fault of payment, a jury was not bound, either at common law or under stat. 3 & 4 W. 4. c. 42. s. 28., to award interest upon such interest. Attwood v. Taylor, 1 M. & G. 279. So where the plaintiffs had acted as agents for the defendant, and had advanced monies, and at the close of each account, which was delivered annually, had charged interest, and at each rest had added the interest of the preceding year to the principal, Lord Ellenborough held that the accounts, which had not been objected to for a number of years, afforded evidence of a promise to pay interest in this manner. Bruce v. Hunter, 3 Camp. 467. But where compound interest is charged, it must appear that the party knew that the practice was to make such rests. Moore v. Voughton, 1 Stark. 487.; and see Dawes v. Pinner, 2 Camp. 486. (n).

Where interest is not allowed at common law.] The following cases must now be considered as subject to the provisions of the 3 & 4 W. 4. c. 42., already stated.

It has been held that interest cannot be recovered on money received to the use of another; De Havilland v. Bowerbank, 1 Camp. 50.; though the money was obtained by fraud; Crockford v. Winter, 1 Camp. 129.; nor for money lent, to be repaid either upon demand or at a given time; Calton v. Bragg, 15 East, 224.; Higgins v. Sargent, 2 B. & C. 351.; nor where the borrower by a written instrument promised to repay it at a certain time; Page v. Newman, 9 B. & C. 378.; nor on money paid; Carr v. Edwards, 3 Stark. 132. ; nor on money due for work and labour; Trelawney v. Thomas, 1 H. Bl. 303.; nor on money due for goods sold and delivered, to be paid for on a certain day; Gordon v. Swan, 12 East, 419.; S. C. 2 Camp. 429. (n); nor upon a policy of insurance; Kingston v. M'Intosh, 1 Camp. 518.; nor upon a policy of insurance on a life, where the money was payable six months after proof of the death; Higgins v. Sargent, 2 B. & C. 348.; nor on a single bond; Hogan v. Page, 1 B. & P. 337.; nor on rent; per Tindal C. J., Foster v. Weston, 6 Bing. 714.; nor on an instrument to pay 15007. to be delivered in goods by three payments of 500/. each, at three, five, and seven months." Foster v. Weston, 6 Bing. 709. An auctioneer employed to sell an estate, who receives a deposit from the purchaser, is a mere stakeholder, liable to be called upon to pay the money at any time; and therefore, although he may make interest by it, he is not liable to pay it to the vendor on the completion of the contract. Harington v. Hoggart, 1 B. & Ad. 577. The indorsee of a bill may sue the acceptor for interest, although he has taken another bill from the defendant for the amount of the first, which has been duly paid. Lumley v. Musgrave, 4 New Ca. 9.

Where interest was payable on money had and received in consequence of a specific agreement, it was held (before the late statute) that the plaintiff might recover the interest on an indebitatus count for interest without declaring on the special agreement. Hicks v. Mareco, 5 C. & P. 498.

ASSUMPSIT ON AN ACCOUNT STATED.

To recover upon the count on an account stated, the plaintiff must prove an absolute acknowledgment by the defendant of the plaintiff's claim; a qualified acknowledgment is not sufficient, as, "I would have paid you if you had not removed the grates." Evans v. Verity, R. & M. 239. And where the plaintiff claimed 407. and the defendant offered 177. to purchase peace, it was held that this was not evidence on the account stated. Wayman v. Hilliard, 4 Moore & P. 729., S. C. 7 Bing. 101. An entry in a bankrupt's examination of a certain sum being due to A., is evidence of an account stated between them. Eicke v. Nokes, 1 M. & Rob. 359. An oral admission of a debt due for goods sold is evidence of an account stated, though the agreement for the sale was in writing. Newhall v. Holt, 6 M. & W. 662. And an agree ment by a member of a company to pay the plaintiff's bill, is evidence of account stated, though the defendant became a member after the debt was incurred. Barker v. Birt, 10 M. & W. 61. Where a party, examined before commissioners of bankrupt, admitted that he had received a sum of money on account of the bankrupt after an act of bankruptcy, but not that it was a subsisting debt, it was held that this would not support a count on an account stated with the assignees. Tucker v. Barrow, 7 B. & C. 623. Unless the defendant has admitted the amount of the debt, it must be proved aliunde. Dickson v. Deveridge, 2 C. & P. 109.; Leeson v. Smith, 4 Nev. & M. 304. For the plaintiff must prove the precise sum due. Kirton v. Wood, I M. & Rob. 253. In an action by the plaintiff as executrix, where the defendant, on being applied to by her for the payment of interest, stated that he would bring her some, 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, nor whether it was due to the plaintiff as executrix, or in her own right, nor that it was one for which assumpsit would lie, the plaintiff was not entitled to recover even nominal 'damages. Green v. Davies, 4 B. & C. 235.; Bernasconi v. Anderson, M. & M. 183.; Teal v. Auty, 2 B. & B. 101. If it appears that the account is stated of a debt due from a third person to the plaintiff, and which defendant promised to pay without any consideration, this is a defence on the general issue. French v. French, 2 M. & G. 644. It is sufficient to prove the account stated, without giving evidence of the several items constituting the account; Bartlett v. Emery, 1 T. R. 42. (n); and proof of one item is sufficient to maintain the count. Highmore v. Primrose, 5 M. & S. 65. Where a partnership has been dissolved and a balance struck between the partners, and there has been a promise to pay such balance, it may be recovered under this count even as between partners; Foster v. Allanson, 2 T. R. 479.; Brierly v. Cripps, 7 C. & P. 709.; and it is maintainable even without any express promise; Wray v. Milestone, 5 M. & W. 21.; but such action will only lie on a final balance of the partnership accounts, and not during the continuance of the partnership; Fromont v. Coupeland,

2 Bing. 170.; Goddard v. Hodges, 1 C. & M. 37.; Wilson v. Cutting, 10 Bing. 436.

The plaintiff may recover on an account stated in fact by the defendant with his (the plaintiff's) wife; but not on an account stated by the wife of the defendant; B. N P. 129. ; unless she is proved to be the defendant's agent in the transaction. An acknowledgment in a casual conversation with a stranger is not sufficient. Breckon v. Smith, 1 A. & E. 488. Where there were accounts between A. and B.; and C. became a partner with B., and dealings continued between the partners and A., who afterwards settled an account with B. and C., wherein was included the money due from A. to B. alone, Lord Kenyon held that the whole might be given in evidence in an action by B. and C., on a count on an account stated. Moore v. Hill, Peake, Ev. 273. 4th ed.; see Gough v. Davies, 4 Price, 214; David v. Ellice, 5 B. & C. 196. An account stated was formerly considered conclusive; but errors which may have crept into the account, may now be corrected; Trueman v. Hurst, 1 T. R. 42.: but see Roper v. Holland, 3 A. & E. 99. And this, under the plea of non assumpsit. Thomas v. Hawkes, 8 M. & W. 140. If the defendant accounts with the plaintiff in a particular character, he will be taken to have admitted that character. Peacock v. Harris, 10 East, 104.

A promissory note, not properly stamped, cannot be given in evidence as an admission by the maker of an account stated. Green v. Davies, 4 B. & C. 235. But, if admitted, it will be evidence of an account stated at the time of the date, and, in answer to a plea of the Statute of Limitations, will shew that the cause of action did not accrue till the time at which it is payable. Wheatley v. Williams, 1 M. & W. 533. A note, payable on a contingency, is not evidence of an account stated. Morgan v. Jones, 1 C. & J. 162.

The account must be stated before the commencement of the action; and where a defendant after action brought had offered a cognovit, it was held no evidence to support the count. Spencer v. Parry, 3 A. & E. 331.; Alien v. Cook, 2 Dowl. P. C. 546.

The plaintiff cannot, under this count, give evidence of more than one accounting. It is not like a count for goods sold, which may have been at several different times. Per Littledale J., Kennedy v. Withers, 3 B. & Ad. 769. And where the plaintiff relies on an account stated on one day, the defendant cannot prove, under the general issue, a subsequent accounting, including fresh items, by which the balance was turned against the plaintiff: for this amounts to payment or set-off. Fidgett v. Penny, 1 C. M. & R. 108. But it should seem that if the second accounting was a mere correction of the first, it would be admissible in defence. See suprà.

Where accounts are submitted to an arbitrator, not by bond, his award may be given in evidence under the count on an account stated. Keen v. Batshore, 1 Esp. 194. And where an incoming tenant agrees to take fixtures at a valuation to be made by two brokers, and such valuation is made, and the tenant enters, the value of the fixtures may be recovered on such a count. Salmon v. Watson, 4 B. Moore, 73.

An infant cannot state an account; but he may ratify one after full age. Williams v. Moor, 11 M. & W. 256.

DEFENCE IN ASSUMPSIT.

Pleas in Abatement.

pre

Upon issue taken on a plea in abatement, the plaintiff must be pared to prove the amount of his damages; otherwise, though the issue be found for him, he will only be entitled to nominal damages. Weleker v. Le Pelletier, 1 Camp. 481. It has been already stated which party has a right to begin, where issue is joined upon a plea in abatement. "Course of evidence and practice," antè, p. 178.

Plea of nonjoinder of co-contractor.] The following alterations, among others, with regard to the pleading of the nonjoinder of a co-contractor in abatement have been introduced by the statute 3 & 4 W. 4. c. 42.

By section 10. it is enacted, that in all such cases in which, after plea in abatement, the plaintiff shall, without having proceeded to trial upon an issue thereon, commence another action against the defendant or defendants in the action in which such plea in abatement shall have been pleaded and the person or persons named in such plea in abatement as joint contractors, if it shall appear by the pleadings in such subsequent action, or on the evidence at the trial thereof, that all the original defendants are liable, but that one or more of the persons named in such plea in abatement, or any subsequent plea in abatement, are not liable as a contracting party or parties, the plaintiff shall nevertheless be entitled to judgment, or to a verdict and judgment, as the case may be, against the other defendant or defendants who shall appear to be liable; and every defendant who is not so liable shall have judgment, and shall be entitled to his costs as against the plaintiff, who shall be allowed the same as costs in the cause against the defendant or defendants who shall have so pleaded in abatement the nonjoinder of such person; provided that any such defendant, who shall have so pleaded in abatement, shall be at liberty on the trial to adduce evidence of the liability of the defendants named by him on such plea in

abatement.

Where one of several joint contractors is an infant, he ought not to be joined as defendant, and if the defendant pleads his nonjoinder in abatement, the plaintiff may reply the infancy of the co-contractor. Burgess v. Merrill, 4 Taunt. 468. But where, instead of replying the infancy, the plaintiff replied that the contract was made by the defendant solely, the court of Common Pleas held that the plea was supported by evidence that the promise was made by the defendant and the infant jointly; on the ground that the contract was not void as to the infant, but voidable only. Gibbs v. Merrill, 3 Taunt. 307. It has indeed been said that a contract by an infant for goods for the purpose of trade is void and not merely voidable; Thornton v. Illingworth, 2 B. & C. 826.; but, semble, since the new rules of pleading, infancy must be specially replied, whether the contract be void or voidable.

Where the parties sought to be joined are not general partners, but joint contractors in the transaction in question only, evidence must be given to shew that the plaintiff knew that he was dealing with all of them. And where the parties are not merely joint contractors, but general partners, though one partner has authority to bind the others in matters relating to the partnership, yet if the contract is made by the defendant alone, and the plaintiff is not aware that he is dealing with the partnership, the nonjoinder cannot be pleaded in abatement. Mullett v. Hook, M. & M. 88.; Doo v. Chippenden, Abbott on Shipping, 76, 5th ed.; Baldney v. Ritchie, 1 Stark. 338.; but see Dubois v. Ludert, 5 Taunt. 609. In order, therefore, to support the plea in abatement in such case, it must be shewn that the plaintiff knew that he was dealing with the partnership. Proof that the transaction took place at the office of the partnership; that the defendant and his partners publicly held themselves forth as partners in such transactions; or that the plaintiff had previous dealings with the partnership, will be evidence in support of the plea. On the other hand, any acts of defendant from which it can be inferred that he treated the transaction as several and not joint, will be evidence for the plaintiff. As where the defendant had alone corresponded with the plaintiff and promised to pay the debt, this was held to entitle the plaintiff to a verdict, though the defendant proved that he had two partners resident abroad. Murray v. Somerville, 2 Camp. 99. (n).

There are many cases in which either a party, entering into a contract in his own name on behalf of others, may be sued himself, or those for whom he contracted may be sued. Hall v. Smith, 1 B. & C. 407. Thus where a promissory note began, "I promise to pay," and was signed "For W. S., W. P. S. &c. William Smith," and William Smith pleaded in abatement the nonjoinder, on which issue was taken; it was held that the issue was rightly found for the plaintiff. Ibid. ; March v. Ward, Peake, 130.; Clerk v. Blackstock, Holt, N. P. C. 474.

Competency of witness, &c.] Even before the late statute for the removal of incompetency, it was held that where the plea states that the promises were made jointly with A. B., the plaintiff may call A. B. to disprove it; since, if the plaintiff recovered, A. B. would be liable to contribution, and the verdict in the action pending would not be evidence for him in an action for contribution. Cossham v. Goldney, 2 Stark. 414. But he was held incompetent for the defendant, since his evidence would go to discharge himself from contribution, and from his share of the costs. Hare v. Munn, M. & M. 241. (n); Evans v. Yeatherd, 2 Bing. 133. But as he cannot be made contributory without using the record in evidence against him, it seems that he is rendered competent by 3 & 4 W. 4. c. 42.? The declarations of the party named in the plea, made before action brought, are admissible for the defendant. Clay v. Langslow, M. & M. 45.

On issue joined on a plea in abatement the plaintiff may shew that the action against the party not joined is barred by Statute of Limitations. See 9 G. 4. c. 14. s. 2., cited post, Assumpsit. Defence. Stat. Limitations.