N.B. Hayes J. was engaged during the argument in tember, 1858. the Consolidated Nisi Prius Court.

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the real plaintiff, who now sues for the entire amount of the note. In Michaelmas Term, 1859, the plaintiff obtained a rule nisi for a new trial, on the grounds that the learned judge should have directed the jury to find for the plaintiff both on the plea of set-off and on the claim for interest, and on the grounds that the charge of the learned judge, both as to the plea of set-off and the claim for interest, was wrong in point of law.

was the sum of £5 11s. 6d., or any other sum, found to be due by the plaintiff to the defendant, on an account stated?-3rd-Is the sum of £15 1s. sufficient to satisfy the residue of the plaintiff's demand over and above said sum of £5 11s. 6d.? The cause was tried before Perrin, J., at the Londonderry Summer Assizes, 1859. The defendant began. At the close of the defendant's case, plaintiff's counsel called on the learned judge to direct a verdict for the plaintiff, as there was no evidence of any money received to the defendant's use, nor of any account stated; that the J. Brooke, Q. C., and J. P. Hamilton showed defendant's case was the subject of a cross-action, but cause.-' -The claim for interest cannot be sustained in not of a set-off; that there was no consideration for law; for, as was expressed in the body of the note, the promise alleged to have been made by the sheriff; interest ran only from the day of payment, and on that that no cess was due, and that in any case defendant very day the defendant offered to pay £15 18., as had could not distrain; and that the sheriff's promise, if been agreed upon. The claim cannot be sustained on made, should have been in writing, to make it valid; the evidence-for the jury found that no interest was and that on that part of the case which depended on due to the plaintiff. The defendant bought at the aucthe payment into court, the judge should tell the jury tion on the express understanding that he would be alto find the interest from the time the note became due lowed to deduct the sum of £5 11s. 6d. from the price of to the lodgment, and on the set-off, till the trial as in- whatever goods he might purchase. [Lefroy, C. J.--This terest was made payable in the body of the note, at is parol evidence, to do away with a written instru6 per cent, and that the jury were bound to give in- ment-the note.] We admit the note to its fullest terest. The learned judge refused so to direct the extent, but say that we have a right to set off the sum jury; but told them that though the sum was not due of £5 11s. 6d. We say also that this action has been for cess, no objection was made to it at the time, and brought in violation of a contract made with us. The if it was understood between the parties that the de- defendant refused to sign the note for the full amount, fendant was to get credit for it out of his purchase- until the sub-sheriff promised that he would, before money, whether it was a legal or enforceable demand the note became due, send the defendant a cheque for or not, if the jury believed the defendant's evidence, the £5 11s. 6d. On the faith of that agreement, the they should find for him on the set-off; and that the defendant never applied to M'Callin for the money; plaintiff was estopped from denying that he had re- M'Callin is not now worth one penny: the agreement ceived money to the defendant's use; and that the was a valid one. In point of law, indeed, the defenquestion of interest, so far as related to the sum lodged dant had no right to enforce payment of arrears of in court, was for them to consider; and that they were county cess out of the proceeds of a sheriff's sale. at liberty, taking all the circumstances into considera- But in this case the sheriff gave an express undertaktion, to give interest or not, as they thought fit. The ing: for that undertaking the defendant gave a good jury found for the defendant on all the issues. The consideration. But few persons attended the auction; material facts proved at the trial were-That the de- therefore the circumstance that the defendant bid for fendant was deputy cess collector for the barony of and bought goods enhanced their value, and enabled Strabane; that one M'Callin owed him £5 11s. 6d. the plaintiff to dispose of them with greater facility. for arrears of county cess; that the defendant, unasked Such a benefit to the plaintiff forms a good consideraby M'Callin, had paid those arrears to the barony con- tion. Selwyn's N. P., p. 45 (9th ed.,) where the stable, who had accounted for them with the grand converse of the present case is put; Haigh v. Brookes jury; that afterwards M'Crossan seized M'Callin's (10 Ad. & El. 309)—There the mere surrender of a goods, under an execution; that the sub-sheriff sold void guarantee was held to constitute a good considerathem by auction on the 6th September, 1858; that tion. In the present case the consideration was twodefendant attended at the sale, and handed to the sub- fold. Firstly, the bidding for and purchase of the sheriff a claim for the sum of £5 11s. 6d., alleging it goods, and the consequent liability to pay for them; to be due as arrears of cess; that the sub-sheriff made secondly, the signature of the note for the full amount, no objection to the claim; that defendant bought goods on the express undertaking that it would not be ento the value of £20 12s. 6d., and passed his note for forced for more than £15 Is., the sum actually due. the whole amount to the sub-sheriff; that he bought [Lefroy, C. J.-Plainly, the consideration is good in the goods on the express understanding that the sum law, and the jury found in your favour.] Plaintiff's of £5 11s. 6d. was to be deducted from the price; and next ground for seeking a new trial is, that we ought that he filled up the note in full only because the sub- not to have pleaded a set-off; he says that we should sheriff promised to send him a cheque for that sum have resorted to a cross-action. There is abundance before the note arrived at maturity. The plaintiff's of authority to show that we may do either. [Lefroy, witnesses denied that any such understanding existed, C. J.-If you have a right to a cross action you and the sub-sheriff alleged that his promise to send a have also a right to a set-off, in the case of a mutual cheque was conditional on the defendant sending him debt. We want no authority for that.] Then, as to an affidavit that the £5 11s. 6d. was due as cess. The the argument that the judge should not have left the affidavit was not sent; but, when the note arrived at question of interest to the discretion of the jury-the maturity, the defendant sent £15 1s., as payment in plaintiff says that the learned judge should have difull, to M'Crossan, who refused to accept it. He is rected the jury to give interest. It was proved at the

trial that, when the note became due, the defendant sent £15 1s., the whole sum that was really due, to M'Crossan, the execution creditor; M'Crossan refused to take it, because the entire sum, with interest from the date of the note, was not sent. The tender was conceded at the trial; besides, it is expressed in the body of the note that interest shall run, not from the date, but from the day on which the principal fell due; therefore the jury, if they gave interest at all, should have given it in the shape of damages. That is always a question for them exclusively, so that the judge was quite right not to direct them on that point. But the plaintiff was not legally entitled to interest in any shape; interest ceased to run from the time of the offer to pay the principal. Dent v. Dunn (3 Camp. N. P. 296). It is true that an offer cannot be pleaded as an answer to the action; but it is a question for the jury. As to the last ground, the plaintiff cannot sustain the proposition that the sub-sheriff's promise must have been in writing, under the Statute of Frauds. That statute "did not mean to interfere with a party making a contract on his own account, and for a consideration resulting to himself, although the contract might involve in it the discharge of the debts of another."-Per Lefroy B., in Fennel v. Mulcahy (8 Ir. Law. Rep. 447).

ascertained. The jury may, by the force of a custom, give interest on a bill of exchange, not as a part of the debt, but in the shape of damages. It may give interest on a debt, by the 53rd section of Pigot's Act, (3 & 4 Vic., cap. 105); but a jury has no discretion when, in the body of the note, interest is expressly reserved as part of the contract. Cameron v. Smith (2 B. & Ald. 305). As to the plea that the sum of £5 11s. 6d. was money had and received to the defendant's use-in point of law, that sum was not money had and received. A cess collector has no legal lien, for county cess, on the proceeds of goods sold by the sheriff under a writ of fi. fa.; and defendant told the sheriff that the sum claimed was owed to the defendant by M.Callin, quâ cess. But we admit that the issue-whether the sum of £5 11s. 6d. was due to the defendant for money had and received, would have been properly left to the jury if the defendant had given any evidence to prove the alleged express under taking, by the sheriff, to pay it. We submit that there was no evidence to support that plea. At the most, the sheriff's promise, if indeed it was made at all, was a conditional promise to pay the sum of £5 11s. 6d., if the defendant sent an affidavit stating that that sum was due to the defendant, from M‘Callin, as arrears of county cess. The defendant never sent such affidavit

due to him from M'Callin, as arrears of county cess. The defendant's own testimony is, that he had, prior to the sale, paid those very arrears, out of his own funds, to the barony constable; therefore the sum of £5 11s. 6d. had, at the time of the sale, become a private debt between M Callin and the defendant: therefore the defendant gave no evidence to sustain his plea that the sum of £5 11s. 6d. was money had and received by the plaintiff, to the use of the defendant. We do not contend that the defendant cannot maintain a crossaction; we say that he cannot plead this as a set-off. We say so for two reasons- -Firstly, because it was not a mutual debt between the defendant and the plaintiff— Howlet v. Strickland (Cowp. 56); secondly, because to support a plea of money had and received, the defendant must prove that the "plaintiff actually received money for the benefit of the defendant, under such circumstances as to create a priority of contract between him and the defendant." Chitty on Contracts (6th ed. p. 532). From the notes of the judge's charge, it appears that he told the jury that, "as more than the £5 11s. 6d. had been levied by the she

R. Armstrong, Q.C., and R. Dowse, for the plain--and for a very sufficient reason, because no sum was tiff, on the authority of Fennell v. Mulcahy, abandoned the point that the alleged oral promise of the sheriff was an evasion of the Statute of Frauds (29 Car. 2, cap. 3).-The judge should not have left the question of interest to the jury. The defendant made no legal tender-he made an offer, but an offer is nothing, unless it amounts to a legal tender. A valid tender must not be fettered with any condition. But -here the defendant sent part of the amount due on the note, and said, "I will send no more, for I have got a set-off; take this £15 1s. in discharge of the whole sum, £20 12s. 6d." That offer cannot be pleaded as a tender. Had the plaintiff accepted the sum offered, he would have precluded himself from suing for the balance. The offer, then, is out of the case; for, instead of being a tender, it was a naked allegation that nothing more than £15 1s. was due. The judge misdirected the jury when he left the question of interest to their discretion. Dent v. Dunn cannot rule this case. It can be ruled by no authority that does not resemble our case in this particular-that the body of the note expressly states that interest shall begin to run from the date of maturity. All the cases estab-riff, under the sale, he (the sheriff) was estopped from lish a discretion in the jury, when the interest forms denying that he received money to that amount." This no part of the specific contract; otherwise when, as expression shows that the learned judge thought the in this case, interest has been specifically provided for. evidence brought this case within the operation of the The judge should have directed the jury to give inte- General Rule which is stated by Chitty. We subrest from the date of the note's maturity down to the mit that there was no evidence to warrant that opinion. date of the payment into court of the sum of £15 1s.; The learned judge should have told the jury that for the plea of payment into court admits that the there was no legal evidence to support the defendant's plaintiff was right up to that moment. Kidd v. plea of money bad and received. Instead of doing Walker (2 B. & Ad. 705). The plaintiff would have so, he left the question to the discretion of the jury. been entitled to costs, had he then stopped the action. That was a misdirection. The plea of an account [Lefroy, C. J.-I know no answer to that, unless the stated was also bad. To support that plea, the debt defendant's offer caused the interest to cease running.] must be actually due and owing at the time when the Unless that offer stopped the right of action in its en-promise was made. Chitty on Contracts (6th ed., p. tirety, it could not stop that right in part. The rights 571); Gough v. Findon (7 Exch. 48); Hughes v. of the suitor and of the jury on this subject are well Thorpe (5 Mee. & W. 656),

cause of action, and not to another part.] I rely on Dent v. Dunn as establishing this proposition, that, if the principal sum remains unpaid by reason of the default of the payee himself, the jury has power to refuse interest, even though it was expressly provided for in, and formed part of, the original contract. The tender was admitted at the trial, although no issue was knit upon it. [Lefroy, C. J.-How, then, can you claim, on a mere offer, an advantage which you could not have on a plea of tender? On that plea the plaintiff must get a verdict, unless the tender was complete in point of law.]

O'BRIEN, J.-In this case we are enabled to effect substantial justice between the parties, by refusing to grant a new trial. Much argument was employed to prove that it was imperative on the jury to give interest to the plaintiff, because in the body of the note interest was made payable from maturity until the day of payment.

J. P. Hamilton, in reply.-The consideration was a good one. [Lefroy, C. J.-There are only two questions to be discussed now-Whether you ought to have paid interest into court; whether, in this form of action, you can sustain the case as one for money had and received?] The defendant is not liable to pay interest, because none had accrued due up to the time at which he offered to pay the principal sum. The plain tiff refused to accept it. This default exonerates the defendant from the payment of any interest since that offer (Chitty on Con., 569.) Interest, when given, is given in the shape of damages for the detention of the principal sum. Cameron v. Smith (2 B. & Ald. 308); Du Belloix v. Lord Waterpark (1 D. & R. 16); Dent v. Dunn (3 Camp. N. P. 296). The defendant did not detain the money improperly; he offered to pay it. Interest is payable on a promissory note, by force of a mercantile custom-therefore the case was properly left to the jury. We do not seek to vary the contract by saying that interest was not made payable; but, in discharge of our liability, we plead that the plaintiff's loss of interest since the maturity of the note resulted from his own default in not accepting the £15 18. when offered to him by the defendant; and the plaintiff's summons and plaint deceived us. He sued for the note as for an ordinary promissory note, therefore we were deceived as to the nature of the case which we were to meet. [Lefroy, C. J.-The indorsement claims interest; there was no surprise.] The plaintiff's indorsement of particulars should have named a specific snm for interest. Davenport v. Davies (1 Mee. & W. 570); Mearing v. Hillings (14 Mee. & W. 711); M'Elwaine v. Mercer (9 Ir. C. L. 13). The answer to the question, whether the defendant can maintain the plea of money had and received, depends on the evidence. That evidence satisfied the jury that the money had been received to the defendant's use. At the close of the charge of the learned judge, the plaintiff's counsel called on him to tell the jury that the plaintiff was legally entitled to interest on the sum of £15 1s., from the day of payment down to the date when that sum was lodged in court. The learned judge then told the jury, If you believe that the defendant had a first and valid reason for not paying interest, you ought to find for him." The jury did find for the defendant. The sheriff is estopped from denying that the agreement was a valid one. [Lefroy, C. J.-Except as to the interest, we are satisfied that the question was properly left to the jury.] The principle which forbids a jury to interfere with interest given in the body of the note, is, that in such a case the interest forms part of the original debt. If interest be given here, it must be given as damages for the detention of the money: that detention resulted from the plaintiff's own default. That default exonerates the defendant. Chitty on Con. (pp. 569-70.) | [O'Brien, J.-The case of Florence v. Jennings (2 C. B. N.S. 454) is an authority to show that the plaintiff is entitled to recover interest from the maturity of the note until judgment.] [Lefroy, C. J.-Byles on Bills (6th ed. 242,) and Chitty on Bills (last ed., pp. 43436), both treat the case of Dent v. Dunn as a legal tender. It is quite inconceivable that in this case, in which no issue has been taken on a tender, the offer alleged should be held an answer to one part of the

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Counsel argued that the law left the jury no discretion in the matter; that the rule of law strictly requires them to give interest whenever it forms part of the contract itself, as it does in this case; and that it is a question for the jury only when interest may be given, under Pigot's Act, on a debt, or as damages, by the force of mercantile custom. That rule does not govern this case. Prima facie, if a party is entitled to the principal sum he is also entitled to interest down to the day of payment. It was said that the defendant's offer to pay the note (less the sum which he claimed a right to set-off,) exonerated him from liability to pay interest accruing subsequently to that offer; and that no interest had accrued before. it was made. Dent v. Dunn was cited to prove that the defendant was exonerated; but it is plain that the facts in that case did not bear out-the observations of Lord Ellenborough. Besides, both Mr. Byles, in his work on Bills (7th ed., p. 267), and Mr. Bayley lay down the rule broadly (in cases in which the payee is the party in default,) and without limiting its application to cases in which interest is made payable by express words. In Keens v. Keene (2 C. B., N.S. 144; 27 L. J., N.S., C. P. 88), interest was given by the master of the court in the shape of damages, although it had been expressly reserved in the body of the bill, and the court refused to alter the master's decision. It is by no means clear, therefore, that interest, reserved as such in the body of a note, is recoverable as part of the contract, instead of as damages. It is not necessary to decide that question in the present case. The grounds of our judgment are, that although the plaintiff now alleges that it was imperative on the jury to give him interest, yet he did not make that case by his summons and plaint. In his plaint he did not set forth the note in terms; he stated that it was for £20 128. 6d., but made no mention of interest: he added no count for interest, and prayed judgment for £20 12s. 6d., the precise amount of the note, with interest, just as if it was an ordinary note. It was only in the indorsement of particulars that the plaintiff claimed "interest thereon from maturity, until paid, at six per cent. per annum." But he did not claim a specific sum for interest. Hence, if he recovers interest at all, he must recover it as damages. That was a proper question for the jury; they found that the plaintift

was not entitled to any interest. There were ample reasons which justified the jury in giving that verdict, and which enable us to refuse this motion. Had the summons and plaint been properly framed, the case would have been greatly altered. It further appears, from the learned judge's notes of the defendant's own evidence, that the set-off proved was less by ten shillings than that claimed in the defence; that sum is larger than what the plaintiff could recover as in

terest.

LEFROY, C. J.-I concur in the opinion at which my learned brother, O'Brien, has arrived, from a consideration of the pleadings themselves. With respect to the case in 3 Campbell's Reports, I confess that I could not have acted on it as affording a satisfactory ground of decision. The question of interest I have always understood to be one of damages, whether the interest was expressly reserved or not. If there be a legal tender of the entire sum, the interest will follow the principal; but the notion that a mere offer, such as that made in the present case, is to give to the defendant, on his present pleadings, an advantage which he could not have on a plea of tender, cannot be entertained.

full age of 21 years on the 31st day of August, 1859, it, having been proved on oath by deponent's father that this deponent was of the full age of 21 years on the 31st day of Oct., 1859; and that the second assessor dissented from said decision on hearing the case of this deponent." The Mayor filed an affidavit in reply which stated:-"That upon hearing the evidence, and considering that the prosecutor should have been of full age from the time it was necessary to compute his occupation as rated occupier so as to give him his qualification, he this deponent expunged the prosecutor's name from the list of burgesses."

Sir C. M. O'Loghlen, Q.C., and J. Harkan showed cause. -The sole question is, whether, in order to entitle the prosecutor to be enrolled among the burgesses of Sligo he must have attained full age on the last day of August before the sitting of the revision court? In other words, will the 3 & 4 Vict., c. 108, sec. 30, be satisfied if he attains full age durnig the interval between the last day of August and the first day on which the revision court sits? The 30th section requires all necessary qualifications to be complete on the last day of August. We contend that "full age" is one of the qualifications enumerated in that section. Its words every man of full age who on the last day of August in any year shall be an inhabitant householder and shall," &c. That that construction is the true one appears from the words in the proviso of the same section "no such occupier shall be admitted to

are

66

THE QUEEN AT THE PROSECUTION OF A. LYONS v. be enrolled as a burgess," &c.-that is to say, the

THE MAYOR OF SLIGO.-Jan. 28, 30.

Municipal Corporation Act (Ireland) 3 & 4 Vict., e. 108-Minority-Qualification of Burgess.

At the revision of the roll of burgesses for the borough of Sligo, it was objected that the name of A. L. should not be retained on the roll, because he had not attained his full uge on the 31st August preceding as required by the 30th sec. of 3 & 4 Vic., c. 108. The Mayor erased the name on that ground. A. L. applied to this court for a mandamus to compel the Mayor to insert his name in said roll:- The court affirmed the Mayor's decision.

claimant must have been of full age at or before the
end of the period of occupation necessary to complete
his qualification. The intention of the Legislature cor-
roborates our argument. That intention was that no
man should be entitled to vote as a burgess unless he
paid a certain amount of poor rates.
But minors are
not liable to pay rates, so that this prosecutor, if his
name be inserted in the burgess roll, will obtain the
privilege of voting without having paid poor rates as
required by the statute, for he only attained full age
on the last day of October.

F. Macdonogh, Q.C. (with him C. H. Hemphill.)---It is a misconception to say that minors are not liable to pay rates and taxes. In effect they are liable, for their property is subject to the payment of rates and taxes. The relative pronoun who' must be carried forward through the 30th section, but cannot be etrospective, for in the same section retrospective words were used wherever they were appropriate. The proIn this case the prosecutor obtained, on 21st Nov., viso of section 30 uses the words 'shall have been 1859. a conditional order for a mandamus to compel rated,' shall have occupied,' 'shall have paid all the Mayor of Sligo to insert the prosecutor's name in rates.' It does not mention full age' among the the burgess roll of that borough. The conditional elements requisite to constitute the complete qualificaorder was granted on the prosecutor's affidavit, which tion of a burgess. [Lefroy, C.J.-Surely that section stated:-That the Borough of Sligo has been since gives the last day of August as the day on which all qualithe 25th day of Nov., 1858, regulated by the provi-fications must be complete.] Public convenience rensions of the 3 & 4 Vict., c. 108; that he possessed dered it necessary to fix some date before which all the qualifications which entitled him to be enrolled rates must be paid and up to which the period of ocamong the burgesses of said borough; that the Mayor cupation as a householder must be computed; but the with his assessors held, in Nov., 1859, a court "for 31st of August is not fixed as a limit before which the purpose of revising the list of burgesses," but that full age must be attained. The language of section the Mayor and one of the two assessors "refused to 30 and of its proviso shows that the applicant has a admit and enrol this deponent as burgess for the west-right to be enrolled if, all the other conditions having ern ward. on the ground that deponent was not of the been fulfilled, he is of full age when he comes to prove