« PreviousContinue »
The following cases have appeared since the greater part of the preceding pages were sent to press.
See p. 18.—Infant.'] It was decided that a "stanhope" could not be deemed a necessary for the defendant, a minor, who had held a commission in the army. Charters v. Bayntun, 7 C. & P. 52.
See p. 31.—Married Woman."] As to the implied assent of the husband to a contract entered into by the wife, see Farmer v. Lynn, 4 Nev. & Man. 559.
See p. 67.'—Note or memorandum within the Statute of Frauds.] A correspondence between the defendant and the plaintiff was allowed to be connected with a prior memorandum of the contract signed by the plaintiff only, so as to constitute a sufficient memorandum of the agreement. Lord Denman, C. J. delivering the judgment of the Court, said (5 N. & M. 260): "The cases on this subject are not at first sight uniform; but on examination it will be found that they establish this principle,—that, where a contract or note in writing exists, which binds one party, any subsequent note in writing, signed by the other, is sufficient to bind him, provided it either contains in itself the terms of the contract, or refers to any writing which contains them." Dobell v. Hutchinson, 5 Nev. & Man. 251. K. B. Trin. T. 1835.
See p. 91.—Treating Act.] Add to note (h), Thomas v. Herries, 6 C. & P. 615.
See p. 94.—Tippling Act.\ Lord Abinger, C. B., was of opinion, that the statute 24 Geo. II. c. 40, was not intended to apply to cases where spirits are supplied by an inn-keeper to guests resident at his hotel. Proctor v. Nicholson, 7 C. & P. 67.
See p. 154.—Mis-statement in particulars of sale.'] Material mis-description makes the sale void, although one of the conditions provide that a mistake or error should not vitiate the sale, but should be the subject of a compensation. Dobcll v. Hutchinson, 5 Nev. & Man. 251. K. B. Trin. T. 1835.
See p. 198.—Stoppage in transitu.'] Add to note (s), Slater v. Le Feuvre, 7 C. & P. 91.
See p. 220.—Stamp—Agreement for the sale of goods.] It was suggested above [p. 220, note (6)] that an agreement for the sale of a chattel not in esse at the time of the contract, was to be deemed an agreement for the sale of goods, wares, and merchandise within the exemption of 55 Geo. III. c. 184, and that the case of Buxton v. Bedall (3 East, 303) could not be supported. The point has been actually so determined in the Exchequer, and the last-mentioned case is overruled. The Court decided, that a contract to make a printing-press within three months, was an agreement relating to the sale of goods, and did not require a stamp. Pinner v. Arnold, 1 Tyrwh. & Grang. 1. Exch. Mich. T. 1835.
See p. 259.—Goods sold.—Implied agency.] Wife carrying on trade in behalf of her husband (a bankrupt). Smallpiece v. Dories, 7 C. & P. 40. And see Farmer v. Lynn, 4 Nev. & Man. 559.
See p. 285.—Pleading.] In an action on a guaranty, non assumpsit admits that the goods were supplied. Taylor v. Hillary, 7 C. & P. 30.
Seep. 285.—Form of plea under new rules.] The Court of Exchequer declared that the form of a plea given by Rules Hil. T. 4 Will. IV. (the plea was nil debuit, in debt,) must be literally adhered to. The plaintiff, however, had leave to amend on an affidavit of merits. Smedley v. Joyce, 1 Tyrwh. & Grang. 84. Exch. Mich. T. 1835.
See p. 286.—Pleading—Non assumpsit.'] Although the illegality of the contract cannot be given in evidence without a special plea, the defendant is not bound to plead a matter which is made necessary by a statute in order to entitle the plaintiff to recover. Thus, where the plaintiff brought an action to recover the amount of an apothecary's bill, and the defendant pleaded non assumpsit, it wae held that under this plea the defendant might take the objection that the plaintiff had not (in conformity with the statute 55 Geo. III. c. 194, s. 21,) practised as an apothecary prior to or on the 5th day of August, 1815, or obtained a certificate to practise as an apothecary. Such an objection is in fact founded on a defect in evidence on the part of the plaintiff, and not on a matter which the defendant ought to have pleaded. Morgan v. Ruddock, 4 Dowl. P. C. 311. K.B.Mich. T. 1835.
See p. 287, et seq.—Pleading—Replication."] Since the New Rules, as special matter must always be pleaded, it has become usual to reply de injurid in assumpsit. Semble, that such replication is subject to the same rules as the replication de injurid in trespass, and is therefore inadmissible when the plea claims an interest in the subject-matter of the action, or alleges an authority derived from the plaintiff.
[The main ground of the decision was, that the replication could not be supported, because the plea was not in excuse, but in denial. It may be observed, that the plaintiff had also new assigned that the action was brought not only for the proceeds of the goods in the introductory part of the plea mentioned, but also for the proceeds of certain other goods. The Court seemed to think that the new assignment might have been supported.] Solly v. Neish, 4 Dowl. P. C. 248. Exch. Trin. T. 1835.
See p. 290, note (*).—Pleading.'] Evidence of payment admissible in reduction of the plaintiff's demand (though not in bar of the action), where there is no plea of payment. Lediard v. Boucher, 7 C. & P. 1. See id. 2 n.
See p. 807.—Assumpsit for not delivering goods.] Where the agreement was, that the defendant should sell, and the plaintiff should purchase, all the salt manufactured at the salt-works of defendant, with a proviso that the contract should terminate on the insolvency of the plaintiff, it was held that the term 'insolvency' was to be taken in its ordinary, and not in its technical, sense, and that the defendant was not liable for refusing to deliver the salt manufactured at his works, after the plaintiff had become unable To pay his debts, although he bad not become insolvent under the provisions of the statute for the relief of insolvent debtors. Parker v. Gossage, 1 Tyrwh. & Grang. 105. Exch. Mich. T. 1835.
Form of common counts for goods sold, and on account stated, under Rule Trin. T. 1 Mil. IV.
"In K. B. [or C. P., or Exch. of Pleas.]
day of ——, in the year of our Lord^S—.
Middlesex 1 A. B. by J. S. his attorney [or ' in his own proper to wit: J person'] complains of C. D. who has been summoned to answer the said plaintiff in an action on promises:
For that whereas the defendant on the day of ,
in the year of our Lord 18—, was indebted to the plaintiff
in £ , for the price and value of goods then bargained
[or sold] and sold [or delivered] by the plaintiff to the
defendant at his request: And in £ for money found
to be due from the defendant to the plaintiff on an account then stated between them. And whereas the defendant afterwards, on the day and year aforesaid, in consideration of the premises respectively, promised to pay the said several monies respectively to the plaintiff on request: Yet he hath disregarded his promises, and hath not paid any of the said monies or any part thereof. To the
plaintiff's damage of £ , and thereupon he brings
With the above the plaintiff must deliver particulars of his demand. It is ordered, "That with every declaration, if de"livered, or with the notice of declaration, if filed, containing "counts in indebitatus assumpsit or debt on simple contract, "the plaintiff shall deliver full particulars of his demand under