1862. MORLEY V. BAKER. Prentice, for the plaintiff, claimed to recover the whole sum of 5007. (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 500l., to be reduced to a nominal amount on his executing the deed. Verdict, accordingly, for 5007. on the first breach, less interest; and 500l. on the second breach, to be reduced. to one shilling on defendant's execution of the deed (a). ments due, but for the breach of an (a) That in such a case the action must be for not giving the bills, see Paul v. Dod, 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. HARTLAND AND OTHERS v. JUKES AND OTHERS. THIS statute runs Second count, on an agreement by way of continuing count, the guarantee for any balance that might be due on Courtnay's from the day account. Averment of a balance. Breach, non-payment. Plea: the Statute of Limitations. Macnamara and T. C. Mathew for the plaintiff. Collier and Marsh for the defendant. 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. 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, (a) 18 L. J., Q. B. 142, referring to Ford v. Beech, 11 Q. B. Rep. 852. it is given, and it is not kept alive by the banking ac count, or payments made upon that account, nor does the agreement create a distinct cause of action. 1862. HARTLAND and Others 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 1941. Thereupon there was a Nonsuit. Trinity Term. The Mercantile ACTION Law Amend. COCKERELL v. SPARKES. on a promissory note for 2007., dated the 9th ment Act, 19 & of November, 1853, payable two months after date. 20 Vict. c. 97, s. 14, is prospective only, and does not apply to notes made before the Act, even though the payment or acknowledgment has been after the Act. 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. &c. Keune relied on this as an acknowledgment in writing, 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 (a) to be prospective only, but there the payments were before the statute, here they were after the statute. (a) 27 L. J., Q. B. 181. MARTIN, B.-That makes no difference in principle. But I will reserve the point. 1862. COCKERELL Verdict for the plaintiff. V. SPARKES. HAMMOND v. MATHER. Trinity Term. EJECTMENT for breach of condition of re-entry on If the tenant non-payment of rent. Needham for the plaintiff. Pearce for the defendant. of demised pre- Act, 1852, s. ficient distress can be found. It was opened for the plaintiff, and not disputed, that 210, as no sufhalf a year's rent was in arrear, and that the premises 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 (a) It has been held, that if the landlord shows he was prevented by the defendant from entering on the premises to distrain, he is entitled to recover under the statute 4 Geo. 4, c. 28 (now re-enacted by the C. L. P. Act, 1852, s. 210), without showing that there was no sufficient distress on the premises, the words of the statute (still the same) being, "that it be proved on Verdict for the plaintiff. the trial" (in case the defendant 1862. Trinity Term. Coram Wilde, B. ARBON v. FUSSELL. On comparison ACTION by job-master against the hirer of a pair of of handwriting must be in both documents horses. The first count was on an alleged contract of hire, determinable with three months' notice. Breach, determination without such notice. Court. On secondary evidence being proffered of a written agreement, if it appear to have been un 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 stamped when guilty. seen by the witness, such evidence is excluded. Custom in a trade admitted to add a term to a written agreement. As between the latter is not liable for casual negligence of a driver employed with 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 interthe lender and changed copies, signed by each. The plaintiff had lost hirer of horses, 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 201., it was contended that secondary evidence was not admissible (a); and reasonable care. 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 Closmadeux v. Currell, 25 L. J., C. P. 216. |