Page images

goods, and therefore the amount may be well re- interest, covered on the general count for goods sold and delivered (/). So, where the vendor and purchaser have stated an account, and agreed that the balance should be paid on a particular day, if payment be duly demanded and refused, interest may be recovered from that date(g). But it is to be computed from the day when payment was to have been made, and not from the time of merely stating the account (A).

By the Law Amendment Act(i) the jury are Byotatute. empowered to allow interest on debts. It is enacted (k) that, "upon all debts or sums certain pay"able at a certain time or otherwise, the jury, on "the trial of any issue, or on any inquisition of "damages, may, if they shall think fit, allow "interest to the creditor, at a rate not exceeding "the current rate of interest, from the time when "such debts or sums certain were payable, if such "debts or sums be payable by virtue of some "written instrument at a certain time; or if pay"able otherwise, then from the time when demand

(/) Marshall v. Poole, 18 East, 101; Slack v. Lowell, 3 Taunt. 157. Where there had been a special agreement for interest, which was not declared upon, but the jury gave interest upon the common counts, the Court refused to disturb the verdict; Harrison v. Allen, 9 B. Moore, 28.

(g-) Hammel v. Abel, 4 Taunt. 298; Pinhorn v. Tuckington, 3 Campb. 468; Bruce v. Hunter, id. 467; Blaney v. Hendrick, 3 Wils. 205; S. C. 2 Bl. Rep. 761.

(A) Chalk v. Duke of York, 6 Esp. 45.

(0 3 & 4 Will. IV. c. 42. (A) id. s. 28.


"of payment shall have been made in writing, so "as such demand shall give notice to the debtor "that interest will be claimed from the date of

"such demand until the term of payment

"Provided, that interest shall be payable in all "cases in which it is now payable by law."

Defence to assumpsit.

When special plea necessary.


In considering the effect of statute and common law upon contracts of sale, and the proof necessary to support the plaintiff's action, the subject of defence on the part of the vendee has necessarily been almost wholly anticipated. Anything tending to show, that the contract itself is void by the principles of law, or that something, necessary to be performed by the plaintiff, has been left unperformed, may be given in evidence to defeat the action. But care must be taken, that all special matter, intended to be set up as a ground of defence, be specially pleaded; for, by the New Rules of Pleading(/), " in all actions of assumpsit (except on bills of exchange and promissory notes (m)), the plea of non assumpsit shall operate only as a denial in fact of the express contract or promise

(/) Rules of Pleading, Hil. T. 4 Will. IV.; Assumpsit, 1 and 2. See Fidget v. Penny, 1 Cr. Mees. & Rose. 109.

(m) In which non assumpsit is altogether inadmissible.

alleged, or of the matters of fact from which the Pleading. contract or promise alleged may be implied in law." And " in an action of indebitatus assumpsit Effect of for goods sold and delivered, the plea of non issue. assumpsit will operate only as a denial of the sale and delivery in point of fact." "In every species of assumpsit, all matters of confession and avoidance, including not only those by way of discharge, but those which show the transaction to be either void or voidable in point of law on the ground of fraud or otherwise, shall be specially pleaded;—ex. gr. infancy, coverture, release, payment, performance, illegality of consideration either by statute or common law, drawing, indorsing, accepting &c. bills or notes by way of accommodation, set-off, mutual credit, unseaworthiness, misrepresentation, concealment, and various other defences, must be specially pleaded"(«z). Thus, the absence of a written agreement, where such

(to) The rule of pleading is similar, if the action, instead of assumpsit, be in debt. It is declared, that " the plea of nil debet "shall not be allowed in any action," But nil debuit is allowable: for, " in all actions on simple contracts (other than on bills, "&c.) the defendant may plead that, he never was indebted in "manner and form as the declaration alleged; and such plea shall "have the same operation, as the plea of non assumpsit in indebi"tatus assumpsit; and all matters of confession and avoidance "shall be specially pleaded, as in actions of assumpsit;" Rules Hil. T. 4 Will. IV.; Debt, 2 and 3. See Cooper v. Whitehouse, 6 C. & P. 545.

Pleading, agreement is necessary («), fraud (0), the want of sufficient consideration^), the illegality of the consideration (q), must be pleaded specially, and are inadmissible under non assumpsit.

wimiseve- And several pleas, &c. shall not be allowed,

ral pleas dis- *

aiiuwcd. "unless a distinct ground of answer or defence is intended to be established in respect of each "(r). Thus, in an action for goods sold and delivered, a

(n) Barnett v. Glossopp, 1 Bingh. N. S. 633; S. C. 3 Dowl. P. C. 625; Ross v. Humphreys, Exch. Trin. T. 1835.

(0) Icely v. Grew, 6 C. & P. 671; Howell v. White, 1 M. & Rob. 400.

(/)) Passenger v. Brooks, 1 Bingh. N. S. 587; Stoughton v. Kilmorey, 2 Cr. Mees. & Rose. 72. And a general plea of want of consideration is not contemplated by the rules; such negative plea, though perhaps good after verdict, would be bad on special demurrer. The defendant should affirmatively set forth the facts from which the want of consideration would appear. Thus, to an action on a bill or note, the plea should state (according to the fact), that the instrument was given by way of accommodation, or that there was a wilful misrepresentation on the part of the plaintiff upon the sale of the property in respect of which the bill or note was given. See per Lord Abinger, C. B., Easton v. Pratchett, 1 Cr. M. & R. 806, 807; and per Parke, B., 2 Cr. M. & R. 105. And see Lacey v. Forrester, 2 Cr. M. & R. 59; Stein v. Yglesias, 1 Cr. M. & R. 567; Low v. Chifney, 1 Bingh. N. S. 267.

(q) Potts v. Sparrow, 1 Bingh. N. S. 594; S. C. 3 Dowl. P. C. 630. This rule applies equally to cases where the illegality is in an agreement which forms the subject of the suit, and to cases where the claim is in respect of illegal services; see 1 Bingh. N. S. 596. But see Morgan v. Ruddock, 4 Dowl. P. C. 311.

(r) Rules Hil. T. 4 Will. IV. § 5.

plea of warranty with a sample, and a plea on an Pleading. implied warranty of good merchantable quality, will be disallowed together (a). This provision, however, is not intended to prevent inconsistent defences from being pleaded(J), but to prevent two defences, which are substantially the same, though diffeijent in form, from being pleaded together.

Disability to contract is a good defence, and Disability, must, of course, be pleaded specially. To infancy, the plaintiff may reply that the goods sold were necessaries (u), or that the defendant ratified the contract in writing, on obtaining full age(V). To coverture (pleaded in bar), the plaintiff may reply, that the vendee acted by her husband's authority, or that he subsequently confirmed the contract; and such a replication is no departure, though the husband be not named in the declaration^): or, the plaintiff may reply that the husband was abroad at the time of making the con

(s) Stcill v. Slurry, 3 Dowl. P. C. 133.

(<) Dueer v. Tribuer, 3 Dowl. P. C. 133; and see per Bosanquet, J., id. 135; Wilkinson v. Sewell, id. 564.

(a) See above, p. 16.

(*) See p. 21. 9 Geo. IV. c. 14, s. 5.

(y) Prince v. Brunatte, 1 Bingh. N. S. 435. The authority of the husband will be presumed in the case of necessaries (though the presumption may be rebutted), but must be proved, in other cases, to have been expressly or impliedly given. See above, pp. 26, 30.

« PreviousContinue »