case of Milward v. Ingram. (a) There, in an action of indebitatus assumpsit, the defendant acknowledged the promises laid in the declaration, but pleaded, that, afterwards, and before action brought, the plaintiff and he accounted together concerning divers sums of money, and that, on the foot of the account, he was found to be indebted to the plaintiff in 30s.; whereupon, in consideration that the defendant promised to pay him that sum, the plaintiff likewise promised to release and acquit the defendant of all demands: and, on demurrer, this was held a good plea: and North, C. J., though he conceded (b), that, if there were but one debt betwixt the plaintiff and the defendant, entering into an account for that would not determine the contract, expressed his opinion (c), that, after such an account as that stated in the plea, the plaintiff could never have recourse to the first contract, which was thereby merged in the account. "If," said Lord Chief Justice North, "A. sells his horse to B. for 107., and, there being divers other dealings between them, they come to an account upon the whole, and B. is found arrear 5l., A. must bring his insimul computasset; for, he can never recover on an indebitatus assumpsit." And of the same opinion were the other three justices. But this opinion has been since overruled. Thus, in The Mayor of Scarborough v. Butler (d), where, in assumpsit for 607. as money had and received by the defendant to the plaintiffs' use, the defendant pleaded, that, after the promise, he and the plaintiffs accounted, and on the account the defendant was found in arrear to the plaintiffs (allocatis allocandis) in 147. only, which he tendered, and they refused, and toujours prist, &c.; and the plaintiffs replied, that, on the said account, the de 1850. CALLANDER บ. HOWARD. 1850. U. HOWARD. fendant was found in arrear 60l., absque hoc, that he was found in arrear 147. only; on which issue was CALLANDER joined, and found for the plaintiffs, with 607. damages,it was moved to arrest the judgment, because it appeared by the replication that there had been an accounting on the contract declared upon, whereby the action and the duty had been extinguished by the account, and the action ought to have been brought upon that only. But the court gave judgment for the plaintiffs, saying that the new promise on the account, was only a chose in action, and that one chose in action could not be discharged by another chose in action of the same nature. Again, in May v. King (a), indebitatus assumpsit was brought for 407., for work done, and on a quantum meruit for the same: the defendant pleaded, that, there being mutual dealings between the plaintiff and him, they came to an account, and that it did appear on the account that the defendant was in arrear to the plaintiff but 51., which he promised to pay him; in consideration whereof the plaintiff did discharge him of the said debt and claim: and, on demurrer, this was held a bad plea. And, per Holt, C. J., "If one bind himself in a bond for the payment of 20l. to A. by a day certain, and A. buy a horse of the obligor, of the value of 201, before the day, and then they two account together, and 207. is set and agreed for the horse; in an action brought upon the bond, he cannot plead the general issue; yet he may plead solvit ad diem, and must not plead it by way of account, but it must be pleaded according to the operation it has in law, and that is to be a payment; and so here. As, if tenant for life grant his estate to him in reversion, it is a surrender, and must be pleaded as such, and not by way of grant: so, here, to plead this by way of account, when the operation in law is payment, will be ill. And, per ipsum,— If (a) 12 Mod. 538., 1 Ld. Raym. 680. there be two dealers, and, without coming to an account, they agree to be clear against one another, it would not be well, without coming to an account: and the case quoted out of the Moderns was the first of this kind, and by my consent shall be the last. And to plead it as an account, is but argumentative of payment, which is direct, and therefore not to be allowed." On the authority of this case, those of Adderley v. Evans (a), and Rolls v. Barnes (b) were decided. The case of Adderley v. Evans was assumpsit by an executor, for l., due to the testator for work and labour, &c.: plea, that the testator and the defendant accounted together, and the defendant was found in arrear 127. and had paid 10%. to testator, and the remaining 21. to plaintiff: and this was held a bad plea, on demurrer. This case was followed by Rolls v. Barnes, where, in assumpsit, the defendant pleaded a stated account between himself and the plaintiff before action brought, and a balance in favour of himself, the defendant, and that the plaintiff promised to pay such balance; and this was held to be no good plea. Without overruling the three cases last mentioned, it appears to us to be impossible to deny that this plea is bad, unless it in effect sets up the allowances in account by way of partial payments, and an actual payment of the residue; and that it is not enough to plead merely the accounting, notwithstanding the plea proceeds to aver a payment of the balance: for, although there was no such avernment in the plea which was held bad in May v. King, yet there was such in Adderley v. Evans; and, in Rolls v. Barnes, the balance on the accounting was in favour of the defendant. (a) Atherley v. Evans, Say. Rep. 269. 1 Ld. Ken. 250. (b) 1 W. Blac. 65., S. C. 1 Burr. 9., 1 Ld. Ken. 391. 1850. CALLANDER 0. HOWARD. 1850. The question, therefore, is, whether the plea in the present case can be regarded as treating the allowances CALLANDER in account as partial payments. v. HOWARD. The passage cited at the bar, from Com. Dig., Pleader (G. 2.), and the case of Richardson v. Rickman, stated in Kearslake v. Morgan (a), and the dictum of Parke, B., in Smith v. Page (b), are in favour of the plea. And it should be observed, that, in Adderley v. Evans, and in Rolls v. Barnes, no satisfactory reason is suggested why the plea should not be regarded as amounting to a plea of payment. It is certainly convenient to plead it in the present shape, rather than to plead it directly as a plea of payment; because it explains to the plaintiff in what way the defendant proposes to contend that the payment has taken place. And, if it should be objected that the plea ought to have stated with particularity the counter-claims, on the allowance of which it is intended to insist, the answer is, that, in many cases, the so doing would lead to great and inconvenient length and complexity of pleading. On the whole, therefore, we think the plea is sufficient, and that our judgment ought to be for the defendant. Judgment for the defendant. Nov. 25. A plaintiff may be entitled, under the statute 4 Ann. c. 16. s. 5., to the costs THE issues of fact were tried before Wilde, C. J., at the sittings in London, after Michaelmas term, 1849, when a verdict was found for the plaintiff upon all of them, with damages contingently assessed at 4301. Upon the taxation of costs, the master allowed the defendant the costs of the demurrer, and also the fact found for general costs of the cause (exclusive of the costs of the him, even of issues of though, upon (a) 5 T. R. 513. the whole (b) 15 M. & W. 686, 687. issues of fact), on the ground that he had succeeded upon an issue which went to the whole cause of action. 1850. HOWARD. The plaintiff claimed to be entitled to the costs of the CALLANDER issues of fact which had been found for him but the master refused to allow them, inasmuch as none had been found for the defendant. record, he Willes, on a former day in this term, moved for a rule calling upon the defendant to shew cause why the taxation should not be reviewed. He contended, upon the authority of Bird v. Higginson (a), that the plaintiff of exchange, was entitled to the costs of the trial on the issues on sumpsit upon certain bills with a count sold and money paid, and interest, and a count which he had succeeded; admitting, at the same time, for goods John Gray shewed cause. The master was right in disallowing to the plaintiff the costs of the trial of the issues of fact. The court of Exchequer, in the two cases referred to, - Partridge v. Gardner, and Howell v. Rodbard, — overruling the case of Bird v. Higginson, expressly decide that a plaintiff, under circumstances like the present, is not entitled to costs under the (a) 5 Ad. & E. 83., 6 N. & M. 799. (b) 4 Exch. 303., 7 D. & L. 106. (c) 4 Exch. 309., 1 Lowndes, M. & P. 547. (d) Antè, Vol. IV. P. 335. upon an account stated, the defendant pleaded six- which (going contrary to Partridge v. Gardner and Howell v. Rodbard, 4 Exch. 303. 309., and affirming Bird v. Higginson, 5 Ad. & E. 83., 6 N. & M. 799., and Clarke v. Allatt, antè, Vol. IV. 335., that the plaintiff was entitled to the costs of the issues of fact, though the defendant had the general costs of the cause. |