Form of Pleadings, &c.

Declaration.] It is advisable in declarations in assumpsit, and in many cases in debt (except in actions against infants), to insert a count on an account stated. And though it is seldom resorted to, except where plt. fails in proving his original and specific cause of action, it frequently secures a verdict. Few observations are necessary on the form of the count. Care must be taken that it meets the evidence. Therefore, in actions by or against executors, &c., where six years have elapsed since the death of the testator, &c., or, if it be on any other account material for the plaintiff to avail himself of a promise or acknowledgment since the death of the testator, &c., a count should be added, on an account stated to or by the executor, &c. in that character; otherwise such promise or acknowledgment cannot be given in evidence: Sarell v. Wine, 3 East, 409; Willes, 29; 1 Chit. Pl. 186, 308. And in an action against A., B., and C., the wife of B., in order to give in evidence a promise by A. before the marriage of B. and C., to take the case out of the statute of limitations, a count on such promise before marriage must be added: 2 D. & R. 363; Pittam v. Foster, 1 B. & C. 248, s. c. An account stated by the deft. as executor or administrator of moneys due from the testator, &c., may be supported and joined with counts upon promises by the testator or intestate, 2 Saund. 117, e.; and a count on an account stated by an executor, as such, of moneys due and owing from him in that character, may be joined with counts on promises by the testator: Powell v. Graham, 7 Taunt. 580; 1 Moore, 305, s. c.; 1 Chit. Pl. 187. In an action at the suit of an executor (who is not in general subject to costs in case of his not succeeding), *unless there be evidence to meet the fact, it is not advisa- [*31] ble to insert a count on an account stated with him, the plt., as executor, of moneys due and owing to him as such, as it would subject him to costs: 8 Moore, 146; Jones v. Jones, 1 Bing. 249, s. c.

The precise sum acknowledged to be due need not be stated in the declaration; it suffices to state that the deft. was found indebted in any sum large enough to cover the demand: 2 Saund. 122, n. 3.

Plea.] There is nothing peculiar relating to the plea, which is usually non assumpsit, or nil debet. See " Assumpsit-Debt."

Precedents.

COUNT IN ASSUMPSIT ON ACCOUNT STATED.

And whereas, also, the said deft. afterwards, to wit, on the same day and year (last) aforesaid, at London aforesaid, in the parish and ward aforesaid, accounted with the said plt. of and concerning divers other sums of money, from the said deft. to the said plt. before that time due and owing, and then in arrear and unpaid; and upon that account the said deft. was then and there found to be in arrear and indebted to the said plt. in the further sum of £―, of like lawful money; and being so found in arrear and indebted as last aforesaid, he, the said deft., in consideration thereof, afterwards, to wit, on the same day and year last afore said, at London, aforesaid, in the parish and ward aforesaid, undertook, and then and there faithfully promised the said plt., to pay to him the said sum of money last mentioned, whenever afterwards he, the said deft., should be thereunto requested. (For the breach and conclusions of actions in assumpsit, see " Assumpsit.") 5

VOL. I.

COUNT IN DEBT ON ACCOUNT STATED,

And whereas, also, the said deft. afterwards, to wit, on the day and year last aforesaid, at, &c. aforesaid, accounted with the said plt. of and concerning divers other sums of money before that time and then due and owing, and in arrear and unpaid, from the said deft, to the said plt.; and, upon that accounting, the said deft. was then and there found to be in arrear and indebted to the said plt., in the further sum of £, of like lawful money, to be paid by the said deft. to the said plt., when he, the said deft., should be thereunto afterwards requested. Whereby, and by reason of the said last-mentioned sum of money being and remaining wholly unpaid, an action hath accrued to the said plt., to demand and have of and from the said deft. the said last-mentioned sum of £, residue of the said sum above demanded. (For the conclusions in debt, see 36 Debt.")

See other precedents, post, " Bankruptcy," "Executors," "Husband and Wife."

Evidence for Plaintiff.

Mode of Accounting.] Any admission of a balance or acknowledgment made by one party to another, that a sum of money is due to the latter, is sufficient prima facie evidence to entitle the plt. to recover that sum on an account stated: 2 Mod. 44; Trueman v. Hurst, 1 T. R. 42; Knox v. Whalley, 1 Esp. Rep. 159; Dawson v. Remnant, 6 Esp. Rep. 24. Proof that deft. stated that he would call and settle the amount of the debt sent in, is sufficient; Clarke v. Glennie, 3 Stark. 10. So is proof of his sending £5 on account, and stating that he would pay the remainder next week: Peacock v. Harris, 10 East, 104. But proof of a mere qualified acknowledgment is not sufficient: Evans v. Verity, 1 R. & M. 239; Green v. Davis, 4 B. & C. 235; 6 D. & R. 306, s. c.

An acceptance of the bill is evidence of an account stated by the acceptor with the holder, 1 H. B. 239; sed vide Taylor v. Higgins, [*32] 3 East, 169, *Whitwell v. Bennett, 3 B. & P. 559, Johnson v.

Collings, 1 East, 98; at all events, it is so in an action at the suit of the drawer, Highmore v. Primrose, 5 M. & S. 65, or at the suit of a payee, who is also drawer: Rhodes v. Gent, 5 B. & A. 245. A promissory note is evidence as an account stated, in an action by the payee against the maker, 2 Str. 719, Chit. Bil. 366, especially if it be expressed to be for value received, Clayton v. Gosling, 5 B. & C. 360, Highmore v. Primrose, 5 M. & S. 65; but not if improperly stamped: Green v. Davis, 4 B. & C. 235. An IO U is evidence of an account stated: 5 M. & S. 65. Where accounts are submitted to an arbitrator, not by bond, his award may be given in evidence under an account stated, Kean v. Batshore, 1 Esp. Rep. 194; 1 Chit. Pl. 308.

If the account was stated verbally, a witness present should be subpœnaed; if in writing, then the same should be produced, and deft.'s signature proved. If the writing be in the opposite party's possession, a notice should be served on him to produce it, and the service of such notice proved; after which, parol evidence of the contents of the writing would be admissible: post "Notices." An acknowledgment of the correctness of an account need not be stamped: Wellard v. Moss, 1 Bing. 134; 7 Moore, 583, s. c.; Jacob v. Lindsay, 1 East, 460.

With whom stated.] Proof of an account stated with plt.'s agent is

sufficient; proving the party to be such agent: so plt. may recover on an account stated by the deft. with plt.'s wife, or on an account stated by the deft.'s wife, B. N. P. 129; if, indeed, she be proved to be the party's agent. Where there were accounts between A. and B., and C. became a partner with B., and dealings continued between B. and C. as partners, and A., who afterwards settled an account with B. and C., wherein was included the money due from A. to B. alone, it was held the whole might be proved on an account stated in an action by B. and C.: Pea. Ev. 273; 4 Price, 214; David v. Ellice, 5 B. & C. 196. If an account be stated between partners, and one partner expressly promise to pay the balance struck, he may be sued at law: Smith v. Barrow, 2 T. R. 476, 8; Foster v. Allanson, ib. 482. But this only holds where there is a 'final balance of all the partnership concerns, and an express promise to pay such balance, Fromont v. Coupland 2 Bing. 170; sed vide Rackstraw v. Imber, Holt, 368, Clark v. Glennie, 3 Stark. 10; and evidence of this must be adduced accordingly.

Subject Matter of Account.] With respect to the subject matter of the account, it must be proved to have been of money and a debt: see 5 Moore, 114, 116. It is sufficient, however, to move an account stated, without giving evidence of the several items constituting the account, Trueman v. Hurst, 1 T. R. 42; Prouting v. Hammond, 8 Taunt. 688; and it is not necessary that there should be cross demands between the parties, or that the deft.'s admission should relate to more than one item or transaction: Knowles v. Mitchell, 13 East, 249; Highmore v. Primrose, 5 M. & S. 65. An admission by the deft. that so much was agreed to be paid to the plt. for the sale of standing trees, made after the trees had been felled and taken away by the deft., will support it: Knowles v. Mitchell, 13 East, 249. It is most usual to prove some existing antecedent debt or demand between the parties, respecting which an account was stated, and a balance struck: 5 Moore, 105; Green v. Davis, 4 B. & C. 235, 242; 6 D. & R. 306, s. c., Trueman v. Hurst, 1 T. R. 42. n. The acknowledgment need not be of a sum certain; but to entitle the plt. to recover more than nominal damages under such an acknowledgment, it would be necessary for him to prove the amount by other means: Dixon v. Beveridge, 2 C. & P. 109; (sed vide 4 Moore, 542, where it appears to have been considered plt. could not recover even nominal damages.) In a late case, where the deft., on being applied to for payment of interest, stated he would bring plt., who was an executrix, some money on the following Sunday, [33] it was held that, though this was an admission that something was due, still, as it did not appear what the nature of the debt was, or that it was due to plt. as executrix, or in her own right, nor that it was one for which assumpsit would lie, plt. was not entitled to recover even nominal damages: Green v. Davies, 4 B. & C. 235.

An account stated in some cases will amount to an admission of the title of the party to receive the money: 4 Moore, 73, post, 49. Accounting with plt. in a particular character, admits that character: Peacock v. Harris, 10 East, 104, post, 46. An account stated does not alter the nature of the original debt: Aleyn, 72-3

Evidence for Defendant.

For the defence, the deft. may show a gross error or mistake in the accounts, or that he made the account under a misapprehension of facts, for the account stated is not conclusive evidence against him: Trueman v. Hurst, 1 T. R. 42; Skyring v. Greenwood, 4 B. & C. 281. It has been held at N. P., that where an account for goods sold is settled, and the party gives a bill of exchange for the amount, but which bill is not paid, on an action brought, the party cannot go into evidence to impeach the charges on the first account, which has been settled, Knox v. Whalley, 1 Esp. Rep. 159, post, 46; and that, where parties, having cross demands, settle and balance their accounts, though part of the plt.'s demand could not have been recovered in an action, the settlement of the accounts shall bind the deft., so that he shall not set up that defence to an action for the balance: Dawson v. Remnant, 6 Esp. Rep. 24; 12 Mod. 517, post, 46.

ACKNOWLEDGMENT.

See "ADMISSIONS."
""

ACT OF PARLIAMENT.

Public Acts.

PUBLIC ACTS are those which relate to all the subjects of the realm, 4 Co. 76, as those which concern the king, or all lords of manors, or all officers in general, or all spiritual persons, or all trades, B. N. P. 223; and are presumed to be known to all men as the general law of the land. Some acts are made public acts by an express provision in their enactA recital in a public act is evidence of the fact recited: R. v. Sutton, 4 M. & S. 532.

ment.

When and how pleaded.] As the courts take notice of all public acts, it is never necessary to set them out in pleading. It is only necessary for the party availing himself of them, to state those facts which bring his case within them. Spieres v. Parker, 1 T. R. 145, 3 Wils. 318, Clarke v. Harvey, 1 Stark. 92; and, in general, referring to the act. It is not advisable to recite any part of a public statute, for a misrecital will sometimes be fatal: 1 Ld. Raym. 382; Doug. 97; King v. Marsack, 6 T. R. 776. Where facts have occurred recently after the passing of the act, it is usual to allege them to have taken place subse

quent to its enactment: 1 Saund. 309, n. 5. But it is unneces[*34] sary to allege the time of holding *every Parliament, and its prorogations and sessions, or where any Parliament sat, as they will be taken notice of judicially, 1 Ld. Raym. 343, Plowd. 77, 1 Lev.

296; and therefore they should not be stated in pleading, as any misstatement will be bad on demurrer, ib. Cowp. 474, 1 Lev. 296; and see, further, as to the pleadings on a penal statute, post, "Penal Statute."

Proof of Public Acts.] As the courts take judicial notice of public acts, and as they are presumed to be known to all men, they require no proof; and the printed books are used as hints of that which is supposed to be in every man's mind, Gilb. Ev. 10; however, if the books differ, the mistake may be shown by one examined with the original roll: Rex v. Jeffries, 1 Str. 446.

By 41 G. 3, c. 90, s. 9, copies of the statutes of Great Britain and Ireland, prior to the Union, printed by the printer duly authorized, shall be received as evidence of the several statutes in the respective courts of either kingdom.

PRIVATE ACTS are such as relate to a particular class of men: as to particular officers, 4 Co. 76, 2 Saund. 155, n., 2 T. R. 569; or to particular persons; or particular counties, parishes, or places; or particular trades, as dyers, butchers, grocers: B. N. P. 223.

When and how pleaded.] As the court will not take judicial notice of private acts, such parts of them as are essential to the party's action or defence must be specially recited in pleading: Bac. Ab. Stat. l. 2; 2 Mod. 57; Carth. 306.

In reciting or pleading the act, the day, the year, and place of making it must be shown; and any misstatement in this respect will be bad, on the plea of nul tiel record, or any other plea putting in issue the whole of the facts stated in the declaration, Cowp. 474, 1 Lev. 296, Cro. C. 202; but the mistake may be aided by verdict: 2 Mod. 240. It is not necessary to recite the title, Chance v. Adams, 1 Ld. Raym. 77, or preamble, 6 Mod. 62, 8 Mod. 144, as they do not constitute a part of the statute: Bac. Ab. Stat. 1. 3. Yet, if the party undertake to recite the title or preamble of an act, and it be misrecited, it is fatal: 6 Mod. 62; 2 Salk. 609, supra. As to the setting out of the act, it is sufficient to recite so much of it as relates to the subject matter in dispute: Plowd. 106, &c.; Cro. J. 140; Doct. Pl. 332. And, if the party recite so much of a statute as makes for him, it is sufficient, though he omit a proviso containing an exemption, provided it is not incorporated with the enacting clause by any words of reference: Steel v. Smith, 1 B. & A. 94; Plowd. 410; Ld. Raym. 120. But the opposite party may avail himself of such proviso in his pleadings: Cro. J. 140, and see post, "Penal Statute." In reciting a statute, a material variance will vitiate the pleading, as if the act be recited in conjunctive words, where it is disjunctive: Cro. E. 96, 697; King v. Marsack, 6 T. R. 771; Cowp. 474; 2 Bulst. 47. But a trifling or immaterial variance will not prejudice, 2 Bulst. 47, 51, as where the statute is merely in the plural, and the recital in the singular: Cro. C. 523. See further, post, "Penal Statute.”