1837.

WALLEN

v.

SMITH.

be referred to arbitration, and the arbitrator award the plaintiff a less sum than that for which he held the defendant to bail: Keene v. Deeble (a). So where defendant tendered a less sum than that for which he was arrested, but did not pay it into Court, and the arbitrator to whom the cause was referred awarded only the amount tendered, it was held the defendant was not entitled to costs (b). Here, the judgment has been upon an agreement between the parties. The word recovered, in the "Directions to Taxing Officers," must mean recovered by verdict, or judgment by default. That the finding of an arbitrator is not equivalent to a verdict is evident from the case of Holder v. Raitt (c), where the matter was referred to arbitration by a judge's order, which directed that the costs of the suit, reference, and award, should abide the event in like manner as upon a verdict ; and the arbitrator having awarded a less sum than that for which the defendant had been arrested, the Court nevertheless held that they could not give the defendant costs under the 43 Geo. 3, c. 46. [Parke, B.-There should have been a further provision that the arbitrator should have the same power as the Court.]

Platt, in support of the rule, was stopped by the Court.

Lord ABINGER, C. B.-I am inclined to think that in the present case there is a recovery of less than twenty pounds, within the terms of the "Directions to Taxing Officers." It is a recovery by process and judgment. If the rule had contemplated no case except that of a recovery by verdict, I should have felt more difficulty; but it provides, that where a sum less than twenty pounds is

(a) 3 B. & C. 491. (b) Sherwood v. Tyler, 3 Bing. 280. (c) 2 Adol. & E. 445.

paid into Court, and accepted by the plaintiff in satisfaction, the taxation is to be upon the lower scale. The word "recovered" applies generally to all cases in which a party does not obtain more by his process than twenty pounds.

PARKE, B.-I am of the same opinion. In cases of this kind there can be no hardship, because the parties when they refer may always provide that the costs shall be taxed upon the higher scale. These "Directions have been held by the Court of Common Pleas to apply to judgments by default (a), and it seems to me this is clearly a recovery of less than twenty pounds, within the meaning of the rule.

ALDERSON, B.-In order to entitle a party to costs upon the larger scale, he must, since that rule, shew he has recovered more than twenty pounds.

Rule absolute.

(a) Hooppell v. Leigh, ante, Vol. 5, p. 40.

1837.

WALLEN

V.

SMITH.

KENYON v. WAKES.

In an action for wages, the parmand admitted

ticulars of de

ASSUMPSIT for work and labour, money paid, money lent, and for money due on an account stated. The defendant pleaded non-assumpsit, and two other pleas which were immaterial, but there was no plea of payment. The particulars of the plaintiff's demand were as fol- plaintiff claimed lows:

a payment on account. The

for his service, at the rate of 15s. per week, but the jury

found that he was entitled to 7s. per week only, at which rate, deducting the sum admitted to be paid, there was nothing due. A verdict having been found for the defendant, the Court refused to disturb it, it not having been objected at the trial that the plaintiff was entitled to nominal damages, there being no plea of payment on the record.

Quare, whether a payment admitted by the particulars need be pleaded?

At the trial before Lord Abinger, C. B., at the Sittings after last Hilary Term, the plaintiff proved his service to the defendant for the periods mentioned in the particulars, and claimed payment for it after the rate of 15s. per week. On the part of the defendant it was contended that he had contracted to pay the plaintiff at the rate of 7s. per week only, and that therefore nothing was due to the plaintiff, as he admitted in his particulars that 707. had been paid to him on account. The plaintiff's counsel contended that the defendant could not make use of the particulars, there being no plea of payment on the record. Even if he was entitled to use them, they must be taken all together, in which case there would appear to be a balance in favour of the plaintiff. The learned Judge allowed the particulars to be given in evidence, and the jury found that the plaintiff was entitled to receive for his services at the rate of 7s. per week only, and thereupon gave a verdict for the defendant.

Humfrey having obtained a rule to set aside the verdict for a new trial,

Thesiger shewed cause.-It was unnecessary to plead

payment of the 70%., as the plaintiff has given credit for that sum in his particulars. The object of the particular is to inform the defendant of the real nature of the plaintiff's claim, so that he may know what to plead; and a payment on account having been admitted, that sum must be taken as altogether struck out, and the plaintiff's demand confined to the balance. The decision in Booth v. Howard (a) does not affect the present case. There, the plaintiff declared for work and labour in endeavouring to let certain premises for the defendant; the particulars of demand contained two sets of items in respect of letting different premises, and the defendant paid a sum into court, upon which the issue raised was, whether the plaintiff had sustained damages beyond that sum, in respect of the causes of action mentioned in the declaration. The Court held that the particulars of demand were not to be considered as incorporated with the declaration, so as to constitute an admission by the plea of all the causes of action mentioned in the declaration, and they observed that the particulars were intended for the benefit and information of the defendant. Here, the particulars shew that the plaintiff seeks to recover a balance, which the jury have found does not exist.

Platt and Humfrey, in support of the rule.—Admitting that the particulars cannot be incorporated with the declaration, yet, as the defendant has omitted to plead payment, the plaintiff is at all events entitled to nominal damages. It was so decided last term by the Court of Common Pleas, in the case of Ernest v. Brown (b). That was an action of debt for work and labour, and goods sold and delivered. The plaintiff by his particular claimed 51. for goods sold, admitting the receipt of 17. 13s. on account. The defendant paid 37. 7s. into Court, and pleaded nun

1837.

KENYON

ย.

WAKES.

(a) Ante, Vol. 5, p. 438.

(b) Ante, Vol. 5, p. 637.

1837.

KENYON

V. WAKES.

quam indebitatus beyond that sum. At the trial the plain. tiff failed to establish his demand for work and labour; it was held that he was nevertheless entitled to a verdict for nominal damages: Tindal, C. J., observed, that giving the admission on the face of the particulars its fullest effect, it amounted to no more than evidence of payment of 17. 13s.; it was no bar to the action. [Parke, B.-How can the plaintiff avoid the costs of a nolle prosequi, if he discontinue on a plea of payment, otherwise than by an admission in his particulars.] By inserting in his declaration the actual amount he seeks to recover, or by expressly admitting the sum paid on account, and alleging a promise to pay the residue. [Lord Abinger, C. B.— What would non-assumpsit go to in such a case?] The promise alleged, which is, to pay the balance. [Parke, B. You would have to prove such a promise: from what time would the Statute of Limitation run? Lord Abinger, C. B. You would make the declaration a special contract on an account stated.] Such a form is used by some pleaders.

Lord ABINGER, C. B.-As the objection was not taken at Nisi Prius, that the particulars could only be used in reduction of damages, and not in bar of the action, I think the verdict ought not to be disturbed. The particulars were put in to shew that the plaintiff limited his claim for wages to the balance which he alleged to be due. The jury have found that there was no balance.

PARKE, B.-I think the rule should be discharged, because the point, as to whether the plaintiff was not at all events entitled to nominal damages, was not raised at the trial. If that point had been taken, we must have considered the question, which must soon be determined, viz. whether a payment admitted by the particulars need be pleaded. Had it not been for the decision of the Court