the plaintiff for equestrian performances as to be ready to accomplish the objects of the requisition; and that a failure to comply with such a requisition, and a refusal to assist in such performances, are sufficiently alleged to shew a breach of the plaintiff's contract. The objections to the generality of the requisition, as not stating the performances intended to be equestrian or on the stage and in the ring, appear to us unfounded; for, as the establishment of the plaintiff at Peebles is alleged to be "for equestrian performances," it may be reasonably intended that such were the performances at which the defendant was required to assist; and it cannot be assumed that such performances were other than "on the stage or in the ring," - which words are obviously used in the agreement, not to restrict the obligation of the defendant, but to expand it, as embracing both modes of equestrian representation. The objection that there is no averment that a reasonable time elapsed after the notice and before the expiration of the three months, is obviated by the statement that the writ was issued on the 23rd of August, 1848,-much within that time; and is supplied by the averment that such time had elapsed before the commencement of the suit. The breach substantially shews an entire refusal of the defendant to perform his contract, which would render any particular appropriation of characters on the plaintiff's part unnecessary: and, although this part of the declaration might have been more artificially framed, it seems to us, that, in the absence of any other objection to it than the general one that the declaration does not shew any breach by the defendant of his promise, it discloses a good cause of action. On the whole, therefore, our judgment will be for the plaintiff. Judgment for the plaintiff. 1850. June 24. CALLANDER v. HOWARD. To assumpsit THIS was an action of assumpsit by the drawer on three bills for goods sold against the acceptor of three bills of exchange, for the respective sums of 300l., 3347., and 2787. The declaration contained five counts, the first three upon the bills, - the fourth for goods sold and delivered, money paid, and interest, and the fifth for money found due upon an account stated, The defendant pleaded sixteen pleas, four to the first count, four to the second count, three to the third count, one to the last two counts, and four to the whole declaration. Issues of fact were taken upon all the pleas except the fifteenth, which was as follows: That, after the accruing of the causes of action in the declaration mentioned, and before the commencement of the suit, to wit, on &c., the defendant and the the declaration plaintiff accounted together, and an account was then stated between them, of and concerning the said causes of action, and of and concerning certain other claims mentioned, and before the commencement 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, 50%., 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 commencement of the suit, the defendant paid to the plaintiff, and the plaintiff accepted and received from the defendant, 50/., in full satisfaction and discharge of such last-mentioned sum: 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. 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 50l., 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 50l., 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 clearly 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 (b) 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. (b) Antè, Vol. III. P. 204. 1850. CALLANDER v. HOWARD. 1850. CALLANDER V. 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 50l. should be accepted in satisfaction. 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.(b) 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. (b) Sic. Citing Brown's 'Vade Mecum, 94. 100. 1850. v. HOWARD. the cases upon the subject. In Smith v. Page (a), it was 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 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 defendant, amounting to a large sum, to wit, 10007., and that, on such accounting a small sum, to wit, 150., 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 commencement of the suit, paid to the plaintiff, who accepted 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 satisfaction of the larger sum. Parke, B., there says: "In order to make the plea good, as resting on the defendant'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 defendant, 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 defendant against the plaintiffs: but, a plea merely alleging 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 (a) 15 M. & W. 683. |