1840. STAPLETON บ. of, but I was justified in doing it," that would be good Exch. of Pleas, evidence for that purpose.] Here the plea, having been pleaded after the demand of a specific amount made upon both the defendants, assumes the character of an act done. Here, also, a contract has been proved. In Kingham v. Robins, the plaintiff attempted to prove a contract and failed. ALDERSON, B.-If this question were now to be considered for the first time after the case of Ravenscroft v. Wise, I should have been very desirous, whatever were my own opinion of the authority of that case, to give Mr. Kelly a rule, for the purpose of re-considering it. But after the case of Kingham v. Robins, and the authorities there cited, and the full discussion which this subject then underwent, I think the case of Ravenscroft v. Wise must be considered as virtually overruled. The doctrines laid down by the Judges in the case of Kingham v. Robins, appear to me to have put the principles of law applicable to this subject on a clear and simple foundation. Nor were they then laid down for the first time, for I distinctly recollect Mr. Justice Bayley, then on the Northern Circuit, stating the rule very clearly, and almost in a similar case, that payment of money into Court admits the contract set forth in the declaration, for this reason, that the payment admits that something is due, and therefore must admit that the contract was made by which alone anything is due, from the defendant to the plaintiff. But that does not apply to the case of an indebitatus count, because that is not confined to one contract, but may extend to an indefinite number of contracts between the parties; and therefore the payment of money into Court only in substance admits, that on some one or more of these contracts or causes of action, stated in the general count, the defendant is liable to the plaintiff. The plaintiff here says, On one or more of several contracts I have a NOWELL. 1840. STAPLETON v. NOWELL. Exch. of Pleas, cause of action. The defendants say, on one or more of those several contracts the plaintiff has a cause of action to the extent of 107.; but on the residue of the contracts he has no such claim. The plaintiff, therefore, must shew affirmatively that there is some contract on which both the defendants are liable, beyond the amount of the 107. paid by both the defendants into Court. If he proves no contract at all against both defendants, he fails altogether. If he proves that there is a contract on which both the defendants are liable, he must shew that upon that contract more is due than is covered by the payment into Court. Here the plaintiff proved a primâ facie case against one of the two defendants, but none against the other; but he says, as John Nowell has paid money into Court, he must be taken as having admitted the particular contract on which Jonathan Nowell was proved to be liable. But both defendants may be jointly liable on one contract, and for a sum not greater than that paid into Court, and Jonathan Nowell alone upon the contract proved. Now the plaintiff undertakes to satisfy the jury affirmatively that he is entitled to recover against both upon that contract. If it be left in ambiguity whether he is so entitled or not, he cannot succeed. Therefore, as it is equally consistent with the facts here proved, either that both defendants are indebted or only one, the jury cannot say affirmatively whether John Nowell is liable on this contract, and ought to be directed to find for the defendants. If so, the plaintiff ought to be nonsuited. On these grounds I retain my opinion, that the nonsuit was right. GURNEY, B.-I think the nonsuit was right, and I can add nothing to the reasons given for it by my Brother Alderson. ROLFE, B., concurred. Rule refused. Exch. of Pleas, EASTWICK V. HARMAN. 1840. DEBT for wages, money paid, and on an account stated. Where a plain tiff gives credit in his particufor payments, lars of demand whether made before or after Pleas—first, nunquam indebitatus; secondly, payment before action brought; thirdly, a set-off for money had and received by the plaintiff to the use of the defendant: on which issues were joined. The particulars of demand were as follows:-"This action is brought for the recovery of the sum of 117. 10s. 4d., with interest thereon from the day the same became payable to the day of payment thereof, being the balance now remaining due from lance; and if the defendant to the plaintiff on the following account, proves viz. :— For money paid by the plaintiff for the use of the defendant, in and during the years 1838 and 1839 £23 2 0 By cash received at various times during the same period, on account thereof 19 5 0 3 17 0 22 13 4 By cash received by the plaintiff's attorney from the defendant's attorney, in the month of July instant, on account thereof action brought, for the balance, and goes only plea of paytaken as plead a ment is to be ed to such ba the defendant ments to that amount, independently of the sums credited in the particu lars, he is enti tled to a verdict. 15 0 0 7 13 4 £11 10 4 The following were the particulars of the defendant's set-off: Exch. of Pleas, Cash paid to the plaintiff at several times . At the trial before Gurney, B., at the Middlesex Sittings after Michaelmas Term, it appeared that the plaintiff had been in the defendant's service as coachman and groom, from February, 1838, to June, 1839. His wages for that period amounted to the sum of 221. 13s. 4d., mentioned in the particulars, and he proved also the payment of a sum of 17. on account of the defendant. It appeared also, that on application being made, before the action was brought, by the plaintiff's attorney (Mr. Lyde) to the defendant for payment, and no answer being received, a writ was sued out; but before service of it, the plaintiff's attorney received an answer from the defendant's attorney, desiring that the defendant might be furnished with the plaintiff's account, and it should be arranged. The plaintiff's attorney wrote in answer, (without stating that a writ had been sued out), "to save further trouble, I inclose a receipt for 157., and you must also allow me what you like for my attendances." The defendant's attorney accordingly saw the plaintiff's attorney, and told him "they should tender more than was due;" and the plaintiff's attorney said he should admit the tender, and desired him to pay the 157., which was the sum given credit for in the plaintiff's particulars. The defendant's attorney accordingly gave a cheque for the 157., which was expressed in the receipt to be received on account and without prejudice. The writ was, however, subsequently served, and the action proceeded with. For the defendant, it was contended, that as the plaintiff, by his particulars, admitted the receipt of this sum of 157., he must be taken to exclude it from his de 1840. EASTWICK บ. HARMAN. mand, although received after the commencement of the Exch. of Pleas, action. Evidence was also given of payments to the plaintiff at different times during the period of his service, amounting altogether to about 227., and of a conversation with him shortly before the commencement of the action, in which he stated, that he should sue the defendant for 271., the whole amount due to him before he received any money; but that if he had signed his name to any paper, or there had been any witness when he received money from the defendant or any of his family, he should have had nothing to receive. The learned Judge left it to the jury to say, upon the evidence, whether, excluding the payment of the 157. from their consideration, they were satisfied that anything remained due to the plaintiff, or whether he had been paid all that was due to him and the jury found a general verdict for the defendant. Humfrey now moved for a new trial, on the ground of misdirection. The 157. not having been paid until after the commencement of the action, the defendant was not entitled to take advantage of it under this plea, which is a plea in bar of payment before action brought. That issue, therefore, was wrongly found for the defendant. [Alderson, B.-Does not the case fall within the rule of Trinity Term, 1 Vict., the payment being credited in the particulars?] That rule was never intended to apply to a payment after action brought. Its object is to meet cases where the plaintiff, "to avoid the expense of a plea of payment," has given credit in the particulars: that must apply to payments before action brought. In order, therefore, to sustain this plea, the plaintiff was bound to prove payment before action brought. [Alderson, B.-It is clear from the particulars, that the plaintiff goes for a balance, after admitting this as a proper payment. The particulars put you in the same position as if the defendant had paid money into Court, and the plaintiff had gone on afterwards and had recovered no more: in that case he |