« EelmineJätka »
months, which C. accepted, but afterwards dishonoured; it was holden”, that defendant was not entitled to notice of the dishonour, his name not being on the bill, and that the bill was not to be esteemed a complete payment of the debt, under stat. 3 & 4 Ann, c. 9, s. 7. In this case the person insisting on the want of presentment was not a party to the bill. In an action for the price of goods, it appeared that the goods were sold in the morning at York, on Saturday, the 10th Dec. 1825, and on the same day, at 3 o'clock in the afternoon, the vendee delivered to the vendor as and for payment of the price, promissory notes of the bank of D. & Co. at Huddersfield, payable to bearer on demand. D. & Co. had stopped payment on the same day at 11 o'clock in the morning, and never afterwards resumed their payments; but neither of the parties knew of the stoppage, or of the insolvency of D. & Co. The vendor never circulated the notes, or presented them to the bankers for payment; but on Saturday the 17th December, he required the vendee to take back the notes, and to pay him the amount, which the vendee refused. It was holden, that the vendor was guilty of laches in not giving notice to the vendee of non-payment and insolvency of the bankers within a reasonable time; and consequently that the notes operated as a satisfaction of the debt. The rule as to all negotiable instruments is, that if they are taken in payment of a pre-existing debt, they operate as a discharge of that debt, unless the party who holds the instruments does all that the law requires to be done in order to obtain payment of thems It is perfectly clear, that a bill of exchange will operate as a satisfaction of a preceding debt, if the holder makes it his own by laches, as by not presenting it for payment when due. So where the vendor of goods, having been paid for them by a bill drawn by the vendee on a third person, after the bill had been accepted, altered it in a material part, viz. the time of payment; it was holden", that the vendor thereby made the bili his own as against the vendee, and caused it to operate as a satisfaction of the debt for which it was originally given.
Where the holder of a bill of exchange, upon its being dishonoured, received part payment, and for the residue another bill of exchange, drawn and accepted by persons not parties to the original bill, and afterwards sued the drawer and acceptor upon the original bill: it was holden* that it was sufficient for him to prove presentment of the substituted bill to the acceptor for payment, and that it was dishonoured, without 9 Swinyard v. Bowes, 5 M. & S. 62. t Per Ld. Tenterden, C. J. 3 B. and r Camidge v. Allenby, 6 B. & C. 373. s Per Bayley, J. S. C. 6 B. & C. 382.
Langdale, 3 B. & Ad. 660. * Bishop v. Rowe, 3 M. & S 362.
proving that he gave notice of the dishonour to the drawer of the substituted bill. If a creditor refer a third person to his debtor for payment, intending the third person to take payment in money, and the third person, instead of taking payment in money, takes payment in any other way, he does it at his peril. Per Bayley, J. in Smith v. Ferrand, 1 B. and C. 24. In an action for goods sold, a witness cannot be called for the defence to prove that the defendant has paid the amount to him, (either as agent for the plaintiff or in his own right,) if it appear that he obtained the payment under such circumstances that, in the event of the plaintiff's recovering, the witness would be liable to the defendant, not only for the sum so recovered, but also for the costs of the cause as damages resulting from the witness's deceit.
Payment of Money into Court.-By stat. 3 & 4 W.4, c. 42, s. 21, it shall be lawful for the defendant in all personal actions, (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauching plaintiff's daughter or servant,) by leave of any of the superior courts where such action is pending, or a judge of any of the said superior courts, to pay into court a sum of money by way of compensation, in such manner and under such regulations as to the payment of costs and the form of pleading, as the said judges, or such eight or more, shall by rule direct. By R. G. H. T. 4 W. 4, No. 17, when money is paid into court, such payment shall be pleaded in all cases, and, as near as may be, in the following form, mutatis mutandis :
The defendant, by his attorney, [or, in A. B.) person, 8c.) says, that the plaintiff ought not further to maintain his action, because the defendant now brings into court the sum of £ , ready to be paid to the plaintiff; and the defendant further says, that the plaintiff has not sustained damages, [or, in action of debt, that he is not indebted to the plaintiff,] to a greater amount than the said sum, &c., in respect to the cause of action in the declaration mentioned, and this he is ready to verify; wherefore he prays judgment if the plaintiff ought further to maintain his action.” In assumpsity for breach of an agreement to keep premises in repair, the Court would not allow defendant to pay money into court as compensation under the foregoing statute, upon pleas of payment of money into court and of tender.
x Larbalestier v. Clark, 1 B. & Ad 899.
y Dearle v. Barrett, 2 Ad. & Ell. 82.
5. Release.Defendant may plead a release after promise, and before action brought (72.) The usual replication to a plea of release is non est factum (73). A release, upon performance of the promise in part? quoad hoc, will not discharge the promise for the residue. If after the last continuance the plaintiff give the defendant a release, he may plead it in bara ; such plea is called a plea puis darrein continuance. By R. G. H. T. 4 W. 4. No. 2. it is provided that in all cases, in which a plea puis darrein continuance is now by law pleadable in Banco, or at Nisi Prius; the same defence may be pleaded with an allegation, that the matter arose after the last pleading, or the issuing of the jury process, as the case may be. Provided, that no such plea shall be allowed, unless accompanied by an affidavit that the matter thereof arose within eight days next before the pleading such pleas, or unless the court or a judge shall otherwise order.
6. Statutes, 1. Of Limitations.
2. Of Set-Off 1. Statute of Limitations.-By stat. 21 Jac. 1. c. 16. 9. 3. all actions upon the case (other than slander) shall be commenced and sued within six years next after the cause of such actions, and not after. Advantage must be taken of this statute by pleading it b, although it should appear on the face of the declaration that the cause of action did not arise within six years before the commencement of the action; and the defendant will not be permitted to give it in evidence on the general issue, non assumpsit.
There are two forms in which this statute is usually pleaded :
1. That the defendant did not at any time within six years next before the commencement of the plaintiff's action, undertake or promise, 8c.
2. That the cause of action mentioned in the declaration, did not accrue at any time within six years next before the commencement of the plaintiff's action, &c.
z 2 Roll. Abr. 413, 1. 2. adjudged. a Bull. N. P. 309.
b Puckle v. Moor, 1 Vent. 191. Lee v.
Rogers, I Lev. 110.
(72) See the form, Clerk's Assist. p. 257, 258. 2 Rich. P. B. R. p. 43, third edition.
(73) 2 Rich. Pr. B. R. p. 44.
The first form is proper in actions of indebitatus assumpsit for goods sold and delivered, money lent, and the like, where the consideration is executed. In an indebitatus assumpsit, on a promise to pay on demand, the defendant pleaded non assumpsit infra sex annos ; the plaintiff demurred, on the ground that nothing was due until demand, and therefore defendant should have pleaded non assumpsit infra sex annos after demand, or that no demand was made within six But per Cur. If the promise were of a collateral thing, which would not create any debt until demand, it might be so; but here it is an indebitatus assumpsit, which shews a debt at the time of the promise, therefore the plea is good.
The second form, viz. that the cause of action did not accrue within six years, may be adopted with safety in all cases, but it is more peculiarly applicable to the cases of actions brought for breach of promises founded on collateral and executory considerations, in which cases the first form would be improper, as will appear from the following case: The declaration stated, that, in consideration that the plaintiff would receive A. and B. into his house as guests, and diet them d, the defendant promised, &c. Plea, non assumpsit infra sex annos, to which the plaintiff demurred: judgment for the plaintiff in the Common Pleas: on error in B. R. it was agreed by that court that the plea was ill: for this being an executory collateral promise, the defendant cannot plead non assumpsit infra sex annos, but should have pleaded causa actionis non accrevit infra sex annos ; for, if the cause of action accrued within six years, it was immaterial when the promise was made. Where A., under a contract to deliver spring wheat, had delivered to B. winter wheat, and B. having again sold the same as spring wheat, had in consequence been compelled, after a suit in Scotland which lasted many years, to pay damages to the vendee, and afterwards B.e brought an action of assumpsit against A. for his breach of contract, alleging as special damage, the damages so recovered; it was holden, that although such special damage had occurred within six years before the commencement of the action by B. against A., yet that the breach of contract which in assumpsit was the gist of the action, having occurred and become known to B. more than six years before that period, A. might properly plead actio non accrevit infra sex annos.
The statute bars the remedy only, not the debt. The plea of the statute of limitations may be pleaded to an action brought on a bill of exchange, because it is not a specialty h; and to an action brought by an attorney for his fees, because the fees are not ofi record. This statute is a good defence to an action by a landlord for rent against one who had once been his tenant from year to year, but who had not, within the last six years, occupied the premises, paid rent, or done any act from which a tenancy could be inferred, although the tenancy had not been determined by a notice to quit.k
c Collins v. Benning, 12 Mod. 444.
and 2 Salk 422.
e Battley v. Faulkner, 3 B. & A. 288. f Higgins v. Scott, 2 B. & Ad. 413.
To the plea of non assumpsit infra sex annos the plaintiff may tender an issue, that defendant did promise within six years, and this issue will be supported by evidence of an express promise made by defendant within six years before action brought : for it has been holden, that this statute does not extinguish the plaintiff's right of action, but suspends the remedy only, and that this suspension is capable of being removed by a subsequent promise on the part of the defendant within the limited time.
In an action for money had and received, to recover the consideration of an annuity void on the ground of a defect of a memorial, but which had been treated by the grantor as a subsisting annuity for several years, and then set aside; it was holden,m that the statute of limitations did not begin to run until the grantor had made his election to avail himself of the defect in the memorial. Declaration, that the defendant delivered his promissory note payable on demand with interest, to the plaintiff, but neglected to pay, except interest, which he paid up to a day within six years. A plea that the cause of action did not accrue within six years was holden » sufficient; for the allegation, that interest has been paid is only evidence towards taking the case out of the statute, but is not conclusive.
Not only an express promise, but a mere acknowledgment of the debt, as existing, will be sufficient to support this issue; but it must be an acknowledgment whence a promise to pay may be inferred.
In Whitcomb v. Whiting, Doug. 651. recognized in Wyatt v. Hodson, 8 Bingh. 309. an acknowledgment by one of several makers of a joint and several promissory note was holden sufficient to take it out of the statute against the others, and that such an acknowledgment might be given in
h Renew v. Axton, Carth. 3.
1 Dickson v. Thomson, 2 Show. 126.