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1862.

MORLEY
V.

Baker.

Prentice, for the plaintiff, claimed to recover the whole sum of 500/. (less interest), and substantial damages on the other breach, at least for the expense of preparing the deed.

Martin, B.—As to the first breach, the plaintiff is entitled to recover the whole sum, less interest. As to the other breach, he cannot, I think, recover the expenses of the deed; but a substantial sum, say 5001., to be reduced to a nominal amount on his executing the deed.

Verdict, accordingly, for 500/. on the first breach, less interest; and 500/. on the second breach, to be reduced to one shilling on defendant's execution of the deed (a).

merits due, but for the breach of an entire contract to pay the whole, though the particular breach is non-payment of part. If the plaintiff could not bring another action, then he is compelled either to lose the rest, or be kept out of the whole until all is due; and perhaps on that principle the jury might give the whole as damage, just as in a case of wrongful dismissal the jury may in an action brought before the term of service is over give damages for the whole term (Goodman v. Pocock, 19 L. J., Q. B. 410), though the plaintiff has in that case (and possibly in this) an election of two remedies, taking his chance, if he chooses to sue before the time is up, of getting the whole in damages. That separate actions might be brought, see Hm till v. Brown, 3 Exch. Rep. 434.

(a) That in such a case the action must be for not giving the bills, see Paul v. Dad, 2 C. B. Rep. 800, even where there would be a cause of action apart from the agreement to give the bills. But that there is no difference as to damage, between a contract to pay a sum of money and to give a bill for it, seems to follow from the principle on which a bill, negotiable, is taken as prima facie payment, until returned dishonoured, on which principle it is a good plea that such a bill has been taken "for and on account of a debt;" Kemp v. Watt, 15 M. & W. 672. A man could not be permitted to presume that his bill would be dishonoured. And in actions for not giving a bill, it is believed the plaintiff always recovers the full amount of the debt, less discount.

18*62. HARTLAND And Others V. JUKES And Others. ^v^-'

T After

HIS was an action by the public officer of the Glou- Trmiiy Term.

cester Banking Company against the executors of one p^'b?"on Steward, on a joint and several promissory note, dated 4th demand, given

"■ J by a separate

December, 1855, by him and one W. Courtnay, for 200/., agreement a» payable on demand to the bank. banking ac

Second count, on an agreement by way of continuing j[°"tn*.'elhe guarantee for any balance that might be due on Courtnay's from the day

it is given, and account. it it not kept

» e L. l alive by the

Averment of a balance. banking ac

Breach, non-payment. count'or jW"

''J mcnts made

Plea: the Statute of Limitations. upon that ac

count, nor does

Afacnamara and T. C. Mathew for the plaintiff. the agreement

* create a dis

Collier and Marsh for the defendant. tin?tcau!e of

action.

On the day the note was given a memorandum was signed by both parties, to the effect that the note was given to the bank as a further and collateral security for the banking account intended to be kept by W. C. with them, and " they are at liberty to recover from us, or each of us, up to that amount, all or any sums in which W. Courtnay may be indebted on such account for monies lent to or advanced by the bank to him."

The account with Courtnay was settled half-yearly.

In June, 1856, the balance against him was 194/.

Macnamara, for the plaintiff, relied on the agreement as an answer to the plea of the statute, contending that it made the note a continuing security, available so long as any balance existed against Courtnay upon the banking account, or itself created a right of action as a continuing guarantee, on which there was a cause of action in 1856. He cited Webb v. Spicer(a); but

Martin, B., said, the memorandum was no agreement, (o) 18 L. J., Q. B. 142, referring to Ford v. Beech, 11 Q. B. Rep. 852.

1862.

Hartland

and Ucliers

v.

Jukes

and Others.

and gave no right of action different from that on the note, which arose on the day the note was given. The note was not affected by the memorandum, and was payable absolutely. The payment here was not on account of the note, and so does not affect the operation of the statute upon it, nor create a distinct cause of action. The statute, therefore, is an answer to the action on both counts. There is nothing for the jury, and I must direct a verdict for the defendant; but will reserve leave to move to enter a verdict for 194/.

Thereupon there was a

Nonsuit.

Trinity Term.

The Mercantile
Law Amend-
ment Act, 19 &
20 Vict. c. 97,
s. 14, is pro-
spective only,
and does not
apply to notes
made before
the Act, even
though the
payment or
acknowledg-
ment has been
qfter the Act.

COCKERELL v. SPARKES.

-A.CTION on a promissory note for 200/., dated the 9th of November, 1853, payable two months after date.

Plea: the Statute of Limitations.

Keane for the plaintiff.

Beresford for the defendant.

The note was given as surety for one Hilder. On the 5th of April, 1861, the defendant gave the plaintiff a written consent to his receiving a dividend under Hilder's estate, without prejudice to his claim on the defendant on the note.

Keane relied on this as an acknowledgment in writing, &c.

Beresford relied on the Mercantile Law Amendment Act, 19 & 20 Vict. c. 97, s. 14.

No doubt it had been decided in Jackson v. Woolley («) to be prospective only, but there the payments were before the statute, here they were after the statute.

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Martin, B.—That makes no difference in principle. 1862. But I will reserve the point. ^"^^

1 p , CUCKKKELL

Verdict for the plaintiff. ».

Sparkes.

HAMMOND v. MATHER.

Trinity Ttrm.

Ji/JECTMENT for breach of condition of re-entry on If the tenant

of demised pre

non-payment of rent. mises leave

them locked

Needham for the plaintiff. "V-the land

1 lord may re

Pearce for the defendant. Z""^?.

Act, 1852, s.

It was opened for the plaintiff, and not disputed, that 210, as no suf

t ir 1 ■ J »i_ J. ii ■ ficient distress

half a years rent was in arrear, and that the premises can De/otmd, were left fastened up, so that the landlord could not enter to distrain, nor see if there were a sufficient distress on the premises. There had been for the same reason no demand of the rent.

Martin, B., said that was sufficient (a), and directed a

Verdict for the plaintiff.

(a) It lias been held, that if the the trial" (in case the defendant

landlord shows he was prevented appears) " that no sufficient distress

by the defendant from entering on was to be found on the demised

the premises to distrain, he is en- premises," this being deemed to

titled to recover under the statute mean no distress which can be got

4 Geo. 4, c. 28 (now re-enacted by at; Doe d. Chippendale v. Dyson,

the C. L. P. Act, 1852, s. 210), M. & M. 77; Cox v. Roe, 5 D. &

without showing that there was no L. 273; Doe v. Franks, 2 C. & K.

sufficient distress on the premises, 678; Doe d. Davis v. Roe, 5 D. &

the words of the statute (still the L. 272; Doe d. Dixon v. Roe, 7

same) being, " that it be proved on C. B. 577; Roscoe, N. P. 652.

1862.

Coram Wilde, B.

Trinity Term.

On comparison of handwriting both documents must be in Court. On secondary evidence being proffered of a written agreement, if it appear to have been unstamped when seen by the witness, such evidence is excluded.

Custom in a trade admitted to add a term to a written agreement.

As between the lender and hirer of horses, the latter is not liable for casual negligence of a driver employed with reasonable care.

ARBON v. FUSSELL.

ACTION by job-master against the hirer of a pair of horses. The first count was on an alleged contract of hire, determinable with three months' notice. Breach, determination without such notice.

Second count, on the bailment of the horses. Breach, so negligently driving them that they fell and were injured.

Pleas: denying the contract and the breach; and not guilty.

Huddleston and Garth for the plaintiff.

Phinn and Day for the defendant.

In proving the case for the plaintiff, it was elicited that the agreement was in writing. The parties had interchanged copies, signed by each. The plaintiff had lost his copy, and had given the defendant notice to produce hers, which was produced, but contained no clause as to notice. Thereupon the plaintiff denied that this was the true agreement, and was examined as to the one he had signed, and which he swore he had given to the defendant's coachman, receiving back the duplicate. But, on cross-examination, he admitted that it was unstamped; and, as the nature of the subject-matter was clearly above 20/., it was contended that secondary evidence was not admissible (a); and

Wilde, B., So held.

It being attempted to prove that the other agreement was signed by the defendant, a letter of hers (admitted) was produced for the purpose of comparison of handwriting; but it was contended, on the part of the de

(a) Vide Clotmadeui v. Currell, 25 L. J., C. P. 216.

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