Coates v. Stevens (a), it appeared by the particular that the action was brought to recover the sum of 30%., the balance of an account of 40%., and the Court there thought it was unnecessary to plead payment of the 107., as that was admitted by the particulars. It is true that in Ernest v. Brown (b), the Court of Common Pleas held that a defendant must plead payment of a sum admitted in the particulars to have been paid, but a distinction was there drawn between assumpsit and debt, and the Court say that as the defendant had pleaded that he "never" was indebted, the only mode in which he could be entitled to a verdict on that issue was by shewing that the debt never did exist.

The Court then called upon

E. V. Williams and Nicholl, in support of the rule. Under the plea of non-assumpsit it was not competent for the defendant to shew payment in answer to the action, but only in mitigation of damages. Suppose the plaintiff declared for 1007. for goods sold, and gave credit in his particulars for 50l. paid on account; if goods to the amount of 50%. had been sold to the defendant and paid for, and another 50%. worth had been sold to a party as to whom there was a doubt whether or no he was the lawfully authorised agent of the defendant, and the defendant plead as to 50%. payment, and as to the residue non-assumpsit, and the plaintiff enters a nolle prosequi as to the 50%. of which payment is pleaded; would the plaintiff be restricted to the 50%., the payment of which had been pleaded? In such a case the plaintiff could not new assign, as he would be unable to prove a third sum of 50%.; and besides, a new assignment is inapplicable, unless the plea assumes to answer the whole declaration: 1 Saund. 299. a, n. (b), Bull, N. P. 17,

(a) Ante, Vol. 3, p. 784; 2 C. M. & R. 118.

VOL. VI.

N

(b) Ante, Vol. 5, p. 637; 4 Scott, p. 385.

D. P. C.

1837.

NICHOL

บ.

WILLIAMS.

1837.

NICHOL

v.

WILLIAMS.

Barnes v. Hunt (a), Hall v. Middleton (b). According to the decision of Ernest v. Brown, the defendant was bound to plead payment of the 527. 10s. for which the plaintiff had given him credit. It is difficult to see any distinction between debt and assumpsit: the pleas of nunquam indebitatus and non-assumpsit equally negative the existence of the facts from which the liability arises. It would be inconvenient to establish a rule which would make the particulars an exposition of the record, as the particulars may frequently be altered. Besides, the plaintiff need not rely upon Ernest v. Brown, because here, the defendant, having an opportunity of pleading payment to the whole record, has neglected to do so. [Parke, B.-Should not the plaintiff have declared for 521. 10s. only ?] It is admitted that he ought; but he has been driven to enter a nolle prosequi by the defendant's mode of pleading. [Alderson, B.-You say the declaration is as if the plaintiff said, I go for 105., of which I admit I have received 527. 10s. But the real question is, whether there was any thing to try. If you strike the 521. 10s. out of the declaration, it is as if there was as to nothing, non-assumpsit.] The particulars are clearly no part of the record: Meager v. Smith (c), Booth v. Howard (d).

Cur. adv. vult.

PARKE, B.-The plaintiff in this case declared for use and occupation, stating the defendant to be indebted in the sum of 1057. Before declaration, the defendant applied for particulars of the plaintiff's demand, which were accordingly given in this form: "The plaintiff seeks to recover in this action the sum of 521. 10s., being the balance of one year's rent," &c. The year's rent being admitted to

(a) 11 East, 451.

(b) 4 Adol. & E. 107.

(c) 4 B. & Adol. 673; Ante,

Vol. 5, p. 438.

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

be 1057., the particular is equivalent to a statement that the plaintiff proceeds for 52l. 10s., half a year's rent, the other half year's rent being paid. The defendant pleaded, as to all but 521. 10s., non assumpsit, and as to the 52l. 10s. residue, payment. The plaintiff joined issue on the plea of non assumpsit, and entered a nolle prosequi as to the plea of payment. On the trial before my brother Coleridge, the plaintiff went into his case; the defendant produced his evidence on the question, whether the whole year's rent was paid or not, and the learned judge intimated his opinion, that it was, and directed a verdict for the defendant; but reserved liberty to the plaintiff's counsel to move to enter a verdict for nominal damages. In the course of the discussion, the particulars annexed to the record were referred to by the defendant's counsel, but he did not use them in the early part of the case to confine the plaintiff as to proof. A rule nisi having been obtained to enter a verdict pursuant to the leave reserved, the question now is, whether it ought to be made absolute. We are of opinion that it ought. The whole question turns upon the true construction of the particulars and pleadings in this case taken together. The particulars were given before the declaration; but as they were never amended, they must stand as if they had been delivered with the declaration, or afterwards. These particulars in substance admit the payment of 527. 10s., a half year's rent; and the question is, whether the plea of payment of 52l. 10s., refers to the sum so admitted, or to the balance which the plaintiff seeks to recover. If the defendant had understood, at the time of the trial, that it referred to the latter, he would naturally have instructed his counsel to insist (which he did not) on restricting the plaintiff to go into any proof at all, for in that view of the case there would have been no question to try after the plaintiff had admitted payment. On the other hand, unless he meant, at the time of pleading, to apply the plea of payment to the

1837.

NICHOL

V.

WILLIAMS.

1837.

NICHOL

v.

WILLIAMS.

521. 10s. in question, he would have pleaded improperly with a view to his intended defence. We have a difficulty in saying what the defendant intended; but we must construe the plea as we think it would have been understood by the plaintiff or any other person. Now if it was optional in the defendant to use the particulars or not on the trial, to restrain the plaintiff, the plaintiff could not tell whether they would be so used; and finding the plea of payment of 521. 10s. a part of the demand, and knowing that such amount had been paid, he could not safely take any other course than to admit the plea of payment; he could not act upon the plea as having any other meaning than a plea of part payment of the demand. In that sense we think the plea must be understood. And if the recent decision of the Court of Common Pleas, in Ernest v. Brown, be right, that the defendant could not have availed himself of the part payment admitted in the particulars by restraining the plaintiff in point of evidence, and must have pleaded part payment, there can be no question as to the meaning of the plea. We do not, however, feel it necessary to decide whether the defendant was bound to plead payment after such a particular as this or not; for we think, without relying on that case, we must construe the plea as intended to apply to the payment admitted. To avoid similar questions in future, the obvious course which ought to be pursued in the like cases, is, for the plaintiff to adopt the mode of declaring, which we have been informed is now not unfrequent, to aver the part payment in the declaration, or to insert in the declaration the real amount which the plaintiff seeks to recover. We are of opinion that the rule must be made absolute.

Rule absolute.

1837.

DAVIES v. LLOYD.

R. V. RICHARDS obtained a rule nisi, to set aside a writ of summons, on the ground that there was no indorsement thereon of the amount of debt and costs, although it appeared, on the face of the writ, that it was sued out in an action of debt.

Welsby shewed cause upon an affidavit which stated the action to be brought for penalties for bribery, under the Municipal Corporation Act, (5 & 6 Will. 4, c. 76, s. 54.) He contended that this was not a case which required the indorsement. It is not necessary to make the indorsement in an action on a bail-bond, Smart v. Lovick (a), or on a replevin-bond, Rowland v. Dakeyne (b).

Richards, contrà.-Contended that the sum claimed was a debt, and that therefore there should have been the usual indorsement.

PARKE, B.-This is clearly not a case within the rule.

ALDERSON, B.-The result of the action may render the defendant not only liable to the penalty, but may disqualify him for civil offices during life.

Rule discharged.

(a) Ante, Vol. 3, p. 34.

(b) Ante, Vol. 2, p. 832.