Bevan v. Hill,

apprized directly of the circumstance, but he refused, until indemnified, to pay for the stock; his bankers having failed, an action was brought against him, but Lord 2 Campb. 381, Ellenborough directed a nonsuit, being of opinion an indemnity should have been given. And at law the Id. 211, Pierson indorsee of a lost bill of exchange can have no remedy against the acceptor by action, until he can show that

the instrument has been destroyed

that

v. Hutchinson.

It has been decided, that if the creditor require a re- Peake, 67, Warmittance by the post, he must sustain any loss which wicke v.Noakes. may happen. But under such a direction the letter must be sent by a legitimate mode of conveyance to secure the debtor against the loss; and so, where bills of exchange were delivered enclosed in a letter to a bellman in the street, Lord Kenyon said, the defendants had not used due caution; they ought to have delivered the letter at the general post-office, or to one of the houses authorized by that office to receive letters with money; and the remit- kins v. Rutt. tance being held invalid, the plaintiffs had a verdict.

Id 186, Haw

A contract being entire, all the goods bargained for must be delivered or the sale cannot be enforced; but this principle is applicable to a general contract: where so many pounds or parcels of goods are sold at so much for each parcel, it seems that an action may be mainSee Comyn, tained for as much as the seller delivers, before the final p. 185. delivery of the whole.

There having been an agreement between two traders that each should supply the other with goods, upon a settlement of the mutual accounts, a balance of 251. appeared in the plaintiff's favour, and the defendant insisted on paying him in goods, which was resisted;

and by Lord Ellenborough: "The amount of the balance 1 Starkie, 185, Ingram v. Shirwas due in money, otherwise there could be no end "to the dealings."

Notwithstanding the entirety of a contract, it has been determined, that where a bargain is entered into by two persons, and one goes from his agreement, the other is

ley.

1 Starkie, 437, Forsyth v. Jervis.

not debarred from enforcing it on his part. Thus, the maker of a gun agreed with the purchaser for forty-five guineas as the price to be paid for it, but at the same time he promised to take a gun of Manton's in part payment, which was valued at thirty guineas. The purchaser refused to perform his agreement, and would not part finally with the Manton gun; upon which the gunmaker sued him for the full price of forty-five guineas, and recovered, Lord Ellenborough being of opinion, that upon the refusal of a purchaser to pay for goods by the delivery of other goods of a stipulated value, a contract resulted to pay for them in money. Again, the agreement was that, upon the delivery of some iron, certain bills outstanding against the plaintiff should be taken out of circulation; part of the iron was delivered in consequence of this arrangement, but the plaintiff finding that no bills had been withdrawn, brought trover for the iron which had been delivered, and the Court held the delivery conditional, whereupon, the condition being broken, it was open to the seller to sue in the form he had Alderson, 329, adopted. The jury found, in the case cited, that the delivery of the goods and the re-delivery of the bills were to be contemporaneous.

2 Barnewall &

n. Bishop v. Shillito.

3 Starkie, 32,

Germaine v.
Burton.

If goods have been agreed for by sample, and those which are delivered are of an inferior quality to the sample, the course is, not to permit a plaintiff to recover for the full price, and so leave the other party to his cross action, but to allow the defendant to give the matter in evidence in diminution of damages; of course, if any injury has been sustained by the breach of contract, a further remedy is open to the party who has agreed for the goods. But if, notwithstanding this failure to supply articles according to sample, money be paid into Court on an action of indebitatus assumpsit (u), and the goods be not

(u) Otherwise, if the money be paid on the count stating the special contract,

returned, the contract is admitted, and the defects can- 2 Starkie, 103, not be submitted to the consideration of the jury.

Leggett v.
Cooper.

And where the defendant, the vendee, neglects at the trial to show any thing in reduction of the damages, or to offer any reasonable defence to the action, it seems that he will not be permitted afterwards to bring an action for a breach of warranty; for there having been once an opportunity of doing justice between the parties, Why," said Lord Ellenborough," should there now be Samuda. a second litigation?"

"

See 1 Campb.

190, Fisher v.

Campb. 40, n. Morgan v. Richardson.

And where a bill of exchange was given in payment for some hams, which turned out to be bad and unmarketable, the acceptor, the buyer, was compelled to pay the whole amount of the bill, though he had paid into court the sum for which the hams actually sold; for there is a distinction between cases where a consideration of a bill fails entirely, and where partially; here there was a partial failure, and the defendant must seek his cross remedy. The indorsee of a bill of exchange sued the acceptor; the consideration was a pipe of" best "London particular Maderia;" the defence was, that the wine was of very inferior quality; but Lord Ellenborough: "To sustain this defence, it must be shown "that there was a fraud in the first instance, in shipping "a commodity of a different and inferior quality to that "ordered."—" This defence is not sufficient if the commodity shipped only be of rather an inferior quality Simpson. "to that ordered."

"

Indeed, fraud vitiates every instrument and every contract, and therefore payment may safely be resisted on that ground. With respect to the common agreement, that an article shall be taken with all its faults or defects, the rule is, that if the seller do not know of any such blemish, a contract for sale is good; that if he do know it, the contract is still good, if he use no means to conceal the fault; but that if he resort to artifice, and

Id. Fleming t

21 James 1, c. 16, s. 3.

so prevent the buyer from making the investigation he would otherwise have instituted, or use any endeavour successfully to divert the buyer from discovering a defect, there the contract is avoided on account of fraud (w).

Statute of Limitations (x).

It seems a convenient place here to introduce a few remarks and authorities on the subject of the statute of limitations.

Of late the court of Common Pleas has adhered rather strictly to the words of the statute. It declares, that all actions upon the case (other than slander) shall be commenced and sued within six years next after the cause of such actions, and not after.

To enter into a review of all the decisions on the subject would be a long, and in this place an irrelevant task, especially as in the Common Pleas there has been a recent determination of very considerable importance. The defendant, on being arrested, made this answer: "I know "that I owe the money; but the bill I gave is on a threepenny receipt stamp, and I will never pay it." This was holden not to be a sufficient acknowledgment of the debt to take it out of the statute of limitations. 3 Bingham,329, "It has been supposed," said Chief Justice Best, A'Court v. "that the legislature only meant to protect persons Cross; 4 Bing"who had paid their debts, but from length of time "had lost or destroyed the proof of payment. From

ham, 105, Ayton v. Bolt.

(w) If a creditor give an order for the payment of his debt to a third person, he cannot revoke that order, provided the person so authorised agree to pay the debt. 3 Barnewall & Cresswell, 842, Hodgson v. Anderson.

(r) Since this was sent to press, an Act has passed which directs, that no promise shall be sufficient to recover a debt unless such promise be in writing. See Addenda to this chapter.

"the title of the Act to the last section, every word of it "shows that it was not passed on this narrow ground. "It is, as I have heard it often called by great judges,

an Act of Peace. I think, if I were now sitting in the Exchequer Chamber, I should say, that an acknow"ledgment of a debt, however distinct and unqualified,

"would not take from the party who makes it the pro- 4 Bingham, 332. "tection of the Statute of Limitations."

In the same court, a promise was proved in these terms: the defendant said, it was not in his power to

pay, but as soon as it was, he would. Two judges held, Best, C. J. and that upon this, it lay on the plaintiff to prove the defend- Gazelee, J. ant's ability to pay; the two others considered such

proof unnecessary. "The defendant only says, in effect, By Burrough, J. "I owe the money, but cannot pay." And Mr. Justice Park thought, that as the statute had not run out when

the promise was given, the defendant had no right to 3 Bingham, 638, clog it with a condition.

Scales v. Jacob.

6 Barnewall &

However, the same point arose almost immediately afterwards in the Court of King's Bench. The promise was, "I cannot pay the debt at present, but I will pay "it as soon as I can." No proof of the defendant's ability to pay was offered, and after a verdict for the plaintiff, the Court made the rule absolute for a new trial. Cresswell, 603, In this case Lord Tenterden recognized and approved of Tanner v. Smart. the principle of acknowledgment which Lord Ellenborough had mentioned in a prior decision, that "in "assumpsit an acknowledgment of the debt is evidence " of a fresh promise," (y) and he observed upon the distinction between a promise to pay when requested, as stated in the declaration, and one to pay as soon as the party should be of sufficient ability. Had it been "in terms," said the learned Chief Justice," what it " is in substance, Prove that I am able to pay, and "then I will pay,' it would have been what the pro

(y) 1 Barnewall & Alderson, 93.

T