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the issue; and, being so, proof of their having happened in the county would suffice. It appears to me, that the terms “ material evidence of some matter in issue” mean proof of some fact which is indispensable to support the plaintiff's case, as alleged on the record. The language of the undertaking, I also agree, is to be construed with reference to the state of the record at the time the undertaking is given. This is exemplified by several cases which have been cited; and, even if the evidence adduced were to prove special damage, which is a matter in issue, I think it would be sufficient. But here, it appears to me, that the facts which occurred in Middlesex were not directly, or, per se, evidence of any matter in issue, and that the rule ought to be absolute.

Rule discharged.


BEAUMONT v. GREATHEAD. DOWLING, Serjt., shewed cause against a rule obtained A plea of

payment by by Byles, Serjt., to enter a verdict for nominal damages, or one of several

makers of a for a new trial in favour of the plaintiff. It was an action

joint and of debt on a promissory note for 501., dated the 20th of several pro

missory note, April, 1842, payable two months after date. The declara is supported

by proving a tion also contained a count for money lent and on an pay

the note by account stated. The defendant pleaded payment to the

one of his whole declaration, in full satisfaction and discharge of all

Payment the moneys in the declaration mentioned; and the plain- and acceptance

of the amount tiff replied, denying the payment modo et formâ. At

of a promissory the trial, before Tindal, C. J., at the sittings in London

becomes due, after last Trinity Term, it appeared that a person named and when the

holder is en Green having applied for a loan of 501. to a society of titled to no

minal damages, which the plaintiff was trustee, it was arranged that the

support a plea same should be advanced to Green; the present defendant, of payment

and acceptance and a person named Jewson, in conjunction with Green, in discharge

of the debt

and damages : consequently the holder, after such payment and acceptance, cannot maintain an action for such nominal damages.


fter it




becoming joint and several makers of a promissory note for that sum. The note was given, and the amount, except 51., which was retained for discount, was paid to Green. The defendant and Jewson were in fact therefore, only sureties for Green. But that was not disclosed on the face of the note. After it became due, various sums, amounting to 50l., were paid by Green to an agent of the Loan Society. The last of these sums was paid in the month of July, 1843. This was the evidence in support of the defendant's plea. It was objected, on the part of the plaintiff, that as the payments were here proved to have been made by Green, and not the defendant, the plea could in no way be considered as sustained, for Green could not be considered an agent for the defendant to make the payments, and, consequently, the plea was not proved. It was further contended, that assuming that the payments could be available in support of the plea, they were not sufficient for the purpose, as they did not shew anything to have been paid for the interest accruing between the 23rd of June, when the note became due, and July, when the last payment was shewn to have been made. These objections were overruled, and the case having been submitted to the jury, they found a verdict for the defendant. The present rule was afterwards obtained to enter a verdict in favour of the plaintiff, with nominal damages, or for a new trial, on the grounds before stated. First, as to the right of the plaintiff to recover nominal damages. That could only be in respect of interest. Whether the plaintiff was entitled to recover interest was a question entirely for the decision of the jury. They were perfectly at liberty to refuse to give the plaintiff interest if they thought proper, and when it was considered that the notes in question had been discounted at the rate of 60l. per cent., it could hardly be said that the jury had not exercised a sound discretiou. Secondly, as to the objection that the payment by Green did not sustain the plea. It would be observed that the defendant was a joint maker of the note with Green. A



payment, therefore, by Green was, in point of law, a pay- 1846. ment by the defendant, and might be so alleged in pleading. Bp Possibly the case might be different, if the defendant appeared on the face of the note to be a surety, but here he appeared to be a principal debtor. [Tindal, C. J.On the face of the promissory note there is nothing to shew that we have anything to do with the question of principal and surety.] Consequently the case came within the principle of Whitcomb v. Whiting (a), where, with reference to a similar question arising on the Statute of Limitations, Lord Mansfield said, “ payment by one is payment for all, the one acting, virtually as agent for the rest.” The cases of Wyatt v. Hodson (6); Rew v. Pettet (c); Burleigh v. Stott (d); and Pease v. Hirst (e), all shewed that a payment by one joint contractor was a payment by each. The payment here being by a joint contractor, supported the plea of payment by the defendant.

Byles, Serjt., in support of the rule. The promissory note not being paid at the day when it became due, a right to some interest accrued to the plaintiff. The payment therefore, of the principal sum secured by the note could not be a payment of the interest which thus accrued due; and, therefore, could not sustain the plea which was pleaded, both to the principal debt and the damages. The discount taken when the note was given, and on which possibly the jury acted, could not properly be taken into consideration. For the purpose of this question, the case must be treated as if the note was in the hands of an indorsee of the plaintiff for value. In that case, the indorsee would clearly be entitled to have the sum taken for discount excluded from the consideration of the jury. No doubt the period for which interest could be claimed was in the present instance

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CASES ON POINTS OF PRACTICE, C. P short, but it might be ten years, and then it could not be contended that the plaintiff was not entitled to some damages in the shape of interest. The law implied some damage accruing in consequence of the non-payment of the note at the date when it became due. This was, therefore, an attempt to pay a sum in discharge of a larger one, which could not be done. On this ground it was held that a plea of tender, in an action on a bill of exchange after the day of payment, was not good; Hume v. Peploe (a). Then with respect to the payment by Green. The promissory note given by the defendant and the two sureties in this case was, in point of law, three several promissory notes, and the defendant was sued upon this note as his several note. The payment, consequently, by one of the parties thus severally liable, could not constitute a payment by the defendant. The cases cited on the other side were all cases of payments to take the claims out of the Statute of Limitations. [Maule, J.—One would think that the cases on the Statute of Limitations were rather à fortiori that such a payment by one would be payment by each. The question there is, whether there has been an admission by you, the defendant, within six years. In order to prove that admission, the plaintiff shews that your co-contractor admitted the debt by means of a payment, and that is held to be sufficient. If, then, he is your agent, to bind you against your will, although you repudiate the payment, can it be said that he is not your agent, when you are willing to adopt his act as your own ? According to your argument, a co-contractor is an agent for the other party to pay part of the debt, and so to bind him by an acknowledgment; but he is not an agent to pay part, and so to discharge him.] If the payment had been made in the name of the defendant, and had afterwards been adopted by him, the case might have been different; but where the payment was made by Green in his own name, the mere subsequent

(a) 8 East, 168.




adoption of that payment by the defendant would not make it a payment by him. Thus in Wilson and Another v.

Tumman and Another (a), it was held, that where A. dues an act as agent for B., without any communication with C., C. cannot afterwards, by adopting that act, make A. his agent, and thereby incur any liability, or take any benefit, under the act of A. [Cresswell, J.-Suppose there were several defendants, and they pleaded payment separately, the finding on one of those pleas in favour of the party whopleaded it, would be an answer to the action.]

TINDAL, C. J.—The question is, whether the evidence supports the plea, which states, that after the accruing of the cause of action, the defendant paid to the plaintiff, and the plaintiff then accepted and received from the defendant, divers sums of money, amounting, to wit, to all the moneys in the declaration mentioned, in full satisfaction and discharge of the debt and damages in the declaration mentioned. The jury have given no actual damages, and, therefore, the plaintiff is only entitled to nominal damages at most, for the detention of the debt. Under these circumstances we are called upon to say, whether if a man receives the amount of the actual debt itself, he could still maintain an action for that nominal damage. I am not aware of any authority which shews that he can maintain such an action; and, in the absence of any authority, I should be disinclined to lay down a rule that he could do so.

Maule, J.—The plea in the present case is a plea of payment of a sum of money, the amount of which is not precisely ascertained, so that the point we have to decide does not appear upon the record, it arises on the evidence. That point is, whether, after default on a simple contract for 501., in respect of which the defendant is liable to

ja) 6 M. & G. 236; S. C. 6 Scott. N. R. 894; ante, vol. 1, p. 513.

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