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1838.

ant is ready and willing, and hereby offers, to set off and Exch. of Pleas, allow to the plaintiff the full amount of the said debt and damages, according to the form of the statute in such case made and provided. Verification.

Special demurrer, assigning for causes, that the said plea does not traverse or deny any material allegation in the declaration, nor does it confess and avoid the causes of action to which it is pleaded, in this, that though it sufficiently confesses and admits the said causes of action, yet the defendant seeks to avoid the same, by stating that before and at the time of the commencement of the suit, the plaintiff was indebted to the defendant, without shewing or averring that the said supposed debt is still in existence, and unpaid and unsatisfied; and thus attempts by inference only to shew a debt in existence, whereas the plea ought to have averred, that at the time of the commencement of this suit, the plaintiff was and still is indebted, inasmuch as a defendant can set off only those debts which were due to him from the plaintiff at the time of the action brought as well as at the time of plea pleaded; and for that it does not appear in and by the said plea, that there is any debt due and owing from the plaintiff to the defendant, whereas it ought to have been shewn and alleged affirmatively, that the said debt therein stated to be due and owing from the plaintiff to the defendant at the commencement of the suit was still an existing debt, and ground of set-off; and for that the said second plea is uncertain, and that no certain or sufficient and material issue could be taken thereon, which would decide the cause.

Wightman, in support of the demurrer, was stopped by the Court, who called upon

S. Hughes to support the plea.-The plea is good, and sufficiently shews that the debt which the defendant seeks

VOL. III.

G G

M. W.

DENDY

v.

POWELL.

1838.

DENDY

บ.

POWELL.

Exch. of Pleas, to set off is an existing debt. Pleas in general refer to the time of the commencement of the action, and nothing which has taken place subsequently can be taken notice of. Le Bret v. Papillon (a). In Evans v. Prosser (b), it was held, that a plea of set-off that the plaintiff was indebted to the defendant at the time of the plea pleaded, was bad. If the plea had stated that the defendant was still indebted, those words would be immaterial, and no issue could be taken upon them. A man has no right to bring an action against another, if the other has a claim to a larger amount against him. [Alderson, B.-Where do you find it laid down that a party is obliged to set off his debt? The statute of set-off is not compulsory.] The plea alleges, that at the time of the commencement of the action, the plaintiff was indebted to the defendant in a greater amount than that claimed by the plaintiff. [Alderson, B.—For all that appears by the plea, the defendant's claim may have ceased to exist since the action was brought.] If so, that might have been specially replied. Jackson v. Goddard (c).

Lord ABINGER, C. B.-The Court are all of opinion that this plea is bad. No doubt, all pleas refer to the time of the commencement of the action; but until the defendant offers to set off his cross demand against the plaintiff's claim, the plaintiff cannot know that he means to do so.

PARKE, B.-The rule is, "verba fortius accipiantur contra proferentem." The defendant does not plead that this is an existing debt; then we cannot infer that it is so, but have a right to infer that it has been satisfied.

ALDERSON, B., and GURNEY, B., concurred.

Judgment for the plaintiff.

(a) 4 East, 502.

(b) 3 T. R. 186.

(c) 1 C. & M. 46.

ELLIS V. THOMPSON and KEBBEL.

ASSUMPSIT. The declaration stated, that on the 22nd of March, 1837, it was agreed between the plaintiff and the defendants that the plaintiff should sell to the defendants, and the defendants should buy of and from the plaintiff, and the plaintiff then sold to the defendants, 200 tons of Bog Mine lead, deliverable in the river Thames, to be paid for by the buyers' acceptance at six months, or three months with the deduction of 14 per cent. discount, or by cash with 21 per cent. discount, at the buyers' option. The declaration then averred mutual promises, and alleged that after the making of the agreement, and at and within a reasonable and proper time in that behalf, to wit, on the 1st of May, 1837, the plaintiff was ready and willing, and then tendered and offered to the defendants to deliver to them the said 200 tons of Bog Mine lead in the river Thames aforesaid, at the price aforesaid, and then requested the defendants to accept the same at the price and upon the terms aforesaid, &c. Breach-that the defendants did not nor would accept or pay for the same or any part thereof, whereby the plaintiff was obliged to sell and dispose of it to other persons for 3,2007., being less than the sum agreed to be paid by the defendants by the sum of 1,2001.

Pleas-first, non assumpserunt; secondly, that the plain

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Liverpool were the usual ports of shipment for London; but the Bog Mine lead was first brought by barges down the Severn from Shrewsbury to Gloucester. The lead was delayed a considerable time in this part of its transit by the lowness of the water, and when it arrived in London, B. refused to receive it, the price having fallen considerably. In an action by A. against B. for not accepting the lead, B. pleaded that the plaintiff was not ready to deliver it within a reasonable time, on which issue was joined. The broker stated (in addition to the above facts) that he had understood from A. that the lead was at Shrewsbury. The learned Judge stated to the jury that it might be taken for granted that the understanding of the parties was, that the lead was ready for shipment at Gloucester or Liverpool; that this was confirmed by the defendant's application as to the freight and insurance; and that if they thought it ought to have arrived in a shorter time, if ready for shipment at Gloucester or Liverpool, the defendant was entitled to a verdict:Held, that the parol representation of the broker, that the lead was ready for shipment, was admissible in evidence, not to vary the written contract, but as one of the data from which the reasonableness of the time was to be determined.-Held, also, that the direction of the learned Judge was warranted by the evidence.

1838.

ELLIS

Exch. of Pleas, tiff was not ready or willing, and did not tender or offer to the defendants to deliver to them the said 200 tons of Bog Mine lead in the declaration mentioned, or any part THOMPSON. thereof, within a reasonable or proper time in that behalf, in manner and form, &c.: on which issues were joined.

บ.

At the trial before Lord Abinger, C. B., at the sittings at Guildhall after last Michaelmas Term, the facts appeared to be as follows:

:

The plaintiff, at the time of making the contract with the defendants on which this action was brought, was the owner of one half of a valuable lead mine in Shropshire, called the Bog Mine. The defendants were extensive lead merchants in London. On the 22nd of March, 1837, the defendants contracted to buy of the plaintiff, through the medium of the firm of J. & J. Soper, brokers in London, 200 tons of Bog Mine lead. The following is a copy of the bought note:

"London, 22nd March, 1837. "Bought per account of Messrs. Wm. Thompson & Co., Of Mr. Thomas Ellis,

"Two hundred tons of Bog Mine lead, deliverable in the river Thames, at 221. per ton; to be paid for by the buyers' acceptance at six months, or three months with the deduction of one and a quarter per cent. discount, or by cash with two and a half per cent. discount, at buyers' option. JNO. & JAS. SOPER, Brokers."

Mr. Soper, the broker, being called for the plaintiff, stated on cross-examination, that when the defendant, Mr. Thompson, had bought the lead, but before the bought and sold notes were made out, he asked the witness whether the lead was ready for shipment, and the witness said it was. This evidence was not objected to by the plaintiff's counsel. The witness stated also, in answer to questions by the Lord Chief Baron, that the plaintiff always told him his lead was from the Bog Mine, and

1838.

ELLIS บ.

THOMPSON.

came down to Shrewsbury, and he (the witness) took it Exch. of Pleas, for granted it was to be shipped at Shrewsbury. On the 25th of March, the witness saw the defendant Kebbel, who asked him whether the plaintiff would be agreeable to allow the freight or insurance from Gloucester or Liverpool; which it appeared were the usual ports from which goods from Shropshire were shipped for London. This request was communicated to the plaintiff, who as sented to it; of which Soper informed the defendant Kebbel. Messrs. Soper subsequently, however, received a letter from the defendants (dated 5th April), as follows:

"Gentlemen.-We will thank you to give instructions immediately for the shipment of the whole of the 200 tons of Bog Mine lead, purchased by us of Mr. Ellis. We require it all delivered here."

"WM. THOMPSON & Co."

It was proved also that the Bog Mine lead was smelted at a place called Ponsbury, about half way between Shrewsbury and the mine, and sixteen miles distant from Shrewsbury; that it was then sent on to Shrewsbury, and there laid up until the plaintiff's agent there had an order to forward it, when it was shipped on the river Severn, in barges drawn by horses, to Gloucester, and thence by sea to London; that at the time of making the contract with the defendants, the plaintiff had 300 tons of the Bog Mine lead laid up at Shrewsbury ready for shipment thence, and on the 5th of April, an order was given to the agent there to forward it as soon as he possibly could. There was not, however, water enough in the Severn for it to get down so quickly as usual, and a delay of several weeks was thereby necessarily occasioned; the plaintiff, in consequence, applied to the other part owner of the Bog Mine, Mr. Cross, to allow him to use some lead of his which was lying at Gloucester, in order to make up the quantity

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