RAINSFORD V. EAGER. E. T. 1853. the only consideration for stating the account was a liability not Exchequer. directly enforcible by reason of the statute. Tindal, C. J., there says:—“We think the action also sustainable on principle; for after "the debt has formed an item in an account stated between the "debtor and his creditor, it must be taken that the debtor has "satisfied himself of the justice of the demand, and that it is a debt "which he is morally, if not legally, bound to pay, and which "therefore forms a good consideration for a new promise. We "think this principle applies to cases where the only objection is "that the original debt might not have been recoverable, from the "deficiency of legal evidence to support it." There the conclusion was, that the evidence was inadmissible to prove the contract to establish a direct liability, but admissible to sustain the " account stated," resting on the admission of that which was a debt founded on a good consideration. The plaintiff resorted to the account stated, to establish the liability of the defendant; and the defendant resorted to it, to show the consideration for the stating the account, and that there was no legal liability to support it, and to show the actual consideration. This case is a fortiori. The plaintiff here sought to recover money voluntarily paid by him, with full knowledge of the circumstances under which it was paid. It lay upon the plaintiff to show that there was no consideration for the agreement sufficient to support it. It was examinable also to show what the consideration was, so as to disentitle the plaintiff to recover on the IOU s. There was here an agreement in fact, and a dealing which altered the situation of the parties; and if the money were to be paid back, they could not be restored to their status in quo. The money ought not to be restored, as there was not a failure of the whole consideration. Where there has been a partial performance of an agreement, money paid cannot be recovered in this form of action. If, indeed, though the agreement were a valid one, the party sued for the money had done or omitted to do any act which would entitle the plaintiff to rescind the contract, there would then be no consideration for it, and the plaintiff would be entitled to treat it as if no contract had ever existed. But there are also cases which Exchequer. RAINSFORD v. EAGER. show that, though the defendant has failed to perform all his part E. T. 1853. of the contract, yet if he has so far performed it as that the parties cannot be placed in the same position in which they originally stood, the plaintiff cannot recover in this form of action. I shall refer to an authority to illustrate the manner in which Courts deal with the application of this principle: Beed v. Blandford (a);-[cites the judgment of Alexander, C. B.]—In the present case there is no evidence of a rescinding of the contract. If nothing had been done upon it, the plaintiff might recover without changing the situation of the parties, but his adversary having acted on it, and so changed his position, it would be against both law and justice. that he should recover. The defendant was the owner of a leasehold, of which he had the prospect of a renewal, and being embarrassed in his circumstances, he agrees to sell his interest to the plaintiff. There was a receiver over it, and it was arranged that the defendant should apply to have him discharged, and a tenant improperly in possession removed, in order that the plaintiff might be in a condition to obtain the tenancy. The plaintiff goes into possession, and obtains an abatement of the arrears, and the defendant acts on the agreement, and accepts the money from the plaintiff, which he was entitled to say he would not take as a loan. He is in the position of the party described by Alexander, C. B. (vide Beed v. Blandford). If these things were not done on the faith of an agreement, the defendant might have sold to another purchaser, and relieved himself from his debt; and it would be unjust to permit the plaintiff, after the defendant receiving this money as a right, to turn him into a debtor now, after the lapse of several years. There was evidence in this case of both parties acting on a contract; they cannot be restored to their status in quo ; and the money paid cannot be recovered on the account stated, because it never was a debt. The defendant is therefore entitled to hold the verdict. The jury have found, first, that there was a contract; secondly, that it was not rescinded; and thirdly, that both parties acted on it. We do not disapprove of the verdict, and by our decision do not invade the Statute of Frauds. GREENE, B., concurred. (a) 2 Y. & J. 278. E. T. 1853. THOMAS v. MANNIX. April 23. The Court will not review the J. D. FITZGERALD (with him J. Crawford) moved that the Taxtaxation of its ing-master should be ordered to review his report, and to allow the costs of certain witnesses, which he had disallowed. officer in a matter purely for his discretion, and where no legal principle. The action was brought on a promissory note for £449, and the he has trans- defendant, having been called on to admit the handwriting, alleged gressed against it to be a forgery; it therefore, considering the rank of the parties, became necessary to summon a number of witnesses from different places where the defendant had resided, to prove his handwriting. Witnesses had therefore been brought from Pembrokeshire, from Dublin, and from Cork to Belfast, to establish that fact; but the Taxing-master had refused to allow the expenses of a number of them. The defendant on the trial had permitted judgment to go by default. Counsel submitted that, in a case where forgery was relied on as a defence, the plaintiff must of necessity produce a number of witnesses to prove handwriting, and that he should be allowed the expenses of all bonâ fide produced by him. This was not the ordinary case of simple neglect to admit handwriting, but here there was a distinct allegation of forgery. Longfield, contra, urged that this was a case for the discretion of the Taxing-master. Fifteen witnesses, at an expense of £450, had been brought from Cork and Dublin to Belfast, where none of the witnesses resided. The Taxing-master had allowed the expenses of seven of them. GREENE, B. The CHIEF BARON concurs with me in thinking that this is a case for the discretion of the officer, and that we cannot interfere in it, no legal principle being involved, unless, indeed, there were some gross misprision on his part. No rule. E. T. 1853. HARRIS v. O'MEAGHER. MACDONOGH (with whom was Semple) moved that the Sheriff of Tipperary should amend his return to the writ of fi. fa. in this case by returning nulla bona, or goods on hands for want of buyers." He had made a special return, stating the issuing of seven other executions, to his predecessor, under which he had seized; that the goods were in the hands of the former Sheriff for want of buyers, and that he, the present Sheriff, had seized them in his hands. Under these circumstances the Sheriff was bound to treat the antecedent writs as fraudulent and void, and to return either nulla bona or goods on his own hands for want of buyers: Lovick v. Crowder (a). The plaintiff on this return could neither issue a venditioni exponas or bring an action: Prendergast v. Lord Glengall (b). Meagher, contra. The Sheriff could not make any other return. Chambers v. Coleman (c) affords a precedent for it. He could not return nulla bona until he had ascertained whether the proceeds of the sale of the goods would cover the prior executions. Besides, immediately after notice of this motion was served on the Sheriff, he offered, with the consent of the plaintiff, to put a return of nulla bona on the file; the goods having been then sold, and the amount realised falling far short of the former executions. April 23. Where a Sheriff's return to a writ of fi. fa. is so informal as to be calcu lated to de prive the plaintiff of the fruits of his execu tion, or se riously embarrasses him in bringing an action against the Sheriff, the Court will, on motion, compel him to amend it. Semple, in reply. We could not bring an action on the return as it stands; that is the test of its being irregular: neither could we issue a writ of venditioni exponas, because there is no positive allegation that the goods are in the hands of the present Sheriff. (a) 8 B. & C. 132. VOL. 3. (b) 1 Ir. Jur. 609. (c) 9 Dow. P. C. 588. 17 L E. T. 1853. HARRIS v. PIGOT, C. B. The return is insufficient. It states the delivery of a number of previous executions to the former Sheriff, and his seizure of the O'MEAGHER. goods by virtue of them; and that the present Sheriff had had seized those goods in the hands of the former, and that there were no other goods. We cannot conclude from these allegations that the goods are at present liable to be extended in satisfaction of all those executions. The return does not allege that the goods continued in the hands of the former Sheriff under the executions delivered to him, or were, at the time of the return under those executions. The return is therefore calculated to embarrass the plaintiff in bringing an action against the Sheriff if he has not done his duty. There are other objections to the form of the return. It amounts to this, that he has seized certain goods, which he cannot sell under the writ of fi. fa. at the suit of the plaintiff, nor can the plaintiff, upon the return, obtain a writ of venditioni exponas. His execution therefore becomes wholly unproductive. We must therefore grant this motion, but without costs, beyond those incurred up to the offer by the Sheriff, after notice of the motion, to return nulla bona. |