1841. PRICE v. SEAWARD. 4th, A plea of a private way granted by a lost grant. As to the taking of the turpentine and tar, 5th, That it was encumbering the defendants' close, and that they removed it; 6th, That the plaintiffs assaulted the defendants and their servants, and rolled the barrels containing the turpentine and tar against them, and that the defendants removed them in self-defence; 7th, The like, only stating that the trespass was committed in defence of the defendants' servants.-Replication, taking issue on all the special pleas, and new assigning separately upon each special plea, that the trespasses were committed "on other and different occasions, and for other and different purposes than in that plea mentioned." To the new assignments the defendants pleaded a payment of £25 into Court, and that the plaintiffs had not sustained greater damages; and this plea then went on as follows:-" And the defendants fully relinquish and abandon so much of their said first plea by them above pleaded as traverses or denies, or can be deemed or construed to traverse or deny, the said trespasses newly assigned, or any part thereof, or that the plaintiffs have sustained damage in respect thereof." Replication to the plea to the new assignments, "that the plaintiffs accept and take out of court the said sum of £25, in full satisfaction and discharge of the said several trespasses above newly assigned. Therefore, as to such last-mentioned trespasses, the plaintiffs are satisfied, and they pray judgment for their costs and charges by them sustained in this behalf." F. Pollock, A. G., for the defendants.-I submit that on these pleadings the defendants are entitled to begin. The plaintiffs having accepted the amount paid into court on the new assignments, there can be no question of damages. The justifications set up by the pleas are the only matters in question. Hoggins on the same side.-In the case of De Beauvoir v. Rhodes, in which the pleadings were very similar to the present, the Lord Chief Justice of the Common Pleas decided, that the defendant should begin, on the ground that there was nothing in question but rights, the burden of proof of which lay on the defendant. Thesiger for the plaintiffs.-The plea of the general issue is not wholly withdrawn. The defendants only withdraw so much of the plea of not guilty as relates to the trespasses newly assigned; which trespasses newly assigned are alleged to have been committed on other and different occasions than those mentioned in the special pleas. WIGHTMAN, J.-I am of opinion, that the plaintiffs must begin. If there had been no new assignment the plaintiffs would clearly have begun, because of the general issue. The new assignment is for trespasses on other and different occasions than those mentioned in the special pleas; and the defendants, as to those trespasses committed on other and different occasions, withdraw their plea of the general issue, but they do not withdraw their plea of the general issue entirely. It would save a great deal of discussion if the defendants, in cases like the present, would take out a summons, and by a Judge's order withdraw the plea of the general issue entirely from the record, and then there could be no doubt as to their right to begin (a). Thesiger, for the plaintiffs, opened their case. The cause was referred. Thesiger, Knowles, and H. Hill, for the plaintiffs. F. Pollock, A. G., Jervis, and Hoggins, for the defendants. [Attornies Beck, and J. & C. Rogers.] (a) In the case of Pontifex v. Jolly, 9 C. & P. 202, it was held, that the defendant's counsel at the trial, offering to admit that the plaintiff was entitled to a verdict on the is sues the proof of which lay on the ant. 1841. PRICE v. SEAWARD. 1841. Sittings in London after Michaelmas Term, 1841. BEFORE LORD DENMAN, C. J. Dec. 11. BILLING V. RIES. A. on Tuesday, DEBT for money had and received, with a count upon an the 17th of No vember, asked B. to give him change for a check for 101. 10s., W. & Co., bankers. B. the check till the following Saturday, when he paid it to his bankers. On Monday the 23rd, W. & Co. stopped payment, and the check was not account stated.-Plea, nunquam indebitatus. It appeared, that, on the evening of Tuesday the 17th of November, the plaintiff asked the defendant to give him drawn by C. on cash for a check drawn by the plaintiff's brother on Messrs. Wright the bankers of Henrietta Street, Covent Garden, did so, and kept for 107. 10s., and that the defendant did so; and it was proved by a witness named Lock that he saw the defendant, on the evening of Monday, the 23rd of November, when the defendant said to him-" Billing is in a great passion; I changed a check for him in the early part of last week, and I paid it into my bankers' last Saturday (November 21st); when he came in this evening, I said, Your check is returned,' and he gave me £5 and an I. O. U. for 57. 10s.; I then told him Wright's bank had stopped payment, and he was angry." This witness also stated, that he told the defendant that he ought not to have conCo. had stopped cealed the fact, that the banking-house had stopped payment. It was proved by another witness, that the defendant told him that he had kept the check some days, and paid by them. On the evening of that day B. told A. that the check had been A. that W. & payment, a fact not know. A. C. had funds in that it was not paid because the bank had stopped, and that he had got the money afterwards of the plaintiff. It was proved that was also proved by the plaintiff's brother, who was the drawer of the check, that, on the 17th of November, he Held, that the had funds to the amount of £250 in the hands of Messrs. suppression of Wright, and that he continued to have funds in their the hands of W. & Co. : that W. & Co. had stopped payment, and the statement by him that the check had been" returned," amounted to such a fraud upon A. as would entitle him to recover back the £5, in an action for money had and received; and that, to entitle him to do so, it was not necessary that he should have given or tendered back the check to B. hands till they stopped payment; and he stated, in crossexamination, that 5s. in the pound had been paid under the bankruptcy of Messrs. Wright, and that the check in question had been in his possession since the 24th of November, but that he had not proved for it under the bankruptcy of Messrs. Wright. The following letters from the plaintiff's attorney to the defendant, and from the defendant's attorney in answer, were put in: : "Sir, I am instructed, by Mr. Sidney Billing, to apply to you for the return of the £5, which you yesterday received from him, under circumstances which it is unnecessary for me to enter into, and also for the return of a piece of paper, on which is written the words and figures 'I. Q. U. 57. 10s., Sidney Billing, the 23rd November, 1840;' and you will consider this letter, as it is intended, as a demand for the piece of paper or I. O. U.; and unless you pay the amount, and deliver up the paper to the bearer, I shall immediately commence proceedings against you. "To Mr. Solomon Ries, "Cigar Divan, Strand. "I am yours obediently, "J. BILLING." "33, King St., Cheapside, "24th Nov. 1840." "7, Liverpool Street, Broad Street, Sir, Mr. Samuel Ries has put your letter to him in my hands, with instructions to appear to any process that you may think proper to issue against him; and also, that if the 57. 10s. owing to him from Mr. Sidney Billing be not immediately paid, to proceed against him for the recovery thereof without delay. "I am, Sir, your obedient servant, "To Mr. John Billing." Jervis, for the defendant.-I submit, that this action is. 1841. BILLING v. RIES. 1841. BILLING V. RIES. not maintainable, and that the plaintiff must be nonsuited. This is an action for money had and received; and if, in the present case, an action were maintainable at all, the declaration should have been special, and in deceit. A plaintiff can only recover in an action for money had and received, if he be equitably entitled to the money, and has put the opposite party into the same situation that he was in before. The proper course for the plaintiff to have taken before bringing this action, would have been to have returned the check to the defendant. By not doing so, the defendant is deprived of the power of proving for its amount under Wright's bankruptcy. The drawer of the check omitting to prove for it will not suffice; and it is no answer to my objection, to say, that, after judgment in this case, the check will be given up; and so far from the plaintiff having given up the check to the defendant, his attorney does not even offer to do it, when he demands the £5 and the return of the I. O. U. Lord DENMAN, C. J.-I think that if the facts of the case remain unaltered, the plaintiff will be entitled to recover in this action. Jervis addressed the jury for the defendant. — The holder of a check has a right to look to the person from whom he received it, if it is not paid at the banker's; and by not presenting it in time, he is in no different situation from that of the indorsee of a bill of exchange, who has given time to the acceptor. Now, if the holder of a bill of exchange, which was dishonoured, applied to the drawer for payment, and was paid the amount of the bill by the drawer could it be contended, that the drawer could recover his money back from the holder, because the holder did not tell the drawer that he had given time to the acceptor? A person, who pays money under such circumstances, is bound to inquire before he pays the money, whether any thing has been done to discharge him |