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1850.

3341.,

and

CALLANDER V. HOWARD.
June 24.
To assumpsit THIS

'HIS was an action of assumpsit by the drawer on three bills

against the acceptor of three bills of exchange, for of exchange, for 3001.,

the respective sums of 3001., 3341., and 2781. The de

claration contained five counts, — the first three upon 2781. re

the bills, — the fourth for goods sold and delivered, spectively, with a count money paid, and interest, — and the fifth for money for goods sold found due upon an account stated. and delivered, money paid,

The defendant pleaded sixteen pleas, - four to the and interest, first count, four to the second count, three to the third and a count

count, one to the last two counts, and four to the whole upon an account declaration. stated, the

Issues of fact were taken upon all the pleas except defendant pleaded, that, the fifteenth, which was as follows: after the

That, after the accruing of the causes of action in accruing of

the declaration mentioned, and before the commencethe causes of action in ment of the suit, to wit, on &c., the defendant and the the declaration plaintiff accounted together, and an account was then mentioned, and before

stated between them, of and concerning the said causes the com

of action, and of and concerning certain other claims mencement of the suit, the defendant and the plaintiff accounted together of and concerning the said causes of action, and of and concerning certain other claims and demands of the plaintiff against the defendant, and certain other claims and demands of the defendant against the plaintiff, and that, on that accounting, 501., and no more, was found to be due from the defendant to the plaintiff, which sum the defendant, in consideration of the premises, promised the plaintiff to pay to him on request ; and that, afterwards, and before the commencemeut of the suit, the defendant paid to the plaintiff, and the plaintiff accepted and received from the defendant, 501.

, in full satisfaction and discharge of such last-mentioned Held, on special demurrer, that the plea amounted to an allegation of the allowance of cross-demands upon an account stated, and payment of the balance, and afforded substantially a good defence to the action : and that it was unexceptionable in point of form.

sum:

1850.

CALLANDER

HOWARD.

and demands of the plaintiff against the defendant, and certain other claims and demands of the defendant against the plaintiff, and on that accounting a certain small sum and no more, to wit, the sum of 501., was then found to be, and then was, due and owing from the defendant to the plaintiff, which sum of money the defendant then, in consideration of the premises, promised the plaintiff to pay him on request; and that thereupon the defendant, afterwards, and before the commencement of this suit, to wit, on the 13th of January, 1818, paid to the plaintiff, and the plaintiff then accepted and received of and from the defendant, a large sum of money, to wit, the sum of 501., in full satisfaction and discharge of such last-mentioned sum 80 due and owing from the defendant to the plaintiff as last aforesaid, — verification.

To this plea there was a special demurrer, and a joinder in demurrer.

Channell, Serjt. (with whom was Willes), in support of the demurrer. The plea is cleariy bad: it does not shew what were the claims and demands which the defendant had against the plaintiff, or that they were just, or even doubtful claims, so that their extinguishment would be a consideration : it does not even shew that they were debts ; for anything that appears, they may have been claims to compensation for alleged trespasses or assaults. If the substance of the plea was a set-off, it should have been so pleaded, in terms, following the precedent in Learmonth v. Grandine (a). The case of Sutton v. Page (6) will probably be relied on in support of this plea. There, to a count by indorsee against acceptor of a bill of exchange, the defendant pleaded, that, after the accruing of the causes of action in the declara

(a) 4 M. & W. 658.

(1) Antè, Vol. III. p. 204.

1850.

CALLANDER

0.

HOWARD.

tion, and before the commencement of the suit, the defendant and plaintiff accounted together of and concerning the said causes of action, and all other claims and demands then being between the plaintiff and the defendant; and that, on that accounting, a certain sum only was found due to the plaintiff, which sum the defendant paid, and the plaintiff received, in full satisfaction of the sum so due and owing as last aforesaid : the plaintiff replied, that he and the defendant did not account together of and concerning the causes of action in the declaration, and of all other claims and demands then being between the plaintiff and the defendant, modo et formâ: and it was held, that the traverse was well taken. [Willaims, J. That is very nearly the same as this plea.] The validity of that plea was not questioned on the argument, though a doubt is suggested in a note at the end of the report. (a) [Wilde, C.J. The common count upon an account stated never discloses the nature of the debt.] But enough is stated to shew that the demand is in the nature of a debt. Here, it is not alleged that the plaintiff agreed that his claims upon the defendant should be extinguished, or that the 501. should be accepted in satisfaction.

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Crompton, contrà. The plea is good: it follows the old form; and the plaintiff could have no difficulty in taking issue upon it. In Com. Dig. Pleader (2 G. 11.), it is said, “ To an assumpsit, the defendant may plead, that, since the promise made, he and the plaintiff insimul computaverunt, et super compot.() ill' ipse inventus fuit in arrear, so much, which he has paid. (c) That is an authority which will be found referred to in almost all

(a) On the ground that the account was not alleged to embrace any claim against the plaintiff.

(6) Sic.

(c) Citing Brown's 'Vade Mecum, 94. 100.

the cases upon the subject. In Smith v. Page (a), it was 1850.
held, that, in indebitatus assumpsit for money due on
an account stated, it is not sufficient to plead, that, after CALLANDER
the accruing of the causes of action in the declaration

HOWARD.
mentioned, and before the commencement of the suit,
the defendant and plaintiff accounted together of and
concerning the said causes of action, and all other claims
and demands then being between the plaintiff and de-
fendant, amounting to a large sum, to wit, 10001., and
that, on such accounting a small sum, to wit, 1501.,
was then found to be due and owing from the defendant
to the plaintiff, which the defendant then promised the
plaintiff to pay, and afterwards, and before the com-
mencement of the suit, paid to the plaintiff, who ac-
cepted it in full satisfaction for the sum due to him
from the defendant; for, such a plea does not shew,
that, at the time of the second accounting relied on, any
cross-demand by the defendant against the plaintiff
existed, or that, if it existed, it had not been agreed to
be given up by the defendant, in consideration of the
plaintiff's giving up some other demand of his on the
defendant, so as to make payment of the balance a sa-
tisfaction of the larger sum. Parke, B., there says:
“ In order to make the plea good, as resting on the de-
fendant's new promise merely, it should have alleged,
that, after the accruing of the causes of action laid in the
declaration, and before the commencement of the suit, an
account was stated between the plaintiffs and the de-
fendant, of and concerning the said causes of action, and
of and concerning other demands of the plaintiffs against
the defendant, and a certain other demand of the de-
fendant against the plaintiffs : but, a plea merely alleg-
ing an account to have been stated between the parties
respecting the causes of action declared on, would be
bad, unless payment of the balance found due, was

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(a) 15 M. & W.683.

1850. averred.” Here, the plea sufficiently shews that there

was a legal demand. Whether the accounting operates CALLANDER

as a payment, or as a new promise, by which the old HOWARD. one is extinguished, may admit of doubt: some learned

judges have inclined to think it operated as payment; others have treated it as an extinguishment, by giving a new cause of action. Thus, in Ashby v. James (a), Alderson, B., says:

• The courts have never laid it down that an actual statement of a mutual account will not take the case out of the statute of limitations. They have indeed determined, that a mere parol statement of, and promise to pay, an existing debt, will not have that effect, because, to hold otherwise, would be to repeal the statute. The truth is, that the going through an account, with items on both sides, and striking a balance, converts the set-off into payments.” But Rolfe, B., says: “ An actual settlement of accounts is not an acknowledgment or promise by words only.' It is a transaction between the parties, out of which a new consideration arises for a promise to pay the balance.” This is in accordance with what is laid down in Com. Dig. Action upon the Case upon Assumpsit (G.), viz. that, “if A. be indebted to B., and afterwards they come to an account for all matters between them, this is. a discharge of the debt.” In Scholey v. Walton (6), Parke, B., takes the same view that Alderson, B., took in Ashby v. James. Tindal, C. J., in Clark v. Alexan-, der (c), and Lord Denman, in Worthington v. Grimsditch(d), take a different view of the matter. Again, in Pott v. Cleg(e), Parke, B., says: “In Ashby v. James, the parties met, and stated accounts, and struck a balance; that was equivalent to a payment by one, and a repayment by the other.” In Com. Dig. Accord (B. 4.), it is laid down, that “an accord, with mutual promises

(a) 11 M. & W. 542. (6) 12 M. & W. 510.

8 Scott, N. R. 147. 163.

(d) 7 Q. B. 479. 484.
(e) 16 M. 8, W. 321. 327.

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