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an admission of the contract on every count, to which the contract is in its nature applicable (1); and after such an admission the defendant will be precluded from disputing the existence of the contract as stated. Thus in an action on a bill.of exchange, the defendant, by paying money into court generally, dispenses with the regular proof of the party's handwriting (2), and cannot object to the sufficiency of the stamp on which the bill is drawn (3). So, in an action of covenant, he admits the execution of the deed (4). So where the plaintiff brought an action for work and labour as a surgeon, the defendant by paying money into court admitted his right to recover in that character, and was not allowed to dispute it at the trial (5). And payment of money into court has been held to be a conclusive admission of the plaintiff's right to sue in that court (6). So where the defendant paid money into court generally upou a declaration containing a count on a policy of insurance together with money counts, he was not afterwards permitted to shew, that the policy was originally different, and had been altered by the broker without his knowledge (7). But if the plaintiff previous to the trial has induced the defendant to believe, that the only point to be tried would be a question of fraud, and has suffered him to prepare his evidence for that purpose, the Court will not allow the plaintiff to object to the receipt of that evidence at the trial, on tfc.3 ground of the contract having been admitted by the payment of money into court. This was determined by the Court of Common Pleas in the case of Muller v. Hartshorne (8). Lord Alvanley C. J. on the trial of that case, allowed the defendant to prove fraud on the part of the plaintiff, in order to avoid the instrument (9). But the Court afterwards declined giving any opinion on that point,
(1) Bennett v. Francis, a Bos. Pull. (5) Lipscombe v. Holmes, a Camph,
(1) Cutteridse v. Smith, 1H, El. (6) Miller v. Williams,5 Esp.N. P.
374. C. iy.
(3) Israel v. Benjamin, 1 Camrb. 40. (7) Andrews v. Palsgrave, 9 Easr.
U) Randal v. Lvnch, a Campb, 357. Ji5.
Watkins v. lowers, 2 T. R. 175. (8) 3 Bos. Pull556.
(9; lb. anJ lee a Bos.Pull. 391.
because because under the circumstances of the case the plaintifF was not at liberty to avail himself of that objection.
Payment of money into court is an admission only of a legal demand. If the contract declared upon be illegal, the defendant cannot give it validity by his admission; no admission of the parties will oblige the court to give effect to an illegal transaction (i). And although paying money into court admits the contract, that is, the entire consideration for the act and the entire act which is to be done for such consideration, yet it will not be an admission of other parts of the contract, which are distinct and collateral, respecting the liquidation of damages after breach of the contract. In the case of Clarke v. Gray (2) the Court of King's Bench after much consideration determined, that, in an action of assumpsit against a carrier for the loss of goods, the plaintiff might maintain his action, although it was proved on the part of the defendant, that he was not to be accountable for more than 5/. for goods, unless entered as such and paid for accordingly, and the goods in question though above the value of 5/. had not been paid for. The Court were of opinion, that the plaintiff was entitled to retain a verdict, which he had recovered for 5I., the limited amount of the damages recoverable under this contract: that this restriction was a part of the contract, collateral to the entire consideration and to the aqt to be done for that consideration, and as it related merely to Ihe liquidation of damages after a breach of the contract, that it might be properly given in evidence to the jury in reduction of damages. It follows from this case, that if the defendant had paid money into court, he would have been allowed to give in evidence the restrictive provision, and that such evidence would not have been inconsistent with the admission of the contract stated in the declaration; though the contrary was decided in the earlier case
(ij Ribbans v. Cricket, i Bos. Pull. (i) 6 East, 564. 264. 2 East, 134.
of Yate v. Willan (1), on the ground, that the notice containing the restriction was a limitation of the contract, and that if no money had been brought into court the plaintiff must have been nonsuited. But the Court ot King's Bench, adverting to this case in the before-cited case of Clarke v. Gray, said, "It appears to us, that the case of Yate v. Willan cannot be supported to its full extent; for although the payment of money in that case did admit the contract as stated in the declaration, it did not admit a contract incompatible with the restrictive provision as to the amount of damages to be recovered in case of loss." If indeed the provision is of such a nature as will discharge the defendant from all liability under the contract, unless the plaintiff has complied with the condition, (as was the case in Clay v. Willan (2), where the goods were not to be accounted for to any amount, unless properly entered and paid for,) that will not merely operate in reduction of the damages, but in bar of the action ; and therefore in such a case, if the defendant pays money into court on a declaration against a carrier in the common form, he cannot afterwards give in evidence such a provision, which entirely negatives the contract as Rtated in the declaration.
Payment of money into court ought to be proved by the production of the rule of court, or by the office copy of the rule. It will not be sufficient to call the attorney, who hat taken the money out of court. (3)
Thirdly, as to bills of particulars. — It has been before Bill of mentioned that a bill delivered by an attorney to his client ticuUr. for business done during a certain period, or to a tradesman for goods sold, is strong presumptive evidence against any additional item within the same period. The party is not however precluded from shewing that items, included in a subsequent bill, have been omitted by mistake in the former
(1) % East, Ii8. As to the commencement of the prio
ri) 1H.Bl.198. 6East,57o. tice of paying money into court, see
(3) Israel v. Benjamin, 3 Campb. 40. a H, BL 376; t JLd, Raym.
bill, and that the business which is the subject of the charge has been done by him for the defendant. A bill of particulars, delivered under a Judge's order, is more conclusive: its sole object is to inform the opposite party of what he ought to come prepared to try; and it will effectually preclude the party, who delivers it, from giving evidence of any other demand not there stated. Thus, where a declaration contained a count for money had and received for the plaintiff's use, and also a demand for horses sold by the plaintiff to the defendant himself, and the bill of particulars specified the last demand alone (i), it was decided that the plaintiff" could not give evidence of horses being sold by the defendant as the plaintiff's agent; for, a contract for the absolute sale of horses to the defendant is essentially different from a contract to repay money received 011 a sale of horses by commission; and the proceeds of such a sale by the defendant could only be recovered under the count for money had and received, which the plaintiff abandoned by confining his bill of particulars to the demand stated in the other count. So, where the declaration contains a count on a promissory note together with money counts, and the particular of demand includes only the note, the plaintiff will not be allowed to prove the consideration for which the note was given, and if he cannot recover upon the note on account of the want of a proper stamp, he will be nonsuited (2). And although the plaintiff, on perceiving the defect of his first particular of demand, which only mentions the promissory note, delivers a second bill of particulars large enough to comprehend the original debt, yet this will not avail him, unless the second particular has been delivered under a judge's order (3). On the other hand, if the plaintiff, either before or after delivering a bill of particulars under a judge's order, makes a demand of payment only for a part of the articles specified in the bill, such a demand
<i) Holland v. Hopkins, 1 Bos. Pull. (i) Wade v. Beaslty, 4 Esp. N. P.
(3) Brown v. Watts, 1 Taunt. 353. will not have the effect of confining him in his evidence, nor supersede the bill of particulars (1). If the plaintiff in the former case could have recovered on the promissory note, he might have recovered interest also, as arising out of the principal and incident to it, though interest has not been specifically claimed in the particular of demand which gives notice of the amount of the note. (2)
In an action of assumpsit, where the defendant pleaded in abatement, that the promises were made by himself and another person jointly, on which plea issue was joined, and on the trial it appeared from the bill of particulars that some of the articles had been furnished to the defendant jointly with the person named in the plea, Lord Kenyon C. J. held that the plaintiff was bound by his bill of particulars, which supported the defendant's plea; and therefore he nonsuited the plaintiff(3). Here the articles stated to have been furnished on the joint credit of the defendant and another person, were items of the plaintiff's demand; and a necessary part of his bill of particulars, if he intended to recover payment upon them against the defendant. And this seems to distinguish the case from that of Miller v. Johnson (4), which was an action for the sale of some lottery tickets, and as proof of the sale the particular of the defendant's set-off was produced, which mentioned the fact of the sale of the tickets to himself: but Ch. J. Eyre, who tried the cause, was of opinion that the particular could not properly be used against the defendant for this, purpose, and that the fact of sale ought to be proved by other evidence.
The use of a bill of particulars is to prevent the inconveniencies which might otherwise arise from the general and
f I) Short v. Edwards, I Esp. N. P. (.?) Colson v. Selby, i E<p. N P. C.
C. 373. • 451- A rule to set aside the non.tuit
(2, Blake v. i.awrencc, 4 Esp. N. P. was afterwards refused l,v tlie L'uuit.
C M7- (4) lEs;. N.P.C,601.