Exch. of Pleas, do so. That might be a reason for taking away the candles,

1841.

FELL

V.

KNIGHT.

but it was no excuse for refusing him the room, and turning him out of the house.

Lord ABINGER, C. B.-I am of opinion that the plea is sufficient. I do not think a landlord is bound to provide for his guest the precise room the latter may select. Where the guest expresses a desire of sitting up all night, is the landlord bound to supply him with candle-light in a bedroom, provided he offers him another proper room for the purpose? The plea shews, that the landlord did every thing that was reasonable. The short question is, is a landlord bound to comply with the caprice of his guests, or is he justified in saying, you shall not stay in a room in this way, and under these circumstances? I think he is not bound to do so. All that the law requires of him is, to find for his guests reasonable and proper accommodation: if he does that, he does all that is requisite. I am also inclined to think, notwithstanding the case which has been cited of Rex v. Jones, that the declaration is bad for want of an allegation of a tender of the amount to which the innkeeper would be reasonably entitled for the entertainment furnished to his guest; it is not sufficient for the plaintiff to allege that he was ready to pay; he should state further, that he was willing and offered to pay. There may be cases where a tender may be dispensed with; as, for instance, where a man shuts up his doors or windows, so that no tender can be made; but I rather think those facts ought to be stated in the indictment or declaration; and I have, therefore, some doubt as to the complete correctness of the judgment of my Brother Coleridge, in the case cited: but it is not necessary to decide that point in the present This rule must be discharged.

case.

ALDERSON, B., and ROLFE, B., concurred.

Rule discharged.

RUSSELL and Another, Assignees of Nicholl, a Bankrupt, v. BELL and Another.

Exch. of Pleas, 1841.

Assumpsit by

the assignees of

a bankrupt for goods sold

and delivered

by the bank

rupt, with

counts for

money paid,

ceived, and on stated. The

an account

defendant

pleaded by way

before notice of any act of bankfore the

of set-off, that

ruptcy, and be

of the fiat, and

before action brought, the

defendant

ASSUMPSIT by the assignees of Joseph Nicholl, a bankrupt, for goods sold and delivered and money paid by the bankrupt, money had and received to his use, and for money found to be due on an account stated with him. The defendant pleaded, except as to £320, parcel &c., and except as to £140, parcel &c., non assumpsit. had and reSecondly, as to the said sum of £140, parcel of the monies in the first, second, third, and fourth counts of the said declaration mentioned, and not being any part of the said sum of £320, parcel &c., in the next plea mentioned, the defendants say, that the plaintiffs ought not to maintain their aforesaid action thereof against them, because they say, that long before they, the defendants, had any notice that any act of bankruptcy had been committed by the said Joseph Nicholl, and long before any fiat of bankruptcy issued against the said Joseph Nicholl, and before the commencement of this suit, to wit, on the 10th of August, 1839, and on divers other days and times between that day and the 18th day of September in that year, the defendants gave credit to the said Joseph Nicholl to a large amount, to wit, to the amount of 5861. 198., by accepting for the accommodation of the said Joseph Nicholl, and at his request, and without any consideration or value paid or given to them the defendants for so doing, divers, to wit, three several bills of exchange drawn respectively by the said Joseph Nicholl upon the defendants, for the sum of £200, 1897. 17s., and 1977. 28. respectively, and payable respectively to the order of the said Joseph Nicholl, which said several bills respectively the said

gave credit to the bankrupt,

by accepting certain bills of

exchange for

his accommohis request, consideration or value,

dation, and at

without any

which said bills

were, before

notice of

the bankrupt cy, negotiated

by the bankrupt for his benefit; that

own use and

the credits so

given were Hely from the bankrupt to

debts from the

the defendants; and that afterwards, and before the commencement of the action, the defendant paid the said bills:-Held, a good set-off under the 6 Geo. 4, c. 16, s. 50, on the ground that a mutual credit was shewn. Held, also, that the assignees could not reply a fraudulent delivery of the goods.

1841.

RUSSELL

บ. BELL.

Exch. of Pleas, Joseph Nicholl, afterwards, and before any notice to the defendants of his said bankruptcy, to wit, on the several days and times last aforesaid, negotiated and transferred for value for his own use and benefit: And the defendants further say, that the said credits so respectively given by them the defendants to the said Joseph Nicholl as aforesaid, were credits of a nature extremely likely to end in debts from the said Joseph Nicholl to the defendants, and amounted in the whole to a large sum of money, to wit, the sum of 5867. 19s. And the defendants further say, that afterwards, and before the commencement of this suit, to wit, on the 19th day of November in the year last aforesaid, and on divers other days and times between that day and the 21st day of December in that year, they, the defendants, were called upon and forced and obliged to, and did necessarily pay and satisfy the said several bills of exchange respectively, to certain persons then respectively being the holders of the said several bills, that is to say, the said bill of exchange for £200 to certain persons using the name, style, and firm of Barclay & Company; the said bill of exchange for 1897. 178. to certain persons using the name, style, and firm of Barnett & Company; and the said bill of exchange for 1971. 28. to the Governor and Company of the Bank of England; and thereupon the said Joseph Nicholl then, and before the commencement of this suit, was, and still is indebted to the defendants in a large sum of money, to wit, the sum of 5867. 19s., being the amount of the said several bills of exchange, as and for money paid by the defendants for the use of the said Joseph Nicholl at his request, which said sum of money is the same identical sum in and for the amount of which the defendants had given credit to the said Joseph Nicholl as aforesaid; which sum of money, so due and unpaid and unsatisfied to the defendants as aforesaid, exceeds the damages sustained by the plaintiffs, by reason of the non-performance by the defendants of

1841.

RUSSELL v.

BELL.

the said several promises in the said first, second, third, Exch. of Pleas, and fourth counts, so far as the same relate to the said sum of £140, parcel &c., and out of which said sum of money so due, unpaid, and unsatisfied to the defendants as aforesaid, they, the defendants, are ready and willing, and hereby offer to allow and set off the full amount of the said damages, according to the form of the statute in such case made and provided. Verification.-And as to the said sum of £320, parcel &c., in the said first plea mentioned and excepted, and not yet pleaded to, the defendants pay the same into Court.

Special demurrer to the second plea, assigning the following causes that the said second plea does not confess and avoid or deny the causes of action in the first, second, third, and fourth counts; and the defendants do not shew by that plea, that the bankrupt gave any credit to the defendants in respect of the causes of action in those counts; and that no mutual credit is shewn between the bankrupt and the defendants, but merely that the defendants gave credit to the bankrupt.-Joinder in demurrer.

W. H. Watson, in support of the demurrer.-The plea is bad. It does not contain any confession and avoidance, nor does it shew any mutual credit. It only shews credit given by the defendants, but none by Nicholl. The bankrupt may have had a right of action, but that does not imply that any credit existed mutually between them. [Parke, B. -If goods are sold and delivered, and a debt becomes due, it is a credit. Lord Abinger, C. B.-How can there be a debt without credit?] A debt may exist without credit. Both cases are contemplated by the Bankrupt Act, 6 Geo. 4, c. 16, s. 50, as being distinct. By that section it is enacted, "that where there has been mutual credit given by the bankrupt and any other person, or where there are mutual debts between the bankrupt and any other person, the commissioners shall state the account between them, and

Exch. of Pleas, one debt or demand may be set against another, notwith

1841.

RUSSELL

v.

BELL.

standing any prior act of bankruptcy committed by such
bankrupt before the credit given to or the debt contracted
by him; and what shall appear due on either side on the
balance of such account, and no more, shall be claimed or
paid on either side respectively; and every debt and de-
mand hereby made proveable against the estate of the
bankrupt, may also be set off in manner aforesaid against
such estate; provided that the person claiming the benefit
of such set-off had not, when such credit was given, notice
of an act of bankruptcy by such bankrupt committed."
It is submitted this is not a mutual credit, within the
meaning of the act. But assuming that credit may have
been given by the bankrupt, there may have been an appro-
priation of the bills of exchange to the general account, in
which case there would be no mutual credit. Mutual cre-
dit is very different from mutual debts. In Key v. Flint (a),
where A., previous to his bankruptcy, deposited a bill of
exchange with B., for the specific purpose of raising money
thereon, and B. advanced money on the bill: it was held
that the assignees of A. were entitled to recover from B.
the amount of the bill in an action of trover, they having
tendered to B. the money advanced by him, though a ge-
neral balance remained due from the bankrupt to B., and
that this did not form a case of mutual credit within
the stat. 5 Geo. 4, c. 30. So, in Buchanan v. Findlay (b),
where a bill was deposited with the defendant for a specific
purpose, it was held that, the bill not having been applied
to that purpose, the bankrupt had a right to demand it
back, and that such demand having been made before the
money was received on the bill, the defendant was liable
to the assignees for the amount. [Parke, B.-That was
for money had and received to the use of the assignees.]
Yes, it was so held, because a wrong was committed, and
no contract would arise.
[Parke, B.-Smith v. Hod-

(a) 1 Moore, 451; 8 Taunt. 21.

(b) 9 B. & Cr. 738; 4 M. & R. 493.