Page images



Prentice, for the plaintiff, claimed to recover the whole sum of 5001. (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 5001. on the

first breach, less interest; and 5001. 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
entire contract to pay the whole,
though the particular breach is
non-payment of part. If the plain.
tiff 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 da-
mages for the whole term (Good-
man 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 Hartill v.
Brown, 3 Exch. Rep. 434.

(a) That in such a case the action must be for not giving the bills, see Puul 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. Wutt, 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.



After THIS was an action by the public officer of the Glou- Trinity Term.

ome On a note cester Banking Company against the executors of one Steward, on a joint and several promissory note, dated 4th demand, given

by a separate December, 1855, by him and one W. Courtnay, for 2001., agreement as

security for a payable on demand to the bank.

banking acSecond count, on an agreement by way of continuing

statute runs guarantee for any balance that might be due on Courtnay's from the day

it is given, and account.

it is not kept

alive by the Averment of a balance.

banking acBreach, non-payment.

count, or pay

ments made Plea: the Statute of Limitations.

upon that ac

count, nor does Macnamara and T. C. Mathew for the plaintiff.

the agreement

create a disCollier and Marsh for the defendant.

tinct cause of

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, 1866, the balance against him was 1941.

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.

1862. and gave no right of action different from that on the

note, which arose on the day the note was given. The HARTLAND and Others note was not affected by the memorandum, and was pay

JURES able absolutely. The payment here was not on account and Others.

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


COCKERELL v. SPARKES. Trinity Term. The Mercantile Action on a promissory note for 2001., dated the 9th Law Amend. ment Act, 19 & of November, 1853, payable two months after date. 20 Vict. c. 97, 8. 14, is pro

Plea : the Statute of Limitations. spective only, and does not Keane for the plaintiff. apply to notes made before Beresford for the defendant. the Act, even though the The note was given as surety for one Hilder. On the payment or acknowledg- 5th of April, 1861, the defendant gave the plaintiff a ment has been written

written consent to his receiving a dividend under Hilder's after the Act.

estate, without prejudice to his claim on the defendant on the note.

Keune 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 (u) 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.

Verdict for the plaintiff.




Trinity Term. EJECTMENT for breach of condition of re-entry on If the tenant

of demised prenon-payment of rent.

mises leave

them locked Needham for the plaintiff.

up, the landlord may re

cover under Pearce for the defendant.

the C. L. P.

Act, 1852, s. It was opened for the plaintiff, and not disputed, that 210, as no suf

ficient distress half a year's rent was in arrear, and that the premises can be found: 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 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

the trial" (in case the defendant
appears) " that no sufficient distress
was to be found on the demised
premises,” this being deemed to
mean no distress which can be got
at; Doe d. Chippendale v. Dyson,
M. & M. 77; Cox v. Roe, 5 D. &
L. 273; Doe v. Franks, 2 C. & K.
678; Doe d. Davis v. Roe, 5 D. &
L. 272; Doe d. Dixon v. Roe, 7
C. B. 577 ; Roscoe, N. P. 652.


Coram Wilde, B.


to have


ARBON v. FUSSELL. Trinity Term. On comparison ACTION by job-master against the hirer of a pair of of handwriting both documents horses. The first count was on an alleged contract of hire, must be in

On se. determinable with three months' notice. Breach, detercondary evi mination without such notice. dence being proffered of a Second count, on the bailment of the horses. Breach, written agreement, if it ap. so negligently driving them that they fell and were injured.

Pleas: denying the contract and the breach; and not been un stamped when guilty. seen by the witness, such evidence is

Huddleston and Garth for the plaintiff. excluded.

Custom in a Phinn and Day for the defendant. trade admitted to add a term In proving the case for the plaintiff, it was elicited that to a written agreement the agreement was in writing. The parties had inter

As between the lender and changed copies, signed by each. The plaintiff had lost the latter is not neis copy, and mau give

his copy, and had given the defendant notice to produce liable for hers, which was produced, but contained no clause as to casual negli. gence of a notice. Thereupon the plaintiff denied that this was the driver employed with

true agreement, and was examined as to the one he had reasonable signed, and which be swore he had given to the defend

ant'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

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 Closmadeur v. Currell, 25 L. J., C. P. 216.


« PreviousContinue »