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1832.

HARRISON v. Wood.

May 1.

THE Plaintiff declared in assumpsit for salary due to A particular him as the Defendant's travelling clerk, and for of demand

not to be conthe amount of disbursements he had made for the sto

strued so Defendant.

rigidly as to At the trial before Tindal C. J. he proved that he had

plaintiff for been introduced to the Defendant towards the end of inaccuracies March 1830; that the Defendant had then engaged him which could as travelling clerk at 1001. a year, the expense of his Disbursejourneys to be defrayed by the Defendant; and that he, ments held the Plaintiff, had disbursed 51l. 9s. 6d., the expense of

6. S. buy the expense of under an item journeys performed between the 29th of March and 26th for « cash of September 1830.

advanced.” The Plaintiff's particular of demand was as follows: –

not mislead.

recor

John Wood to B. Harrison. Dr. 1830.

£ s. d. March. Cash advanced between March 20th and April 1st

- 51 96 March 29th to September 26th. Salary at 100l. per annum . - 58 00

109 9 6 By cash at sundry times, and payments

made by you for me - - 50 7 7

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On the part of the Defendant, it was objected that these disbursements could not be recovered under a particular claiming for cash advanced; and that the

501. 7s. 7d.

1832.

HARRISON

v. WOOD.

501. 7s. 7d. for which the Defendant had credit, covered the real amount of salary due, which, at 1001. a year, was less than 501. from March 29th to September 26th.

Whereupon the plaintiff was nonsuited.

A rule nisi having been obtained for a new trial, on the ground that “ cash advanced” ought to be deemed to include disbursements,

Jones Serjt., who shewed cause, relied on the objection taken at the trial, and also on the circumstance that the dates of the disbursements did not agree with those of the advances specified in the particular.

TINDAL C. J. If this had struck me at the trial as it does now, I should have reversed the situation of the parties. In both points, I think this particular ought to have the operation for which the plaintiff contends. In the first place, we ought not to narrow the term “ advances " so as to exclude disbursements; which, though not strictly, were in effect advances made to the Defendant, since he was under an engagement to defray the expense of the Plaintiff's journeys. Secondly, as to the mistake in point of dates, if it had been such as to occasion any doubt, we might have thought it right to hold the Plaintiff to the strict language of the particular; but, according to the evidence adduced at the trial, the Defendant must have been well aware that this was a mistake, and that April was written for September. The Plaintiff and Defendant were strangers to each other till the end of March, when the Plaintiff was introduced for the first time, and the agreement between the parties was entered into. Now, could it be supposed that any money had been advanced except under that agreement ? We should pervert the intent of a bill of particulars, if we were to allow it thus to be

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the means of entrapping a plaintiff. The case falls within the decision in Millwood v. Walter (a), where it was holden that an erroneous date to a bill of particulars would not preclude the plaintiff's demand if the date could not mislead.

The sum for which the plaintiff gives credit is only a conditional admission, of which the Defendant is not to take an unfair advantage.

PARK J. referred to Day v. Bower (6), where it was held that the plaintiff's particular is sufficient, however inaccurately drawn up, if it convey the requisite information to the plaintiff; and to Davies v. Edwards. (c) In Wade v. Beasley (d) the particular mentioned only a promissory note; and that being unstamped, the plaintiff was not allowed to prove the consideration, because such proof would interfere with the revenue laws.

GASELEE J., with respect to the Defendant's taking advantage of the sum for which the Plaintiff gave credit in his particular, referred to Harrington v. Macmorris(e), where it was held that a plaintiff could not use a notice and particular of set off for evidence of the debt on the issue of non assumpsit.

ALDERSON J. concurring, the rule was made

Absolute. (g)

ricost de 13 and MP4 3 (a) , Taunt. 224.

(e) 5 Taunt. 228. D (b) i Campb. 68, 69. n.

(g) See Lambirth v. Roff, (c) 3 M. & S. 380.

post. 411.11.!!! 13:1!) 1: (d) 4 Rep. 7.

Vol. VIII.

1832.

May 2.

Wilson v. COLLINS.

The payment ANDREWS Serjt., on the part of the Defendant, had of costs for not proceeding

obtained a rule nisi to defer the trial of this cause, to trial is not till certain interlocutory costs, awarded for not pro

ceeding to trial on a former occasion, should have been precedent to ulterior pro- paid. ceedings, unless so specified in the

Wilde Serjt., who shewed cause, contended, that though, rule.

under extraordinary circumstances, the Court might make the payment of such costs a condition precedent to ulterior proceedings, yet that such was not the ordinary practice, and that no circumstances had been disclosed to justify the application which had been made. The party might issue his attachment.

Andrews suggested, that the Plaintiff was out of the way, and could not be served. But

The Court thought it would occasion great inconvenience to make the payment of such costs a condition precedent in ordinary cases, and the rule was

Discharged. 1832.

Ariel v. BARROW.

May 7.

THE Plaintiff's attorney, in order to prevent the De- The Defendfendant from entering up judgment of non pros for a

" condition to want of a declaration, which he was in a condition to do, enter judgobtained a rule to discontinue upon payment of costs, ment of non

pros for want and gave notice of an appointment to tax the costs. Of a declarThis rule expired on the 6th of February 1832. But ation, the

- Plaintiff, with the Plaintiff, instead of paying the costs or entering a discontinuance, on the 7th served the Defendant with vent the non a declaration. The Defendant upon this entered up pros, obtained

a rule to disjudgment of non pros, which

continue on payment of

costs; howJones Serjt. obtained a rule nisi to set aside as ir

ever, instead regular.

of paying costs or dis

continuing, as Wilde Serjt., who shewed cause, relied upon the ap- soon as the pointment to tax costs, as being in itself a discontinu- rule had ex

pired, he ance, when

served the

Defendant Jones, in support of his rule, referred to Edington v. with a declar

ation: Held Bowdenham (a), and urged that the rule to discontinue a fraud on having been obtained subject to the condition precedent the proceedof paying costs, the Plaintiff was at liberty to renounce

unings of the

Court; and it if he rejected the condition. But

the Defendant having entered

up judgment The Court, without deciding the question of law, held of non pros, the conduct of the Plaintiff's attorney to be in the nature the Court re

fused to set it of a fraud upon the proceedings of the Court. Instead of making a direct application for time, he had taken out a rule which he had no intention to act upon, thereby

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