I T. R. ; Preece v. Corrie, 5 Bi. 27 ; Baker v. Gostling, 2 B. N. C.) It will have been probably perceived, that it results from the principles ujion which the action for rent depends, that the declaration should contain no expressions capable of being construed as importing that the rent was to be paid for the occupying, or during the tenancy (see Boot v. Wilson, 8 East, Ed(je v.Strqford, 1 C. J.; At her stone V, BostocJi, 2 M. & G.), or the declara- tion would probably then be demur- rable, unless it alleged the rent to have accrued during such occupation or tenancy ; while, on the other hand, the introduction of that allegation miaht render the declaration demur- rable for duplicity. (Vide a^ite, j). 153, as to the allegation of entry, et j)ost, as to the count for use and occupa- tion.) After the statement of the demise {ante, p. 145), and of the assignment of the lease, or of the reversion, (if there were any), the count proceeds to state, that afterwards, and before the commencement of the suit, to ivit, on (such a day), £ of the rent afore- said, " for (so many quarters, half- years, &c., according to the periods of reservations), became and was due and payable from the defendant to the plaintiff," the usual addition, "and still is in arrear and unpaid to the plaintiff," being, it is apprehended, un- necessary. Under the ancient and more accurate system of pleading, according to Avhich the days were " shoicn in- certain^ without any other allegations (as that the rent claimed accrued due " before the commencement of this suit"), questions w'ould arise, as to whether the rent claimed could have accrued due upon any of the days so stated. {Umhle v. Fisher, Cro. Eliz. 712; Carpenter v. Collins, Yelv. 73, and 3 Leon. 211 ; TompJcins v. Pincent, Salkeld, 140.) But on the AGARD V. KING, Cro. Euz. 775. 157 present form of declaration, in which, by reason of the allegation, that the rent accrued " before suit," the par- ticular days mentioned will not, at least, if laid under a videlicet, be material, such questions need not arise. In Gilbert on Debt, 407, a case is stated, where A had declared on a lease for three years, rendering rent at Michaelmas and Lady-day, and de- clared for rent in arrear for two years, without showing at what feasts due ; and on motion in arrest of judgment, as it appeared that two only of the three years were expired, it was held certain enough after verdict, {quaere, as to the deduction drawn by Chitty, ar- guendo, 4 B. & C. 159), that this would not have been good on de- murrer ; semhle, contra, for as in modern declarations, the day of the lease would be laid under a videlicet ; it seems, that it never need appear on the declaration, that any more of the lease had elapsed, than the periods of reservation in respect to which the rent was declared for ; so that it would be a reasonable, or rather (j)rimd facie) necessary intendment, that the rent claimed accrued for periods of re- servation next after the making of the lease, and next before suit. In covenant, it is clear, that it could not be necessary to show at what particular periods the rent alleged to have been in arrear became due. {Stagg v. Hind, Salkeld, 139; Kenyon v. Buckly, 10 East; Henneker v. Turner, 4 B. & C.) And though in the latter case it was said, per Abbott, C. J., that "covenant was even in ancient times treated with more liberality than debt ; and that the strict rule as to showing the periods at which the rent accrued, applied only in debt," (he reason assigned for the decision in that and in the other cases would seem equally to apply to the action of debt. In that case the objection taken was, as in the former cases, that the decla- ration stated that on a certain day so much of the rent for so much of the term " then elaj)sed," became due ; and per Abbott, C. J. : " It is ad- mitted that the objection would have been obviated if the word then had been omitted;" it was decided, however, that notwithstanding that word, the rent must be taken to have accrued for quarters immediately preceding the time stated. In Baden v. Flight, 3 B. N. C, the Court said, that the substantial import of the allegation of rent in arrear was that so many quar- ters or half years became due before suit, and also intimated, that in cove- nant the ground of action was non- payment on the particular days speci- fied. In King v. Greenhill, G M. & G., declaration on a contract to pay, during the continuance, &c., a certain sum by two even half-yearly payments on, &c., and on, &c., the breach was, that during the continuance, &c., and before suit, to ivit on (such a day), there became, and was due, for divers, to ivit, six half years, &c., a large sum, to wit, &c. Yet no part of the said sum had been paid. De- murrer, for that it was not shown how the said sum became due, or when, or in respect of what half years ; that six half years' rent were alleged to have become due on one day — which was impossible : that there was no distinct averment of non- payment of any one of the said six half years : that the declaration was so framed that it was impossible for defendant to plead per- formance, &c. PerMaide, J. : "The objection is, that the six half years may be dispersed over the whole 158 AGARD v. KING, Cro. Emz. 775. period. The last of them is sufficiently too largo, as plaintiff would he entitled shown to have accrued on the day to recover for any of them he might named. But the others may be un- prove to have accrued due before ac- councctcd with each other." The Court tion, and the traverse would tie him ultimately said, " Jlenniker v. Turner up to prove that they were all so due. answers the objection. In effect, when (1 Com. Dig. Pleading, 15 ; Osborne the breach is looked at, if the day be v. lioffers, IV^^m. Saunders, 269; Wood material, it is equally so whether laid v. Peytoe, 12 M. & W.) The distinc- under videlicet or not. There is sub- tion is ob^^ous between thus pleading stantially a complete breach, on non- in denial, and pleading in confession payment of one half year's rent ; and and avoidance, as payment, &c., be- as to the not showing for what parti- cause there the difficulty would be cular half year plaintiif is proceeding, imposed only upon defendant, who he alone incurs the chance of difficulty, would be defeated by disproof of his for defendant might have pleaded pay- plea as to any part of that to which it ment of six half years' rent (which in is pleaded. Thus in Barnard \. Duffy, fact have been paid), and so have com- 5 Taunt. 27, the declaration alleged pelled plaintiff to new assign. De- a demise at a rent payable quarterly, feudant had only to answer to the and averred, that, to wit, on, &c., 42/. last six half years ; and if they had for a year and three quarters of the been paid, and others remained unpaid, year then elapsed became due. De- plaintiff must have new assigned." fendant pleaded that, before the sup- Per Cresswell, J. : The breach amounts posed breaches {i. e. some of them) he to an allegation that on the day named surrendered. Plaintiff traversed the there was due for six half years' inter- surrender before the happening of the est so much." But it is to be observed, breaches (i. e. or any or either of {see Bright V. Beard, A (^.'Q.,) t\\?it\i them). On special demurrer, the the declaration disclose that the rent Court held the plea bad, because the could not possibly have accrued before declaration disclosed not one entire suit, there will be ground of de- breach, but seven distinct breaches : murrer. so that the plea should have been It is very important to observe, " before the supposed breaches, or any in pleading to a declaration in debt on or either of them," or, " before the a demise, that if the rent for more accruing of the said rent, or any than one period of reservation be al- part thereof." It is to be observed, leged in arrear, each reservation con- however, that this applies only to stitutes a distinct, separate, and certain periods for which the rent is payable. cause of action (see cases cited ante, Thus, if in the case last cited, the p. 133). One consequence of this is, declaration had been on a demise that it would be demurrable to plead for rent payable once in two years, in denial (i. e. to plead riens en the plea would have been good in sub- arrere, or eviction, &c.), to more stance. than one of the reservations with- Another consequence of this prin- out making the plea distributive by ciple is, that each reservation — though introducing the words " or either of there be only one breach alleged in them :" for the traverse would be non-payment of all, and the breach in AGARD V. KING, Cro. Euz. 775. 159 debt is merely nominal, and even in covenant, as it lias been seen is, in sncli cases, severable — may be separately pleaded to ; so tbat not only may different answers be given to each, but some may be pleaded to, and others demurred to. {Hojj/dns v.' Ilelmone, 8 A. & E. ; Watson v. Ilartshorne, 4 B. N. C.) In Colored v. Skq^ton, 3 Henry VI. fol. 19, 30 — declaration in debt, that the plaintiff leased to de- fendant certain tenements in St. John- street, Smithfield, in the siibto'bs of London, for a term of years com- mencing on, &c., rendering rent four marks per annum, &c., and so for the rent in arrear in divers years, the plain- tiff brought his suit, kc. — Stravge, for the defendant, pleaded (1), that the lease was at a rent of one mark per annum ; (2), as to the first year's rent alleged to be in arrear, " riens en ar- rere ;" (3), as to the rent for another year, that defendant hath been always ready to pay, and is still, and now brings the amount into court ; (4), as to the rent alleged to have become in arrear at all the other times, that a long time before each day of payment, to wit, on, &c., plaintiff entered upon defendant, and took, and continued in, possession of the premises thence al- ways hitherto, &c. Rolfe, for the plaintiff, objected that defendant had pleaded three pleas; and as "oweof them would go to all," he prayed that the others might be disallowed : for he said, " defendant having denied the lease we declare on, and pleaded also as to parcel a tender, and as to parcel entry before the rent accrued — if we deny the tender or the eviction, we shall admit the lease he alleges — a lease o{one mark per annum." Strange said, " We ought to have all the pleas, for if an issue were taken solely on the lease, then the days of payment would not he given to us, in which case if it were found against us, plaintiff would recover all, &c." However, eventually he pleaded (protesting the lease), that the defendant owed nothing of the said rent except 8^., which he had been always ready to pay, and still is, &c. Plaintiff took issue therefore, "that defendant was indebted, modo et formA, as in the declaration alleged." It will be observed, that the mode in which defendant here pleaded, is precisely that which would now be proper in an action for use and occupation ; in which eviction, or surrender, or denial of the tenancy, &c., cannot pos- sibly be pleaded, as they would amount to the general issue. (Prentice v. Eliott, 5 M. & W.) And it is also to be observed, that in debt on a demise even in the most ancient times, it was admissible to plead 7ie lessa pas (see page 130), though nil debet was also admissible ; to which non demisit (Bull, N. P.,) or riens en arrere {Warner v. Theobald, Cowper), were substantially equivalent. But now as nil debet is inadmissible, the course of pleading must be that which in Collered v. Skipton was first adopted. Again in 7 Henry VI. folio 26, plaintiff declared in debt, for that he had leased certain land to defendant for term of years, &c., and that the rent for eight years of the term was in arrear, &c. Defendant pleaded as to 20s., evic- tion from part of the premises de- mised, and as to the residue, he pleaded the general issue, nil debet. It was objected for the plaintiff, that the plea was double, for that one of the pleas went to the whole : as, after the entry by plaintiff, the rent was not apportiouable. And the opinion of the Court was, that the entry (?. e. IGO AGARD V. KING, Cro. Euz. 775. eviction,) went to all. Judgment afterwards for defendant on that plea. Qiucrc (it is added by the reporter), if plaintiff should have recovered all the debt if the plea had been adjudged ill ? It will be observed, that both the ancient cases here cited, suggest the question, What would be plaintiff's course if, to a declaration on two dis- tinct reservations, defendant pleaded as to one non demisif, and as to the other riens en arrere. The latter plea, it will be seen, would not necessarily, as the former would, involve an answer to the whole action. It seems that if such pleas were pleaded without a rule to plead several matters, plaintiff might sign judgment ; for in Combe v. Talbot, 1 Salkeld, 218, defendant pleaded as to parcel of one reservation nil debet, and as to the residue thereof nil habuit, and it was held double. It seems that with a rule to plead double, the pleading would be de- murrable, but that plaintiff could not sign judgment, because there would be an answer to the residue upon the record. {Gray v. Pitidar, 2 B. & P., 430 ; 1 Wm. Saunders, 28. Per Bo- sanquet, J., Clarksony. Lawson, G Bi.) The ground of demurrer, semble, would be, (to the entire pleading,) for that there was a repugnancy, &c., in tra- versing, and confessing, and avoid- ing the lease, on the same plead- ing, and also for that on the face of the first pleading, it appeared that it should be pleaded to all the causes of action disclosed in the count. It seems to follow therefore, that no)i demisit must always be pleaded to the whole declaration. It is unnecessary to add, that as nil debet is now inad- missible, the lease caiuiot be put in issue in any other way than by a direct traverse of it, for nunquam indebitatus would amount to an argumentative denial. It will be observed, that any de- fence arising upon the demise itself, as showing a variance between the pleading and the proof, with respect to the amount or periods of reser- vation, will arise uj)on the traverses ne lessa jjas, or if the demise be by deed, non est factum; but to have this effect, the condition for the deduc- tion from the rent, must be so in- separably attached to, and interwoven with the reservation itself, as to form a part of it {Gaskell v. King, 1 1 East; Wi(/(/ V. Shuttleworth, 13 East) ; as where a conditional and qualified reservation was stated absolutely. {Va- vasour V. Ormrod, 6 B. & C.) ; et vide per Tindal, C. J. ; Baden v. Flicjht, 3 B. N. C.) This will not be the effect where there is a separate, collateral provision, (even though in the lease itself) for allowing so much out of each reservation ; for that does not operate as an alteration or defalcation of the rent, but as a collateral con- tract ; however, it may be available under riens in arrere {Davis v. Stacey, 12 A. & E.), or if it appear upon the face of the declaration, may be raised by demurrer, as in Hopkins v. Hel- more, 8 A. & E. But if the terms of the reservation of rent be truly stated (which is all that will be in issue on ne lessa pas), the only way of raising the question whether the al- leged arrears of rent accrued at any time before suit, is by pleading riens in arrere, which, as it has already been seen, was in the most ancient times a most common plea in debt on a de- mise. But in the form analogous to that of nil debet, viz., that nothing of the said rent is in arrear, the plea is obviously now inadmissible, for the AGARD V. KING, Cro. Eliz. 775. 161 very reason assigned by the Court in Warner v. Theobald, Cowpcr, for al- lowing it, vis. that it substantially amounts to nil debet (now prohibited), as putting in issue whether the rent was due at the time of the suit, and so admitting evidence of jiayment, or any other defence arising after the original accrual of the rent. Though, there- fore, that case is cited in Mr. Arch- bold's work on " Pleading," (without any explanation), it seems at present inapplicable ; and this has been established by two distinct decisions with the new rule. Thus in Baden v. Flight, 3 B. N. C, the declaration set out a demise in covenant, by which the rent was reserved on the four usual quarter days, and proceeded to allege, " that during the said term, to wit, on '25th March, 183G, a large sum, to wit, 66^. 5s., for two quarters of a year of the said term, ending on the day and year last aforesaid, and then last elapsed, became and was due, and still is in arrear to the plaintiff." A plea, " that no quarter's rent ending on the said 25th March, 1836, then became or was due or in arrear, by virtue of the said demise, or according to any of the provisos, covenants, or terms therein contained, or anything therein mentioned in manner and form as the plaintiff hath in his de- claration in that behalf alleged" (con- cluding to the country), was de- murred to as inadmissible in an action for a breach of contract for non-pay- ment of rent on a specified day. Other grounds of demurrer, as " that as a plea of satisfaction, it was bad and argiimentative ; that it was double, inasmuch as it put in issue, not only that the quarter's rent ever became due or in arrear, but also that it was due or in arrear at the commencement of suit, &c.," were obviously inap- plicable. The Court clearly determined upon the frst ground of demurrer. " The allegation in the declaration is this, ' that during the term, two quarters' rent became due and in arrear ;' and though a particular day is specified, that carries it no further. The substantial allegation is that rent became due during the term. It is no answer to the allegation in the decla- ration, to say, that the rent did not become due on a particular day." And again : " Upon the old authori- ties, riens in arrere is no plea to a covenant for payment of rent on a par- ticular day." But in Bright v. Beard, 4 Q. B., the declaration, though in assumpsit, w'as in substance upon a de- mise, and alleged "that a large sum, to wit, 200/. of the rent aforesaid for, to wit, two years elapsed after the agree- ment, and before suit, became and was due, and still is in arrear and unpaid to plaintiff." Plea, " except as to the sum of 105/., parcel of the rent in the declaration mentioned, that no part of the said rent in the declaration, ex- cept the said 105/., parcel, &c., had become or was due or payable, accord- ing to the tenor and effect of the said agreement at any time before or at the commencement of this suit" (con- clusion to the country). Demurrer, assigning for causes, " that the plea is an informal plea of riens in arrere, insufficient in this action. That ad- mitting, as it does, the contract de- clared on, it is defective in not disclos- ing specifically under what circum- stances, and wherefore no part of the rent in the declaration, except 105/., had become or was due, &c. ; and whether in consequence of eviction or surrender, or of the term for payment not having elapsed ; that the plea 162 AGAllD V. KING, Cro. Eliz. 776. should have shown specifically to what part and proportion of the period which had elapsed after the making of the demise, the said sum of lO.iL, and the said plea thereto respectively apply," &c. The Court said, " If the declaration were for tise and occu- pation, there would he no difficulty ; you would say, as to all but so much, nan assumpsit." It may be observed, that it appears on the declaration, that there was a lease ; and the breach alleges the rent to have become due upon, and to have been in fact con- trary to the agreement, (i. e., terms of the lease), so that the count was in substance analogous to debt on a demise, being on the contract,notthe occujmtioti. The Court said: "If the defendant had said that, except as to 105/. accruing for the first year, he had paid it, and as to the residue non assumpsit, he would have failed as to the residue ; for he would have denied only the agreement." (See Collerdx. Skipton, ante, p. If)*).) " He was compelled to plead specially. His plea is, that no more than 105/. ever was due at all, which is not like a plea, as in Baden v. Flight, that the money was not due on a particular day. If the declaration had contained on the face of it a good claim for two years' rent, it might be necessary that the plea should specify to what part it was meant to apply, as if eviction were pleaded as to one part, and pay- ment to another." The plea of riens in arrere would ob- viously, however, have a very restricted application, did it put nothing more in issue than that, admitting the demise as declared upon, the rent had not, according to the mere terms of its re- servation, ever accrued due before suit. If according to those terms us declared upon, the rent never was due, by reason of some deductions agreed and authorized to be made out of the accruing rent, in each respective reservation, the deductions could clearly be proved under this plea, even in its modern form, which is analogous to that of nunquavi in- debitatus, under which, deductions, according to the contract itself, can be proved in reduction of the demand. {Collingbournev. Mantell, 5 M. & W. ; Turner v. Diaper, 2 M. & G.) And upon the same principle, the omission of the stipulation, as to such agreed or authorized deductions of the rent, would entail a fatal variance in proof. (See cases cited ante, p. 160.) If, as would generally be the case, these deductions were for the purpose of paying certain charges upon the land, the question would appear to arise, whether the defence may not also be pleaded, in a special form, or as a common plea of payment : it should seem, however, that the latter form, at all events, cannot be adopted, if there were a right of retainer out of the accruing rent; as payment implies that the rent has become due. Even anciently, however, when riens in arrere admitted evidence to show that the rent was not due at the time of suit, such defences were specially pleaded. Thus, 1 Fitzh. Abr. "Barre," pi. 263 (fol. 146), in debt for eight years' rent, the defendant pleaded that the plaintiff" granted by the lease, that if the lessee should be charged as against the lord j)aramount, or any other, for any rent, by the les- sor's default, that then the defendant should retain in his hands so much of the rent as he should be so charged. That the land was chargeable to the lord paramount for a rent of 6*. per annum, which was in arrear for eight years, and for which he brought assize AGARD V. KliSG, Cko. Eliz. 775. 163 against defendant, and recovered ; and so for that cause the defendant re- tained the said rent, &c. Replication, that for the rent which was in arrear to the lord paramount, the defendant had been allowed out of the rent for the first six years of the term ; and rejoinder that the six years' rent had been paid to the plaintiff, without this, that anything was allowed thereout for the rent due to the lord paramount, upon which issue was taken. It will be observed that in the above plea it was stated that the payment was of a charge upon the land, and that it was paid under compulsion : though the latter, as there appeared a 7-ight of retention, was not perhaps requisite. In Saps/ord v. Fletcher, 4 T. R. .511, one of the first modern cases in which such a plea appears, the plea stated that lessor held the pre- mises under A., &c., at a rent, &c. ; that 201. of the last-mentioned rent for four years, ending at the time when the rent sued for became due, was in ar- rear from the lessor to A., who there- upon (the lessor ha\dng made default in paying the same) demanded payment thereof from defendant, and threatened to distrain, &c. ; whereupon defendant paid the said 201. to it, et sic riens in arrere. Here it will be observed there was no allegation of a right of reten- tion, so that the defence rested entirely upon t\iQ payment : and the essence of the defence therefore was the payment upon compulsion : thus per Curiam, the ground-rent paid by the plaintiff was in discharge of a demand superior to the improved rent : it was the first charge from which the defendant was to exonerate himself, before he put any of the rent due from the plaintiff into his own pocket. It was paid to par- ties who had the power to enforce the payment, and it was therefore a com- pulsory payment. So per Curiam, Taylor v. Zamira, 6 Taunt. 528, " the liability to the payment would have been no defence." "With respect to the form of pleading, it is material to ob- serve that Btdler, J. says, " I consider the case as a lease at 50/., out of which 51. per annum was to be paid to the ground landlord ; and therefore pay- ment of that ground-rent is a payment of so much to the defendant, and may be pleaded in bar." (Et vide Taylor v. Zamira, 6 Ta. 529 ; Clennell v. Read, 7 ib. 50 ; Andrew v. Hancock, 1 B. & B. ; Byer v, Bowley, 2 Bi. ; Carter v. Carter, 5 Bi. ; Pope v. Biggs, 9 B. & C. ; Johnson v. Jones, 9 A. & E.) And as the payment appeared by the plea to have been made after the rent sued for became due, (as in Taylor v. Zamira, 6 Ta.) it could not be demur- rable, as amounting to riens in arrere, even before the new rules, {Paramore v. Johnson, Raymond :) and a fortiori, at the present period, when such a defence could not be proved under riens in arrere. But neither in Sapsford v. Fletcher nor Taylor v. Zamira does it appear whether the plea concluded to the country, and the demurrer in each case was general. In Sturges v. Farrington, 4 Taunt. 6 15, a similar plea was pleaded, when the replication tra- versed that the ground-rent was due from the plaintiff to the original land- lord. So in Taylor v. Zamira, 6 Taunt, where a similar plea showed the land was liable to the charge in respect to which the payment was made — it was held good. In Clennell v. Bead, 7 Taunt. 50, the payment was for pro- perty tax, and was made before the rent sued for became due ; the Court therefore held that a special plea (stating that fact) and riens in arrere M 2 164. AGARD v. KING, Cro. Eliz. 775. were botli supported ; and it is clear to deduct conditional upon actual ^^ay- tliat in such a case the latter plea, even ment, payment would not be a neces- iu its present restricted form, would sarily ])recedent to the i-i^ht to retahi, equally have been supported : semble, by reason of the statutable liability indeed, that it is the proper plea in which would operate as substantially such case : and that even the special reducing the amount of the rent ; not plea, with the " et sic I'iens in arrere" as a payment of part of it ; as in the concluding, as in that case it did, with a case of ground-rent. {SajJs/ordv.Flet- vo'ijication — might have been speci- cher.) "Where hoAvever payment is an ally demurred to as argumentatively essential preliminary to the right to amounting to riens in arrere. deduct, and such payment is even not With respect to all cases of deduc- made imtil after the next reservation of tions on account of taxes or rates pay- rent is due, it appears riens in arrere able by the tenant, but chargeable upon is not the proper plea ; for the ivhole the landlord, an important distinction rent was once due, and a common plea presents itself : that as the lessee is of payment, at all events, appears in- bound to pay, aj^art from the pressure applicable ; though where the payment of any process upon him, the plea need was before the accrual of the rent for not allege an actual demand or threat the reservation next after the tax of distress ; but it is sufficient to show became payable, it seems that riens in the liability by reference to the public arrere as to the part paid is the proper statute imposing it in the first instance plea ; as in such case that part never upon him : but then on the other hand became due at all. This will be quite as the tenant has a right to deduct consistent with Bramston v. Robins, 4 the payment out of the next re- Bi., and Waller v. Andrews, 3 M. & servation of rent — if he pay to the W, 314, where it is said that such whole of such next reservation, to payments of taxes may be pleaded as permit him to make the deduction payment of so much of the rent ; for from any subsequent reservation would in neither of those cases does it appear be to allow him to recover a voluntary whether the taxes were paid before or payment : therefore, a special plea will after the accrual of the reservations of be demurrable if it do not apply to the rent next after such taxes respectively next reservation : and riens in arrere became due : and though in the latter will fail if that do not appear in proof, case it was said, per Parke, B. : " On {Stubbs V. Parsons, 3 B. & Aid.; each half-year's settlement of the rent Andrews v. Hancock, 1 B, & B. due the landlord's rate, ty/«V/i A«/e title, analogous to that of a ported by preceding authorities. But disseissor. Even assuming,however, that the Court in that case also decided that he is strictly at sufferance, such a plea the notice and demand vested in the would be demurrable if the declaration mortgagee the right to the rent then ac- disclosed that the lessee had entered, cruing, or (if not paid) already accrued, or that the lease was by indenture ; or according to the reservations in the ori- wouldbe defeated by a replication dis- ginal lease. The decision on this point, closing that fact, {ante, p. 147)- On so far as it respects the rent ac- this principle a plea under thos* cir- cruing, may not be material as to the cumstances was in Alchorne v. Gomme, defence now adverted to (because that 2 B. 54, held bad, it appearing on the defence would be completed by dis- AGAUD V. KING. Ciio. Ei.iz. 775. 179 closing a threat of entry, whether or not such rent were paid over to the mortgagee), but the question as to the rent accruing is intimately associated in this respect with that as to the rent accrued, at the time of the demand ; because if the demand could confer upon the mortgagee no right to the rent accruing, a fortiori, it could con- fer no such right as to the rent already accrued : and it is obvious that as to the latter, unless the lessee were bound to pay to the mortgagee, he would have no defence against his lessor the mort- gagor. Now the Court distinguished Moss V. Gallimore, Doug. 278, where it was held that notice gave the mort- gagee the right to receive the rent al- ready accrued (but not paid over), as well as that which was growing due : for there the lease was j)rior to the mortgage, so that the mortgagee was assignee of the reversion ; and the notice was only necessary by the statute to prevent the lessee from being preju- diced by paying her rent twice over. And the Court also recognized Keech V. Hull, Doug. 22, where it was held that the mortgagor was substantially tenant at will in its strict sense, and had therefore a defeasible title ; which according to authorities and analogies already alluded to is not determined tiW actual or constructive entry (ante, p. 1/6). Yet the Court appear wholly to have overlooked the distinction between a transfer of the i'eversion to which the rent is incident (i. e. a transfer after the lease hy xohich the rent is reserved), and a transfer of the estate before the lease; out of which estate therefore the lease could not have been made except by the assignee himself; so that the assignee could not possibly have the reversion to which the rent reserved on that lease must he incident — that re- version being in the mortgagor — \\\\- less indeed the lessee had acquired an estate by disseisin {ante, p. 177) ; and in neither case could there be any pri- vity between the lessee and the mort- gagee, to found an action of debt for rent; for, as we have seen, the mort- gagee if he declared as assignee of the reversion, would have to state a lease prior to the assignment to him ; and if he declared as lessor, must be defeated upon the evidence, unless the lessee understood that the mortgagor demised as agent to the mortgagee ; in which case the defence of the lessee at the suit of the mortgagor, would arise on non est factum, or non dimiset. No allusion, however, was made in the argument to the distinction between a claim for rent and a claim for mesne profits. It was said by the Court that after an action of ejectment " the ac- cruing rents, being in the nature of de- mesne profits, might be recovered by the mortsagree from the day when he gave notice of the mortgage to the tenant ;" and it is upon this that they found the decision that he was entitled to receive them without ejectment. But in the very statement of the pro- position there is to be observed an in- consistency; for a person cannot bring ejectment and claim rent for one and the same period. If again the mort- gagee had the right to recover, he must have a remedy to recover the rents ; and it is difficult to conceive what that remedy could be: debt on a demise clearly would not lie, nor distress ; both the one and the other requiring that there should have been a demise hy him It is to be remarked that Parke, J. rather inclined to decide the case on its assumed resemblance to Sapsford V. Fletcher and Taylor v. Zamira, (ante, Y>- 163,) "where there was a N 2 180 AGARD V. KING, Ciio. Euz. 775. paymeut by compulsion;" but he gagor's right to receive the rents rested the compulsion upon the as- already accrued. Thus, in Partington sumption that the mortgagee could v. Woodcock, 6 A. & E., this dis- have recovered the rents (as to which tinction is clearly drawn ; for per Pat- jjii^z-e, for reasons already referred to,) teson, J., '' In Pojje y. Bit/c/s there and no allusion was made to that might be a new tenancy created, but which was (as we have seen) of the I do not see how it could be said that essence of the defence in that case ; the old rent continued," (i.e. after the m. the fact that the payment was of a notice.) " And when it is said in that charffe on the land; which gave a rit/ht case, per Baijleij, J,, "the mortgagee, of distress. In Boodle v. Camphell, by giving notice of the mortgage to 7 M. & G., Tindall, C. J. indicated his the tenant, may thereby make him his consciousness of the necessity for re- tenant and entitle himself to receive sorting, if possible, to the principle the rents, that must mean under a of those cases to support the decision, new tenancy." IwPartinc/tonx. Wood- by observing, " In Pope v. Biggs the coch, the defence raised in Pojie v. principal at least was a charge upon Biggs, so far as it respected the rent the land, and it might be considered growing due at the time of notice, was that the mortgagor had appointed the presented, (as under the new rules it mortgagee his agent to receive the must be in debt for rent,) in the form rent," on which, however, the learned of a special plea, which stated "that reporter justly remarks, "The judg- before the making of the demise," &c. ment in Poj)e v. Biggs appears to have (statement that jdaintiff was insolvent, proceededupon less plausible grounds," and that A. had been appointed his (see 4 Mann. & Ryl. 1 93(«).) The case assignee) "and that afterwards and after too has been impeached in subsequent the making of the demise (jdaintiff decisions, though of these none were having been permitted by his as- cited in Boodle v. Campbell. Thus, signee to remain in possession of the in Rogers v. Humphreys, A A. & E., it premises and to demise them to was said per Curiam, "If there be a defendant, as in the declaration al- lease prior to the mortgage, the mort- leged :") — the preceding words, it will gagee's remedy is on the lease as as- be observed, obviated the objection ap- signee of the reversion: but if the plyingto the pleain ^/c^o?-??e v.GowiWie, lease be subsequent to the mortgage, — that of amounting argumenta- he cannot distrain on the lessee, nor tively to 7iil habuit, — but did not dis- hring any action for the rent .-" which, tinctly disclose that the demise was it will be observed, altogether destroys made, and accepted as made, on behalf the only ground on which the decision of the assignee : — " and before any part in Pope V. Biggs, as to the right to of the said rent became due, &c., de- the rents, has ever been supported ; fendant received notice from the as- a decision, it is to be observed, pro- signee to pay to him, as such assignee, ceeding entirely on the fact of notice and all rent that would accrue and become demand, not upon anything amounting due from defendant, for and in respect to an adoption of the old lease as the of the said premises and under the said terms of a new demise, necessarily demise in the declaration mentioned." involving, as that would, the mort- (Upon this allegation it was observed. AGARD V. KING, Cro. Eliz. 775. 181 per Patteson, J., " If the demise were made by the insolvent in his OAvn name, how would the assignee come in as landlord, except by puttinc/ mi end to the demise and commencing a new tenancy? The rent claimed by the assignee could not be rent under the said demise") "That by the said notice defendant was and still is liable to pay the assignee, as well the rent in the declaration demanded, as all other the rent so reserved by the said demise, as the same should become payable, the reversion expectant on the determination of the said demise not being now vested in the plaintiff, and his right to receive the said rent being by reason of the said notice wholly ended and determined." The plea illustrated what has already been in- timated — that as to this species of defence — as to rent growing due at the time of notice, it is not requisite to show that it has been paid to the party claiming it, {ante, ^.179). There- fore much that was dropped by the different members of the Court, rather applied to the principle of the de- fence presented in Pope v. Biggs, respecting its application (as in the case of Johnson v. Jones, j^ost,) to rent accrued due at the time of the notice. And as the discussion was rather desultory, and no definitive de- cision was pronounced (leave having been eventually obtained to amend) it is difficult to collect the precise points on which the plea was deemed defective, though it seems clear they were only formal points ; for the opinion of the Court appeared to be, as expressed per Littledale, J., 'that omitting the allegation in pa- rentheses, the plea showed eviction by notice from a party holding elder title," (thus re-affirming the principle of Hill V. Saunders, ante, 177,) and with respect to that allegation, it has already been remarked that it disposed of the demurrer, in so far as it as- signed for causes " that the plea was double, as stating an eviction by plain- tiff's assignee, and also attempting to deny plaintiff's title to the premises ^ It was observed, per Denman, C. J., " It is not stated that there was any stipulation that the assignee should have the power of determining the tenancy to lessor ;" an observation, however, answered, it is apprehended, by the remarks of Patteson, J., and Littledale, J., as to the assignee having an elder title paratnoiint to the lease. There can be no doubt, how- ever, that the particular form of the allegation in parentheses, as to the demise having been by assignee's per- mission created all the difficulty : thus it was observed, per Denman, C. J., " To the facts in Pope v. Biggs, there must be here added a j)ermission to demise by the party standing in the situation of mortgagee ;" and if the plea had simply stated that the lessor, at the time of the demise, was in possession with the assent of the as- signee, or as, perhaps, might safely have been alleged, that he was tenant at will to the assignee, the plea would have shown in the lessor sufficient title to demise, and would have been as correct in form as the Court evi- dently deemed it in substance : sed qucere, if this particular defect (though only rent is concerned) was detected by the special demurrer ? In subsequent cases the question of laio has been clearly elucidated and de- cided adversely to Popie v. Briggs, so far as respects the right of the mort- gagee or assignee to the rent accrued before notice. In IVaddilove v. Bar- 182 AGARD V. KING, Cro. Eliz. 775. nett, 2 B. N. C, it was held tliat he thereby acquired a right to recover for any bygone period (for which the rent had not been paid) in use and occupa- tion (which, it will be observed, is the exact opposite of rent, as the remunera- tion for use and occupation is supposed to accrue de die in diem. Packer v. Gibbins, 3 Q. B.) ; and though the right of the mortgagee is there still alluded to as a right to recover rent, the point could not of course be raised in an action for use and occupation. And it is to be observed that often in the reports the phrase rent is, (doubt- less with accidental and unconscious in- accuracy,) adopted, when, from the con- text, it is obvious a right to recover in use and occupation, or trespass for mesne profits, is intended : see, for instance, remarks per Littledale, J. Ibbs v. Richardson, 9 A. & E. 853. And with respect to the particular class of cases here referred to, the distinction was clearly drawn in Evans v. Elliott, 9 A. & E., where Lord Denman, J., thus states the facts and the grounds of the decision: — "The mortgagee gave notice to the tenant (on a lease granted by mortgage after the mortgage) to pay him the rent, and distrained upon his refusal to do so. But by the mere notice the mortgagee cannot cause the tenant forthwith to hold of himself. The tenant's attornment " (^. e. assent) " is at least essential to create the rela- tion of landlord and tenant, and that cannot set up the mortgagee's title brj relation," so as to give him a right even to the rent yrowiny due, even for the then current period of reservation. It is further to be observed that Lord Denman intimated that the rest of the Court agreed " that the mortgagee mav always treat both the mortgagor and all who claim under him as tres- passers, and that for this reason the mortgagor's lessee cannot become the tenant of the mortgagee" (i. e. until a virtual re-demise) ; and his Lordship added, "The proposition, generally speaking, is certainly not to be ques- tioned ;" but it is apprehended that, with reference not less to the earlier authorities than to the most ordinary circumstances of the case, it is impos- sible not to acquiesce in the further observations, "that the proposition can- not be adopted as universal, and that the mortgagee may so bind himself by his own conduct as to be precluded from treating the mortgagor's lessee as trespasser" (an opinion in support of which Lord Denman cited Doe d. Whittaker v. Hales, / B., in preference to Doe d. Rogers v. Cadwallader, 2 B. & Ad.) ; but when it is added "that a person would be warranted in inferring a recognition of the tenant's right to hold from the circumstance of the mortgagee's knowingly permitting the mortgagee to continue the apparent owner of the premises," this must not be construed as importing that the mortgagor's lease would be valid as respected the mortgagee, or that the tenant's liability thereon would be by mere notice transferred to the mort- gagee (for that would be obviously in- consistent \y\i\\ what had been pre- viously decided by the same judges), but that the mortgagee's tacit acqui- escence in the mortgagor's possession would constitute him (as already has been intimated, ante, p. 1 78) tenant at will, which must be a valid though a defeasible title to demise for years {ante, p. 1-19). It will be observed, it is altogether a sc])arate question how far, by remaining in possession after the notice, the tenant may not be con- sidered liable to the mortgagee as upon AGARD V. KING, Cro. Euz. 775. 183 a new demise, arising by the subsequent occupation, on the terms of the old lease thus tacitly adopted. {Brow7i v. Story, 1 M. & G.) Now in John- son V. Jones, 9 A. & E., the de- fence presented in Pope v. Biffffs was pleaded only as to rent which accrued before the notice, the case being in that respect precisely the opposite to that of Pai'tington v. Woodcock. The prior pleadings disclosed, as in Al- ehorne v. Gomme, that the lessee had occupied under the lessor, but the plea showed that the lessor was at the time of the demise mortgagor in liossession, and then added, " that he had no other estate or interest in the premises than as aforesaid ;" a mode of averment avoiding, it will be observed, the fatal fault which attached to the plea in Alchorne v. Gomme. The plea, it is also to be noticed, stated that the notice by the mortgagee was after the rent (pleaded to) had accrued due, and therefore stated payment thereof to him, which would not have been neces- sary had the notice been before the rent accrued, as then the plea would have disclosed constructive eviction by title paramount : for it stated (as in either case would have been essential, for reasons already referred to) that the mortgagee demanded and was about to compel payment of the rent. The prior pleadings in Johnson v. Jones dis- closed the estoppel, not merely by oc- cupation but by indenture i and in a note to Boodle v. Cambell, 7 M. & G. 392, the learned reporters observe, " The averment that before the lease the lessor had mortgaged in fee, amounted to an averment that at the time of the demise the lessor had no legal estate — i. e. no estate on the pre- mises :" (this, it is conceived, for rea- sons already referred to, p. 177, and p. 182, is not so, where, as in both the cases last cited, the plea also dis- closes that the lessor, at the time of the demise, was mortgagor in posses- sion). "But if the demise were by indenture, the demise itself created a legal estate in fee by estoppel as be- tween the lessor and lessee" (even assuming this not to be too strong a de- finition of the effect of an estoppel, it is clear, from all the authorities, Parker V. Manning, 7 T. R, ; Blake v. Foster, 8 T. R.,) that the estoppel by in- denture, like that by occupation, CI arid ge v. Mackenzie, 4 M. & G. ; does not preclude the lessee from showing his lessor's estate deter- mined). " The precedent mortgage to be a charge upon the new fee by estoppel gained by the demise by indenture must be considered as a charge created by a stranger, who afterwards acquired the fee; that, how- ever, was not the character of the de- fence set up in Johnson v. Jones." Here, it is apprehended, the distinc- tion was overlooked between a defeasi- ble and a determined title ; and that, at all events, as between lessor and lessee, the title of the lessor was de- feasible, because the estate of the les- see was clearly so (since, as we have seen, the lessee could not be liable to the lessor's assignee, nor could the latter acquire an absolute and perfect estate until the lessee had notice to pay to him) ; and in this point of view the estoppel could not apply, because, as between lessor and lessee, the plea dis- closed no detei'mination of the lessor's estate until after the lease, and thus confessed " an interest to have passed by it." These observations apply equally to Boodle V. Cambell, 7 M. & G., where the plea was similar to that in John- 1S4 AGARD V. KING, Cuo. Euz. 775. son V. Jones, except that the assign- those of Pope v. Biggs, and Jo/inso?i ment of the lease was not by way of v. Jones ; which, it is conceived, were mortgage, (which, however, perhaps consistent with Achorne v. Gomme, and made no difference, as it disclosed that sustainable upon principle. The true the plaintiff remained in jwssession till ground of the decision however in the term of the lease,) and that the Boodle v. CamhelL where the plea assignment was only of parcel of the was held bad, is to be found in the fact premises. The plea was pleaded to a that it chsclosed that the rent became certain sum, parcel of the rent, and due before the notice from the oioner of averred to be a proportionate parcel the fee. The Court distinguished the thereof, with respect to the portion of case from those of Pope v. Biggs, and the premises which had been assigned, Johnson x. Jones, by remarking, "that in It does not appear that there was any those cases (as in Sapsford v. Fletcher, ground of demurrer, for that the plea and Taylor v. Zamira,) there was a being pleaded to parcel, showed an charge upon the land •" from which it answer to the whole : that however, it followed upon the principles already is apprehended, would have been (apart illustrated by such cases as Blake v. from the ground on which the Court Foster, and Hill v, Saunders, (none of decided) a valid ground of demurrer ; which were referred to in Boodle v. for, assuming the objection as to the Camhell,) that though in such cases estoppel to be answered by the argu- entry, or that which is equivalent to ments already adduced— the principle entry, on the part of the person en- would, it is apprehended, apply — that titled to possession — ipso facto deter- either the original absence of title as mines the estate both of lessor and to part of the premises, or eviction lessee, it cannot give him any right to from part by title paramount to, but the rents already received — a right arising from the act of lessor, (and which even the re-entry of a disseissee therefore not by " title paramount," in — which vests a fee by relation — its proper sense,) — is a defence as to does not confer as against the tenant, all. {Nealey. Mackenzie, IM, &W. ; however it may as against the dis- Ascough' s C2i%&, 9 Coka ; Butler x.Sivin- scissor: so that there was no compul- nerton. Palmer.) And even assuming sion u])on the tenant as to the rents that the rent was apportionable— it is accrued, though there was as to the submitted that it was a ground, rather rents accruing, because, as to the latter, for overruling, than allowing, the de- he was liable to ejectment after the murrer — that, up)on demurrer, the ap- notice, whereas as to the former, he portionment could not take place : be- could not be liable to any one if not to cause the plaintiff might have taken his lcssor,«/^;'c,p. l/G. These principles issue, on the allegation that the parcel were further illustrated in the more re- pleaded to was a proportionate parcel, cent case of Selby v. Broicn, 9 Jur., in &e., when the jury could have made which the ])lca (in substance) alleged the apportionment. In either point of "that plaintiff held under a term, with view, therefore, the fact that the assign- provisofor hislessor'sre-cntryonbreach: ment had been only of parcel of the that the i»laintiff had committed such premises, does not differ the case (upon breach, before the averment of the rent the causes of demurrer assigned) from declared for ; and that after the accru- AGARD V. KING, Cuo. Eliz. 775. 185 ing of the rent the superior landlord entered \^for the purpose of determining the term from the commencement of the said space of one year," (the period, i. e. during which the rent declared for had accrued,] (these words were re- jected by the Court as repugnant or unintelhgiblc,) "and ejected and ex- pelled the defendant ;" and there was a special demurrer, assigning for causes (inter alia) " that if the plea intended to deny that defendant ever was liable to plaintiff, it amounted to 7iil hahuit ; and that if it admitted defendant ever so liable, it did not sufficiently show the determination of such liability : that if it was meant as a plea of evic- tion, it should have shown such eviction before the accrual of the rent ; and that if meant as riens in arrere, it should have shown how the rent had been discharged; that to amount to any defence it should have shown that de- fendant had been called upon to pay rent or mesne j)rofits to superior landlord.'' It will be perceived, that although it was incidentally 6h?,QX\QCi{perPatteson, J.) "that the plea showed a determina- tion of landlord's title before the rent ac- crued," that must be intended only of the lessor's absolute and original estate — not of the estate arising by estoppel, as between him and his lessee, as to which it w-as observed, {per Lord Den- man, J.) " the re-entry by superior landlords being the event on ivhich the defendant says their right accrued," (i. e. their right to the rents affenvards accruing,) " we ought to know at what time it took place ; if subsequently to the rent becoming due, it would be no defence : if not, it is stated in language I do not miderstand. If, in point of law, the re-entry must be considered as prior in point of time, it should be ^0 stated. And (j)er Patteson, J .,) "If it had been distinctly shown that the plaintiff's interest ceased before the beginning of the year," (i.e. the period durino; which the rent declared for accrued,) " it would amount to a denial that defendant held under him that year. But how is it shown plaintiff's interest was determined. The plea does not show how the eviction was effected. It is stated the re-entry loas after the rent accrued; and I know of no right to determine a lease arbitrarily by re-entry ; as from a day past, and the plaintiff's estate could only be determined by re- entry." The case of Boodle v. Cambell — the plea there having been only as to par- cel of the premises — illustrated a dis- tinction very important in point of pleading as well as in point of law; viz. that where the eviction is "by title paramount," properly so called, the rent is apportionable if the eviction be only as to parcel of the premises ; hence in such case, even though the lessor had nothing in the premises at the time of the lease, and another per- son had the possession or the right of entry — the defence could not be raised under nil habuit, because that plea would be to the lohole rent ; and the proof would only apply it to part ; although in any case but that of title paramount, in its proper sense (i. e. paramount — or j^rzo; — not merely to the title of the lessee but to that of the lessor — the sense in which the phrase is always employed in the ancient au- thorities, Comyn's Digest, title "Seig- niory ;" Bn-stard's case, 5 Coke, the plea of nil habuit would be supported by proof as to parcel of the premises, on the ground stated in the judgment of the Court of Error in Neale v. Mac- kenzie, 1 :M. & W. That the true test 186 AGARD v. KING, Cuo. Euz. 775. (at least in this respect) as to what is first lessee, evicted by the second, could properly, in its strict sense, eviction by not, it is conceived, (unless the second "title paramount," is, whether the entered at the command of the \essoY,) right of entry arose by act or default plead the eviction at the suit of the of the lessor, or by act of law, or of a lessor, as the second lessee would, while third party,was established in yi«coM/e but upon the particular facts of the case. Thus, Danvers, J., said, " If a man lease to me certain land for term of years, and after he is possessed by force of the lease, I make to him a new lease of the same land, then the first lease is determined, and he shall be adjudged on by force of the second ; for it is by way of agreement as if there had been a surrender of the first lease ; but so it is not here, for the second lease was before the first was executed, for the first had not com- menced, and when the feast of St. Michael arrived it would be in the election of the lessee, by which lease he would claim, but before that feast he would not be in possession by either lease. Prisot, J. : "Whether the de- fendant were in possession in fact or in law, it is all one ; for though before the feast of St. Michael's he was not so in possession that he could have ejectment, which requires possession in fact, yet he had such a possession that he could surrender his term ; for as he could grant his term to another, so he could surrender or extinguish it and take a new lease ; and by the taking of the second lease they were both agreed that the first should be determined, which amounts to a sur- render. If I make a lease to one as tenant at will, and afterwards lease the land to him for years, he shall be adjudged in by the second lease; and so here, for in such cases the first lease is determined by matter ex post facto, and the second lease is void : et ad- jornatur. But the reporter adds, " that the acceptance of a new lease is a sur- render of the former, vide 14 Henry 8, fol. 15 {Potkins case cited ante, 134.) And the principle is supported by Brewster v. Parrott, Cro. Eliz. 264 ; Hughes v. Rohotham, Cro. Eliz. 302 ; Ivesv. Sams, ib. 522 ; Harris \. fT^i7iff, Leonard, 242 ; Gibson v. Seares, Cro. Jac. l/G; Peto v. Pemherton, Cro. Car. 101; Ives' case, 5 Coke ; 2 Anderson, 51 ; Swain v. Holmes, Hobart. And so in Fuhnerston v. Stew- AGARD V. KING, Ciio. Euz. 775, 191 ard, Plowden, 1 06 ; where Bromley, C. J. and Port7nan, J. stated it as a " surrender b_y the course of the com- mon law," which by the learned re- porter (6 M. & G. G/a, note) is con- sidered as implying something dif- ferent from " the act and operation of law," ^. e. as importing a surrender in fact. But in Willis v. Whitewood, 1 Leon, 322, Anderson, J., having held that there could, for a particular reason, be no surrender in the case, added, " But yet, perhaps, the lease is determined by consequence and opera- tion of law. As if A. leaseth to B. for 100 years, and afterwards granteth the reversion to C. for two years, who leaseth to B. for two years, who ac- cepts the lease ; the same is not any surrender (i. e. in fact,) yet the first lease is determined ;^' which Periam, J. granted. AmA per Windham, i . : "If a lease be made to begin at Michaelmas, and before that time the lessor makes a new lease to the same lessee to begin presently, the same is not any sur- render," {i. e. in fact.) "yet I think the first lease is determined," which Anderson, J. granted, though Periam, J. doubted. So in Wilston v. Pinkney, 2 Ventris, 242, it is said, " a grant to him in reversion is not actually but consequentially, a surrender by opera- tion of law." This doctrine is affirmed in all the modern cases. {Davison d. Bromley V. Stanley, i^mr. 2210 ; Roe d. Berkelyy. York, 6 East.) So in Johnstone V, Huddlestone, 4 B. & C, it is said, per Bayley, J., "When a lessee during the term accepts a new lease from the lessor, as the second lease cannot be good unless there was a previous sur- render of the first, and as the lessee by accepting the second lease admits the ability of the lessor to demise the law, that the second lease may take effect, works a surrender of the first." This doctrine is distinctly enunciated, and almost in exactly the same words, per Tindall, J. Dodd v. Acklom, G M. & G. and ^)er Parke, B., in Lyon v. Reed, 13 M. & W. 30G. In the learned judgment in the latter case, the principle is thus incidentally eluci- dated : " All the old cases, as to sur- render by operation of law, depend upon the principle that where an act is done by or to the owner of a particular estate, the validity of which he is estopped from disputing, and which could not have been done if the par- ticular estate continued to exist, the law says the act is a surrender. In such cases, it will be observed, there is no question of intention. The sur- render is not the result of intention. It takes place independently, and even in spite of intention. Thus, in the case of a lessee taking a second lease from the lessor, it would not at all alter the case to show that there was no inten- tion to surrender the particular estate, or even that there was an express intention to keep it unsurrendered. In all these cases the surrender would be the act of the law, and would prevail in spite of the intention of the parties. But in all these cases the owner of the particular estate, by granting or ac- cepting an estate or interest is a. party to the act which operates as surrender. That he agrees to an act done by the reversioner is insufficient. The cir- cumstance of a lessee giving up his lease (^. e. the document itself,) might afford strong evidence of a surrender in fact, but could not amount to a surrender at law, which does not de- pend on intention at all." In modern cases the principle has been exemplified more frequently with respect to the substitution of one tenant 192 AGARD V. KING, Ciio. Eliz. 775. fo)' another. In 21 Hen. VII. fol. 8, it is said, pci- Frowike, C. J., "If a termor be upon the land and in pos- session, my feoffment Avill not ojierate, but I can oust him, and then is my feoffment legal" (for then the lessor would re-acquire the seisin, 21 Hen. VI., fol. 10, cited ante); "and if my termor acjree that I shall make a fee- ojfment to a stranger, that is a sur- render." In Bro. Abr. "Surrender," the latter sentence is quoted dissevered from the context, and a doubt is added, whether it be law ; but, taken in con- nection with the circumstances of the case and the illustration previously ad- duced, the dictum obviously imports that the assent of the lessor to the feoffment v.ould operate as a surrender, 'provided the feoffment v:ere made; and even assuming that in such a case, as in Swift v. Heath, Carthew. 110, (where it was held that the consent of the tenant for life to the remainder- man, making a feoffment to a stranger, did not amount to a surrender,) the feoffment were actually made, {et vide Vincr's Abr. "Surrender," F. 3 & 4,) it must be remembered that a feoff- ment woidd not necessarily be incon- sistent with the possession of the les- see, any more than would a transfer of the reversion. Per Choke, J., 33 Ilcn. VI. fol. 33, it is said, " If lessor alien to a stranger during the term, and de- liver seisin to him — although I neither give up possession of the term, nor am ousted, nor attorn, yet the feoffment is good — and if I am \mi out of posses- sion by the stranger, I shall have ejectment or trespass." {Et vide 40 lib. "Ass." pi. 16; 45 Ed. III. fol. 24; and Farrar v. Johnstone, Cro. Eliz. 28.5 ; sec also Comyn's Digest, title "Seisin;" and see the same distinction drawn in the cases on eviction, ante, p. 1/5.) So that the inference drawn {per Parke, B., Lyon v. Reed, 13 M. & W.) from these authorities, that the assent of the tenant to an act done by the reversioner is not sufficient to consti- tute a surrender, must be intended of an act not i7iconsistent tvith the continuance of the lessee's estate, so as not to constitute that estoj)pel in p)ais, upon which, in the learned judg- ment in that case, this species of sur- render is founded. The principle of the cases so clearly establishing that the acceptance of a new lease by the same tenant implies a surrender of the former term, applies equally to cases of the substitution of wider tenant, for and with the assent of the former ; for per llolroyd, J., in Tho- mas v. Cook, 2 B. t&: Aid. the princi- ple of both classes of cases is declared the same. That the principle of the defence in the one species of cases as in the other is a transfer of the estate by a re-demise, appears to result from the authorities, showing that accept- ance of rent from assignee of the lessee, discharges the latter in debt. {Walker s case, 4 Coke ; Thnrsby v. Plant, Williams' Saunders : ^)er ^wy- ley, B., Thomas v. Cook, 2 B. & Aid.) That, of a re-demise, the essence must be not entry but assent, although entry may in cases of substituted te- nancy, be usually the best evidence of assent — seems to follow from the prin- ciple previously elucidated with re- ference to entry upon a demise or assignment. (See ante, ]). 154.) In Jlorry v. Allen, Cro. Eliz. 173, it ap- peared that the original lessee and lessor agreed that the under lessee should have the land for a shorter term than that which had been granted to him — to which the under lessee agreed at a different ti7ne. And all AGAUD V. KING, Cro. Eriz. 775. 193 the Justices held that this could not of all parties." And though Bur- he a surrender— for words and acts rovyhs, J., speaks of the remedy between strangers can make no surren- against the new tenant for use and oc- der. In the report in Leonard, 303, cvpation, it would obviously be suffi- however, it is stated that the agree- cient if the lessors had acquired a re- ment expressly stipulated that there medy against him for rent, which they should be no surrender. And the only could not have acquired if he were not redson given for the decision, viz., the let into possession by them, or dis- absence of assent on the part of the tinctly received by them as their tenant ; lessee, obviously implies that with but they might, by a demise to him, such assent the surrender would have have acquired a remedy for rent alto- been valid. (And see per Parke, B., gether apart from actual entry ; and a Rex V. Banbury, 1 A. & E.) In the new demise — with the old tenant's modern cases, the necessity for the assent — is, according to the whole assent of all three parties is recog- current of authorities, (as already nized ; the only doubt or difference is shown,) as effectual as a surrender in as to whether a change of possession law — independently of actual entry by is actually essential. In Matthews v. the new tenant. It is submitted, that Sawell, 8 Taimt. (and 2 Moore), the throughout the cases on this subject plaintiffs, defendant's lessors, con- the distinction may not have been suf- tracted to sell their reversion in the ficiently adverted to, which was drawn premises to one, who thereupon pur- in Williams v. Bosanquet, and other chased from defendant the residue of cases cited ante, between entry, as his term, and put in a third party as necessary to constitute legal posses- tenant ; but the contract for the pur- sion, and entry as a mere evidence of chase of the fee ultimately went off, the acceptance of an estate ; and see, and the plaintiffs had demanded — per Prisot, J., 37 Hen. VI. fol. 8, as though it did not appear that they had to the distinction between posses- received — rent from the then tenant, sion in law and possession in fact ; The Court held, that when the con- and, per Curiam, TFollasfon v. Hake- tract for the sale of the fee was at an well, 3 M. & G., "Entry is only one end, " the parties stood as they did at mode of showing assent to an assign- first." It is very important to observe, ment." It appears to follow, from that the Court put their decision upon these principles, that as the new te- the ground that the plaintiffs had ac- nant may be liable for rent without quired no remedy against the new entry, so the old tenant may be dis- tenant, and distinctly intimated an charged without the entry of the new. opinion, that " if they had accepted a In Stone v. Whiting, 2 Stark. 235, substituted tenant'^ there would have Holroyd, J., remarked that an agree- been a surrender. Per Park, J. : ment that one should be substituted " It does not appear that the new for the lessee as tenant would consti- tenant was let into possession with tute a surrender in law ; but the evi- the consent of the plaintiffs ; and deuce did not satisfy the jury that the they did not acknowledge him as their plaintiff had assented to the supposed tenant." Pe?-D«Z/ff«, J.: "The tenancy substitution. l\\ Lyon y. Reed, \3 M. was not put an end to with the consent & W., this case was spoken of as the o 194 AGARD I'. KING, Cro. Euz. 775. first in which this doctrine was laid down, bnt Matheivs v. Sawell, and other of tlie principal cases on the subject, were not adverted to. In P/tipps V. Satlf/iorpe, 1 B. & Aid. 51, it a])peared that A. being tenant to the plaintiff, defendant applied to the plaintiff to become the tenant instead of A., and that upon the plaintiff's consenting defendant took the pre- mises, and agreed to stand in A.'s shoes. The Court held that plaintiff was entitled to recover. So in Thomas V. Coo/c, 2 B. & Aid., 119, plaintiff received rent from defendant's imdcr tenant, and declared that he would have nothing more to do with defend- ant, subsequently distraining upon the under tenant for rent. The jury found that plaintiff had, with the assent of defendant, accepted the under lessee as his tenant. Abbott, C. J., said this amounted to a valid surrender of de- fendant's interest in the premises, being a surrender by act and operation of law. It was said, j^erBaylei/, J., " The jury were quite right in presuming that the defendant had assented to the ac- ceptance of the third party as tenant to the plaintiff, for that assent was clearly to the defendant's benefit ;" which is animadverted upon jjer Parke, B., in Lyon v. Reed, as a reason so invalid as to impeach the decision ; but it is submitted that this dictum of a single Judge was purely upon the effect of the evidence, and is altogether distinct from the principle of law affirmed in the judgment, and which is thus stated per Holroyd, J. : — " If a lease be granted, and there be a sub- sequent demise of the premises by parol to the same person, that will amount to a surrender of the j)rior lease. The fact that defendant here assented to a second demise by the plaintiff to the third person amounts to a virtual surrender by act and ope- ration of law ;" a reasoning sup- ported, it is conceived, by the whole current of authorities, whatever opinion may be entertained as to its applica- bility to the particular case ; although it seems hardly possible to imagine more conclusive evidence of a surrender than there existed. The case last cited w^as recognized in Johnston v. Hvddlestone, 4 B. & C. ; Reeve v. Bird, 1 C. M. & R. ; Rex v. Banhiry, ] A. & E. ; Gore V. Wright, 8 A. & E. ; and Bodd v. Acklom, 6 M. & G. ; none of which were referred to in Lyon V. Reed, 13 M. & W. ; the only case in which the principle of the decision is at all impeached. In Doe d. Ilud- dlestone v. Johnstone, 1 M'Cl. & Y. 142, the evidence was, that the land- lord's agent agreed to accept a certain notice from defendant, and gave notice that the premises would be let by auction at the period when that notice would expire; at which auction one A. was declared tenant, but was never in possession, as defendant refused to leave. Alexander, C^.,%&\di: "There is not anything like a surrender by operation of law. The only facts which are alleged to have had that effect are, some previous conver- sation, and the attendance and bidding of the tenant at the auction." But it is apprehended, that in this statement of the evidence the most important point is entirely overlooked, viz., as to the effect of the landlord's assionint/ the right to re-let the premises ; which surely must have in legal operation an effect analogous to that which as against the tcuant is involved in his accepting a new lease, i. e., as showing that the lessor had a right to re-de- mise, which he could not have while AGARD V. KING, Cko. Eliz. 775. 19( the first lease was in existence. (See per Bayley J., Johnstone v. Huddle- stone ; per Parke, B., Lyon v. Reed, cited post.) But then the effect of this must altogether depend upon the period from which the landlord as- sumes the right to re-let the premises ; and upon that point the report is as much a blank as the Chief Baron's statement of the result of the evi- dence ; for it is only stated when, not from when the premises were offered to be re-let. And the short sentence already quoted from the judgment of the Chief Baron, comprises all that fell from any of the Judges upon the effect of the evidence as showing a surrender by operation of law, by reason of the acceptance of another tenant; for with the exceptions here adverted to, the observations of the other Judges refer entirely to the effect of the evidence with respect to a re- gular notice to quit (which, it will be observed, raises a totally different point, in relation to which the case will be subsequently considered) ; and a question obviously altogether irrele- vant to that of a surrender, seeing that a notice determines a tenancy by effluxion of time ; while a surrender consists in drowning or destroying it during or before its regular deter- mination. Moreover, " the real ground of the decision is, that the agreement to put an end to the tenancy was never carried out, and the new tenant never substituted.''' {Per Coltman, J., and Tindal, C. J., 6 M. & G. G74, 682.) These principles are now more fre- quently exemplified in cases of a re- linquishment of the j)ossession to the landlord, which partakes, perhaps, more of the character of a surrender in fact than in law. The subject receives some illustration even in an- cient cases. Thus in Lib. Ass. 8, fol. 20, it appeared that the tenant waived the land, and removed her goods, for that the rent was in arrear, and that the lessor entered without the assent of the tenant, and retained possession. And it was held, that this did not amount to a surrender, but to an eviction, for which the tenant was entitled to recover damages. In Lib. Ass. 40, pi. 16, it was pleaded, that the lessee and lessor came to the house, and that then by the assent and accord of the former the lessor en- tered ; and that it was agreed between them that the lessor should have the lands, and that by force of the surren- der the lessor entered, &c, Belknap demurred ; for that a surrender could not be without express words, and no such matter was shown, sed non alloca- tur ; upon which he replied, that lessee did not surrender — and issue was taken thereon. So in Sleigh v, Bateman, Cro. Eliz, 488, the Court ruled that when the lessee agrees with the lessor that he shall have the land again, it is a good surrender of a lease for years. So in Penruddock v. New- man, 1 Leo. 280, per Wray, C. J., where tenant says to the reversioner, that his will is that he enter, it is a good surrender. And in Natchbidl v. Porter, 2 Vern. 1 1 2, where lessee for years having agreed with the landlord to surrender his lease, delivered up his key, which the lessor ac- cepted, but afterwards refused to sur- render, it was decreed that the lessor was discharged from his rent. The principle to be deduced from these early authorities is not de- parted from in more modern cases. In Mollett v. Brayne, 2 Campb. N. P. C. 103, premises having been o 2 !*)() AGAIU) V. KING, Cko. Et.iz. 775. taken at a yearly rent, during the year an alfercationarose between the parties, in the cdurse of which the defendant threatening to leave the premises, the plaintiff said, " You may leave when you please;" an expression which, un- der all the circumstances, might well have been, and probably was construed as meaning (as suggested per Maiile, J., 6 M. & G. 670, and 2)er Tindal, J., ib. 679), " whether you leave or not you are liable to me for the rent; so that it is indifferent to me whether you stay :" which of course would import the very reverse of an acceptance of a surrender: and therefore, the opinion of Lord Ellenborough, " that the tenancy was not determined merely by the land- lord giving the tenant a parol licence to quit and the tenant quitting accord- ingly," was obiter ; and he expressed the real ground of the decision when he said "Here nothing has been proved which can be considered as a surrender by operation of law :" upon which ground in all probability his ruling was upheld by the Court. (So per Hol- royd, J., 2 B. & Aid., 121.) A simi- lar explanation appears to attach to the subsequent case of Stone v. Whi- ting, 2 Starkie, 3/1, in which it ap- peared that dining a quarrel it was agreed between the parties that the tenancy should be put an end to, the plaintiff agreeing to receive rent pro raid : for though the defendant left the premises when he tendered the pro- portional part of the rent, the plaintiff refused it ; and as Lord Ellenborough said that the case could not be distin- guished from that previously cited, it seems probable that the reason of the decision was the absence of evidence of a deliberate and settled agreement upon the part of the lessor. This con- struction of the cases thus cited is con- firmed by the expressions adopted, and the interpretation apparently affixed to the former of them in Whitehead v. Clifford, .') Taunt. 5 18, where defendant ])roved a parol agreement that plaintiff would give up his claim to the rent on the defendant's giving up immediate possession in the middle of the quarter; and that accordingly defendant had given up the key, which plaintiff had accepted, and that defendant was never afterwards in possession of the pre- mises. Mansfield, C. J., reserved the question, and per Gibbs, C. J. : " In Mallet v. Brayne both parties did not act upon the notice, but the tenant only. Here the plaintiff him- self takes possession of the house, and makes the profit of the premises. The case cited is very different from this : we do not throw out any opi- nion against it ; but when the like circumstances arise it will be proper to consider them." So in Grim- man V. Legge, 8 B. & C, it is said of the case first cited : " There the plaintiff did not accept possession of the premises. A parol hcence to quit will not of itself operate as a sur- render : but where the tenant gives up possession in pursuance of such licence — and the landlord accepts it — there is a surrender by operation of law." In Griinman v. Legge, which was con- firmed in Bodd V. AcJdom (citcdi j)ost), it is very obseiTable that the facts were exactly those of Mollet v. Brayne, with the important exception that the landlord, as in Whitehead v. Clifford, accepted the key, while in the case first cited the lessor refused it. In 6 M. & G. 683, the learned reporters, in one of their vahialjle notes, remark, " Grimtnan v. Legge goes further than the cases in which the granting of a new lease with the assent of the former AGAllD V. KING, Cuo. Eliz. 775. 197 lessee has been held to operate as a surrender : the act relied on is the very act of surrender and acceptance which the statute requires to be in writing:" but it is submitted that the distinction is here overlooked that in the class of cases here adverted to the surrender is or might be established solely by evidence of acts, without any reference to words: for that the act on the part of the lessee of delivering up possession, and the act on the part of the lessor of accepting possession {i. e., his tacit acquiescence, or his resuming pos- session, or his acceptance of the key, &c.) might well be left to the jury as evidence — not of an intention to sur- render, but of a consent on the part of the lessee to relinquish, and on the part of the lessor to receive, the estate of the former in the premises — which would, according to all the earlier authorities, amount to a surrender in law. Now it is conceived that the statute applies not at all to prevent acts being evidence of a surrender, but only to prevent it from being proved iy word of mouth; whether such a state of facts can be considered as showing a surrender by operation of law, or merely as proving by a such a surrender in fact — is a question of more nicety — upon which the learned reporters appear to entertain an opi- nion adverse to the case in which their note occurs (and which is subsequently adverted to) : but in either case the statute does not apply, for there is no parol surrender. It will be proper here to notice one or two recent cases illustrating the man- ner in which the principles of the defence which has thus been considered are ex- emplified in the form of pleading. In Gore V. Wright, 8 A. & E., the defence was pleaded, but in a form so argu- mentative as to render the case much less decisive than it otherwise would have been. The declaration was in debt on a demise at a quarterly rent, and demanded G3/. for two years and a quarter's rent, due 25th March, 1837. The plea (as to which it is to be observed, that it is doubtful whether it might not be demurrable for dupli- city, or for argumentativeness) stated : " That more than two years and a quarter before that day, it was agreed between plaintiff and defendant, that defendant should quit and deliver up to plaintiff the premises before the 24th Dec. 1834, and that in consi- deration thereof defendant should be discharged from all hability to pay any further rent, or any other compen- sation which would otherwise have become due after the said 24th Dec. That in pursuance of the said agree- ment, defendant, before the said 24th Dec, and before any of the rent de- manded in the declaration became due, did deliver up possession of the pre- mises to plaintiff, who then accepted such possession thereof in discharge of the liability of defendant to pay any more or further rent or compensa- tion for the premises. And that plain- tiff then entered into the said premises and thenceforth hitherto hath remained and continued in possession thereof. And defendant hath not at any time since he so quitted and gave up pos- session of the premises held, used, or enjoyed the same, and the said tenancy and defendant's said interest were thereby surrendered and extinguished^ Verification. Replication, " That de- fendant did not in pursuance of the said agreement in the plea mentioned quit and deliver up possession of the said premises to plaintiff, nor did plain- tiff accept such possession thereof in 198 AGARD V. KING, Cro. Eliz. 775. discharge of the habiUty of defeiulant to pay any more or further rent or compensation for the said messuage, &c., nor did j)haintiff then enter, &c. modo et forma.'" Judgment after ver- dict for defendant was moved for plain- titf non obstante ; but {per Curiam) "The plea does not set up a surrender as the defence, but simply a contract by the landlord to excuse payment of rent in consideration of defendant's giving up possession; which possession has actually been given up by defen- dant and accepted by plaintiff." In the course of the argument, however, it was observed, per Coleridge, J., " Suppose the term to be in existence, may not the landlord agree that if the tenant will go out without insisting on the remainder of the term he will not claim the rent. Then after such an agreement is executed there is an end to the difficulty " It is to be presumed that it was meant that then a surrender by operation of law would arise, for Patteson, J., referred to and recognized Whitehead v. Clifford, and Gritnman V. Leyge; and it is difficult to conceive such an agreement executed without a surrender by operation of law arising ; for, perTindul, C. J. (Dodv. Acklom, 6 M. & G.), " A change of possession by consent of both parties amounts to a surrender by operation of law." "And, {per Cresswell, J.), the key being given up to (and taken by) the landlord with intent that he should resume posses- sion, amounts in law to a surrender." In the case last cited the decision was quite in accordance with the current of authorities, though, as the action was in use and occupation, the defence was not pleaded . The e\idence was that the tenant had delivered up, and that the landlord had received the key (which the Court said it must be presumed he retained, as the contrary was not shown) ; and the jury found a change of possession with the consent of both parties, — finding, it will be ob- served, wholly irrespective of any in- tention on the part of either that these acts should operate as a surrender, which it is conceived affords a test dis- tinsuishius; such a state of facts as showing a surrender hy operation of law, and not merely as proving by acts an agreement to surrender. Reverting again, however, to the question of pleading, it is apprehended that it would be preferable in such cases, ac- cording to the principle upheld in Thompson v. Leach, cited ante, and also with respect to eviction in Hunt v. Co2)e, Cowper, to plead simply that before the rent became due the defen- dant surrendered his estate, term, and interest to the plaintiff, thus pleading the facts according to their legal effect, instead of adopting the argumentative mode of allegation instanced in Gore V. Wright, and in a less degree in the more recent case of Turner v. Hardy, 9 M. & W., 770, where the plea stated (plaintiffs claiming the amount of a quarter's rent due from 25th March to Midsummer-day, 1841), "That it was, to wit, &c., agreed between plain- tiff", defendant, and one W., that the latter should hold and occupy the said premises as tenant thereof to the plain- tiff's from the said 25th March, 1841, and that defendant should be discharged from all liability to pay any rent ac- cruing subsequently to the said day. That defendant on that day delivered up possession of the premises to W., who held and occupied thence initil Midsummer-day following. And that plaintiff's accepted W. as their tenant and in discharge of the liability of the defendant to the said rent." De inju- AGARD V. KING, Cuo. Eliz. 775. 199 rid was replied, and tlie plea was not objected to in form, though it failed upon the evidence. It has already been remarked with respect both to pleas of eviction and surrender that it is preferable, instead of adopting an argumentative mode of stating the facts, to plead them ac- cording to their legal effect ; i. e. that " plaintiff evicted and expelled the de- fendant," or "that defendant surren- dered all his term, interest, and estate to the plaintiff. In cases in which it may appear doubtful whether the facts raise one defence or another, it is better to present them under different aspects in distinct pleas than to set them forth at length in one plea, which may thus be open to the objections of argumen- tativeness, duplicity, or ambiguity. This is especially illustrated with re- spect to defences partaking partly of the character of surrender and partly of eviction. In Lyon v. Reed, 13 M. & W., it is observed " that perhaps Thomas v. Cook, and others of the same description, might be supported upon the ground of the actual occupa- tion of the landlord's new tenants, which would have the effect of eviction by the landlord himself in super- seding the rent or compensation for use and occupation during the con- tinuance of that occupation ;" but it is conceived that the defence of evic- tion can never arise unless where the lessor enters wrongfully and where others enter rightfully by title de- rived from him (which must be title before the lease to defendant) or by title paramount both to the les- sor and lessee. {Fide ante.) The distinction in point of law, and tlie difficulty in point of pleading, are pre- sented in cases in which lessee under- lets to his lessor, (which per se would occasion no apportionment of the rent on the original lease {vide ante), and the lessor refuses to re-deliver posses- sion. Thus in Dunn v. Nuovo, 3 M. & G. 108, the declaration (in debt) was substantially on a demise at a weekly rent, for twelve months, from 25th Feb. and alleged that defendant entered and became possessed and con- tinued so, to wit, for fifty-two weeks, {i. e. from the day before-named to 24th Feb. 1840,) when a large sum, to wit, 163^. became and was due and was payable. The fourth and principal plea stated " as to so much of the rent as is claimed to have accrued due after 27th of July, 1839, that, to wit, on the said 25th Feb. 1839, the defendant entered, &c. and continued occupying under the agreement, to wit, for five months then next following, &c. that afterwards and before any further or other sum had become due or payable from the defendant in respect of the said rooms under the said agreement, the said, to wit, on 27th July, 1839, it was agreed between him and plain- tiff that defendant should deliver and plaintiff take immediate possession of the rooms, and hold possession thereof, to wit, for one month from the date of the fos^-mentioned agreement : and that in consideration of the defendant's delivering up the possession of the rooms to the plaintiff for the said period, the defendant should be dis- charged from all liability to pay any rent for or in respect of the rooms during the last-mentioned period. And it was then thereby also agreed between the plaintiff and the defendant, that after the expiration of the period specified in the (second) agreement the defendant should be at liberty tore-enter and retake possession of, and re-occupy the rooms under the agreement in 200 AGARD v. KING, Cro. Eliz. 775. the declaration mentioned. That in it is apprehended that the most fatal pnrsnance, &c. defendant did after- defect of the plea was not adverted to — wards, to wit, on day and year last and perhaps not detected by the demnr- aforesaid, deliver np possession to j)lain- rer — that it was pleaded both as to the tiff, &c. and did continue out of posses- period before and the period after the sion for one month thence following, expiration of the month during which &c. That the defendant, after the the lessor was to re-occupy, and during expiration of the month, to wit, on which there was a re-demise to him, 27th August, 1839, in further pur- by reason of which, according to the suance of the (second) agreement, re- authorities already alluded to ante, quested the plaintiff to restore posses- there could have been no apportion- sion to him, &c. and that plaintiff ment of the rent received on the ori- refmed to deliver to him such posses- ginal letting, except upon the express sion,h\xi retained possession,Si\\A.\\\cxehy stipulation to that effect: so that wholly hindered the defendant from whether or not there were any defence completing his tenancy, and plaintiff, as to the period which elapsed after since defendant delivered possession, as the expiration of the month, it must have stated, had remained in possession, nor been a defence of a different nature, and . had the defendant since held, occu- should have been made the subject of pied, possessed, or enjoyed the same, a distinct plea, as to the period to which And the defendant by means of the it applied, upon the agreement or re- premises became and was and is re- demise ; for when the lessor refused to lieved and discharged from the pay- re- deliver possession it is conceived he ment of any rent for the period subse- substantially evicted defendant for the quent to the delivering up of posses- residue of the term ; tl»e essence of sion by him as aforesaid." Special that defence being the expulsion or demurrer {inter alia), " for that it keeping out : so that therefore as to does not sufficiently appear whether the subsequent period there ought to the term was or was not surrendered, have been a simple plea of eviction, and that the matters therein contained It is necessary again to distinguish sho(dd have been ])leaded by way of between a defence founded on the eviction." The account of the argu- termination of the tenancy (by notice) ment and judgment on this plea is and one founded on its surrender. In meagre. It was contended that it could Johnson v. Huddlestone, 4 B. & C. be a defence only on surrender or 923, the pleadings raised the question eviction, and that viewed in either rather of notice than surrender ; for light it was deficient in the essential the avowry being u])on a distress, for requisites. No authority was cited, double rent, on an alleged holding over, and the Court simply say, " The plea the plea showed that the notice to quit is bad. It should have shown some- alleged in the avowry was not regular : thing amounting to an actual expulsion and the replication stilted "that the or eviction ;" and per Tindal, C. J. : defendant accepted the said notice and "The facts set forth seem pleaded recognized, assented to, and adopted the rather as a w«/)ew«ion of the rent ;" on same:" upon which there was a de- wbich it was suggested {arguendo) murrer, and though the learned argu- that a trespass only was shown. But ments of Patteson and Parke referred AGARD V. KING, Ciio. Eliz. 775. 201 in a great degree to tlie (jucstion of surrender by operation of law, it is apprehended that the question was scarcely raised upon the pleadings ; or at least in such a way as to render the case of little importance in that point of view : for the pleadings disclosed nothing but the acceptance of an irre- gular notice to quit : upon which it is observed, per Bayley, J., in giving judgment : " Assuming that the assent by the landlord to such a notice may make it operate as a surrender of the tenant's interest, (upon which I gave no opinion) it must operate as an actual surrender by reason of the agreement between the parties, and not as a sur- render by operation of law ;" and then of course the statute of frauds would apply. A notice to quit is rather in- consistent than otherwise with the supposition of a surrender, as it shows the intention of the parties that the tenancy shall terminate in the usual way — not be destroyed before it arrives at its regular termination. The deci- sion went clearly, so far as the question and surrender is concerned, upon the distinction already adverted to between a surrender shown by agreement, and one established by acts of the parties ; iox per Bayley, J. : " No «c^ was doing by the landlord to show that he con- sidered the old term at an end." The distinction between notice and sur- render is pointed out by the form of the plea of notice {Cadby v. Martinez, 9 L. J., Q. B., 281), "that the de- mise was subject to a condition, that if the defendant should be desirous to put an end to and determine the said lease, and should give a month's no- tice to the plaintiif of such his desire or intention, &c., the said demise should determine. That on, &c., and six months, &c.,the defendant did give. &c., and thereby the demise was de- termined,''^ &c.: whereas the plea of a surrender avers that the term ordemise, or the defendant's estate therein, was surrendered, i. e. re-transferred to the lessor. It will have been seen by the case of Johnstone v. Iluddlestone, that the acceptance of a bad notice will not support a plea by way of surrender un- less the landlord re-enter. But it does not follow that a plea not disclosing such re-entry may not be supported though the notice were bad. If one be shown substantially, though not strictly in accordance with the terms of the condition, it perhaps might prove a proper plea of notice. {Firth V. Thrush, 8 B. & C.) But if in any material point the notice were defec- tive, its mere acceptance, apart from actual re-entry, would be without con- sideration, except by virtue of a prior and executory agreement, that if de- fendant would give such a notice plain- tiff would accept it, andwould waive and dispense with, and then did waive and dispense with, any other notice, &c., and that such substituted notice was accordingly given. {Gore v. Wright, 8 A. & E. ; Kemble v. Mills, 1 M. & G.) But if the plea alleged a notice, and replication showed a material defect, and the rejoinder averred an agreement to receive such notice, there would bea departure. {Smith\. Tanner, 3 M. & G.) Or, if the plea were tra- versed, there would be a failure in proof. {Home v. Wingfield, 3 M. &G.) In adverting now to the count for use and occupation (which at the pre- sent day would doubtless be the form of action adopted in such a case as Agard V. King), it is proper to remind the reader, that the nature of the action of debt for rent {i. e. on a demise) has 202 AGAIID V. KING, Cko. Eliz. 775. previously been so fully cousitlered, principally for the purpose of marking with precision the requisites of each form of action, as to exhibit the particular cases in which the one or the other may be exclusively or advan- tageously available : and it will have been seen, that the action of debt for rent is more usually applicable than probably is generally presumed ; for it is maintainable on a lease at will, and (qucere, if not even in that case without occupation) upon a quantum meruit rent ; notwithstanding the opi- nion expressed contra in Gibson v. Kirk, 3 Q, B. (see cases cited in the former part of this note) . There are, however, these essential requisites of that action — viz., that where the defendant has oc- cupied, it should have been, at least, with the assent of the alleged lessor, and that, where he has not occupied, the alleged lessor shoidd have some legal title to demise (though, as already seen, tenanctj at loill would be sufficient) ; but as, in the absence of entrij, use and occupation cannot be maintained {post), the only case in which the count for use and occupation is, in point of law, the exclusive remedy, is where the defendant has occupied the plaintiff's land without his assent; and in that case the contract can only be imphed from plaintiff's pro- prietorship of the premises, which must therefore be proved (see iwst) . In assumpsit the count for use and occupation can never be joined with one disclosing a demise, as the declara- tion would then be bad for misjoinder. The rule, Hil. T., 4 W. IV., " That counts on a demise, and for use and occupation of the same land for the same time, are not to be allowed," can only therefore apjdy to deht. The count for use and occupation will never disclose the time in respect to which the claim arises ; and though in Doe dem. PuUen, 9 M. & W., the particulars were looked at to discover the fact, they could not correctly be resorted to for that purpose. {Cahoon v. Burford, 12 M. & W.) Where, however, both counts are inserted, and that upon the demise alleges that defendant entered, there would be an " apparent viola- tion" of the rule, assuming that tenancy alone is sufficient to support this count (see post). But it is con- ceived that this would not be so if the count on the demise did not allege that defendant entered, because, as he covdd not be liable in use and occupation without entry {Edge v. Strafford, 1 C. & J.; Pinero v. Judson, 6 Bi.; Smith v. Twoart, 2 M. & G.; et vide post, p. 208), the two counts would disclose causes of action so de- cidedly distinct, that they would not, it is submitted, be in " apparent viola- tion" of the general rule : the pai'- ticular rule applying to this case may reasonably be interpreted as pointing to the form of declaration which has long been invariably though unneces- sarily adopted — i. e. alleging entry. {Vide ante.) It may be useful here to illustrate the origin of the action for use and occupation, as exhibited in those earlier cases, in which it will be observed that the present statement of the con- sideration as the occupation, became ne- cessary, to obviate the objection that in assumpsit the cause of action must not appear foimded on a demise or in the nature of rent ; and that the in- debitatus form could, in neither action, be adopted for rent, because the de- claration would thus disclose a demise which should be stated specially, and that in cither action it was not admis- AGARD V. KING, Cro. Eliz. 775. 203 sible to declare in the indebitatus form without stating some cause of action by which the alleged debt accrued. In Brett v. Read, Cro. Car. 343, the declaration alleged that defendant was indebted for rent arrere, &c. j after verdict (on general issue only) judg- ment was arrested on that gromid. {Vide Gibson v. Kirk, 3 Q. B.) In Slack v. Bowsal, Cro. Jac. 6(58, the declaration alleged that defendant was indebted to plaintiff in 5/., pro redditu ante tunc debito, &c. Moved in arrest of judgment that the count was bad, because not showing when the rent was due, nor on what contract, nor for what term. Yet because de- fendant had pleaded in confession and avoidance, and it had been found for the plaintiff, the count was made good ; otherwise it was held it had not been good — i. e. even after verdict ; and it is added by Croke, J., " No exception taken that the assumpsit was to pay a sum for rent, which is a real and special duty as strong as on a specialty, and in such case the action lies not without some other special cause of promise." In Read\. Johnson, 1 Lev. 155, Cro. Eliz. 242, the count stated that de- fendant was indebted to plaintiff in so much, and in consideration thereof promised to pay. It appeared that plaintiff had leased land to defendant for a term, reserving rent, of which was in arrear, but that defendant had made no other promise but the contract upon the reservation. And, ^jer Curiam, the action lies not, for the proper action is debt. In the earlier cases, however, a special form of count was usually, though unnecessarily adopted, the deci- sions upon which are, at the present period, practically applicable in the common class of cases in which parol agreements are necessarily declared upon specially, by reason of the claim being for repairs, &c., as well as for reyit. In Symcocky. Payne, Cro. EHz. 78G, the count in assumpsit stated that defendant, in consideration that the plaintiff had let to him lands for a year, promised him, ad tunc et ibidem, to pay pro forma terrce predictce, at the year's end, 20Z. Alleged, in arrest of judgment, that the action lay not, for it appears to be for the rent for which debt lies. But all the Court held the action maintainable, for it is not a rent, but a sum in gross, the pro- mise being in consideration of the lease. (Afterwards, on another objec- tion, judgment was reversed.) Here, it will be observed, the sum might well have been considered as in gross, not a rent ; non constat but that rent was to be paid upon the lease, and that the 20/. was but in the nature of a premitmi, al- though to be paid at the end instead of (as usual) at the commencement of the term. This, again, was after judgment. Acton Y.Simon, Cro. Car. 415: as- sumpsit, that defendant, in consider- ation that plaintiff would demise to him, &c. for three years for the rent of 25/. a year, &c., promised to pay the rent, &c. : averment, that plaintiff demised in forma predictd, and that he enjoyed accordingly during the three years, and had not paid his rent : defendant pleaded a surrender before any rent due : found against him. Moved in arrest of judgment, that the action lay not, for that the real con- tract being executed the assumpsit, being personal, is determined. But the Court conceived the action lies, for it is a collateral and absolute promise — but if it had been an implied promise, as on a sale of goods, &c. the action lay not. But there being an express promise alleged and confessed, the 204 AGARD v. KING, Cuo. Eli/. 77o. action lav. Sed Croke, J. dissentientc. After verdict it \vas moved, iu arrest of It was also urged that if the action were judgment, that it did not appear that maintainable defendant could not plead plaintiff had any possession whereof eviction or suspension of the rent by to permit defendant to have the en- entry, &c. But all the Court denied joyment, nor that defendant had any this, for notwithstanding the promise title, but that he so pretended, and it is a rent as before, and if it be deter- that the promise was not to pay the mined as a rent the promise for the rent accrued due, and that the declara- rent is also discharged. Adjudged for tion should have been in debt against plaintiff. Here, it is to be observed, defendant as assignee of the lease, the promise being alleged in the exe- But, per Curiam, the permitting him to cutory form would appear on the enjoy by the devisee of the reversion pleadings to have been precedent and was a good consideration, Avhether de- express. Nevertheless, it is doubtful fendant had title under L. or not, and what might have been the decision if he had no title it was the stronger upon demurrer. It is conceived a pro- consideration ; and the promise being mise to pay rent in consideration of a express to become tenant as L. was, ex- demise discloses a lease ; and that tends to pay the rent due, as L. ought the only other promise supportable is to have done ; and an action will lie on to pay the rent lohen it has accrued, the express promise, notwithstanding i. e. on request. But that promise, it that there is a lease. Here, it will be has already been seen, could not be de- observed, the difficulty in declaring a Glared upon, except iu a coimt showing debt on the demise against defendant as the consideration either the lease as assignee of the lease {ante) would and the accrual of the rent un- have been in proving the allegation der it, or an agreement to pay in of the assignment. At the present consideration of the occupation, and period such a special count is often the subsequent occupation accord- necessary where defendant has taken ingly ; in which form it is conceived possession during a period for which the count in the case just cited might rent was accruing due, and as to which correctly have been framed. Thus, in the mere occupation would not, without Chapman v. Soufhwic/c, 1 Lev. 20-4, a previous executory agreement, be the declaration in assumpsit stated that sufficient consideration for the promise plaintiff's husband, seized iu fee, had to pay the whole of the rent which made a lease to L. and devised the had begun to accrue before his occu- reversion to the ])laiutiff : that L. pation commenced (vide post). So having died, the house was empty and in Johnson v. May, 3 Lev. 150, the locked up, and defendant, pretending declaration was on an assumpsit in a title thereto under L., promised consideration that the plaintiff would plaintiff that if he would consent that permit defendant to enjoy a copyhold he should enjoy it, as L. had it, that estate of the plaintiff's, from, &c. pay- he would Ijecome his tenant as L. was ing 50^. alleging the enjoyment and and pay the arrears : that he consented non-payment ; another count upon a and the defendant enjoyed, and had quantum meruit for the same thing. To not ])aid so much due for rent, part the latter the defendant pleaded, to the before the promise and part afterwards, former demurred, ou the ground that AT.ATID V. KING, Cro. Em/. 77'>. 205 as there appeared to have been a de- as to the duration, which was " two or mise, debt should have been brought, three years :" defendant never entered ; The Court held the action lay, for that and, per Curiam, " The legal ojieratioH an express promise must have been of the agreement being that defendant's proved, and not a promise in law as tenancy was not at all events to exj)ire arising out of the contract, which, it at the end of two years (as on a lease was agreed, did not lay. And the for two years simpliciter would be the special promise was collateral — as an case), the consideration for the pro- express covenant in a lease to pay rent, mise, as set forth in the first count, is In Grohhamhoio v. Norton, 1 Lev. 179, not truly stated, for though stated un- the declaration was on an assumpsit in der a videlicet it is not the less mate- consideration that plaintiff luould per- rial. In the second count there is the mit defendant to enjoy such land, and same error as to the duration of the he would pay him quantum meruit : term, but, as it is on an executed that he permitted him to enjoy it consideration, the variance under a three years, and that it was worth lOZ. videlicet is not material. But the per annum. It was moved, in arrest count states the promise to be " that of judgment, that debt should have the defendant would enter and become been brought : «ec? C??r^/«e?>, they were not bound to make a satisfaction," was not proved : but supposing that request to have been material, the allegation as to the transfer of A.'s estate and inter- est to the defendants would have been repugnant and inconsistent, because A. would appear to have been then imder tenant or agent, and the estate and interest would have been originally de- fendant's. (Bidl V. Sihbs, et alia, cited ante.) And the count was either for this reason bad for ambiguity or dupli- city, or, rejecting the latter allegations as to the assignment, was only an argumentative count for use and occu- pation by the defendants themselves, as proof that a person had occupied at their request would amount to actual occupation by them. The real reason 210 AGARD V. KING, Cro. Eliz. 775. of the peculiar form of the dcclara- proof would equally have supported tion was doubtless to obviate the a declaration — i. e. on the assign- objection already referred to, which, meut of the term of one year created however, does not appear to have by the entry under a yearly rent, been adverted to, and the point ap- Again, in Gibson v. Courthope, 1 D. & pears to have escaped attention. The R., it was held that under similar cir- Court observed : — " The allegation as cumstances the plaintiff could recover to the transfer of the estate, &c., for the whole year under the count for would probably have been relied on use and occupation in its cotmnon form, aftei- verdict. Loose, informal, and to ^vhich, it has already been observed, indistinct as it is, it might ser\e to the count in Naish v. Tatlock argu- introduce at the trial that A. was mentatively amounted; for, ^je/* CMn«?rt, tenant for a year at a yearly rent, "The assignees take the tenants' con- payable at the end of the year, and tract with all its liabilities, and stand that the defendants, having entered precisely in the situation in which he into possession as assignees, became would have been." It is to be ob- assignees of the lease, and bound to served, however, that the only objection pay the rent which became due after taken was the untenable one that the the assignment. It might then be count is not maintainable except in with great colour urged that rent due respect of actual occupation, and that is recoverable in an action for use and the rent was reserved half-yearly. In occupation" (no allusion is made, it Hoiv v. Kennett, 3 A. & E., G(iO, the will be observed, to the objection above endence upon the common count for use stated) ; " but we are of opinion that and occupation was, that a tenant from the circumstances under which the de- year to year, at a rent payable quarterly, fendants succeeded to the occupation assigned his term to the defendants will not prove or dispense wdth the (trustees for his creditors), who only proof that the occupation was at the put a man in possession to take care request of the defendants." This of the goods until they were sold, reason, it has already been noticed, which was in the next ensuing quarter : was quite irrelevant upon the form of the Court held the action not sup- the declaration, and was based upon a portable for the rent afterwards accru- notion in respect to which, as the cases ing, two of the judges assigning as already cited shew (Pinero v. Judson, one reason for their decision the neces- et alia ante ; and Gibson v. Courthope, sity for actual occupation, a reason post), the case has long been over- which, it has already been seen, woidd ruled — viz., that actual occupation is not now be considered valid, and upon necessary to sustain the count for use which one of those two judges cited and occupation. It will be observed Naish v. Tatlock, without referring to that if, in Naish v. Tatlock, plaintiff Gibson v. Courthope ; the dicta, how- had declared upon a demise and its ever in that point were clearly obitei', assignment, according to the principles as the Court considered that the de- illustrated in an earlier part of this fendants had not really taken posses- note, he would have succeeded ; or, sion ; for, jier Patteson, J., " The again, perhaps, if he had declared, as question whether the conduct of the in Boot v. Wilson {ante), the same defendants did not amount to an actual AGARD V. KING, Cro. Eliz. 775. 211 taking possession — supposing by that testator), and thereupon, in considera- it is meant whether the parties so tion of the premises, the defendants, understood the transaction — was in as executors, promised, &c. On ge- efFect left to the jury, the direction neral demurrer, the Court said, " The having been that the question was count is not bad, for a state of circum- •whether the defendants had so con- stances can be conceived in which ducted themselves as to lead plaintiff plaintiff's claim in such a form would reasonably to believe, and whether he be supportable. It is sufficient if de- did believe that they intended to be- fendants have held, and the count come tenants on the terms of the ori- states a demise to the testator, under ginal tenancy." A.nd, jjer Littledale, which it is stated they held, without J., " It was for the jury, whether the saying that they entered. If they do defendants in fact occupied as tenants, not give up the land the assets are or merely for the purpose of selling liable, although they may not be in the goods. If they took the premises actual occupation oi the premises; and under the assignment, use and occu- if they never entered, they could be pation lies ; but if they merely used onli/ liable out of the assets. The them to sell the goods, it does not count would be sustained by proof of necessarily follow that they are liable a demise to the testator, and the ac- in this form of action. Perhaps an cruing of rent under it after his death." action of debt might lie, the declara- It is to be observed that the count tion stating the term was assigned to would doubtless have been bad on the defendants." It should be observed speem^ demurrer, but that it would in that not a little of the discussion was any such case as Naish v. Tatlock as to whether the defendants were in be in substance good. It would argu- fact assignees of the term at all. And mentatively amount to the common this leads to the observation that as, by count alleging that defendants, as exe- statute, assignees in bankruptcy are not cutors, held, &c., and query (for the liable at all, unless they have entered reason already referred to) if it would and actually taken possession (see notes have been applicable with respect to to Thu7-shy v. Plant, Wms. Saund.), the reservation accruing due at the they will be liable, if at all, on the time of the decease. It seems that in count for use and occupation, except such a case {Werner \. Humphrey, 3 as to the rent accruing at the time of M. & G. and vide ante) the only proper their entry. In the recent case of way of declaring is on the demise, or, Atkins V. Humphrey, 14 L. J., C. P., less correctly perhaps, in the form the declaration against defendants as illustrated in 5oo^ v. Wilson ; &t least, executors was in a form similar to it would not be sufficient, it is submitted, that adopted in Naish v. Tatlock, and to adopt various counts for use and stated that they, as executors, were occupation in the common form for use indebted to plaintiff for the use, &c., and occupation by the testator, and of premises, &c., of plaintiff by them another for use and occupation by the as executors as aforesaid, held of plain- executors as such ; for the rent would tiff for a long time before then elapsed, not be divisible, though it may be a under and by virtue of a certain de- question how far one such count, stating mise thereof theretofore made to (the the consideration, jointly as occupation p 2 212 AGARD V. KING, Cuo. Eliz. 775. by the testators and by the executors as such, would answer the purpose. (Morse v. JameSy 1 1 M. & W. ; Webber V. Tivell, Wms. & Saund.) It is to be observed that if an executor be hable 2')ersonally , he will be so in this count for use and occupation in its common form, as he is not so liable without entry (Jf^oUaston v, Hakeivell, 3 M. & G.). The legal effect of the allegation in the count, that defendant "held," and the distinction between liabilitij, and tenancy under a demise, becomes prac- tically important, in cases where de- fendant has not actually occupied du- ring the whole period for which the claim arises, either by reason of his never having occupied, or by reason of his having previously ceased to occupy. Thus, in the case of co-executors who when sued personally, are not liable, except by their own occupation ; the entry of one is no entry as to the other : and though both may be liable on the demise, both cannot be sued in use and occupation, unless the entry of one were with the assent of the other, Nation V. Toser, 2 C. & M,, Hornidge V. Wilson, 11 A. &E. ; WoUaston v. Hakeivell, 3 M. & G. So when one of two joint tenants occupies after the end of his term, the other it seems cannot be liable on this count (on which alone, if at all, he under such circum- stances could be sued), unless the oc- cupation were with his assent, Christy V. Tancred, 9 M. & W. and 12 ib. The distinction has already been ob- served between an assignee and an un- der tenant ; and the distinction between a co-tenant and an under tenant is il- lustrated in this — that the holding one of the latter will render his lessor liable with or without his assent, Ibbs v. Richardson, 9 M. & W. The foregoing remarks having refer- ence to the remedy in case of assign- ment of the tenancy, it may here appro- priately be observed that they have au analogous application in the case of the assignment of the reversion pending a tenancy for any term certain, although as to the reservation accruing due at the time, the count as a demise seems the more correct form of action (ante), because the liability to pay the whole of the rent for the current reser- vation to the assignee arises not by reason of the occupation or holding under him for the residue of the period, but by reason of the obligation legally attaching to a term created either by express demise, or by legal implication — Mortimer Y. Preedy, 3 M. & W.,^er Parke, B. In such cases, the one mode of declaring is that exemplified in Boot v. Wilson, ante ; vide Buck- worth V. Simpson, 1 C. INI. & R. ; Brydges v. Leivis, 3 Q. B. In the case last cited, the declaration having simply stated a tenancy by defendant to plaintiff under certain terms set forth, in consideration whereof the defendant promised to perform those terms, the defendant, put to his election between non assumjjsit and non tenuit, chose the latter, and was defeated at the trial, because it was held (and ultimately determined by the Court) that the question whe- ther the defendant, who was tenant to the former owner of the fee under a parol lease, were rendered liable to the plaintiff, on a transfer to him of the reversion, could not be raised on 7wn tenuit. And {per hord Demnan, C. J.) " There is no doubt but that the de- fendant became tenant to the plaintiff upon the terms contained in the lease under which he entered. There is no plea of no7i assu7}i])sit raising any ques- tion as to the existence of a contract AGARD V. KING, Cro. Eliz. 775. 213 between defendant and plaintiff. In general non tenuit and non assumpsit would raise in such a case the same issue : for (i. e. in general) the promise is a legal inference resulting from the tenancy ; but in this pecuhar case it is questionable whether any promise in law results from the tenancy, or whe- ther any promise in fact would have a sufficient consideration to sustain it. The issues therefore were clearly dif- ferent ; and ought not to have been allowed. Non assumpsit would have raised the real question. Whether that plea would have precluded tra- verse of the tenancy we need not de- cide." In such a case it is not unusual, but, it is apprehended, is inartificial, to set out in the count (as in Wallis v. Broadbent, 4 A. & E., 8/8) an agreement by which a former owner of the premises agreed to let and defendants to take them, to hold from a certain time, at an annual rent — the agreement to continue in force from year to year, and containing certain conditions, &c., with an aver- ment that defendants entered and en- joyed as tenants under the former owner ; on whose death plaintiff be- came owner of the premises : and thereupon in consideration that plain- tiff would ji^ytii defendants to hold and enjoy the premises (see Chapman V. Soiithwick, et alia, ante) at, «&:c., upon the terms and conditions before mentioned the defendants promised to abide by and perform all other the said conditions, &c. That defendants did so hold and enjoy by permission of plaintiff, &c. On non assumpsit it was held that the original agree- ment in such a case would be in issue ; hut it seems if the declaration were on the demise created by implication of law (ante) it would be sufficient to show the terms of the tenancy from the acts and mutual assent of the parties. Upon the principle already adverted to, with reference to the rent for a period of reservation during which the tenant as an assignee enters, it perhaps may be questioned whether this count is maintainable where, under an ac- tual or virtual term under which de- fendant has once been in possession of the premises, a substantial portion of them has been consumed or other- wise destroyed ; because it is con- ceived that upon the proof it must appear that the liability would be by virtue of the demise, i. e. of the estate and interest acquired for the whole term, not by reason of the occupation or holding (which, indeed, could not be proved), of the premises as originally demised ; so that, in fact, there would be no liability on the executed con- sideration stated in the count : i. e. one of mere holding or occupation. This point (which is one as to the form of action only) does not appear to have been raised in the various recent cases (cited post) on this sub- ject, which have rather been on the law than the pleading; but it ap- pears to have been determined that the count is only applicable under such circumstances by reason of the word '"held-" and it is apprehended that this does not obviate the diffi- culty adverted to, and that in such cases the count should be in debt on the demise. Thus in BaJcer v. Holtzapphel, 4 Taunt. 45, a tenant from year to year was held liable on this count — though in the second quarter the premises were burnt down — for the whole year's rent. The Court, indeed, appeared there to put the decision partly on the occupation 214 AGARD V. KliNG, Cro. Eliz. 775. having continued, of what they deemed the main subject of demise, viz. the land : for, per MansfeJd, C. J. : " There was no offer on the defendant's part to dcUver up the land.'''' But in Ison V. Gorfo7i, 5 B. N. C. 506, where exactly the same decision, on substan- tially similar facts, was pronounced, it appears to have been rested greatly, if not entirely, on the continuance of the holding, for, per Tindal, C. J. : " The statute (1 1 Geo. II., 19,) enables land- lords to recover on this count satis- faction for lands, &c. ' held' or ' oc- cupied.' So that it seems to follow that if there is an actual holding, and the power to ' occupy,' and ' enjoy' is given by the landlord, so far as de- pends on him the action is maintain- able. And here nothing was done by the landlord to take away the continu- ance of the occupation or enjoyment by the tenant." It is to be observed, however, that in this case it is added, " Though in Baker v. Holtzapphel, some stress is laid on the fact that the land was in existence, and that there was no offer on the part of the de- fendant to give it up : so it might be said in the present case,'" (though in this case the tenancy had only been of a floor) : yet more recent cases have entirely disembarrassed the question of any considerations as to occupation, and have rested it wholly upon the holding : for in Surplice v. Farnsworth, 7 M. & G. the Court of Common Pleas held that the count was sustain- able for the whole of the rent accruing under a yearly tenancy constituted by a parol agreement, though during part of the period the premises had become useless through the default of the landlord: andp-?r Ti^idal, C. J. : " It is impossible to hold that the tenancy did not continue in this case, and that the rent was not payable. The action here is founded on an agreement to hold for a term not expired," (de- fendant having, it is to be observed, given up possession when the premises became useless) . " The cases show that the action will lie though there is no actual occupation." And in Hart v. Whidsor, 12 M. & W. 84, where, under similar circumstances, the defendant was held liable ; the count, it should be observed, was in debt on the demise, and the decision was founded on au- thorities in which the action was always in that form. Hitherto the form of action has been considered rather in connection with the action of debt on a demise. There are other points in which the two actions not only have no affinity, but are directly opposed in principle. It has been seen that the very allegation of a lease implies a right and a rever- sion in the lessor {ante). But the count for use and occupation does not allege that the premises were the plaintiff^ s : but that defendant held, &c. by his permission. It follows that nil habuit in tenementis is a bad plea in this action : which was decided in Lewis v. Willis, 1 Wilson, 314, confirmed 'm Curtis v. Spitty, 1 B.N.C. 17, where, per Tindal, C. J. : " This is an action for a bvs;one consideration : the declaration states, * that defendant is indebted for the use and occupation of premises (not saying ' of the plain- tiff^) enjoyed at his request by per- mission of plaintiff. ^^ On the other hand, where the defendant received possession from one who had derived no title at all from the real owner, the latter can on this count recover (as after ejectment, he could, against either, recover the mesne profits), be- cause as he could eject both defendant AGARD V. KING, Cro. Euz. 775. 215 and the party who gave him possession to observe that the necessity or sufti- the defendant cannot be said not to ciency of the allegations alluded to occupy " by the permission of plain- depends on a main principle of the law tiff:" and so a person may be sued on of landlord and tenant ; that occupa- this count both to the party who put tion or enjoyment under a man pre- him into possession, and also to the eludes, while such occupation or enjoy- paramount rightful owner, ha^^ng a ment endures, or until it is terminated right of indemnity against the party by an express disclaimer and disavowal who put him in possession. {Per of its being under plaintiff — any ques- Parke, B. arguendo, Elliott v. Kemp, tion, as to his title to the premises. 7 INI. & W. 309, et vide Doe d. Thus in Davis v. Morgan, the Court Harlow et alia, ante.) If the legal say : " The defendant having once owner, however, has permitted auo- entered, under plaintiff, upon the use ther to dispose of the possession as of the watercourse, and continued to ostensible owner, so that a tenancy enjoy the benefit of it, he must be taken at will can be inferred — (which, as to have continued the enjoyment of shown already, is a good title out it by the permission of the plaintiff : of which to demise) — the defendant unless there appear some miequivocal will be an under lessee, as between act on the part of defendant to show whom and the owner or original lessor that he ceased so to enjoy." there can be no implied privity by But on this count the plaintiff cannot reason of the interposition of the ex- recover, if, though he let defendant into press privity between the lessee and his possession, he appeared only to act as intermediate lessor : to whom alone, the agent of another, for in such case therefore, in that case, the lessee will the defendant occupied " by permis- be liable. sion " of the principal, not the agent. The essential allegation in this comit It seems, therefore, to have been use- is that the defendant held, &c. "by the less in Evans v. Evans, 3 A. & E. 132, permission of the plaintiff" i' the neces- to have two counts, one alleging only sity for which averment would not it that defendant occupied premises by seems be superseded by a statement that the permission of plaintiffs, and the defendant occupied " premises of the other charging him for premises " of plaintiff;'^ which might be true without the plaintiffs by the defendant, and by there being any privity between him the permission of the plaintiff, used, and the defendant. Thus in Davis v. &c. ;" for the fact being that the defen- Morgan, 4 B. & C. the count did not dant had entered and occupied under a allege that defendant occupied, &c. a letting by plaintiff as agent for the watercourse, &c. "of the plaintiff," but owner — the Court held him equally that he had occupied, &c. "by the per- precluded from recovering on the one mission of the plaintiff;" and^er Cu- count as on the other, for (jper Cole- nam : "That enjoyment was a 6ene/f^ to ridge, J.), "The question here is defendant though no detriment to whether the ' sufferance or permis- plaintiff, and, ^/ie?'e/bre," (see also ^^«7- sion,' ivhich is the ground of action, kinson v. Olivera, 1 B. N. C.) "a good was in fact the 'permission or suffer- consideration for the liabihty (or pro- ance ' of plaintiffs." And a distinc- mise) to pay." It is highly important tion was drawn between an occupation 216 AGARD V. KING, Cro. Eliz. 775. It/ permission, for which, as for an exe- cuted consideration, this count is alone to he supported, and a previous agree- ment for a permission, which might, or might not, even if invalid and futile, su})port an action on an executory agreement ; for (jier Littledale, J.) "If you put the case as that of a contract made with persons not having title for a mere permission to occupy, should not the plaintiffs have declared on a special agreement?" And {per Putteson, J.) " The question of fact is, hy lohose permission did the occupation take 2>Jace, and by whom was the con- tract («'. e. for the occupation) made ?" In the case above cited it had ap- peared that the defendant entered un- der the conditions of a sale (by auction) by the plaintiffs, such conditions ex- pressing that the premises were so let by the plaintiffs' auctioneers, and {pier Lord Denman, C. J.) " It cannot he doubted defendant knew that another person was the o\^^ler. Then come the words (in the agreement of letting) * the rent to be paid to (plaintiffs') auctioneers^ and then followed the words 'approved by me' (?'. e. the owner). Looking at these conditions, (which in fact constituted the agree- ment) there is no proof that defendant considered he should hold from plain- tijfs ; on the contrary, the signature of the owner showed that defendant was not to hold from them." And {per Littledale, J.) "They are only agents ; the lessor is the owner ; he is therefore the only person to sue." So, {per Putteson, J.) " If the plaintiffs let for themselves why is the owner's name added? The document does not say hy whom the premises are to he let. The rent is to be paid to the plaintiffs, hut that is by way of direction from the owner." It must here be observed. however, that the ground was not that the third party was oivner, but that he was principal, i. e. that there was no contract with the plaintiff, and that he did not let defendant into possession except as the agent of another. Upon these principles, therefore, it is only necessary upon this count to prove the legal ownership on the part of the plaintiff, when by reason of there having been no original privity between him and defendant, the latter having been let into possession hy a third party, that proof is an essential ingredient in the evidence that, for the period during which the claim extends, the defendant " occupied or held," hy the permissio7i of the plaintiff. This may be the case either where the defendant received possession from one who was not tenant at all, nor had any title or estate, or from one who was strictly tenant at will, or from one who had a title but has since transferred it to plaintiff. In the latter case, of the transfer of the title to the reversion, pending a tenancy, of course the count will be maintainable by the assignee after notice of such transfer. {Luniley v. Hodgson, 16 East, 29.) But it seems that it would not be supportable in respect of occupation before plaintiff's title commenced (presuming that he did not let defendant into possession), for in such case the occupation cannot have been " by the permission of plain- tiff" {Mortimer v. Preedy, 3 ]\I. & W. G05) ; and even although the claim were in respect to an entire reservation of rent, accruing due during a period in so7ne part of which the plain- tiff's title commenced, the objection would, it is ajiprchendcd, apply ana- logous to that already alluded to as arising in the case of transfer of the tenancy, and could only be ob- AGARD V. KING, Cuo. Euz. 775. 217 viated in the words there — and in the case last cited — suggested ; i. e. by declaring on the demise and on the ossiffmnent. Where the title of the plaintiiY existed before the tenancy of defendant, so that the right of action cannot be as assignee of the reversion, the person who let de- fendant into possession must either have had no title or only that of a strict tenant at will, in the latter case a demand being necessarv to defeat the intermediate estate, and destroy the express privity it interposes be- tween the owner and the tenant. Where the defendant received possession from a party who had not even the title of tenant at will, no demand is necessary on the part of the plaintiff. In these cases proof of his ownership is essen- tial. It has already been seen that in the two latter cases a claim cannot be in the nature of rent, but of remunera- tion for occupation. It is here appropriate to observe that wherever legal ownership is an e'^^.'Ontial ingredient in the proof of the allegation that defendant held and occupied, &c., by the permission of the plaintiff, it arises upon the general issue. For any plea upon this count is specially demurrable which does not confess the enjoyment to have been by permission of the plaintiff ; and any defence disputing that allegation may be proved upon the general issue, while any defence admitting that alle- gation must be specially pleaded, unless contravenins; some other essential alle- gation in the count. Thus, in IFad- dilove V. Burnett, 2 B. N. C, under nan assianpsit the defendant tendered evidence, in answer to this count, that before the tenancy commenced the pro- perty had been mortgaged to one who had given notice to defendant to pay to him all rent due or that should become due. It was said bv the Court. "A. special plea of these facts as to the rent not due at the time of notice would not be a confession of the mate- rial allegation in the declaration that the defendant occupied by permission of the plaintiff ; and if the plea sug- gested were to go on as it ought strictly to do, * ivithout this that the defendant occupied by permission of the plaintiff,' that would be in effect a denial of the contract. Under the new rules the general issue here denies ' the matter of fact whence the promise arises by operation of law,' i. e. ' that the de- fendant occupied, &c., by permission of the plaintiff.' But as to the rent due before the notice, the same con- struction of the rules of pleading does not appl}^ for as to such arrears the occupation had already taken place, and had been, in fact, ' by the permis- sion of the plaintiff,' under whom de- fendant was let into possession. As to this bv-gone rent, the defence does not amount to denial but confession and avoidance of that allegation, and shoidd be specially pleaded." And so in Newport v. Hurler/, 14 L. J., Q. B., the principle was laid down, and it was said per Coleridge, J., "that the de- fendant having taken possession of and held the premises under and by the permission of plaintiff, those two facts clearly made defendant liable to the latter, at least |jrm« fucie ; and that if there were anything to rebut that case " (as a notice from one who had recovered the premises in ejectment), " it should be specially pleaded." Upon this principle it should seem that, in Mortimer v. Preedtj, the plea " that the tenancy was determined by operation of law before the plaintiff had any interest in the premises, and 218 AGARD V. KING, Cro. Eliz. 775. before any rent was due to him," was needlessly added to the general issue (though it was not demurred to), as it showed the occupation not to have been " by the permission of plaintiff." So as to a plea that the occupation was imder a demise from one who, before the rent accrued, assigned his reversion to plaintiff, but that the defendant had received no notice of the assignment till after the rent accrued. And if to such a plea were added an allegation of payment to the other party, the fault of duplicity would be added to that of argumentativeness. Practically, the question as to the right of action on the part of a person who had merely given his permission to the defendant to occupy, is not likely to arise ; for in any such cases the defendant will usually have received permission from the plaintiff, and the relinqiiishinff ^JO*«ess^ow is, at all events, apart from any estoppel, a good consideration, though, perhaps, rather for a special count than on the common count for use and occupation {vide ante). In Morc/ell v. Patil, 12 Moore, 311, the defendant had oc- cupied under parties who considered themselves to have, but had not, the legal title as trustees of plaintiff: it was said by the Court, " They acted, in fact, as trustees (i. e. legal owners, and therefore not, as in Evans v. Evans, as agents), but in law as agents only ; and those for whom they so acted in law might come forward as principals and sue the occupant"; — i.e. after notice, it is presumed, for the defendant would have received possession from a party having, as in the case of a mortgagee in possession (ante), a title (as tenant at will), though de- feasible at the will of the real owner. Till the notice, the tenant would occupy bt/ permission of the party from whom he received possession. In Evans v. Evans it is observed jjer Littledale, J., " If the case is put as that of a con- tract with persons not having title for a mere permission to occupy, should not the plaintiff have declared specially on that contract ?" And though, for the reasons already adverted to, this would not be necessary when defendant received possession from the plaintiff — i. e. where the latter relinquished ipos- sessiou — it might be advisable to adopt such a special and executory form of count where this was not the case ; and whether it were so or not, it might be prudent to vary from the common forms, and to frame a special indebi- tatus alleging, as the consideration, "that plaintiff had, at his request, given his permission to defendant to hold, &c., and that defendant had so, or by such permission, held, &c. And a similar count was adopted in Hull v. Fauyhan, 6 Price, where the defendant, after selling to one who had sold to the plaintiff, disputed the original sale, and, refusing to complete it, induced the plaintiff, on the representation that his (plaintiff's) vendor had no title, to give up possession to him (the de- fendant.) There the Court said, " Plain- tiff having given up to defendant, at his request, the possession to which he (plaintiff) was at the time entitled, shall it be said that defendant is not compellable to account to plaintiff — the person by whose permission he ob- tained possession — for the use of pre- mises to which plaintiff alone had a right ?" It must not, however, from the latter expression be inferred that the decision of the Court rested on the legal title of plaintiff; for part of the Court seemed rather to have an opinion than a conviction that the legal title AGARD V. KING, Cro. Eliz. 775. 219 was in plaintiff, and the whole judg- ment rests more on the plaintiff's having given possession in fact, and which he had not unlawfully acquired. Thus, per Graham, B. : " Plaintiff delivers up possession of premises the right to which might then have been doubtful ; and when the question was ultimately decided against de- fendant, the latter became liable to some one for use and occupation, and, it appears to us, to plaintiff. As to the proposition that a man who has an equitable title only cannot be suffi- ciently entitled to maintain use and occupation, I cannot find anything sound in it." It is material to observe it is said^jer Wood, B., " The form of the declaration, as it has been here drawn, is sufficient to meet the facts in proof, and to support the action thereon. The permission is pleaded and proved.^' It should be observed that a special form must be adopted whenever any other consideration than the mere per- mission and occupation under it can be imported into the case. Thus in Wil- son V. Williams, 1 Price's P. C. 14, where along with a special count al- leging that plaintiff, having supposed claims respecting the possession and occupation of certain lands, had agreed to take a yearly sum from defendant in satisfaction of such claims, and had " abandoned all his said claims accord- ing to the tenor and effect of the agree- ment," there was a common count for use and occupation, and a general verdict for plaintiff on the general is- sue ; the Court held that the permis. sion to occupy given by plaintiff^, and the actual occupation by defendant, (both of which the Judge had consi- dered proved,) supported the first count ; and they said, " The right to give possession is acknowledged by the defendant's dealing with the plaintiff as entitled to it, and di% permitting him {the defendant) to enter and keep pos- session.''' It is to be noted that the only reason urged why the common count could not be relied upon was that there subsisted a specific agreement for pos- session on special terms. It is to be observed, that upon the words " held, used, &c.," the count may be supported as to a " fishery," or a " way," which cannot be occupied; so in respect of tolls, which cannot be entered upon or occupied, {Palmer v. Gooden, 8 M. & W. in error,) but can be "possessed" or "held." In Davis V. Morgan, 4 B. & C, 8, the count was supported for "the use, occupa- tion and enjoyment of a certain stream or watercourse and of the water flowing therein ; and a certain wear erected across it, and the liberty of keeping the wear a certain height, and of cer- tain lands and premises by the defen- dant and at his request and by the permission of the plaintiff (not stating the stream, &c., to be plaintiff's or "of the plaintiff") "had, held, used, occupied, enjoyed, and possessed." So the count is sustainable not only for the use, &c. of certain pasture land of plaintiff, but for " the eatage of certain grass." {Sutton v. Temple, 12 M. &W.) Where the defendant simply occupies parts of an entire messuage, it would be improper to declare for a "messuage and premises," unless {Fen?i v. Graf- ton, 2 B. N. C, 117) the defendant have clearly the separate occupation, which he cannot be said to have {Monks V. Dykes, 4 M. & W., 518) where the landlord resides in the house, keep- ing the key of an outer door, and {per Parke, B., in the case last cited) " rooms cannot be described as a dwel- 220 AGARD V. KING, Cuo. Euz. / /o. ling house or messuage, unless a house (see Coke, 3 Inst. G5) be divided into several sets of chambers with separate outer doors y It is proper therefore to declare in the case of lodgers, for the use, &c,, of "certain rooms and apartments of the plaintiff," supplying the epithet "furnished," if they were so. It is to be observed further, that upon the words "used, enjoi/ed," &c., the count may be supported where the word "held" would be inapplicable, by reason of the subject matter of en- joyment not having been demised by deed ; where, without deed, as in the case of any incorporated hereditaments, there can be no demise. This is ex- emplified in Birdx. IJiggenson, 2 A. & E. and 6 A. & E., where a special decla- ration in assumpsit alleged that by an agreement plaintiff agreed to let and defendant to take a certain messuage or tenement with full and free and ex- clusive licence and leave to the defen- dant, &c., to hunt, shoot, &c., over the manor, &c., to hold the said messuage or tenement, rights, liberties, and pre- mises thereby agreed to be let, &c. at a yearly rent, &c." Mutual promises were then averred, and that plaintiff then let unto defendant the said mes- suage or tenement, rights, liberties, and premises, &c. "And the defendant then entered on the same and became and was jwssessed thereof for the said term, &c. (Breach non-payment of rent.) The Court on demurrer to a plea held the declaration bad, saying, "The agreement is not under seal; and the plaintiff is not entitled to re- cover on this count for actual enjoy- ment, for the count is not so framed, as it only alleges that the defendant entered and was possessed, which he might have done without a shir/le hours occupation," (see Surplice v. Farnsworth, 7 M. & G. S. P.,) and several of the judges intimated that the common count for use and occupation would have lain, as in Tomlinson v. Daij, 2 B. & B. G81. The allegations, in this as in all the common counts, that defendant, having occupied, &c., " at his request," be- came "indebted" and "liable" or "promised" "to pay," show that while they do not necessitate proof of any actual letting, require evidence that defendant, if the premises were not let to him, occupied either without any assent of the plaintiff at all, though under an implied agreement to pay some one for the occupation (in which case plaintiff must prove a right to the land during the period in respect to which the claim arises, as the liability is only implied in such a case from the use of the plaintiff's premises. Lea v. Shore, 1 B. & C), or that there was between him and defendant that mu- tual understanding, which amounts to an actual agreement {Baxter v. Grey, 3 M. & G.), that defendant should ^x/y for the occupation. Hence under the general issue the action will be defeated, if it ai)pear that the understanding was that he should not pay. The question usually arises after an abortive contract of purchase, under which defendant has been in possession. Thus in Kertland V, Pounsett, 2 Taunton, 1 71, the plaintiff under such circumstances was held not entitled to recover, defendant having left the premises on non-completion of the purchase. And {per Mansfield, C. J.) " It is impossible to make the rules of law dependent on the balance of loss and gain in each transaction. The possession of a house is always in itself heneficial. But here a contract cannot arise by implicatioii of law. AGARD V. KING, Cro. Eliz. 775. 221 which the parties never had in contem- plation.'" But in Howard v. Shaio, 8 M. & W. 120, where defendant claimed possession after the sale went oiF, he was held liable on this count, for, per Curiam, "pending the agree- ment to purchase defendant was not bound to pay a compensation for the use of the land because the contract shoivs he teas to occupy loithout com- pensation ;" but after that contract had gone off he became liable on the im- plied contract to pay a reasonable re- muneration for the use of the land. In Winterbothani v, Ingham, 14 L. J., Q. B., the defendant who had been let in under such a contract of sale with no stipulation as to terms of occupa- tion, and had left after the contract had gone off, (through plainiijfs de- fault,) was held not liable. And, per Curiam, " the entry and occupation were not upon any understanding that any com^^ensation was to be made in the event which has arisen. The de- fendant certainly was considered both by himself and plaintiff as purchaser, not tenant ; and plaintiff cannot con- vert him into an occupier liable to pay for his occupation by his own wrongful act. The jury found the occupation ' beneficial ;' but that statement is ambiguous ; it may have been benefi- cial supposing he actually became owner ; but it may also have been a losing concern, or a balance struck on amount of proceeds during the actual holding? How is this balance to be struck? Therefore, though defendant may be said to have 'occupied' pre- mises under plaintiff, and by his ' per- mission,' it cannot be said he so occu- pied as to be indebted, or that he 'pro- mised to pay.' " The words " by the permission of the plaintiff," though they do not render requisite evidence of his assent to the occupation where the premises are proved his, and there do not ap- pear any intermediate right (ante) — still are thus far material and opera- tive, that the count will fail if it appear that defendant occupied adversehj to plaintiff, and with an intention of pay- ing any one. Thus in Tew v. Jones, 13 M. & W. 12, defendant was proved to have (three years before) conveyed premises to plaintiff which defendant had previously occupied, and which he continued after the conveyance to occupy, no evidence being given of any express contract of tenancy between him and plaintiff. The Court decided against the action, saying, " There must be some evidence of a holding by permission of plaintiff. A purchaser is clearly admitted into possession by per- mission of the seller ; but seller re- mains in adversely. If the seller re- main in under an agreement, it will speak for itself; if not, he is a wrong- doer : he may be turned out by eject- ment, and is liable in trespass for mesne profits." Where it cannot be proved that de- fendant held, i. e. that he has entered under a term which, as has already been adverted to, arises whenever rent is payable, he can only be liable by reason of his having used, occupied, &c. and the claim then is only by way of remuneration for actual occupation, the right to which arises die in diem. Packer v. Gibbins, 1 Q. B. And of course there can be scarcely any question of special plead- ing in such case. But wherever rent has been con- tracted for, the right to each reser- vation, being on an entire contract, and only arising on its comple- tion (Slack V. Sharj), 8 A. & E. et 222 AGARD V. KING, Cko. Eliz. 775. alia, ante) any defence showing that the right never in fact became com- plete, and that the rent never ac- crued, cannot be specially pleaded, as it wonld amount to the general issue, as showing that defendant, as to so much of the declaration, never loas in- debted. Hence, in Prentice v. Elliott, 5 M. & W. 607, where the defendant pleaded to this count, "that as to parcel, &c. the action was brought to recover that sum in respect of one quarter's rent of the rooms, &c. in the declaration mentioned, commencing, &c. and that the rooms were let to the defendant by the plaintiff, and that defendant during all the time aforesaid held the same under a certain demise thereof by the plaintiff, at a yearly rent payable, &c. That plaintiff, during the demise, and after the commence- ment of the said quarter, &c. and before the said sum became due, &c. (concluding with an allegation of evic- tion by plaintiff) — there was a special demurrer, for that the plea was an ar- gumentative non asstmipsit, &c. And \per Parke, B.) " the plea is clearly bad, it shows that defendant never was ' indebted to the plaintiff for the use and occupation,' &c. because events occurred before the rent was due which freed him from all liability. The promise laid arises from the facts alleged, which are denied by the gene- ral issue" (confirmed in Selby v. Brown, 9 Jurist) , So in the case of a surrender, or any defence arising before the rent had accrued. In a note to Dodd v. Acklom, 6 M. & G. 184— where the learned reporters remark, " The sur- render and acceptance, if established, would appear to be an answer to the action. At common law a surrender made and accepted before the day on which the rent could have become due was a bar to any action for that rent ; and it is not to be presumed that the legislature, in passing the 1 1 Geo. II. c. 19, intended indirectly to alter the law in that respect, and to make the tenant liable for that which is rent, not- withstanding an accepted surrender " (or any similar defence) — it is added " It may not, perhaps, be equally clear that the surrender is admissible in evi- dence, under the general issue. The only question upon which appears to be whether the plaintiff has established the state of facts which the statute re- quires. If he has, the surrender would rather appear to be matter of discharge to be specially pleaded." But, accord- ing to the new rules, non assumpsit would put in issue the facts from which not merely prima facie, but absolutely and in legal effect the promise would arise, and on the principle " expressum facit cessare taciturn,'^ no liability at all could arise, unless the whole rent accrued according to the reservation. No promise arises to pay the rent till it is due, therefore any plea must amount to the general issue, which discloses that the rent never became due. The same principle would apply with respect to a special as to a common count for use and occupation. {Reeves v. Bird, 1 C. M. & R., et alia, ante.) 223 WOODS V. DUKE OF ARGYLL, 8 JuR. 62. Assumpsit to recover the sum of 37/. 5s., for work and labour performed by the plaintiff, in copying certain maps and making certain journeys. It appeared upon the trial, before the Lord Chief Justice, that the plaintiff had been employed to copy maps, and had undertaken a journey to Gravesend in furtherance of the objects of a certain asso- ciation, called The British- American Association for Emi- gration and Colonization. The plaintiff's direct employer was the secretary of that association. In the prospectus, however, the name of the Duke of Argyll, one of the de- fendants, was inserted as president, and that of Sir James Cockiuirn, the other defendant, as a member of what was called the Consulting Council. Moreover, it appeared that both the defendants had signed an agreement to take shares in the company which was proposed to be formed ; but one condition of that agreement was to the effect that a deposit of 51. was to be paid when shares to the amount of 50,000/. had been subscribed for. The proposed amount was never realized, and no deposit had therefore been paid. By the prospectus it also appeared, that the whole management of the undertaking was to be placed in the hands of six commissioners ; and, further, that no peer or baronet who should become a vice-president should be liable, as such, to the expenses of the association. Upon these facts, the Lord Chief Justice left it to the jury to say, whether there was any evidence of a direct contract between the parties ; or, secondly, whether there was any partnership formed of which the plaintiff's were members ; or whether, thirdly, the defendants had held themselves out to the plaintiff as members of the association. The jury answered all these 224 WOODS V. ARGYLL, G M. & G. questions in the negative, and a verdict was therefore en- tered for the defendants. Bi/les, Serjt., now moved for a rule to show cause why this verdict shoukl not be set aside, and a new trial had, upon the ground of misdirection. He submitted, that the learned judge should also have asked the jury whether the defendants were or were not members of the company formed to carry into effect the original project, that of con- stituting a society for the purpose of emigration, under the name of the British-American Association ; and that, if so, the plaintiff was entitled to recover. He cited Moneypenny v. Hartland (1 C, & P. 352), and Douhleday V. Muskett (7 Bing. 110). In the latter case it was held, that the fact of the defendants consenting to become di- rectors, buying shares, and attending meetings of a pro- jected water company, for which an act of Parliament was to be obtained, were sufficient to make them responsible for works ordered at subsequent meetings of the projectors, which the defendants did not attend, although no act of Parliament had been obtained, and the project had failed, they having done no act to divest themselves of their in- terest in the concern. TiNDAL, C. J. — I think this case, at the trial, underwent a very full discussion, and all the facts were brought before the jury which could by possibility be brought to bear upon the case. I think I left every thing which the law requires ; the jury found that there was no direct contract, and there was no pretence for saying that any partnership existed. I see no ground of misdirection, and I think the jury were justified in coming to the conclusion at which they arrived. I think, therefore, the verdict ought to stand. Erskine, J. — I am of the same opinion. I see no evi- dence to warrant the jury in coming to the conclusion, that the defendants had authorized the plaintiff to make maps. There is nothing to show that the secretary got the work done on the credit of the defendants ; but, on the contrary, they cautiously held aloof from responsibility until shares to the amount of 50,000/. had been taken. It appears to LAKE V. ARGYLL, 9 Juu. 295. 225 me, therefore, that the plaintiff has acted entii-ely on the credit of the secretary and of that person's employers. Cresswell, J. — My Lord left the case to the jury pre- cisely in accordance with those rules which have been laid down by the Courts for discovering who shall be liable in a case of every joint-stock company about to be formed. It is well known that these cases underwent great considera- tion, and I think there is no ground whatever for the rule. — Hule refused. LAKE V. DUKE OF ARGYLL, 9 Jur. 295. Mich. Term. Assumpsit for goods sold and work and labour done. Plea, non-assumpsit. At the trial, before Lord Denman, C. J., at the sittings at Westminster after Trinity Term, it appeared that this action was brought for work done for a certain projected association, to be called The British- American Association for Emigration and Colonization ; that the work had been done by order of some of the members of the association before the defendant attended any of its meetings ; but the defendant had subsequently consented to become president of the association, and had attended two of its meetings. The Lord Chief Justice had refused to nonsuit, and the jury having returned a verdict for the plaintiff, in the following term (Nov. 4), Kelly moved for a rule nisi to enter a nonsuit, or for a new trial. There was no express contract by the defendant to be liable for any part of the expenses, and the evidence at the trial did not prove any implied contract to pledge his credit. A similar question was raised in the case of Wood v. The Duke ofArgijll (7 Scott, N. R., 885 ; 8 Jur. 62). There, Tindal, C. J., left it to the jury to say, first, whether or not there had been any direct con- tract entered into by the defendants with the plaintiff; secondly, whether there was any partnership formed, of which the defendants were members ; thirdly, whether the defendants had held themselves out to the world, or to the Q 226 LAKE v. ARGYLL, 9 Jun. 295. })laiutiff, as partners, so as to be responsible for the acts of other members on behalf of the general body ; and the jury having found a verdict for the defendants, the Court held, that the case was properly presented to the jur}', and that the evidence fully justified the conclusion they came to. Lord Denman, C. J. — We think that there is no ground for a nonsuit, inasmuch as the defendant did some acts, the character of which it was for the jury to consider. As to a rule nisi for a new trial — Cur. ado. vult. Nov. 22. — Lord Denman, C. J.-, delivered the judgment of the Court. — The question in this case was, whether the defendant had made himself liable for certain printer's work. I was asked to direct a nonsuit, because it was said there was no evidence to show the defendant's liability. I thought, however, that I could not nonsuit, as, undoubtedly, some proof was given of acts done by the defendant, which were fit to be considered by the jury, in order to determine whether he had incurred any individual liability, and on the effect of which the plaintiff had a right to take the opinion of the jury. The case of Wood against this same defendant, tried in the Court of Common Pleas, was referred to, where the Lord Chief Justice laid down the law to the jury, and summed up strongly for the defendant. I adopted the same course, and laid down the law to the jury, I believe, in the very words there employed, and sunmied up some- what in favour of the defendant ; observing also, that, upon the evidence in the cause, there was strong reason for supposing that credit had been given by the plaintiff to other persons, who had previously been the plaintiff's cus- tomers, and not, in point of fact, to the defendant. The jury, in the Court of Common Pleas, found a verdict for the defendant. In this case the jury found a verdict for the plaintiff; and a motion has been made for a rule to show cause why a nonsuit should not be entered, or why there should not be a new trial. Vie expressed our opi- nion, when the rule was applied for, that there was no ground for a nonsuit, for the reasons which we then stated. LAKE V. ARGYLL, 9 Jur. 295. 227 We now, therefore, come to consider the apphcation for a new trial. It appears that certain persons agreed to form an emigration society ; they held some meetings ; the names of several persons were put forward as the names of those who were engaged in forming this society : and they afterwards obtained the consent of the defendant to be named president, — that involving a consent to the pub- licity of such appointment. Some meetings were afterwards held, at one of which the defendant acted as president, and signed certain resolutions there agreed ujjon, and, among others, a resolution that the proceedings of that meeting should be printed. The defendant was also publicly held out to the world as president of the intended association, in papers which were regularly transmitted to him ; and he also informed the Lord Mayor, in a correspondence relating to some sailors, whose case came before him, that he had at one time been a proprietor of shares in the undertaking, but that he had withdrawn from the company. On these facts, I asked the jury, whether the defendant had held himself out to the world as a person intending to pay for the work charged, and articles furnished, to the company ; and they thought he had, and fixed him with the amount. An objection was made to that mode of putting the ques- tion. It did not appear that the company had ever been formed according to its intended constitution ; and it may be proper to distinguish between acts done by the company in execution of their project, and acts done by those who hold meetings preliminary to the formation of the company. In the former case, the tradesman, in order to establish the liability of the party, may be bound to show that the com- pany was created according to the announced terms. He might have no right to separate the statement in a pro- spectus or similar publication, that the defendant meant to be a member of the company, when formed, from the ac- companying statement, that no company was to be formed until a certain capital was subscribed, or a certain amount paid, or other conditions precedent complied with ; but where persons meet together for the purpose of preparing Q 2 228 LAKE v. ARGYLL, 9 Jur. 295. measures necessary for calling a society into existence, their attendance at such meetings, and their concurrence in such resolutions as may be deemed necessary for the in- tended purpose, would be strong evidence that any indi- vidual there present held himself out as a paymaster to all who executed their orders ; for though he might not be liable as a member or shareholder, since no shares were in actual existence, yet, if it was his declared intention to become a president or member, or to take any share under any condition, he might be liable for the preliminary ex- penses by virtue of the declaration of his intention. It might be material, in a case where a party to be charged did not actually give the order, to show that the secretary had authority from that party to contract with those whose services were required by what may be called the consti- tuent body : that proof was given here. In this case, the work done by the plaintiff was obviously necessary for the existence of the company. Part of it was ordered at a meeting held in the defendant's presence, by a resolution which was read by him from the chair. This proof was not certainly conclusive, for the defendant might only be giving his attendance as a spectator, and the plaintiff might possibly have been informed, or might have believed from circumstances, that other persons were to pay. But the defendant here had the benefit of that possible pre- sumption ; for the circumstances which might fairly have led to such an inference were fully commented on in the summing up ; and we cannot say that the jury have done wrong in thinking them insufficient to justify that infer- ence, and to outweigh the defendant's conduct in the particulars above mentioned. In Wood's action the claim was not precisely of the same nature ; it was for maps to be used apparently in execution of the company's scheme of emigT-ation, with a view to the accomplishment of the very object for which it was formed ; hence, the evidence was confined to proof that it was so formed, and that the Duke had become a member of it. There was no difference between the summing up in the two cases, nor is it at all LAKE V. ARGYLL, 9 Jur. 295. 229 certain that the same jury might not have found both verdicts. Possibly this view might lead to the opinion that this verdict was far too large a sum. Part of the work may have been properly charged, because done in respect of preliminary matters : and part improperly, because claimed in respect of a company which may never have been formed, or of which the defendant may never have been a member. But this division it would not have been easy to make, and it ought to have been pointed out at the trial ; nor is it the ground of the motion now refused. We only advert to it at present, upon the supposition that the jury have so found their verdict in this case as to refer the liability to every contract made by the supposed company, the apprehension of which is supposed to be the main reason for resistance to Mr. Wood's demand. Each case must depend upon its own circumstances, and must be de- termined with reference to the defendants own language and conduct. On the whole, therefore, we are of opinion, that the direction was right, and that the jury exercised their judgment on matters properly submitted to their consideration. — Mule refused. In the practice of pleading, few who are principals of the agent are co- questions arise more frequently, or contractors in law, though not in fact, present greater difficulty, than those On the other hand, whenever a de- which respect ^9ar^«e5 to actions; fendant cannot be proved the priuci- especially in cases (one class of which pal or the partner of the person who is represented by those in the text), actually contracted, he can only be where the point is whether in a parti- rendered liable by being proved to cular transaction a party is liable as have contracted in fact : and this (as principal, partner, or co-contractor, all contracts in their nature involve The questions arising on the legal re- mutuality), imports that he was col- lations thus referred to must be, it is tracted with. Thus, therefore, the obvious, intimately associated ; for the question as to the right of suing is agent of a partnership is the agent of correlative with the question as to the each member of it ; and in a partner- liability to be sued, and the two ques- ship each member is the agent of all tions are thus reciprocally elucidated the others, so that "partnership law and illustrated the one by the other; is in fact the law of principal and and the whole difficulty in the cases agent," per Parke, B., {Wylde v. exemplified by those in the text is — HopJiins, 8 L. T.) ; and as the act of to discover whether there has been a an agent is the act of his principal, all contract in law, by means of a partner 230 WOODS V. ARGYLL, fi M. & G. or an agent ; it is then immaterial whe- ther there were a contract in fact ; i. e. that express privity and actual credit or agreement, to which otherwise it is requisite to resort. The appointment of a general agent, or the fact of a general partnership, will obviously be seldom more than a plain question of fact ; and any difficulty must be rather as to the extent than the ex- istence of the authority. The diffi- culty arises principally in cases where, as in the case in the text, there has been, with respect to a particular pur- pose, an apparent but not an actual partnership ; i. e. where there has been something of a "common pur- pose," or joint property, without that legal partnership interest, which in law is requisite to create a legal part- nership liabihty; and to render the acts or the agents of some the acts or the agents of all. The difficulty here referred to, and the principles which must be resorted to for the purpose of solving it, will be found illustrated in two large classes of cases ; the one respecting the rights and lia- bilities of shipowners ; the other with regard to the legal relation subsisting between diiferent persons contem- plating a combined adventure. Both these classes of cases throw consider- able hght on the responsibilities arising out of relations of more recent origin: the frst class exemplifying the concurrence (and often the conse- quent confusion) of the relations and liabiUties of partner, principal, and joint contractor; and the other class illustrating the questions occasionally arising in the progress of a common project, as to an inchoate or a ])erfect partnership. The former class of cases, indeed, viz. those respecting the liabilities of shipowners, may be said to exemplify and include the second, as shipowners, who, previous to the conception of a joint adventure, may be mere part-owners — will, upon such adventure arising, become j)(f^'t- ners. So long ago as in Garnham V. Bennett, 2 Strange, it was held that "jjrimd facie, the repairer of a ship has his election to sue the master who employs him, or the owners ; but if he undertakes it on a special pro- mise from" (i. e. exclusively on the credit of) "either, the other is dis- charged." In this decision, brief as it is, the expression "jmmd facie" marks the important distinction be- tween legal liability and that which is merely evidence of it (as proving an actual contracting), a distinction which pervades all the authorities on this subject. It had previously been laid down, as in Mars v. Slue, Le- vinz, J., Bosan v. Sandford, 3 Mod. and 1 Show, (see these cases cited Cowper, G3G) that the owners were liable for the acts of the captain, be- cause they employed him: i. e. be- cause he is their agent : a principle expressly enunciated per 3Iansfeld, J., in llich V. Coe, Cowper, et per Heath, J., JacJx-son v. Vernon \ II. B., et vide Milligan v. Wedge, 2 Q. B. S. P. And mei-e oivnership is ahvays alluded to, only as an evidence of an interest, which might prima facie ])rove the part-owners, partners, or the joint-i)rincipal of the master: according to the general principle laid down alike in the most ancient and the most recent authorities. Thus, Comyn's Digest, "Debt," (A, 8): " If a stranger retain an attorney for another, debt lies against him for whom he was retained, as well as against the retainer," i. e. if the latter were the other's agent in the retainer. So per LAKE V. ARGYLL, 9 Juk. 295. 231 Erskine, J., Cravjshay v. Barrij, 1 M. & G. : " You may make yourself personally liable for work done to another man's goods." This distinction and this principle will be found exemplified in a case where the apiparent owner is not the actual owner, or where the virtual owner is not the actual owner ; and where therefore as ownership is disclosed as distinct from interest, it affords 2ier se no proof, either of partner- ship or of authority. Thus in Rich V. Coe and others, Cowp. G36, it ap- peared that the plaintiif had supplied necessary materials (cables) to the or- der of the captain, making out the ac- count to him "and the owners" the defendants, (in the usual manner) without naming or knowing them. The ship was let by defendants to him upon certain articles, securing to him for a fixed term the exclusive employ- ment of the vessel, he agreeing mean- while to supply all necessaries, and see to all repairs ; but of this agree- ment the plaintiff was not aware. The Court said the defendants were liable ; "Whoever supplies a ship with neces- saries has the security of the master and the owner, whether they know of the supply or not. The master is liable as making the contract. The owners are liable in consequence of the master's act, because they choose him. The private agreement, in this case, cannot affect the plaintiff, who was a stranger to it. If he had known of it, and had in consequence of it given credit to the captain individually, as the responsible person, particular cir- cumstances of that sort might afford ground to say he meant to absolve the owners, and to look singly to the per- sonal security of the master." The case is supported by Parish v. Craw- ford, 2 Strange (and Abbott on Ship- ping), and was in its principle recognised in Jackson v. Vei-non, 1 II. Bl. 119 (where />(??• Heath, J., it was said "the captain was considered as the agent of the owner"), and the principle laid down in the case was also confirmed in Farmer v. Davies, 1 T. R. i05, where the Court said : " Where a cap- tain contracts for the use of the ship, the credit is given to him in respect of his contract: if is given to the owners because the contract is on their ac- count." But though the principle laid down in llich v. Coe is thus correct, its application to the particular facts there presented was not so ; and the case affords, perhaps, the earliest ex- ample of that confounding ownership with interest (?'. e. of part-ownership) with partnership), which, may be ob- served, produces all the perplexity in similar cases. And in Fraser v. Marsh, 13 East, the error was corrected, and under similar circumstances the ojipo- site conclusion was arrived at, and the defendant held not hable ; upon the clear and intelligible ground that he was not partner or principal, and did not contract in laiv any more than in fact ; for per Ellenborovgh, C. J., " The question is, whether the captain who ordered the stores were or were not the servant of defendant. They did not stand in the relation of master and owner : the captain was not the defendanfs agent : and therefore the latter is not liable for his act." Per Le Blanc, J. : "au owner must have the appointment of the captain, but the defendant had no right to appoint the captain here. The captain ordered the stores as owner." Under similar circumstances, the same decision was pronounced in the recent case of Reere v. Davis, 1 A. & E,, where, 2^c'' 232 WOODS V. ARGYLL, G M. & G. Lord Denman, C. J., the principle is thus clearly elucidated : " The ques- tion is, who loere the contracting ^jar- ties? The mere circumstance of ownership may be sufficient to create" (^■. e. to prove) " a liability where the vessel has been left under the control of a party who has given orders, if no in- tervening ownership has been created." So per Littledule, J. : " In an action against parties as owners, the question is, icho are so for this purpose ? The persons registered are not necessarily so. The party for whose profit the ship is in reality employed, at the time, has the benefit of the work, &c., and is liable," i. e. in the absence of ex- press or exclusive credit to any one else. Other cases of this class illustrate the same principle in its applica- tion, as well to the authority of each part-owner to bind the others, as of the master to bind them all. Thus in the cases in which the interest had been permanently, as in the foregoing cases it v^as temporarily transferred, the decisions proceed upon the plain principle that ownership is an evidence of interest ; and interest only proof of partnership or authority. They also collaterally illustrate another principle, useful in its analogy to the registry required by a recent joint-stock act — that statutable registry is but evidence of ownership. In Weste.rdell v. Dale, 7 T. R. 308, the repairs were ordered by an acting ovnier, and the account debited him by name, and the captain. The Court held that one defendant having been at the time legally owner, by reason of a conveyance from the party who gave the order, was liable {per Lawrence, J.), "upon the ground that, if one part-owner suffers the others to employ a ])erson to repair the ship" (^. e. or incur any other necessary liabilities), " he is bound by their act." In Young v. Brander, 8 East, the case was recognised ; but per Ellenborovyh, C. J., " That was a case oi partnership. The party who ordered the repairs was the same as defendant." Hence it is to be inferred, that a part- nership was considered to have been proved {sed vide post, 2A A) and the case turned upon the privity between the two. In Young v. Brander, repairs were ordered by the captain, at the direction of the owner, and exe- cuted after the defendants had trans- ferred their shares in the ship, but while their name appeared on the register required by statute, and no notice was given to plaintiffs of the change in the ownership ; nor does it appear, on the other hand, that he had given orders to defendants : the Court said, the case was too clear for argu- ment. " The owners were liable for repairs ordered for them, or for their benefit, by the master ; but it was never heard of that if a stranger ordered re- pairs for another ship or carriage, the owner was liable for such repairs " i. e. merely as owner, although of course ownership would, with acceptance of the advantage, be strong evidence of authority, and of consequent liability, and presuming the agency proved, the plaintiff might, even after contracting with the agent as with a principal, sue the real principal when discovered {Paterson v. Gaudasequi, 1 3 East ; and see Smith's Leading Cases ; Thompson V. Davenport, [) B. & C.) ; but if the party contracted as principal, and were not agent at the time, subsequent ratification of the contract would not make the owner liable. {Jleath v. Chilton, 13 M. & W.) The Court added, " Sujipose a pirate ran away with the ship, would the owners be LAKE V. ARGYLL, 9 Jur. 295. 233 liable for repairs ordered by bim ? Tbe purcbaser bere was a mere stranger to defendants in point of law, and ordered the repairs in his own right : and there was no privity" (" of interest'' was added, it is apprehended inaccurately ; except it be intended of interest only, as evidence of privity in contract ; tbe whole tenor of the case, and the cur- rent of llie authorities, turning on priAity of contract) " between bim and defendant. Here tbe holding defend- ant Uable would be contrary to the credit actually given'' Tbe case was upheld on this principle in Curling v. Robertson, 7 M. & G. 339, i^er Colt- man, J., and in Briggs v. Wilkinsoii, 7 B. & C, cited ^o«^, the same prin- ciple bad previously been acted on. And in M'lver v. Humble, 16 East, it was said ^9nd facie evidence. It is to be observed that the decision went not on tbe effect of the ownership lohen proved, but upon the effect of the registry as evidence of ownership. The decision was recognized in Fraser V. Marsh, 13 East, where it was de- cided that the fact of registration as OAVTier was, if any proof of liability by reason of ownership, rebutted by express evidence that the defendant had by a charter party, or rather demise of the vessel (see, as to the dis- tinction, " Abbott on Shipping,") divested himself of all control and possession of the vessel for the time being, in favour of another, who had all the use and benefit of it, and who, it may be added, would appear the ostensible owner. In Tinkler v. fFalpole, 14 East, 226, the Court said the evidence of re- gistry was not sufficient where the defendant had done no act adopting it : but expressly reserved their opi- nion as to the effect of the registry when so adopted : and the utmost that is said of it is (per Bayley, J.) that it might then be jjrma facie proof of interest as constituting a legal liability apart from actual contract ownership. This, it will be observed, is the prin- ciple already alluded to as deducible from the earliest authorities (as Gam- ham V. Bennett, ante, p. 230) : it may also be remarked that it reconciles whatever inconsistency may appear between prior decisions, as Rich v. Coe, Frazer v. Marsh, and Reeve v. Davis, ante, p. 232, and that it is supported by the whole current of subsequent decisions, down to cases the most recent. Thus in M'lver v. Humble and Holland, 16 East, 169, it appeared that the goods had been delivered in consequence of an order from " Hol- land and Co.," given m the general name of " the owners of the ship ;" 234 WOODS V. ARGYLL, G M. k G. and the invoice was made out in those terms ; plaintiff also debiting Holland and Co. " for the ship." The evidence to fix the defendant Hwnhle, as owner, was, — the production of the registry, neither purporting, however, nor proved to have been made on his declaration ; and a document sigrned bv defendant Hum- ble, after the liability was contracted, ]>urporting to assign his share to a third party. It appeared further, that de- fendant Humble had, at the time the goods were supphed, no concern in the firm of Holland and Co. ; but that the ship had formerly belonged to " Hvim- ble and Holland," — a firm from which Humble retired a year or two previous to the supply of the goods sued for ; his retirement having been accom- panied by the alteration of the firm to " Holland and Co.," notified by circu- lars, &c., but not by advertisement ; nor was plaintiff proved to have had notice. It also appeared that Humble had defectively conveyed his legal in- terest ; so that in strict law, he con- tinued part-owner. The Court said, " A person may make himself liable as a partner with others, in two ways, — either by a participation in the loss or profit, or in respect of his holding himself out as such, so as to induce others to give credit to that assurance. Here, Humble had ceased to be a partner at the time the credit was given, though his legal interest was defectively conveyed. Then did he continue apparently to be a })art- ner, so as to induce plaintiff to credit him as such ? There was no exhibition of partnership ; no appearance of it, which plaintiff could have had access to. The name now appears as owner on the registry. But the register was not resorted to hy plainiijj's for information as to v'ho were the owners, nor was credit given upon it ; though if recourse had been had to it, it would not have been legal evidence ; and the assignment is an ex 2)ost facto document, which could not have contributed to the appearance of Humble' s ownership. The goods were supplied on the credit of Hol- land" Here, it will be observed, the doctrine is clearly laid down that if ac- tual ownership be not proved, apparent ownership is not sufficient, unless the appearance were held out to the plain- tiff. The distinction, that even owner- ship, assuming it proved, is not ma- terial, except so far as it may be evi- dence of contract, is also indicated, but perhaps was not so clearly elucidated as in subsequent, and especially in more recent cases. Thus in Annett v, Carstairs, 3 Camp. 354, it appears that the defendants were bare legal owners, by reason of a conveyance as a security, without any actual possession, and without appearing as such, except on the register, the certificate of which was declared to plaintiff, who, however, never received any orders from them, or had any communication with them ; but continued to correspond with the transferor as o\^^ler, who alone con- tracted with him. The Court non- suited the plaintiff, and said, " The question is with whom has the plaintiff contracted ? There is express privity between him and the previous owner. The legal ownership thus becomes im- material. The plaintiff' dealt with the previous owner throughout. Title has nothiuff to do with these cases ; we must look to the contract between the parties." In Briggs v. Wilkinson, 7 B. & C, the order was given as in Annett v. Carstairs, by a previous owner, who had assigned his interest LAKE V. ARGYLL, 9 Juu. 295. 235 to defendant ; but continued to manage the skiji as before, and plaintiff did not know that defendant was legal owner. The Court said, " The regis- ter acts do not aftect the question. They" (can but?) "enable a person to ascertain the legal ownership ; but that might have been ascertained aliunde. In the case of a ship, or of any other propert}^, the agent may make himself orhisprincipal liablefor repairs. But defendant here cannot be treated as the principal of the previous owner who gave the order. Where a ship is under the management of the master, and the owners divide the profits, the master is prima facie agent of them all. Mere ownership, however, without proof of agency, does not render a party liable. And the previous owner here had no authority, express or im- plied, to pledge defendant's credit." This reason was recognized as the real reason of the decision, per Colt- man, J., Curling v. Hohertson, 7 M. & G., 230 : — in which case the order was given by the ma- naging owner, and was undertaken and executed after the defendant had by agreement, though not by formal conveyance, disposed of his legal inter- est in the ship. The defendant was not known to the plain tiifs as part- owner at the time of the repairs, nor had she ever interfered in the matter. The Court said, "This falls within the class of cases in which the legal owner having parted with his beneficial interest, the question is, whether the party giving the order had any au- thority so to do from such order. Here there was no evidence of any such authority. The registered owner" (query, the party only proved owner by the register ?) " is not liable for re- pairs, &c., unless actvially done upon his credit. And though the legal ownership is prima facie evidence of liability, it may be rebutted by proof of the beneficial interest having been parted with and of the legal owner having ceased to interfere in the ma- nagement of the ship. The plaintiff is bound to show that the party giving the order had authority to pledge de- fendant's credit, and that he did so. Being the ship's managing owner, he would have an implied authority from his owners to order necessary repairs. But he ivas aware that at the time defendant had parted with his benefi- cial interest, and therefore had no im- plied authority from her. The fact that her name was on the registry does not appear to have been known to plaintiff ; nor does it appear that de- fendant ever allowed herself to be held out tohim as part-owner." The decision is confirmed in still more recent deci- sions. In Holcroft v. Hoggins, 15 L. J., C. P., the facts were substan- tially similar, except that it was the case of a newspaper, instead of a ship ; and it is to be observed, that in the one case, as in the other, a register of proprietors is statutably requisite ; and in this, as in the former case, the only e%ddence against defendants was, that their names at the time of the con- tract, appeared on the registry ; but it was also proved they had previously transferred their shares. Per Maule, J. : " That was s. prima facie case ; but it is rebutted." Per Tindal, C. J. : " The question is, whether the defend- ants were cordractors. It mav be true that they held themselves out to the world as proprietors ; but it is not shown that credit was given to them on that account." Upon the foregoing cases it is to be remarked, that where the contract has 236 WOODS V. ARGYLL, 6 M. & G. been made, as in Curling v. Robertson, cases where the owner can himself per- by a managing owner, the other sonally interfere, as in the home port, owners might be hable upon an im- or in a port in which he has appointed phed authority to him, apart from any an agent who can personally interfere question of partiiershij) as an implied, to do the thing required. But if the would be equivalent to an express au- vessel be even in an English port thority, and would constitute them where the owner has no agent, and at joint contractors in fact, independently a distance from his residence, and pro- of any legal liability arising out of the visions or other things require to be partnership ; and that they might provided promptly, then the occasion thus be liable as part-owners, even authorizes the master to pledge the though they were not partners. The credit of the owner. And if money distinctionwould not arise between these be necessary, it may be raised upon grounds of liability, where it appeared credit ; though the law is more strict that defendants neither were part- as to that : all these questions are re- o^A-ners, nor held themselves out to the ferable to one general principle." As to plaintiff as such ; for the evidence that the strictness with which agency or negatived actual or virtual part-owner- authority implied only ex necessitate is ship necessarily negatived partnership, construed, vide FUerbon v. Chapman, The distinction, however, is important, 13 M. & W., Chapman v. Morton, 1 1 and may thus be illustrated : where M. & W. It is obvious, that ques- the owners are not proved partners, tions of greater difficulty will neces- the managing owner can only be in sarily arise, both as to the existence the position of any manager not an and the extent of the authority of an owner, as the master. In Shipton v. agent who is not a partner, than can Thornton, 9 A. & E. 337, the Court occur in cases of partnership. Thus in expressly recognize the principle that Helmes v. Smith, 7 Bi. (a case of part- the master, whether an owner or not, nership in a vessel), it was observed is the agent of the owners for the per Tindal, C. J., that if the parties ship. And the nature and the variety were partners, the case could be clear, of the questions which may arise as to But it is added, per Bosanquet, J. : the extent of his authority are illus- " The ship's husband (i. e., the man- trated in Arthur v. Barton, G M. & W. aging owner) was agent for the othersT 139, where the question was whether and here it is to be observed, that as, the owner of a coasting vessel was on the one hand, the proof of partner- liable for money borrowed by the cap- ship with owners of course dispenses tain for necessaries in an English port, with much evidence as to the existence The Court said the question was one or extent of the authority, so on of fact, and properly left it to the jury the other hand, the evidence of partner- (who had foxmd for the plaintiff), ship, or of (that which is analogous to ♦' Under the general authority which it) joint interest, coupled with the the master of a ship has, he may other facts, may show an authority to a make contracts, and do all things ne- common agent, apart from partnership, cessary for the due and proper pro- Thus in Gibson v. Lupton, 9 Bi., it is sccution of the voyage. But this said^^erCwnaw?: " The question will be authority docs not usually extend to hi the case of part-owners, not partners ; LAKE V. ARGYLL, 9 Jur. 295. 237 whether on the evidence, it appears, not adverted to. And it appeared that that defendants anthorized or allowed the contract of sale had been made by it to appear to plaintiff, that they one of them alone ; defendant having authorized the contract to be made on no knowledge at the time that any Me/?- ^^e/ifl//"." It will seem at once toil- other parties were interested in the lustrate the distinction between partner- transaction. It was argued that the shipandjointauthority, and to exhibit action should not have been brought the applicability of the class of cases by all, but the objection was overruled ; above noticed to cases of more recent and it is obvious it could have been so on origin, and not perhaps apparently the ground only that the plaintiffs were analogous, to cite a passage (almost in partners, as otherwise the action must terms thesameasthat justquoted), from have been brought by those who made a recent charge of the Chief Justice of the contract in fact. (Hafsall v. the Queen's Bench in Ireland, in an ac- Griffith^ 10 B. ; Brassington v. Ault, tionagainstaprovisional committee-man 2 ih.; Heath v. Chilton, 13 M. & W.) (i'Vre«/^er V. £e/^, 8 L. J. 218): "The And though it is said, per Curiam, defendant not being a partner, it would " The action may be maintained either be for the jury to say whether he had in the name of the person with whom induced the plaintiff to render his ser- the contract was actually made, or in vices,and so acted asto induce the plain- the name of the parties really inter- tiff to continue those services; if he did, ested;" and though this observation then he was liable; otherwise, not so." had previously been made in Sargent Substituting in the dictum quoted from y. Morris, 3 B. & Aid., and was sub- Gibson v. Luptori, the words " joint sequently repeated, per Bayley, J., in projector" for the words "part Garratt \. Handley, A ^. k C; more owner," the two passages are, it must recent cases seem to show that where be observed, in import precisely the there is a partnership, and no inter- ^^^^- mediate contract (see per Lord Den- Before proceeding further, it may man, Reeve v. Davis, ante, p. 232), the be useful to illustrate the principles ^hole firm must sue, if the considera- on which these questions are decided, tion moved really from all, though by considering them as exemphfied in nominally from particular members, cases where the relations of the parties provided it do not fully appear that are similar, but are exhibited in the there was exclusive contract with that reverse aspect,— i. e., with a view to party ; which indeed would interpose determining the right of suing, instead an intermediate contract between the of the liabihty to be sued. Thus partnership and the defendant. Thus in Skinner and others v. Stoch, 4 B. i^ Garrett and others v. Ilandley, & Aid., in assumpsit for not accepting 4 B. & C, declaration in assumpsit goods, it appeared that plaintiffs stated, that in consideration that were joint-owners of a ship engaged in plaintiffs, at request of defendant, a fishery, for the price of part of the ^ould advance, &c., defendant pro- proceeds of which the action was noised them to repay, &c. ; that plain- brought ; so that, according to the au- tiff did advance, and cause to be ad- thorities subsequently to be adverted vanced, &c. Breach, that defendant to, they were ^jarifwer*, though this was did not repay. It appeared that de- 238 WOODS V. ARGYLL, 6 M. & G. fondant had originally applied to one of the i)laintiflFs for the advance, which, however, was made by them jointly as a firm ; and evidence was adduced to show, that defendant was aware of this. The Court said, " From this evidence, it appears, that the contract was intended to be with the /;•/«; and the action is properly brought in the name of the parties for whose benefit the contract was entered into." It was observed, per Baylerj, J., in Alex- ander V. Barker, 2 C. J. : " The language of the {ivritten) contract in Garratt v. HanclJey was addressed to an individual; but the advance was not made by him alone ;" and on that ground, the case was confirmed and followed in Alexander v. Barker, where, in indebitatus assuinpsit for money lent to and paid for defendant, the facts proved were, that defendant asked one of the plaintiffs for a loan which was advanced by him jointly with the others with whom he was in partnership. The Court said, "The action may be brought by all in the name of the jJ^'i^cipals. The applica- tion by defendant for the advance was not qualified by the condition that it should be made by the party he applies to. And by so applying generally, he entitled that party to place de- fendant in the position of being an- swerable to him individually, or to him and his partners jointly, according as he made the advance in his indi- vidual or collective capacity. If one party applies to another for the loan of money, and is so much in the dark as not to know whether the party to whom he applies is the member of a firm or not, the applicant must take his chance as to whether the advance is made by the individual or the firm ; vmless he expressly declare that he deals with the person applied to indi- vidually. It is to be observed, that in Bonjield v. Smith, 12 M. & W., pre- cisely the same principle is applied to the case of lenders or buyers, on pica of abatement for nonjoinder of defend- ants. In a recent case, Boucher v. Murray, 8 Jurist, and 13 L. J., Q. B., it was attempted to enable the partner who made the advance out of the moneys of the bank to sue alone, by stating the consideration for the j)^o- mise to him to have been his " procur- ing the loan to be made by the firm ;" but it is conceived, that this could only have been sustained by showing that he had borrowed the money from the firm, and then lent it to the defendant ; and in that view, such a special count would be argumentatively equivalent to the common count for money " lent by the plaintiff y In that case it was said, per Patteson, J. : " If the con- tract were in consideration of the bank making advances the promise is to the bank." Again in Sims V. Brittain, 4 B. & Ad., in an action for money had and received, the endence was, in effect, that money, the proceeds of freight earned by a vessel of which the plaintiffs were part-owners, had been received by the managing owner, who they allowed to appear as absolute owner, and who deposited it with defendant, his banker, (and though it was to be placed to his account as managing owner, that point was not deemed material). The Court said, " the money was received by defendant as agent of the managing (part) owner : and they by such receipt became accountable to him. The transaction in effect was as if plaintiffs and their managing (part) owner had themselves received it, and it had been handed over to him, who had then LAKE V. ARGYLL, 9 Jur. 295. 289 placed it iu defendant's hands on his own account, i.e., as a loan to defend- ant, who is dehtor not to thein, but to their agent, and co-proprietor." The decision, it will be observed, proceeded plainly upon the principle that there was an intermediate contract. {Et vide cases cited in the note to Chamherhjn V. Belarive, p. ^7 •) And, precisely upon the same principle, a case w as de- cided in which the facts were reversed, and the question was, as to the lia- bility to be sued : not the right of suing. In Smith v. Craven, I C. & J., three part-owners had agreed to bring each so much into a combined adven- ture, and one borrowed his share of a banker, who it was held could not sue the other two : for, per Curiam, " the loan was not upon their credit, the money was not lent to the partnership :^' i. e., there was an intervening contract, precisely the principle upon which in Boucher v. Murray it was attempted to obviate the objection that the money lent was not plaintiff's by showing that he hadi procured \i to be lent ; i.e., that he had borrowed it, and then lent it. So again in Palmer v. Sparshott, 4 M. & G. 137, the declaration, in assumpsit, was on a contract that in consideration that plaintiff should defend an action brought against him for a debt (due, if at all from him, jointly With, defendant), and that the plaintiff and another party, would bear the costs, &c., defendant would indemnify plaintiff, &c. : on non assumpsit it appeared that the agree- ment was made expressly with the plaintiff and the other party who was to contribute to the expences. It was objected that this was a variance : and the learned Judge accordingly amended : the plaintiff recovered. It was ob- jected (on a rule for arrest of judgment or a new trial), that the error now appeared on the declaration. But per Curiam, " The amendment only goes to the consideration, not to the promise. A consideration from two will uphold a promise to one. The agreement was joint in its terms, but the interest of each of the parties was distinct and separate, each having ad- vanced a sum : and the language of the agreement is that defendant shall indemnify them and each of them. (See cases cited atite, p. 97.) But on the other hand, in Hoggins v. Gordon, 3 Q. B. 4/4, where two arbitrators had been appointed, with power to appoint an umpire, whom they had accordingly appointed, and the defendant had pro- mised to all three that he would pay their charges, in consideration of which they agreed to and did act jointly ; the Court said, " This is clearly a joint contract." This appears the proper place for adverting to the effect of a contract being iu tvriting, not under seal. In Brake v. Beckham, 1 1 M. & W., 317, it was held in error, that if a contract in writing, though not under seal, be made by one partner on behalf of the others, though he alone sign it, all are properly made defendants in an action for the breach of it. This decision affirmed the judgment of the Court of Exchequer, in which it was distinctly stated that a contract iu writing by an agent, signed by himself, will bind his principal when the other contracting party discovers the prin- cipal, though the contract was made without his knowing who the principal was. The law makes no distinction between contracts, except between such as are and such as are not, under seal. If written they may indeed require to be stamped, but it is the 240 WOODS V. ARGYLL, G M. & G. statute which draws the distinction, not the common law; and though a contract under seal can hind none but those who sign and seal it, a contract not imder seal is open to all the com- mon law incidents of a contract, whether in writing or not, and parties may sue the real principals on a con- tract, whether written or not, and though signed only by an agent." In that case the declaration (unne- cessarily except with the view of placing the precise facts on the record to have the opinion of a court of error thereon) stated that two of the defend- ants, on behalf of themselves and the third, they all being in partnership, made the agreement with plaintiflF, which being set out appeared on the face of it to be such as a partner would have authority to make. Of course on the decision above stated, the con- tract might have been pleaded as "made by" all three. It is to be observed, however, that this decision is perfectly consistent with those which establish, that though it is ad- missible to introduce parol evidence to show that other parties are liable, who do not appear by the writing to have contracted, such evidence is inad- missible to show that a party is not hable who does so appear to have con- tracted. {Jones V. Littledale, 1 A. &E. ; Mayee v. Atkinson, 2 M. & W. ; Hig- gins V Senior, 8 M. & W.) Resuming now the consideration of cases more decidedly bearing upon such as those in the text, i. e., cases in which, by reason of an ambiguity arising from the appearance of a part- nership, it is doubtful whether there is a liability in law dispensing with the necessity of resorting to a contract in fact (a distinction expressly recognized 'per Pollock, C, B., in the recent case of Reijnell V. Lewis, 10 Jurist, 1104) it will be proper to consider another class of cases, in which, in the absence of any evidence of a contract in fact, the liability for expenses incurred in a common adventure has been considered as founded on the legal relation of partner or principal, and with re- ference, peculiarly, to the distinction between an inchoate, and a perfect partnership ; a question, it will be per- ceived, intimately connected with the class of cases represented by those in the text. The cases now to be noticed principally proceed upon the distinction between joint purchasers and part- ners : just as those previously no- ticed exhibit the difference between joint owners and partners. The ana- logy between joint owners or joint purchasers and joint ])roJecfors, and the consequent application of these authorities to cases like those in the text, will be apparent. And the prin- ciple on which these cases proceed is, that if the defendants are not proved partners or principals, they must be proved to have been personally con- tractors, and to have been person- ally contracted with. At the same thne they collaterally illustrate an- other principle, exemplified also in the cases already alluded to, viz., that where parties are not proved to have been partners or principals in fact, their appearing or permitting themselves to be held to act as such will impose no liability unless plaintiffs actually contracted on their credit, i.e., with them, though it is not neces- sary to ])rove this where they are proved to have been actually partners or principals. Another principle of great importance is also collaterally il- lustrated by these cases : viz., that though parties not partners may have LAKE V. ARGYLL, 9 Jur. 295. 241 a common agent for a common pnr- declared, pending the pnrchases, that pose, then* Uability, unless that com- "it was a common concern," there was mon purpose involve a partnership, no notification of this to the plaintiffsy will be limited by the extent of his au- nor was there to be any re-sale. The thority, the existence of w-hich also, as Court held defendants (B. & C.) not well as its extent, will be matter of liable, and^er Gould, J. : "They are more particular proof (as already neither partners nor joint purchasers, noticed, p. 23G,) than if his agency and If a man is to buy horses, and a friend authority were those of a partner, is to have two, surely this cannot Thus in Hoare v. Bavies, Dougl. 371, make the latter liable as a joint con- a broker had been employed by several tractor." Pe?' Heath, J. : " This is a persons, of whom defendants were sub-contract ;" i.e., a contract subor- two, to purchase a lot of goods, of dinate to that made between the really which they, with him, were to have contracting parties. "A. was the only separate shares. The broker, after purchaser known to the plaintiffs : the purchase, informed the sellers who entire credit was given to him alone, his employers were. The defendants Defendants can only be Hable as part- had paid for their own shares, and ners: and they are not partners, being there v/as 710 Joint concern in there-dis- only interested in the pui'chase, not in posal of the goods. The Court upheld the subsequent disposition." Here it a verdict for the defendants, saying, will be perceived the principle is ex- " Dormant partners are liable when dis- emplified, illustrations of which have covered, but this is not a partnership : already been afforded {ante, p, 238), as it is merely an undertaking w'ith the to the e^ect oi Kmntermediate conixa,ct. broker, by each buyer, for a particular The principles referred to, however, quantity" (^. e., he was the agent of find illustrations more ultimately as- each, with a limited authority) . "There sociated with the class of cases noticed is no agreement to share with one in the foregoing portion of this note, another in the profit or loss. The i. e., cases as to ship-owners. Thus credit of a person who engages for a in Savill v. Robertson, A T.R., defend- fortieth part (for instance) cannot be ant joined with several persons, not considered as bound for the other thirty- general partners, in the adventure of a nine parts. The sellers who do not ask voyage, for which each was separately after the principals trust the broker to purchase goods to be shipped as alone." Per Buller, J. : "The plain- his share : the Court held the outfit a tiffs had no reason to consider the joint concern of all, and that therefore broker as a partner with the others, any of them would be liable for goods for though he had a share, he did not ordered for that purpose. With re- ayjpear or act as a partner, nor were spect to the cargo, it was held that they partners inter se. They never met there Avas no partnership between them or contracted together as partners." till the goods were delivered on board. So in Cooper v. Eyre, 1 H. Bl. 42, and that then it became a combined A. B. & C. agreed to take certain adventure. The goods were, as in the shares in goods afterwards bought in two preceding cases, purchased by one, the name of A. alone, and though he and sold to him alone and on his sole and one of the vendors, defendants, credit: hnA, per Kenyon,C. 3 ., "could 242 WOODS V. ARGYLL, G M. & G. not have been sold on the partnership account, though afterwards indeed the defendants were to gain or lose : but the contract between the buyer and seller was consummated before the joint risk began. Suppose several persons agreed to open as bankers, and it was agreed that each should bring in a certain sum, as his share, it could not be contended that if one were to borrow the money for his share, the others would be liable for it." This very point was in a later case decided in accordance with the opinion here expressed. {Smith v. Craven, 1 C. & J.) ^operBitller, J., "The goods were not sold to the partnership.'" In Hesketh v. Blanchard, 4 East, 144, the question did not arise, as the parties jointly purchased, ordering the goods together, and the seller crediting them jointly. But in Gouthwaite v. Duckworth, 12 East, 624, the case was substantially the same as in Saville v. Robertson, with this important diiference, that the agreement was generally that two should purchase goods for the rest : not that each should separately con- tribute a share. And upon that dis- tinction the Court came to a different conclusion ; for per EUenborovgh, J., " cotemporary with the purchase there existed a joint interest in the adven- ture, the profits and loss of which the defendant was to share." It must be carefully observed, that in both cases the combined adventure comprised a re-sale. On the other hand, in Young V. Hunter, 4 Taunt. 582, the facts were similar, except that the defendant had only been allowed to join the adventure after the goods were purchased : so that the case was as much distinguished in the one di- rection, as Hesketh v. Blanchard was in the other : and the Court of course held the defendant not liable. It is to be observed that not a single autho- rity was adverted to, and the Court spoke of the liability as resting wholly on a joint interest in the ^9?8, where the action was had actually accpiircd an interest in the for goods supplied for the ii^orA/M^o/ rt property, there could not, o* to her, mine ; in which it appeared that defen- have been any partnership, as the ad- dant had spoken of herself in private venture, according to the distinction letters and private conversations as a drawn in the cases already adverted to shareholder, but she had never signed (ante, p. 241) would not, as to her, have LAKE V. ARGYLL, 9 Jur. 295. 247 commenced ; and the case shows that unless as to the defendant there had been created that community of" profit and loss which constitutes a partner- ship, the liability must be limited by the authority expressly or impliedly given ; though this, perhaps, is not accurately expressed by the general phrase that the parties " held themselves out as partners" since, as already observed {ante, p. 236), parties may hold them- selves out as joint princijials, in a con- tract, without holding themselves as pai'ties. Hence the case last cited is quite reconcilable with that of Ellis v. Schmceck, 5 Bi. 528, where the goods "were supplied for furnishing the build- ing in which the business of a mining company was to be carried on, but it does not distinctly appear whether the concern had come into actual operation, or what " business " was carried on. The defendants had received from the secretary sci'ip, but had not signed the deed. They were present at a meeting of the company, but had not purchased scrip till part of the goods were deli- vered. The Court held the defendants liable, likening the case to Perring v. Hone, by reason of the attendance at meetings, and distinguishing it from Vice V. Anson, on account of its not having appeared in the latter case that the defendant had held herself out as a partner. " In the present case," said Park, J, (delivering judgment) " the defendants attended all the meetings^ The question was more considered in Dickinson v. Valpy, 10 B. & C. 128. There the action was against a share- holder in a mining company, on a hill given by the directors (for what given did not appear), and the decision would have been (apart from any other reason) against the plaintiff, on the ground that the directors could not so bind the shareholders {Hawtayne v. Bourne, 8 M. & W.) ; but the (piestion was coi\- sidered as well with reference to the power of binding by credit as by bill. (See the distinction, Tredwen v. Bourne, G M. & W. ; Todd V. Emly, 8 ib.) It appeared that the defendant had obtained scrip and signed a deed and attended a, general meeting of the share- holders — only, however, to decline any interest in the company, though he was not permitted to prove that in evidence. It is rather to be inferred that the con- cern had come into actual operation, and the language of the Court indicates the existence of an existing partner- ship, although not the partnership ori- ginally projected, and to which defen- dant had promised to become a mem- ber. The observations of the Court have reference, therefore, rather to the legal liability arising out of an actual or apparent partnership, than that which arises out of an express or im- plied authority to parties neither actual nor apparent partners, but between whom and the defendant have sub- sisted only the ordinary relation of principal and agent. Lord Tenterden, C. J., said, " Assuming that defendant was proved to be a partner, and not merely to have done certain acts in con- templation oihecovam^ ?,o.^' Per Bay- ley, J. : "I am not prepared to say that there was sufficient evidence to charge defendant either as an actual partner or as a person who held himself out to the world as a partner." A most luminous and learned judgment was, however, delivered p)er Park, J., who elucidated with clearness and accuracy the distinction between an incomplete and a perfect partnership, though, perhaps, the distinction was not ad- verted to between partners and joint- principals. " If it could be proved 248 WOODS V. AUGYLL, 6 M. & G. that the defendant had held himself of what passed at that meeting was out to be a })artncr — not to the world, excluded, it ought not to have been for that is a loose expression — but to used against him. It is difficult to the plaintiff himself, or under such cir- say that there was sufficient evidence cumstances of publicity as to satisfy to go to the jury that defendant actually a jury that the plaintiff knew of it and was a partner, for all the acts proved believed him to be a partner, he would were equally consistent with the sup- be liable to the plamtiff in all trans- position of an intention on his part to actions in which he gave credit to the become a partner in a trade or business defendant upon the faith of his being to be afterwards carried on, provided such partner." {Vide per Tindal,C.3., certain things were done, as with that Fox x.Clifto7i, 6 B'l. post ; s,o, per Cress- of an existing partnership. There is loell, J., Woods V. Arrjyll, M. & G. a great difference between the two 932. The general expression, thus cases. If there is a contract to carry corrected, is vised, j)^^ Lord Benman, on any business by way of present C. J., in the judgment in Lake v. partnership" (see the same distinc- Argyll, but with an explanation per- tion as to a lease or an agreement to fectly in accordance with the dicta lease, ante, notes to Agard v. King, just cited, and showing that the more p. 128), "between a certain definite general expression is only adopted be- number of persons, and the terms of cause evidence that a party allowed that contract are unconditional or com- himself to be held out to the world plete, the parties give to each other would usually be prima facie proof an implied authority to bind the rest that he was so held out to the plain- to a certain" {i. e. necessary) " extent, tiff. It is here important to observe But if a person agree to become a that the effect of such evidence is to partner at a future time with others, establish a personal contract between provided other persons agree to do the the plaintiff and the party so held out same, and advance stipulated portions — Grissell v. Robinson, 3 B. N. C. ; of capital, or provided any other pre- Webb V. Rhodes, ib.; Moon v. Witneij vious conditions are performed, he Guardians, ib. : and this must be gives no authority to any other indi- distinguished from the liability implied vidual until all those conditions are by law, from the defendant being performed." (This principle is re- actually the principal or the partner of affirmed in terms, per Tindal, C. J., in the person who actually contracted, in Foxy. Clifton, and, per Alderson, B., in which case it is not necessary that he Pitchford v. Davis, et alia, cited post.) should have been held out as such to " If any of the other intended parties the plaintiff. 27i'jmpson v. Bavenjwrt, in the meantime enter into contracts, it 9 B. & C.) " There is, however, in seems clear that he is not bound by this case no reason to say that the de- them, on the ground that he never fendant ever held himself out to the authorized them, always assuming that world, still less that he held himself he has not held himself out directly out either directly or indirectly as a or indirectly to the party with whom partner. To show that defendant was the contracts arc made as having in an actual partner, his attendance at a substance given that authority. In meeting is relied on, but as evidence those cases inwhich a plaintiff has not LAKE V. ARGYLL, 9 Jur. 295. 249 been induced by the defendanfs repre- spectuses stated " the concern tvill be sentations to give credit to him, hut divided into a certain number of seeks to fix him because he has realhj shares,'" and the expressions adopted authorized the contract to be made, \m\)WQ:()ii\\?ii\\\G larger proportion of the the plaintiff must show that authority, capital was still unsubscribed: these and an authority upon condition not being points upon which the Court performed is no authority at all." dwelt strongly. The plaintiffs sued The general jmuciple here laid dowii for malt supplied for the company is, it will be observed, equally appli- at the order of A., whose name alone cable whether the alleged liability be appeared upon the premises and who that of a partner or simply of a prin- was acting manager ; but it was com- ci2}al, although the former liability municated to the plaintiff's by a third would be principally adverted to where, party (without the defendant's know- as in the foregoing and in the following ledge) that defendant and the other cases, the concern would appear to have parties who had signed the prospec- come into actual operation. The cases tuses were partners. It is most ma- next cited will not only illustrate the terial to remark, that the action was distinction so clearly drawn in Dickin- not brought in respect to preliminary son v. Valpy between an inchoate and expenses ; but for goods applied in the a perfect partnership, but will exhibit actual operations of the concern. The the great leading principle upon which Court said, " The defendant was not alone the liabilities of projectors, while actually a partner ; yet if he held him- the proceedings remain preliminary, self out to the world" (see as to this can be elucidated ; and which is equally remarks upon Dickinson v. Valpy, apphcable, whether the concern has a7ite, p. 248,) " as a partner, he will come into actual operation or not : be chargeable. This question depends viz., that where an actual partnership on the efect of the prospectus signed : has neither existed nor been held out that which shows only that it was in his to the plaintiff as existing, the de- co«^e»yj/«^/o/i to establish a company o« fendant can only be liable by proof of certain conditions. Defendant has not express or implied authority, according therefore held himself out as a partner to the ordinary relation of principal in a company already formed." And, and agent ; and, on the other hand, per Bayley, J. : " Plaintiffs, before that he may, on this ground, be so they delivered the goods on his credit, liable, whether or not any partnership should have inquired whether he had ever existed. In Bourne v. Freeth, 9 ultimately become a partner." Per B. & C, 632, the evidence was that Littledale, J. : " The goods were not defendant had signed prospectuses pre- ordered by him, but by another, who senting proposals for the formation of could not bind him without some a joint-stock distillery company, for authority, express or implied. There which the act passed, and had attended was no express authority, nor any im- meetings at which premises were agreed plied ; defendant was neither actually to be taken for the purpose of prose- a partner, nor authorized any person to cuting the project. He, however, had carry on the business on his account." not paid his subscriptions at the pre- In Pitchford v. Davis, 5 M. & ^V ., it scribed period, and tlie last of the pro- was said per Parke, B., " Bourne v. 250 WOODS V. ARGYLL, 6 M. & G. Freeth, Vice v. Anson, and DicMnson V. Valpif, are authorities to show that a sharehohler who does not interfere in the management of the concern is not liable.'^ In Brnithwaite v. Scholefield 9 B. & C. 401, the action was brought for work done in houses on account of a building society of which defendant was a member. There was no evidence that defendants gave the order for the work, or that plaintiffs knew them to be members, nor that any interest in the houses or land had been conveyed to them ; but it was proved that they had contributed to the funds, and that they had been parties to a resolution that the houses in which the work was done should be built. The Court up- held a verdict for the plaintiff, distin- guishing the case from that of Vice v. Anson, "for there the plaintiff could have no right to recover from the de- fendant except in respect of her having an interest in the property, which they failed to prove. Here the plaintiffs had a right to be paid by those who employed him; and the defendant's having joined in a resolution to erect the houses authorized the employment of the plaintiff, which is sufficient to make him liable." This case, it will be observed, shows that a party may be liable as joint principal — i. e. as joint contractor — even where he is not liable as partner, provided actual (whether express or implied) authority be proved. Both Bourne v. Freeth and Braithwaite v. Scholefield, it may be added, exemplify the effect of actual attendance at meetings of projectors or partners as evidence of a ])arty's holding himself out as principal or partner — i. e. of his having actually, although only impliedly, authorized the contract, and therefore of his being a joint contractor . Tliesc principles are still further illustrated in the two cases next cited (and referred to in the text), the first of which has reference rather to (actual or apparent) partner- ship ; the other proceeding more (as that last referred to) upon the evidence of implied authority as jnincipal and joi7it contractor, distinct from partner- ship. In Fox V. Clifton, 6 Bi., the defendants had taken up scrip receipts in a joint-stock distillery company, in the actual operations of which the liability to plaintiff was contracted. Defendant's name was in a list of the subscribers, which was shown to plain- tiff when he applied to know of whom the company consisted ; but whether he saw the names of the defendants or not did not appear. The partnership deed was never signed by all the de- fendants, which, of course, was the same as if it had never been signed by any of them. The prospectuses dis- tinctly declared that the shares were to be 12,000, of which 7,000 only had been allotted, and that a deed was to be signed and an act applied for, and that the deed and the act should be taken as the basis of the management of the affairs of the company. The work was done by plaintiff after the date of the deed, which, from the time of its date, lay open in the company's office, and was signed by many persons before the work was done or contract was entered into with him. Defendants had only paid one call, and had never attended any meetings nor taken any part in the affairs of the company. They had also sold their scrip before the contract with plaintiff. The Court said, "There was no evidence that the defendants could be liable as having held themselves out as partners, for that it did not appear that plaintiff' saw their names on the list of sub- LAKE V. ARGYLL, 9 Jur. 295. 251 scribers, or that defendant knew of the first deposit undoubtedly impHcd an existence of any copy of the list or of assent to that agreement — that is, an its exhibition to any one. The holding assent to become partners in a com- oneself out to the world as a partner, pamj, raising the specified amount of as contradistinguished from the actual capital, consisting of the specified relation of partnership, imports at least number of shares, and to be governed the voluntary act of the party so by a deed which should contain the holding himself out, and is incom- clauses and conditions to be agreed on ; patible with the want of knowledge but it implies nothing more, and can- that his name has been so used, not be construed as an assent to the Even on the face of the book itself terms of a partnership already formed, it conveyed no information as to the When, therefore, instead of an allot- relation in which the parties stood to ment of 12,000 shares, the utmost each other, as it contained nothing but that were ever allotted scarcely ex- a long list of names without any notice ceeded 7,500 ; when only 2,500 paid or heading whatever, lea\dng it alto- the first deposit ; when not half the gether uncertain whether the persons latter number paid the second, and named are partners in any concern only sixty-five signed the deed, the sub- actually established, or merely sub- scribers were at liberty to say, ' This scribers to a projected partnerships was not the company on which we paid (This has an obvious application to our deposits.' And there are no facts the publication of lists oi provisional sxibsecpient to the pa%jment of the deposit committeemen.) " As to the scrip which in any manner affect the defend- receipt, it could give no information to ants. And if the right to participate any one, for it was a receipt to the in the profits of a joint concern be, as directors eo nomine, not to the indi- undoubtedly it is, a test of partnership, vidual paying the money. Without the defendants were never entitled to reference, however, to the information demand a share of profits if profits actually received, the communication had been made, since they never ful- of it was no act done by the defendants filled the condition on which they sub- themselves or by their authority or scribed. The matter proceeded no permission, so as to make them nominal further than that they offered to become and ostensible partners. The question partners in a projected concern, and that then is, whether they were actual the concern proved abortive before the parties with the directors and other period at which the partnership was to shareholders at the time the contract commence ; and therefore, with respect was made, for each would then be to the agency of the directors, which liable to the debts of the whole com- is the legal consequence of the partner- pany contracted in trade. Now the ship co»?2j/e^e/y/o?vHe6?, they proceeded prospectus advertised is the basis of to act before they had authority from the contract. It is on the footing of these defendants, and those who con- the prospectus that the defendants had tracted with defendants must rest upon their shares allotted and paid their the security of the directors who made deposits ; and if they are not partners the contract, and of any who have by under this agreement they are not subsequent conduct adopted these acts partners at all. The paying of the of the directors." The preceding case, 252 WOODS y. ARGYLL, 6 M. & G. it wall be perceived, proceeded more which plaintiff seeks to recover. It upon the principle that where defendant is not necessary to show that they is not proved a partner, he must be signed the contract ; it is sufficient if shown to have so actually (expressly they be shown to have held themselves or impliedly) authorized the contract out as responsible for it. They were as to have become a y'o/w^ contractor; directors at the time; and that they and as the evidence totally negatived are liable appears from the express the latter alternative, the judgment terms of the advertisement. The pro- points principally to the former point, spectus does not present the obtaining whereas the case next cited proceeds of the act as the condition of their upon the principle above repeatedly responsibility, and the works yo on referred to, that a person may be liable meanwhile. One of the principles as joint princijial who is not liable as established in Fox v. Clifton fixes the partner. In Donbleday v. Mushett, 7 defendants ; viz., that they have held Bi., defendants were present at the themselves out or allowed themselves to meeting forming a joint-stock water be represented as directors " (who are company, and their names appeared as not necessarily ^cr^wera) . "Thebusi- directors in a prospectus which was ness was within the scope of their issued before plaintiff's cause of action direction. They accepted the office, arose, and in which it was stated that and never divested themselves of it the company had been formed ; that nor expressed any dissent." Here, it they were rapidly proceeding in the will be noticed, the decision is clearly constructic«i of reservoirs ; that the founded on the ordinary law of prin- undertaking con5«.s^6'rf of 1,000 shares ; cipal and agent, not that of partner- but it was also stated tbat the capital ship. In Wood v. Argyll, 6 M. & G., proposed to be raised was 25,000/.; it is said, jjer Tmc^a/, C. J., speaking of and that application would be made for the preceding case, " There the de- a bill, &c. At a subsequent meeting, fendants were joint contractors,^' sed at which it did not appear that de- qucere, if they were not liable in law, fendants were present, it was agreed (apart from any contract in fact^ by that plaintiff should do the work for reason of their relation as principals. which the action was brought. At The same principle is illustrated, that time, however, they were directors, though less directly, in the two cases and had taken the number of shares next cited, because thev show the requisite as a qualification ; and it ap- small amount of evidence which may j)eared that while they were directors be enough to prove a person legally an advertisement, in answer to which liable as actually a partner in a concern ])laintift''s tender was sent, had been brought into operation in a manner ])ublished, purporting to be issvied by not consistent with the original pro- the directors, and stating that they ject ; and it is obvious that a greater were ready to receive tenders, &c. No amount of evidence could scarcely be Act of Parliament was procured, and requisite to render him liable as joint the project fell to the ground. The principal in a project, and as inq)licdly Court said, " The question is, whether authorizing what was reasonably neces- the defendants entered into \}i\t joint sary in pursuance thereof ; so that the contract for the labour in respect to following, as well as the foregoing LAKE V. ARGYLL, 9 Jur. 295. 253 cases, are equally applicable to projects and to partnerships. In Pitchford v. Davis, 5 M. & \V. 2, a pros|)ectus had been issued for the establishment of a beet-root sugar company, stating the proposed capital to be in 10,000 shares of 25 Z. each, and announcing the names of the directors. Defendant apphed for shares, which were allotted to him, and he paid the deposit upon them ; afterwards the goods for which the action was brought were supplied for the use of the company to the order of the secretary, and consisted of ma- terials necessary for manufacturing the sugar, of which some was actually sold. The defendant knew that the works were in operation, and had once gone over the works ; but only 1,400 shares had been taken, and it did not appear that he knew of this. The jury were directed that defendant could not be bound by the contract of the directors, unless it were proved that he had assented to the works being carried on with a smaller capital than had ori- ginally been proposed. The jury fomid for the defendant ; and the verdict and direction were upheld by the Court, who said, "Where a prospectus is issued, and shares collected, for a speculation, to be carried on by means of a certain capital, to be raised in a certain number of shares, a subscriber is not liable in the first instance, unless the terms of the prospectus in that respect are fulfilled, unless it be shown that he acquiesced in the directors carrying on the undertaking with a less capital. The secretary who gives the order to the tradesman is primarily liable. The directors also, who give the order to the secretary, may be liable. A third party may be liable if it can be shown that he has authorized the act of the directors in making the contract. But no such authority is here sho\vn." The distinction between this case and the next, in which a dif- ferent decision was arrived at, is, it will be seen, exceedingly slight ; but it must be noticed that in the one case, as in the other, the decision was in affirmance of a verdict, in support of which the slightest distinction will be relied on. In Tredwen v. Bourne, (i M. & W., the circumstances were sub- stantially the same as in the preceding case, except that letters were proved to have been written by defendant to the directors, while the works were being carried on, urging the retirement of one of their body. This was con- sidered by the jury as evidence that the defendant was aware that the works were being carried on with the deficient capital. The Court upheld a verdict for plaintiflF, and said, " Whether the directors have usually a power to deal on credit must depend on the general nature of the concern. If they usually deal on credit the shareholders are liable.. The directors have authority to do all that is usual in the manage- ment of such concerns. Whether he knew the amount actually subscribed or not, there was evidence that he authorized the directors to proceed in the management of the concern, and to do what they did for his be- nefit." The foregoing cases illustrate the general principles established by the authorities alluded to in the earlier portion of this note ; that where there is not a liability in law, arising out of the legal effect of the relation between the defendant and the person who actually made the contract — there must be a liability in fact, proved by actual participation by the defendant for the particular contract made. They further show, it is apprehended, that the lia- bility in law may arise either out of 254 WOODS V. ARGYLL, 6 M. & G. the relation of partner or simply of not be partner. In the cases next principal, and that the latter liability cited, whatever the proof of participa- niay exist where the former does not : tion, he could not be a partner, because and that it is only when neither rcla- there was no partnership, and his lia- tion exists that it is necessary to resort bility would therefore depend entirely, to evidence that defendant actually like those in the text, on the proof of contracted and was actually contracted his having actually (expressly or im- with — the former being shown by proof pliedly) authorized the contract, i. e. of his appearing as partner or principal, been a joint principal and a joint con- and the latter being shown by evidence tractor. Thus in Delamj v. Strick- of his being credited as such by the land, 2 Stark. 41G, defendant was one plaintiff. It is to be observed that of the members of a club, the business the above cases incidentally illustrate of which had been managed by him the importance of bearing in mind that and two other gentlemen, one of whom evidence, which, in one point of view had ordered the goods with which he may point to the question of apparent had been debited by the plaiutiflf, but or actual partnership, may, in another which had been used by the members aspect, be proof that the party was generally. Abbott, C. J., left it to the actually pi'incipal ; and that in the jury whether the goods had been or- latter case the evidence that he was dered with the previous concurrence or credited or contracted with as such will subsequent approbation of defendant not be requisite, as the unknown prin- (as, if so, he and all who stood in the cipal may, when discovered, be sued, same situation were liable to pay for {Thompson v. Davenport, 9 B. & C. ; the goods), and whether the fact that Higgins v. Senior, 8 M. & W.) the plaintiff had debited another, and The cases above adverted to appa- that the bill had been made out to rently have had reference rather to the that other person, were sufficient evi- question of actual or apparent partner- dence that credit w^as given to him ship. The class of cases illustrated by alone — verdict for plaintiff. In those in the text, on the other hand. Hector v. Flemyng, 2 ]M. & W. 1/2, must necessarily proceed rather on the defendant was member of a club, of ordinary liability of a principal not a which the rules were, that an entrance partner, in the absence of any proof of fee and annual subscription should be partnership. It will be proper, there- paid ; that there should be a committee fore, here to notice a class of cases to manage the affairs, to be chosen at which have, in one view, a close con- a general meeting ; that there should nection with those above alluded to, be two general meetings in each year, but which, it will be found, have been at which an ample statement of the decided in the law of principal and affairs should be presented ; and that agent. It has already been seen, and all members should be expected to dis- will in these cases be again exemplified, charge their bills day by day, the that whether or not the concern is in steward having positive orders not to actual o|)cration is immaterial, unless open accounts with any individual. the defendant be proved to have par- The defendant became a member before ticipated in it. In the cases above these rules were promulgated, and adverted to, it will have been seen that, before part of the goods were supplied. in the absence of such proof, he could It was proved that he attended fre- LAKE y. ARGYLL, 9 Jur. 29/ 255 quently and was in the habit of asking for " Flemyng's wine." In Adams v. O'Brien, the facts were similar, with the additional fact that in one of the committee's half-yearly statements ex- hibited in the club-room, while defen- dant was a member, the plaintiff's claim was inserted. In Adams v. Rippon, there was the further fact that defendant was a member of the committee, but was not proved to have acted in that character or to have taken any part in the proceedings. In all the cases hord Abinffer, C. B., directed the juries that defendants were liable prima facie, as members of the club ; (a direction clearly inapplicable to the facts, which presented a question dif- ferent from that of mere membership,) and verdicts were accordingly found against them for the goods supplied while they were members. But these verdicts were subsequently set aside, and Lord Abinger, C. B., said, " I had thought without much considera- tion that these sort of institutions were of such a nature as to come under the same view as a partnership, and that where there was a body of persons meeting together for one common object, what one did in respect of the society bound the rest, if he had been recpiested and consented to act for them. But trading associations stand on a dif- ferent footing." (See the same dis- tinction taken in Trediven v. Bourne, 6 M. & W. ; Todd V. Emley, 8 M. & W.) " A,\Tiere persons engage in a community of profit and loss as part- ners, one partner has the right of pro- perty for the whole : so any of them has a right in an ordinary transaction to bind the rest by a credit.'' (See this elucidated Tredwen v. Bourne, 6 M. & W., with the qualification that it be usual ^r Alder son, B., " The rules con- stitute the only authority the com- mittee ever had.''^ Here, it will be observed, the principle is established and illustrated that where there has been no credit personally given to de- fendant, he can only be liable in law, i. e. by being proved to have been the partner or principal of the person who actually made the contract ; and this must depend upon the arrangements and agreements inter se. So in Todd V. Emley and Another, 7 M. & W., the defendants had been members of the committee of a club, which ap- peared, from its practice, similar in its construction to that referred to in the preceding cases — though the ride were not proved. The goods had been supplied to the order of the steward, given in the presence of a committee- man, and the steward had on several occasions given similar orders, but always, as he stated, first applying to some member of the committee. It did not appear that either of the de- fendants had individually authorized any orders for wine. In the course of the argument (of Cresswell and Piatt) for the defendants, it was observed, per Parke, B., "The orders were the acts of the committee-men present at the thne. The steward was primd facie liable, unless he can make out that he received an order from some one else, and then he is not personally liable. Then who gave the orders to the steward? not the defendants. Then it must be shown that the order was given by some persons having power to bind them." Ultimately, Lord Ahinger, C. B., delivering judgment said : " The members of the cpm- niittee are not in the nature of agents to bind the club by their contracts. It does not appear that they were authorized by any member of the club to deal on credit. If it were provided by the rules that the committee should have authority to make contracts for the club, then they might make con- tracts for each other. But among parties merely appointed to manage a particular fund, one cannot make him- self the agent of the others ; each is liable for his own act only." The im- portant distinction between joint pro- jectors and partners, which has a close bearing lapou cases like those in the text, and which, it will be observed, is analogous to that which in the earlier portion of this note was illus- trated as existing between part-owners and partners — })rojectors being in fact part-owners of a project or plan — is here clearly elucidated. Thus per Parke, B., "The main point of the case is that in which it may be urged that where ^;ffr^/e« enter into one common purpose of acting together, each of them has authority to bind the others to the extent of attaining that common pur- pose. But here there is no common purpose of dealing on credit for such articles as loere supplied in this case. It should distinctly be shown that the committee-men who gave the orders were authorized to enter into contracts on credit on the part of the general body, so as to make one the agent of another." It may here be observed that a partner will almost always have the power of binding the rest by credit, whereas, in a case of mere principal and agent, it LAKE c. ARGYLL, 9 Juh. 295. 257 has been intimated {ante, p. 23 G) there is generally much more of difficulty as to the extent of the authority. At the subsequent trial of the same case (8 M. & W. 506) the only additional evi- dence was that the committee were 4 aware that the goods were obtained on credit ; and that one of them had gone to the plaintiff's to select the goods with the knowledge, as he stated, of " the members of the committee ;'' but it did not appear whether by those words were meant all those who were elected committeemen, or merely such as formed a committee at some parti- cular meeting when the authority was given ; and it was not proved that de- fendants had been present at any meet- ing when the orders were given. Lord Denman, C. J., told the jury the ques- tion was " whether the members of the committee had not by their general and known course of dealing held them- selves out to the plaintiffs as parties personally {i. e. collectively) liable, (and not individually, as a committee con- tracting for such goods" — i. e. not merely those who actually contracted) " as any partnership might do." The Court said, " there was abundant evi- dence upon which it might have been left to the jury to consider whether the defendants concurred in the authority given to the steward, and upon that ground they might probably have found for the plaintiffs ; but the ques- tion of the individual liability of the defendants does not appear to have been brought distinctly to the notice of the jury ; and on the general sum- ming up they might have thought the defendants liable, even though they had thought they had never done any- thing to show that they concurred in the authority given to the steward." Per Jlderson, B.: "The plaintiffs might prove that the steward was de- fendants' agent, by showing that the defendant, with a number of others, concurred in authorizing him." These cases illustrate, it will be observed, the slight circumstances which, as a matter of evidence, will suffice to show a liability as joint principal, actually or impliedly, authorizing a contract ; at the same time it exemplifies the strict- ness of the legal principle elucidated in the earlier portion of this note, that a person cannot be liable only by reason of his participation in the benefit de- rived, and that if there be no proof of a personal contract on his part, he must be proved to have been actually either a partner or a principal of the person actually contracting. No cases appear, previously to those in the text, to have been decided ex- pressly upon the liabilities of parties combined for a common purpose with respect to necessary preliminary ex- pences, where the project has not been carried into complete operation. {Fide p. 244.) But it is apprehended that the principles elucidated in preceding au- thorities would have dictated, upon one point, a different direction from that which was upheld in Wood\. Arc/y II, and would have warranted, in that case, the verdict which was returned in La/ce v. Argyll. In the first of these cases the question appears to have been considered only with reference to two grounds of liability : partnership, with which it has really nothing to do (for reasons re- ferred to in the text and in the pre- vious portions of this note) and pei-- sonal contract, to which it was net necessary to resort, for it is conceived the defendant might have been held liable as one of the joint principals of the party who gave the order, and who might well have been considered as in- 258 WOODS V. ARGYLL, 6 M. & G. vested with an implied authority to reason for implying such an authority incur the expenses reasonably requisite as between the committeemen or os- for preliminary proceedings in the pro- tensible promoters, or original pro- secution of the common purpose for jectors, &c., that otherwise such a term which they were associated. This im- as " committeeman," &c., would have plied authority, assuming it to have no greater import than that of " sub- existed, would dispense with the ne- scriber." And it is observable that in cessity for proving that credit was Lake v. Argyll, Lord Denman, C. J., given by the plaintiff to the defendant, scarcely supports the direction in the or that the latter was " held out " to preceding case, except on the principle the former as a party liable ; for that that the expenses there were not strictly would constitute a perso7ial contract requisite for preliminary purposes, between them, which is wholly unne- which of course upon all the autho- cessary where there is a liability in law, rities would have been of itself a good arising from the legal relation between ground for deciding for the defendant, the defendant and the person who independently of the other reasons made the contract. It is svibmitted adverted to in the judgment ; but, the that in both the cases in the text there decision m Wood v. Argyll went, it is was prima facie evidence of such a obvious, not upon the extent but the legal relation, and such a liability in existence of the alleged authority : and law — presuming the expenses in the there seems no doubt that the maps former of the cases to have been as were necessary for preliminary pur- legitimately " preliminary " as in the poses, as that point was not raised other. This appears to be consistent on the part of the defendant. It may with the analogy afforded by the autho- here, however, be suggested, that per- rities adverted to in the first part of this haps in the numerous cases which have note, as to part-owners (of a ship) more recently arisen upon this subject, whose ownership appears Vi prima facie the question has been too exclusively evidence of liability for requisite ex- put upon the existence of such autho- penses, on precisely the principle here rity, and might much more satisfac- suggested as applicable in the case of torily (at least in many instances) have projectors, whose implied authority to been settled upon its extent ; the ex- their common agent to incur such ex- penses incurred hanng usually been to penses appears also, where no funds amounts rather unreasonable, and for were provided for the purpose, to come purposes perhaps not always legiti- quite within the principles laid down mate ; considerations, which may have in the more modern cases as to mines, tended to produce a leaning on the clubs, &c.,(«w^e, p. 254) with respect to judicial mind in favour of the defen- an implied authority on the part of di- dants. It may not, perhaps, be in rectors or committeemen to pledge the all conceivable cases, easy to draw credit of each other to a necessary ex- the line with as much exactitude, tent ; though those authorities and the between expenses reasonable and un- cases as to joint-stock companies {ante, reasonable, as between preliminary and p. 248) show certainly that they could permanent : but the difficulty cannot not pledge the credit of mere sub- be greater than in numerous cases in scribers ; and it may be urged as one which it is solved by a jury : and it is LAKE V.ARGYLL, 9 Jur. 295. 259 sufficient that the former at least is a question for them. It is to be ob- served, further, with reference to cases hke those in the text, that the question of the effect (as primd facie proof) of the mere fact of defendant's having been, in the language of the earlier cases, " one of the original pro- jectors," or in the language of the more recent cases, " a provisional com- mitteeman "is to be distinguished from the effect of any additional evidence as to attendance, &c. What has al- ready been remarked applies to the former evidence ; i. e. in the absence of any evidence of exclusive credit to any other person ; and it is to be ob- served that if there be any implied au- thority to pledge the defendant's cre- dit, it is for him to shovp that the con- tract was not on his credit. With re- spect to the other evidence, as to attend- ance, &c., it may be observed that while in one point of view it may afford only confirmatory evidence of the legal liability arising from the implied au- thority alluded to, it may in another view serve to show- such a holding out of defendant to the plaintiff as liable as would constitute di personal contract between them ; and it is important in all such cases (as already indicated in commenting upon the authorities be- fore noticed) to draw the distinction between these two species of liabilities ; the first not requiring that which is essential in the other, vis. evidence (jjriind facie at least) that the defen- dant was held out as liable to the plain- tiff; and that the latter gave credit to (i. e. contracted with) him. The principles above deduced from the authorities previously adverted to, as applicable to the cases in the text, are, it is apprehended, confirmed and apphed in the case next cited ; the first of a class which has recently be- come most numerous : in which pro^-i- sional committee-men of a joint-stock project are sued for preliminary ex- pences (advertisements, stationery, sa- laries, &c.) ordered either by some of the general body, or by a managing committee, or bv a solicitor or secre- tary. Thus in Barnett v. Lambert, If) L. J., Ex. 305, defendant was a provisional committee-man of a railway company — as such his name was pub- lished — he subsequently acted as chair- man at a meeting of the committee ; and afterwards part of the goods and stationery ordered by the secretary were supplied ; but the defendant knew nothing of the plaintiff, and never held any communication with him. The Court, in the course of the argument referred to Tredwen v. Bourne, and Todd v. JEmlg, as against the defen- dant, and observed that the demand here was for necessaries, as the com- pany could not have gone on without stationery ; and, per Pollock, C. B., " surely the defendants authorized their secretary to pledge his credit;" i. e. for necessaries. It appears from some observations of the Chief Baron, that no subscription had been re- ceived, though this is not stated in the report. The Court ultimately said, " Defendant is liable for goods supplied after he attended the meeting and acted as chairman. He must have known that articles of stationery were tised by the committee ; and knowing that no money had been raised by sub- scription, he could not but think that they were obtained on credit." The Court also {Parke, B., however, not being present) deemed defendant liable for the whole of the goods supplied after he became a member of the pro- visional committee ; — as to that, the s 2 2G0 WOODS V. ARGYLL, 6 M. k G. decision is controlled by the doctrine The case could not of course be con- laid down in the cases next cited ; but sidered one of partyiei'ship, either ac- as to those supplied after his attend- tual or virtual ; and, as observed at the ance as chairman, the decision is equally outset of the argument, per Parke, B., consistent with these cases, and with after referring to Todd v. Emhj, ante, the cases in the text. And it is to be " The question was one of principal carefully observed that, as it appeared and agent. Did defendant expressly that plaintiff and defendant hievo no- or impliedly authorize the attorney thing of each other, i\\e\\di\)\Xii\ oi the. to make the contract?" In Wylde latter could not have been supported in v. Hoj)kins, reported with the pre- any degree upon such a AoW««^ o/" Am- ceding case, and apparently consi- self Old to the plaintiff as would have dered as substantially resembling it, been proof of a personal contract be- the evidence was in some respects sub- tween them ; nor does the decision stantially different. The order, which appear to have proceeded at all upon wasfor maps, &c., admitted to have been that ground, but upon the evidence of necessary, was given by the attorney ; an implied authority to pledge his and defendant had expressly assented credit ; in which evidence, a part of to be a provisional committeeman : a the Court at least seem to have con- wa/zff^m^ committee, however, had been sidered the fact of the attendance not appointed of which he was not a mem- an essential ingredient. The question her ; but his name, as a provisional whether such, or some similar, facts be committeeman, was, by his own request, requisite, in addition to the fact of de- published in a prospectus, which was fendant being a provisional committee- shown by the attorney to the plaintiff, man, in order to raise sufficient (primd who it appeared gave credit upon the facie) proof of the implied authority faith of the defendant's name. It vnll alluded to, was not raised by the facts, be observed, as to this latter point, that (though it is considered to have been the permission to hold, or consent to, decided by the judgment) — in the cases appear as a provisional committeeman next cited. In Reynell v. Leivis, would necessarily depend upon the effect 10 Jurist, 1100, and 15 L. J., Ex., of the consent to be a committeeman : the action was against a provisional so that in this respect both cases were committeeman of a railway project, to rested on the same basis; and the main recover the amount of an account for difference consisted in the fact of the at- advertisements inserted on behalf of tendances, inquiries, &c., on the part the project bv the orders of attorney of the defendant in the first case, and acting on behalf of the company. The the permission by the defendant, in the plaintiff does not aj)pear to have given second case, to attach his name to a credit to defendant, who, however, was particular prospectus, added to the fact proved to have expressly consented to that in the second case there was a ma- he a committeeman, to have repeatedly naging committee. It is to be observed attended at the meetings — and to have that in both cases the order was given inquired as to the amount of prelimi- by the attorney (of whose appointment nary expenses incurred. No question it must be presumed, upon the e■^^- wasmade that the advertisements were dence, that the defendant in each case, requisite and the charges reasonable, was cognizant) ; so that the question LAKE r. ARGYLL, 9 J(iK. 295. ii61 of the authority, as agent, of the party himself or by the soUcitor or secretary, who gave the order, was distinct from or an authority to such soHcitor or the question as to the authority of secretary to give it on behalf of the the committeemen to bind each other ; committee." The Court must here, it though, had the order been given by is presumed, have intended, in reference one of the committeemen, the latter to the officers here alluded to, that the only of those questions would have orders must have been given in the or- arisen. Further, it is to be observed, dinary course of their respective duties, that in both cases there was some ma- a point on which, perhaps, the case terial evidence in addition to the fact was not properly presented to the jury, that defendants were committeemen, and which alone might have been de- so that the judgment as to the effect cisive of the case, irrespective of the ge- of that fact, per se, can scarcely be wera^ principles referred to. "We think considered as expressive of more than no such consequence follows as a matter an opinion. It may be added, that in of law, from the mere fact of the de- what the Court says on that point, it fendant agreeing to be a provisional is not perhaps quite clear whether it committeeman ; such an agreement be intended that the particular fact re- amounts to no more than a promise ferred to is not qw en prim/i facie evidence that he would act with other persons of liability ; or whether it is in law appointed or to be appointed for the sufficient evidence under such circum- purpose of carrying some particular stances as were presented in these scheme into effect : the term corn- cases. Thus the Court says, " It was mittee means an individual or a body chiefly contended that the relation of to which others have committed or de- co-provisional committeemen consti- legated a particular duty, or who have tuted an association or a jwasz partner- taken on themselves to perform it in ship, in which one was agent for the the expectation of their acts being con- other for the purposes of all prelimi- firmed by the body they profess to re- nary proceedings necessary to enable present or act for : an agreement to be a them to obtain an act, or that the fact committeman is anagreement to become of their being co-promoters of the one of that body." " The agreement scheme, coupled with the fact that no to become a provisional committee-man money was supplied for the expenses means neither more nor less than what of it, was evidence to go to the jury he words express — viz. an agreement that each authorized the other to con- to act on the provisional committee, in tract for those purposes on his behalf carrying into effect the preliminary ar- and that of the co-promoters ; and rangements for petitioning Parliament that where there was no other evidence for a bill, and so to promote the scheme. than the mere fact of the defendant If, afterwards, the provisional com- having already agreed to be a provi- mitteeman does act, he is responsible sional committeeman, there was a suf- for those acts. Here, it is material ficient case, or at least a case for the to remark, the Court appear to base consideration of the jury to prove an their decision, or rather their opinion, authority given by defendant to every as to the effect of the mere fact of other committee-man to give the order an assent to be a committeeman, upon out of which the contract arose by the distinction thus drawn between 262 WOODS V. ARGYLL, 6 M. & G. becoming a committeeman, and agreeing previously named could ever have so to become one; a distinction which intended?" Here, it must be remarked, involves this — that the assent merely that the very circumstances thus dwelt implied an agreement to become a com- upon as conclusive against the hypo- mitteeman at some/ufitre and indefinite thesis of partnership (the real reason time : whereas, it is apprehended that for negativing which, however, appears it is clear the assent always implies an rather to be the absence of anxjthing in actual, present, and immediate accept- lohich a partnership could exist) seem ance of the office; indeed the very strongly to support the view on which epithet " provisional " appears to imply it has been already submitted the lia- this, for it imports that the office can bility of parties in such cases rests — have reference only to immediate and viz. their implied authority to the per- temporary purposes ; and assuming sons ordinarily entrusted with such this to be so, it should seem the obser- duties, to incur the expences reasonably vation of the Court as to the functions requisite for preliminary purposes ; for of the office itseJf raX\iQV ttndi to ?i con- otherwise, how could a widely scat- elusion the opposite of what they tered body of men ever carry on the arrived at. "The scheme maybe to requisite proceedings at all ? A clearer establish an hospital, or a place of emi- case of agency ex necessitate (on behalf gration, or a literary institution, or to of some at least) could scarcely be obtain an act for a road, railway, or conceived. And it has been already canal ; but whatever the object may be observed, that in these cases the orders seems to me to make little or no dif- were not given by coimnitteemen, so ference in the position of the party that the question how far the commit- agreeing to act as a committeeman, teemen could bind each other (as to Such an intended association consti- which alone the circumstance above tntes no agreement to share in profit referred to wovild appear material) or loss, which is the characteristic of would not arise ; supposing (at least) a partnership." The reasons and au- that the assent to be a committeeman thorities referred to in an earlier por- implied (and it should seem it might tion of this note, show that the ques- well be considered that it did) an tion has nothing to do with partner- assent to the appointment of the shij). Perhaps the opinion of the usual agents with the usual poioers. Court, on this part of the subject, has But upon the question on which all too exclusive reference to that view, the difficulty is to be found, vis. the " It would be absurd to suppose that question — who are the principals in such a relation could be meant to be the assumed agency ? the circum- treated by any of those who consented stances here dwelt upon by the Court to act. Could it be imagined that a as influencing their decision on the person would agree to be a partner not prima facie effect of the mere fact of only with those who were then named becoming a committeeman, are in truth committeemen, but any that should extraneous to it, and constitute addi- afterwards be named by themselves or tional evidence qvialifying its effect, and by the projector of the company, and altogether distinct from its prima facie could those who subsequently agreed import, for there is nothing in the to become members suppose that those ;«e;-e fact itself to open the question LAKE V. ARGYLL, 9 Jub. 295. 263 whether the committeemen were widely apart, or residents in the same place ; and this seems strongly to show not only that the judgment must be re- garded as given upon the special cir- cumstances of the two particular cases considered, and not upon the legal effect of the mere fact of committee- manship ; but that in truth, in most cases, that mere fact alone will not be presented, apart from any other quali- fying circumstances. The Court fur- ther observed: "There are other cases in which the question does not assume so simple aform, and where there is evidence that the defendant has not only consented to be a provisional committeeman, but has authorized his name to be inserted in prospectuses — not generally, but in particular prospectuses — in which, in some cases, certain persons are de- scribed as the acting committee, in others solicitors are named, or engi- neers, or a secretary. If such a pro- spectus has been so publicly circulated with the defendant's consent, that the jury could presume the plaintiff knew of it, or if the plaintiff has had it shown to him at or before the making of the contract, and has in either case acted upon it in making the contract, the question is, what inference ought a reasonable man to draw from the con- tents of that paper? This must of course depend upon the terms of each particular prospectus. If the pro- spectus merely state the names of the provisional committee, and nothing more, and no light can be derived from the context, that circumstance does not alter the liability of defendant : if not responsible as being one of that committee in fact, he cannot become so by the representation of that fact. If it state the names of the acting committee, where that has been ap- pointed, is the meaning that the acting committee is to take the whole ma- nagement, to the exclusion of the provisional committeemen, their pro- visional character having ceased? in which case the provisional committee would not be liable;" (butit is conceived that an essential element in this state of facts would be, the providing the managing committee with funds — see Todd V. Emly, et alia, ante) ; "or does it mean that the provisional committee- men have appointed the acting com- mittee, or the majority of it, on their behalf and as their agents ? in which case they would be liable for the con- tracts of the acting committee or the majority made as such agents. Again, does it mean where the solicitor's name is mentioned, that such person would be regularly employed in that cha- racter by those of the committee who acted, or that he was already appointed by all whose names are mentioned as their solicitor to do all solicitor's busi- ness on their behalf? and then would arise a further question : What was the business at the time of the contract usually transacted by solicitors for companies intending to obtain an act of parliament, and on behalf of the company, which is a question of fact to be proved by evidence. The same remark applies to the appointment of secretary. Applying these observa- tions to the particular cases before us, we think that in Reynell v. Lewis there was some evidence to go to the jury of the employment of the plaintiff; but that, on payment of costs, it should be submitted to another jury, and fully considered by them, upon the prin- ciples above laid down. In JFyld v. Hopkins we entertain so much doubt whether there was any e^ddence at all to go to the jury, that there ought to 264 WOODS v. ARGYLL, G M. & G. be a new trial generally, without pay- decisive, on the effect of that fact per ment of costs." It appears, upon the se, practically the decision could whole, that this judgment (in the most scarcely ever apply ; because in no general point of view) only decided as to case is it possible that such fact would the fact of committeemanship, that un- be wholly isolated, and unconnected der all circumstances, it was not neces- with any qualifying circumstances, sarilv evidence of liability (a decision The real result of the decision (in this perfectly unquestionable); not that, per respect) is one equally to be deduced sp, it was not inimd facie e^^dence — a from all the authorities previously al- conclusion which, it is conceived, would luded to, viz. that in each case all the scarcelv be reconcilable with the autho- facts are to be looked to ; and in truth rities in this note adverted to ; in the judgment decided nothing as to which part-ownership, or any ana- the legal effect of the evidence in such logons relation, appears always esta- cases, but only as to the correct mode blished as prima facie evidence of of putting the question of law, as to liability ; and in which the relation which it follows no less from the judg- of director or committeeman, &c., ap- ment than from the previous cases, that pears in contradistinction to that of in such cases as those last cited the mere subscriber, considered as analo- question for the jury would be, first, gous, in this respect, to that of part- whether the defendant had so held ownership, and as constituting prima himself out as liable, as that it might facie proof, to be rebutted by the other reasonably be assumed (in the absence circumstances of the case. It may be of express evidence to the contrary) added, that the reasons upon which that the plaintiff gave credit to him ; the judgment itself appears to have and secondbj, whether the defendant, rested, show that it could not possibly by his assent to be a committeeman have been founded on the pritnn facie (coupled m ith any other facts in evi- effect of mere committeemanship, re- deuce, supposing such additional facts ferring, as those reasons did, to facts to have been shown), might reasonably entirely extraneovis to the simple as- be understood by the party who gave sent ; and necessarily raising in each the order as authorizing him to give case a distinct question. Thus, for ex- it. These questions, it will be ob- ample, the fact that there were any served, are totally distinct ; and as to other committeemen than the defendant the latter of them it would be per- himself, or that there were many fectly immaterial whether the defend- others, or that they were resident in gmt had been held out to, or jiersoiiallt/ scattered and distant localities (cir- credited lij, the plaintiff. It is ap- cumstances repeatedly referred to by prehended that both questions would the Court during the argument, and be questions of fact for the jury ; and one of them distinctly relied on that though, as to the former, the fact in the judgment), are all facts of assent would be insufficient prima varying and qualifying the prima facie evidence, it would be sufficient as facie ^'^iacioi committeemanship. And to the /ff^er. even if the jiulgment could be taken as GENERAL ALPHABETICAL INDEX. ACCOUNT STATED, origin and nature of the action in, for arrearages of an " account," 1 — 5. what may be evidence of an accounting, 5 — 10, 15 — 20. essential requisites of the evidence, 8 — 10. mode of pleading to the account; what admissible under the general issue, 10, 11. mode of pleading the same ; defendant's evidence to this, and to another count under the count, 29 — 31. parties to the action, 12, 13. when the count can be substituted for one in a special form, 14 — 26. application of the account stated with respect to promises to pay debts barred by the Statute of Limitations, or by certificate in bankruptcy, or contracted under age, or during coverture, 20 — 26. ACCOUNTING, how far considerations for a special count, 26, 27. or for a plea in the nature of an account, 28. legal effect of a set-off or payment, 29, ACCORD, connection with account, 26 — 28. accounting may be consideration for, ib. no defence unless executed, 29, 103. an executory accord afterwards executed, may support a defence, which could not have been proved by a mere acceptance in satisfaction, 114. exchange, substitution, or ^surrender, of a chose of action, when a good accord, 103 —113. acceptance of a chattel, 104, 105. or of a bill, &c., 107—113. distinction between such a defence and that o^ payment, 108 — 114. ACCOMMODATION, defences founded on an accommodation transaction in actions on bills or notes, 57—60. ACKNOWLEDGMENT of a debt, how far evidence under the account stated, 5 — 7. only evidence of the accounting, ib. its effect as such evidence neutralized by its appearing to have been only an offer, 8. its effect destroyed by the 9 Geo. IV., 11. mode of declaring on, when ambiguous in its import, as to whether it is a note or an agreement, 16 — 21. ACTION, evidence of accounting before, 9. when the evidence is an undated document, ib. ADMISSION of a debt, see Acknowledgment. AGREEMENT, distinction between an agreement and a note, or a mere acknowledgment, evidence of an account stated, 14 — 22. consideration on, executed or executory, ib. proof or production of superseded by subsequent statement of account, 9, 10. statement of account in the agreement itself first creating a liability, 15 — 17. mode of declaring on, when ambiguous in its import, as to whether or not it amounts to a mere absolute promise to pay, 17 — 22. 266 GENERAL ALPII AHKTICAL INDEX. ARGUMENTATIVENESS, in a plea to the count on an account stated, 10. in a plea to a count on a bill or note, 45. a plea to a count in trover for a bill or note, 49. in plea to an allegation of the making or indorsing, &c., 45, 61. in pleading a contract contrary to that declared, 61. BANKRUPTCY, effect of as a bar, 21. remedy upon promise to pay a debt, barred by, 21 — 24. BAILMENT, of money or goods, and right of action thereon for a creditor, 80 — 98. BILL OF EXCHANGE OR PROMISSORY NOTE, form of count on, 36. count, disclosing no consideration, involves the principle that the cause of action is the instrument itself, ib. instrument \ist\i imports, and is not merely /jrmayacze proof of consideration, 55 — 58. action founded on the custom, and the absence of covin, not on consideration, ib. allegation of the making or indorsing of, import consideration, 37. instrument in the nature of a specialty, ib. and should therefore be pleaded to, ib. double pleading at common law, to deny both making and indorsing, .38. effect of the allegation of an indorsement of, 38. or of the traverse of the allegation, 38, 45. the allegation imports a direct and special indorsement, 38 — 40. analogous to that of the making of a bill or deed, 39. indorsing implies anew drawing, ib. implies delivery, ib. which may in either case be to a stranger, 39 — 41. analogy between delivery of a deed to a stranger, and the indorsement of a bill in blank, ib. of special pleas founded on the want of consideration, 53 — 66. how far a defence, 55. mode of pleading the defence, 53 — 60, 64. not pleadable in general terms, 57. incorrectly pleaded in the common form of an accommodation plea, 58. correct form of that species of plea, 59. objections to, ib. pleas of failure of consideration, 61. requisites of such pleas as to answering all the titles disclosed in the record, 62, 66. issue and onus of proof in such pleas, 65. indorsement of a bill overdue, how far a defence, 67. what in issue under a traverse of the allegation of an indorsement, 42 — 44. in case of a special indorsement, delivery to the alleged indorsee, or in the case of a blank indorsee, delivery to the first transferee, as to an indorsee, ib. of special pleas founded on felonious, fraudulent, or unauthorized transfers, 43 — 54, 64. of pleading the defence of the receipt of a bill or note in satisfaction, 113 — 120. of the replication to the plea, 118. of pleading the defence of the taking of a bill " for and on accountof " aprior cause of action, 120 — 125. of the replication to the plea, 122. of the rejoinder, &c., 123. of duplicity or departure in the pleadings, 123. cases where it was part of the original contract that a bill or note should be taken, 125. CONSIDERATION from two will uphold a promise to one, 97. GENERAL ALPIIAHETICAL INDKX. 267 CONSIDERATION— con^mued. distinction between executory or executed consideration exemplified, 15, 16, 17. executed consideration supports no promise but that implied by law, 20. which, when the consideration is a debt, is to pay it on request, ib. effect of stating a consideration as executory, in supporting a special promise, 20—22. not necessary in actions on bills or notes, 36 — 53. which import and are not merely evidence of consideration, 55 — 60. essential in all other contracts, 36. either as the basis of a right of action or of a defence, 26 — 28. essential on an accord, ib. vide accord, 103 — 113. implied in the allegation of the making or indorsing of a bill or note, 37. COVERTURE, effect of as a bar, 25. ♦ remedy on a promise to pay a debt barred by, 25, 26. account stated during, 13. DEBT will be where an indebitatus count would not be sustainable, 15. always certain, 28. distinction between debts and claims, 26 — 28. effect of the allegation of a debt in common, or a special count on an accounting, 13—26. effect of the admission of a debt as evidence of an account stated, 5, 6 — 13, 14. distinction between an offer and an admission, 8. admission of a debt as due at the time of action, 9. or as subsisting at the time of the admission, 14. an existing debt supports no promise but that implied by law, 21. extinguishment of one debt a discharge for another, 97 — 109. distinction between such a defence and one founded on the mere acceptance of an authority to receive a debt, 103 — 110. DEBT FOR RENT, action for, 127— 201. earliest cases on, 130. maintainable on a lease at will, and a quantum meruit rent, 131 distinction between declaration on a demise, and for the occupation, 132. declaration on a demise for some certain period, 130 — 134. on a demise from year to year, 134 — 142. or for years, 141 — 144. of the pleas in the action, 158 — 201. effect of won dimisit, or non est factum, 160. distinction between ne lessa pas and riens en arrere, ib. effect of riens en arrere, 161. as to deduction from the rent, 162 — 165. of a special plea oi riens en arrere, 167. of the plea, levy per distress, ib, of the replication thereto, 169. of pleas of eviction, 171 — 187. distinction between actual and constructive eviction, 171. of pleas of ac^Mfl/ eviction, 171, 172. by the plaintiff, 172. by parties deriving title from him, 173. of pleas of constructive eviction, 175 — 185. of pleas of eviction by title paramount, 185. of the term or of the assignment by the reversion, 187. of pleas of surrender, 188 — 198. mode of pleading, 188 — 197. mode of proving, 190 — 194, by acceptance of a new lease, 190. 268 GKNEBAL ALPHABiCTlCAI. JNDEX. DEBT FOR REl>iT— continued. mode of proving -. — by substitution of a new tenant, 191. by relinquishment of possession, 195. of the mode of pleading defences of a doubtful cliaracter, 197 — 199. distinction between pleas oi xur render and of eviction, 199. pleas of surrender and of notice, 200. of the plea of notice, 201. DEMISE. See Debt for Rent. DE INJURIA, applicability of in actions on bills or notes, 51. DEMURRER, to a plea to the account stated — for argumentativeness, &c., 10. for duplicity, &c., 30, 31. DEPARTURE from a plea of the receipt of a bill for a prior cause of action, 123. from a declaration on a demise, 150. DUPLICITY, in plea to account stated, and another count, 31. distinction between two defences to the same cause of action, and one defence to two causes of action, 31. in pleading to a count on a bill or note, 50 — 54. in pleas of the receipt of a bill in satisfaction, or for and on account of a previous cause of action, 123. in a declaration on a demise, 202. in pleas to a count in debt for rent, 198 — 200. ESCROW, delivery of deed, 40 — 60. EXECUTED CONSIDERATION distinguished from consideration executory, in promises to pay money, 16 — 22. FRIVOLOUS PLEAS, in actions on bills, &c., 63, 64. FRAUD, defences founded on, in actions on hills ornotes, 42 — 54. form of pleading the defence, 45 — 54. onus of proof on such pleas, 51 — 63. fraudulent transfer of bills, &c., 52. distinction between such defence and that founded only on the absence of consi- deration, 52 — 64. GUARANTEE, distinction between a guarantee and an account stated, 18. HAD AND RECEIVED, origin of the action for, 79. in cases of money actually received, ib. when the party for whom the money is delivered is a creditor of tlie party delivering it, 82—89. GENERAL ALPHABETICAL LNOKX, 269 HAD AND RECEIVED— continued. when the party receiving it is a creditor either of the remitter or remittee, 86. when no money is actually received, but a debt is to be paid to a creditor of the person to whom the money was originally owing, 89. right of action on the part of the person appointed to receive the money, 89 — 98. INDORSEMENT, effect of allegation of, when transferred, 38 — 45. special pleas in avoidance of an indorsement, 42 — 53. INFANCY, effect of as a bar, 2^. remedy on a promise to pay a debt barred by, 24, 25. account stated by, ib. account stated of debts contracted during infancy, ib. LEASE, distinction between licence and lease, 127. lease at will, 129—132. from year to year, 133. for term certain, 140. of pleading a lease according to its legal effect, 140 — 142 of terms created by operation of law or by the reservation of rent, 132 — 142. See Debt for Rent. LIMITATIONS, STATUTE OF, effect as to the evidence of an account stated, 11. MESNE PROFITS, remedy for, against whom, 176. distinguished from rent, 176 — 179. MISTAKE, in an account stated, admissible under the general issue, 11. NOTICE, when necessary to allege notice in pleas in an avoidance of indorsement, 42. effect of the allegation, 46, 54, 62. form of the allegation, 50. PAYMENT, an account stated may be proof of, 11, 29. PARTIES TO ACTIONS, on an account stated, 12, 14. effect of an admission to a third party, 12. or by an agent, 13. as a wife, ib. generally, in actions on simple contract, 224. PROMISE, to pay money, when evidence under the account stated, 13, 22. must be absolute, 13, 14. 270 GENERAL ALPHABETICAL INDEX. PROMISE— continued. but need not be of a debt in its strictest sense, 14 — 16. and the promise itself, which first creates the liability, may be evidence of an account stated of it, 16 unless the consideration appear executed, it will not support a count, either on an account stated, or on a bill or note, 16 — 18. to do something beyond the mere payment of money, 17. mode of declaring on such promises when in writing, and when neither common counts nor counts on a bill or a note will be sustainable, 17 — 24. special count on an accounting, 18, 19, must state the consideration as executor]/, 19, 20, what the proper remedy on, when the original cause of action is barred, 21. by bankruptcy, &c., 21, 23. or infancy, 24. or coverture, 25. RENT, remedies for action on a demise. {See Debt for Rent.) Action for use and occu- pation. (See Use and Occupation.) Distinction between actions for rent, and remuneration for occupation, 130 — 134, 204 — 212. or between actions for rent, and for mesne profits, or use and occupation, 176—182. effect of the reservation of rent, 133, each reservation constituting an entire contract, ib. involving a demise by operation of law for each successive period of reservation, 133—136. REPUGNANCY, in pleading the defence of absence or failure of consideration, 57 — 61. RIENS IN ARRERE, plea of. See Debt for Rent. REPLICATIONS, to pleas in avoidance of an indorsement, &c. 51. to pleas of no consideration, 65. SURRENDER, evidence of admissible, in use and occupation, under the general issue, 222. TROVER, for a bill, pleadings on, 48—50. TENANCY, from year to year, or for terms of years, 132—150. import of the allegation of tenancy, 207, assignment of tenancy, remedy of lessor ; tenancy under an agreement, distinguished from a tenancy created by implication of law, 143, TERMS, created by implication of law, as by the reservation of rent, 132—140, USE AND OCCUPATION, nil habuit, an inadmissible plea, 214. legal title not necessary to maintain the action, 215. GENERAL AM'IIAlUiTICAL IXDKX. 271 USE AND OCCUPATION— con^mMed. defences admissible under the general issue, 217, 222. count supportable in respect of easements, or incorporeal hereditaments, 219. where the occupation was not with the assent of the plaintiff, proof of his ownership necessary, 220. the count not sustainable, if there were no understanding that remuneration should be paid for the occupation, 220, 222. applicability of the common count for, 202, joinder of the count for use and occupation, with a count on a demise, ib. origin and nature of the action for use and occupation, 203. special counts for use and occupation, 203, 207, 213. of pleas to such special counts, 207, 213. form of the common count, and essential averments thereon, 205. entry, not actual occupation, necessary to support the count, 206. special count necessary, not where tenant has merely ceased to occupy, but where he has ceased to hold, 208—210. remedy where lessee has assigned, ib. remedy in the case of co-tenants or under-tenants, 212. remedy where the reversion has been assigned, ib. how far the count is applicable, where the premises have been destroyed, &c., 213. 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