W. 140), the plea of "never indebted" is obviously the best form to adopt. On an account stated, the plaintiff is not obliged to prove the exact sum laid in the declaration. Thompson v. Spencer, Bull. N. P. 129. An acknowledgment by the defendant of a debt (unless secured by deed (d) ), due upon any account, is sufficient to enable the plaintiff to recover upon a count for an account stated. Knowles v. Michel, 13 East, 249. "I think Knowles v. Michel is an authority to show, that though in form a count upon an account stated is 'of and concerning divers sums of money,' yet proof of one item is good to maintain such a count; divers may be supported by evidence of one." Per Lord Ellenborough, C. J., in Highmore v. Primrose, 5 M. & S. 67. "It has been held, that upon a count for goods sold and delivered, the plaintiff may prove the sale of one article, and that will be well enough. The same rule applies to this count, which is of and concerning divers sums,' as to the count for goods sold." Per Holroyd, J., S. C. The acknowledgment must be of a subsisting debt. Where a party examined before commissioners of bankrupts merely admitted that he had received a sum of money on account of the bankrupt after an act of bankruptcy; it was held, that this was not evidence sufficient to support a count on an account stated with the assignees, as there was no admission of a subsisting debt. Tucker v. Barrow, 7 B. & C. 623. Secus, if a bankrupt under examination admit that a certain sum is due to A., Eicke v. Nokes, 1 M. & R. 359, subject of course to be rebutted (e). So where the defendant, who had indorsed a bill of exchange to the plaintiff, told him, before the bill became due, that he need not give him notice of dishonour; that he knew the bill would not be paid; and that he would send the plaintiff the money in part payment of the bill on a future day, it was held that this was not an admission of a subsisting debt, but only a strong expression of opinion that the bill would be dishonoured, and a promise, if that event occurred, to pay the plaintiff. Burgh v. Legge, 5 M. & W. 418. The admission must be of a debt in fact due; a mere promise to pay a supposed debt will not support the count. Thus, where executors applied 2007. in part payment of a legacy, and promised payment of the remainder, but the legacy was in fact invalid under the Wills Act, 1 Vict. c. 26, it was held, that an account stated would not lie against the executors for payment of the remainder. Gough v. Findon, 7 Exch. 48. The admission must be absolute and unqualified. Where the plaintiff had done certain repairs to a house which he held of the defendant, and the defendant, when applied to for payment, said, "I cannot pay you now, but I will out of the next rent," this was held an unqualified admission (f). But where the plaintiff demanded 407. on an agree(d) Middleditch v. Ellis, 2 Exch. 625; v. Tribe, 3 M. & W. 607. S. C., 17 L. J., Exch. 365. (e) See per Abinger, C. B., in Lubbock VOL. I. (f) Seago v. Deane, 4 Bingh. 459. I ment by the defendant, an incoming tenant, to pay for the growing crops, &c. on the farm, and the defendant offered to pay 177., it was held to be no evidence of an account stated, but only an offer to purchase peace, and escape an action. Wayman v. Hilliard, 7 Bingh. 101. So a promise to give a cheque or pay a sum of money, on receiving an indemnity, is not sufficient. Lubbock v. Tribe, 3 M. & W. 607. So where the defendant said, "He would have paid the plaintiff if he had not removed the grates." Evans v. Verity, R. & M. 239. So where the acceptor of a bill of exchange, on being applied to for payment, objected, that his acceptance had been altered by the substitution of a different place for payment, and that he should in consequence take such steps as the law would authorize. "He had been prepared for payment, and the party might have his money by calling at Bulbrook," it was held, that this was not an absolute admission, but one conditioned on the other party doing something; viz., coming to Bulbrook. Calvert v. Baker, 4 M. & W. 419. So where the admission was made by the defendant in her own right, but it turned out that the debt was due from her as the executrix of her deceased husband. Petch v. Lyon, 9 Q. B. 147. The admission must be made to the plaintiff or his agent (f); an admission made to a third party will not suffice (g). It must be stated with reference to former transactions between the parties; per Lyndhurst, C. B., in Clarke v. Webb, 1 C., M. & R. 29 (h); where it was held, that an agreement by the assignees of an insolvent tenant (who-i. e. the assignees-had not occupied the land) to pay the last quarter's rent, in consideration of being allowed to remove the fixtures, was not evidence of an account stated. And it must be of a certain sum. Where the defendant wrote to the plaintiff as follows: "Please debit me with the amount of the calls due; I think it will be 500l., &c.," it was held to be no admission of a certain sum being due. Hughes v. Thorpe, 5 M. & W. 667. Where an account, consisting of various items, was shown to the defendant, and he objected to some of them, but made no remark with respect to the rest, this was held to be evidence to go to the jury of an account stated, with regard to those items to which no objection was made. Chisman v. Count, 2 M. & G. 307. Where on the trial of an indictment before the court of Quarter Sessions, the prosecutor said he should press for judgment (the defendant not having pleaded in proper time), unless the defendant agreed to pay the costs of the day, and ultimately an agreement was come to, and the following memorandum was signed by the respective counsel: "Traversed to the next sessions by consent, the defendant paying the costs of the day, including counsel's fees, &c." And (f) Per Parke, B., in Hughes v. Thorpe, 5 M. & W.667. (g) Breckon v. Smith, 1 A. & E. 488. (h) s. v. Liddard v. Holmes, 2 C., M. & R. 586. the prosecutor got his costs taxed, and applied to the defendant for payment, and the defendant objected to two items, which were abandoned; and on a subsequent application by the prosecutor's attorney, requested the latter to apply to B., who received his (the defendant's) rents," who would arrange or pay," it was held, that this was evidence to go to the jury of an account stated. Porter v. Cooper, 1 C., M. & R. 387. And see King v. Taylor, 2 ib. 235; Barker v. Birt, 10 M. & W. 61. Although no action might lie on the original debt or contract, from the deficiency of legal evidence to support it, e. g. for want of its being in writing under the Statute of Frauds, yet it may on the admission upon an account stated, if the defendant has received the benefit of the contract, and has subsequently admitted his liability. Cocking v. Ward, 1 C. B. 858; Lord Falmouth v. Thomas, I C. & M. 89. Secus, "where the original debt is absolutely void from any illegal or immoral consideration, or where it is made void by any statute, as by those against usury (i) or gaming." Per Cur. in Cocking v. Ward. In Eicke v. Nokes, 1 M. & Rob. 359, it was held, that an attorney's bill cannot be recovered on an account stated, though the amount has been admitted, without proof of a due delivery of the bill, in accordance with the 2 Geo. II. c. 23 (k). And see Barker v. Birt, supra. But it would seem, from later cases, that the decision in Eicke v. Nokes cannot be supported, as the defence cannot be set up under the general issue. Robinson v. Roland, 6 Dowl. 271. Whether the making of a note, as between the maker and the payee; the accepting of a bill, as between the acceptor and the payee, if he be also the drawer;-the indorsement of a bill or note, as between the indorser and his immediate indorsee, -is evidence of an account stated, quære. Semble, that it is. Highmore v. Primrose, 5 M. & S. 67; Priddey v. Henbrey, 1 B. & C. 674; Early v. Bowman, 1 B. & Ad. 889: and see Hatch v. Trayes, 11 A. & E. 702. If the maker, acceptor, or indorser, in such a case, on being shown. the bill or note, admit his liability to pay, only alleging his inability, there is evidence of an account stated. Highmore v. Primrose. The acceptance of a bill is not such evidence as between the payee and the acceptor, if it be drawn by a third person. Early v. Bowman. III. Of the Declaration. Venue. The action of assumpsit, being founded on contract, is transitory; Debitum et contractus sunt nullius loci, 2 Inst. 230; and consequently the venue may be laid in any county at the election of the plaintiff. (i) Repealed, 17 & 18 Vict. c. 90. (k) Repealed by 6 & 7 Vict. c. 73. See s. 37. By 1 Pl. R. Hil. T. 1853, it is ordered, that several counts on the same cause of action shall not be allowed (1); nor shall several pleas, replications, or subsequent pleadings, or several avowries or cognizances founded on the same ground of answer or defence. Application may be made to the court or a judge to strike out such counts, pleas, &c., upon terms as to costs, but if no such order about costs has been made, and "on the trial there is more than one count, plea, &c. on the record, founded on the same cause of action or ground of answer or defence, and the judge or presiding officer before whom the cause is tried shall at the trial certify to that effect on the record, the party so pleading shall be liable to the opposite party for all costs occasioned by such count, plea, or other pleading in respect of which he has failed to establish a distinct cause of action or distinct ground of answer or defence, including those of the evidence, as well as those of the pleading." R. 3. Where an action is brought in an inferior court, it must be stated in the declaration, that the cause of action accrued within the jurisdiction. Hence in assumpsit in an inferior court, not the promise only, but the consideration also, on which such promise is founded, must be laid within the jurisdiction (m); for the inferior court cannot hold plea unless the whole matter is within their jurisdiction (n); consequently, if a declaration for goods sold and delivered (o), or money had and received (p), or money paid (q), do not state the sale and delivery of the goods, or the receipt or payment of the money, to have been within the jurisdiction, it will be error, even after verdict; for in this case nothing shall be intended to be within the jurisdiction, that is not expressly averred to be so (r). When, however, a suit commenced by justicies in the Sheriff's Court, is removed to the superior court by pone, the declaration in the superior court need not state the cause of action to have arisen within the inferior jurisdiction (s). Time and Place.-Time is not material in an action of assumpsit (t), unless it be of the essence of the contract, and need not therefore be stated in the declaration (u), except in actions on bills of exchange or promissory notes (x). Nor is place material (y), unless it be of the essence of the contract. By the Pleading Rules of Hil. Term, 1853 (R. 4), it is provided, "That the name of a county shall in all cases be stated in the margin (1) See Bleadon v. Rupallo, 3 M. & G. 116; Deere v. Ivey, 4 Q. B. 379. (m) Ramsay v. Atkinson, 1 Lev. 50; Whitehead v. Brown, 1 Lev. 96. (n) Drake v. Beare, 1 Lev. 104, 105. 1310. Mod. 197. (s) Powell v. Ansell, 3 M. & G. 171. (u) 15 & 16 Vict. c. 76, s. 49. (y) Bowdell v. Parsons, 10 East, 359; 15 & 16 Vict. c. 76, s. 51. of a declaration, and shall be taken to be the venue intended by the plaintiff, and no venue shall be stated in the body of the declaration, &c.; provided that in cases where local description is now required such local description shall be given." Manner of stating the Contract.-The declaration must state the contract on which the action is founded correctly; that is, either in the terms in which it was made, or according to the legal effect of those terms; for a material variance between the contract alleged and the contract proved will be fatal (z); unless an amendment, "for the purpose of determining in the existing suit the real controversy between the parties," be duly applied for and made (a). As where the contract alleged was, to deliver good " merchandizable wheat," and the proof was to deliver good "second sort" of wheat, the plaintiff was nonsuited for the variance (b). So where the plaintiff declared upon a contract for wages upon a certain voyage from London to Africa, and thence to the West Indies; but the proof was of a contract for a voyage from London to Africa, and thence to the West Indies or America, and afterwards to London, &c.; the variance was held to be fatal, though the captain in fact put an end to the voyage in the West Indies, and discharged the crew there; the contract proved being for a dif ferent voyage than that declared on (c). So where the declaration stated a specific contract for the sale of a dwelling-house and fixtures, for the residue of a term of years, to commence from a certain day, in proof of which, the following paper, signed by the defendant, was given in evidence:-"I agree to sell the house and fixtures, No. 163, Piccadilly, to commence from the 2nd January next, for 601." This was held to be a fatal variance, as showing a sale of a fee simple, or at least leaving it uncertain, what was the interest intended to be conveyed (d). But where a bill of exchange was drawn in this form: "Pay to our order," &c., and was signed in the name of two persons and Co., and accepted by the defendant; it was held, that in an action against the defendant as acceptor, it might be declared upon by the indorsees as a bill drawn by an aggregate firm; and although it was proved that the firm consisted of one person only, it was held not to be a variance, for the acceptor of a bill is estopped from denying the handwriting, &c. of the drawer. Bass v. Clive, 4 M. & S. 13. The Consideration.-Every part of the entire consideration for any promise contained in the agreement must be stated in the declaration (e). But in framing a declaration on an agreement, (z) Cooke v. Munstone, 1 N. R. 351. (a) 15 & 16 Vict. c. 76, s. 222; 17 & 18 Vict. c. 125, s. 96. (b) Anon., Lord Raym. 735; acc. Anon., Bull. N. P. 145. (c) White v. Wilson, 2 B. & P. 116. See also Penny v. Porter, 2 East, 2. (d) Hughes v. Parker, 8 M. & W. 244. (e) Fremlin v. Hamilton, 8 Exch. 308. |