Belshaw v Mary Ann Bush
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1851 |
| Date | 01 January 1851 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 444
IN THE COURT OF COMMON PLEAS
S. C. 22 L. J. C. P. 24; 17 Jur. 67. Considered, Bottomley v. Nuttall, 1858, 5 C. B. (N. S.) 143. See Currie v. Misa, 1875-76, L. R. 10 Ex. 163; 1 App. Cas. 554. Distinguished, In re Rowe, [1904] 2 K. B. 486, 488. Referred to, Mears v. Western Canada Pulp and Paper Company, [1905] 2 Ch. 356. See Henderson v. Arthur, [1907] 1 K. B. 13. Applied, In re a Debtor, [1908] 1 K. B. 348.
belshaw v. mary ann bush. 1851. [S. C. 22 L. J. C. P. 24; 17 Jur. 67. Considered, Bottomley v. Nuttall, 1858, 5 C. B. (N. S.) 143. See Cwrrie v. Misa, 1875-76, L. R. 10 Ex. 163; 1 App. Cas. 554. Distinguished, In re Rome, [1904] 2 K. B. 486, 488. Referred to, Hears v. Western Canada Pulp and Paper Company, [1905] 2 Ch. 356. See Henderson v. Arthur, [1907] 1 K. B. 13. Applied, In re a Debtor, [1908] 1 K. B. 348.] To debt on simple c&ntract for goods sold and delivered, work and labour, &c., the defendant pleaded, "as to 331. 10s., parcel of the debt in the declaration mentioned, and the causes of action in respect thereof," that, after the accruing of the causes of action in the declaration mentioned, and before the commencement of the suit, the plaintiff drew a bill on C. for 331. 10s., payable to the plaintiffs order three months after date; that C. accepted the bill, and delivered it to the plaintiff, and the plaintiff received it, for and on account of the said sum of 331. 10s., parcel of the debt in the declaration mentioned, and the causes of action in respect thereof; and that the plaintiff indorsed and delivered the bill to one D., who was, before and at the time of the commencement of the suit, the holder of the bill, and entitled to sue C. thereon:-Held, that the giving of the bill by C. must be taken to be a conditional payment on behalf of the defendant; that the condition to defeat it not having happened, it operated as an absolute payment; and that it might be, and C.B.192. BELSHAW V. BUSH 445 had been, adopted by the defendant in his plea, and consequently that it barred the action. Debt, for 401. for goods sold and delivered, 401. for work and materials, 401. for .oney paid, and 401. for money found due upon an account stated. Pleas,-first, never indebted,-secondly, "as to the sum of 331. 10s., parcel of the sbt in the declaration mentioned, and the causes of action in respect thereof, the sfendant says, that, theretofore, and after the accruing of the causes of action in the bid declaration mentioned, and before the commencement of this suit, to wit, on the Oth of October, 1849, the plaintiff made his bill of exchange in writing, and directed to one William Bush, the father of the defendant, and thereby required the said William Bush to pay to the order of the plaintiff 331. 10s. for value received, three lonths after the date [192] thereof; and the said William Bush then accepted the lid bill, and then delivered the same so accepted to the plaintiff, for and on account f the said sum of 331. 10s. parcel of the said debt in the said declaration mentioned, nd the causes of action in respect thereof; and the plaintiff then received and took he said bill of and from the said William Bush for and on such account as aforesaid : aid the defendant further says, that, afterwards, to wit, on the day and year afore-aid, the plaintiff indorsed and delivered the said bill to a certain person, to wit, to ne William Patrick Gray, who then became, and was before and at the time of the ommencement of the suit, the holder of the said bill, and entitled to sue the said Villiam Bush thereon,"-verification. The plaintiff joined issue on the first plea, and replied to the second, that the said ill of exchange in that plea mentioned had become and was overdue and unpaid before he commencement of this suit, to wit, on the 3rd of February, 1850, and that no part f the said money therein mentioned hath ever been paid,-verification. The defendant demurred generally to the replication to the second plea,-the allowing point being marked in the margin of the demurrer :-" One matter of law ntended to be argued is, that the replication to the last plea is bad in substance, on ihe ground that it is admitted thereby that the bill of exchange taken by the plaintiff )n account of the debt, has been indorsed by him for value to a third person, in whose lands it is now outstanding." Quain, in support of the demurrer. The plea is good, and the replication affords no answer to it. There are many cases to shew that a plea of a bill or note given :'for and on account "-of a debt, is bad, unless it go on to shew that it was accepted in satisfaction, or that it is outstanding in the hands of an indorsee: Mercer v. [193] Cheese (4 M. & G. 804, 5 Scott, N. K. 664); Maillard v. The Duke of Argyll (6 M. & G. 40, 6 Scott, N. B. 938,1 D. & L.536); Price v. Price (16 M. & W. 232). The nature of such a plea is well explained in the note to Holdipp v. Otway (2 Wms. Saund. 103 b., n. (c)): "It has been established by modern authorities, that the acceptance of a negotiable note or bill ' for and on account' of a debt, must be taken prima facie to be in satisfaction of that debt, until it appears that the note or bill remains unpaid in the possession of the creditor, without any laches by him : Kearslake v. Morgan (e); Burden v. Halton (4 Bingh. 454, 1 M. & P. 223); Kendrick v. Lomax (2 C. & J. 405); Mercer v. Cheese (4 M. & G. 804, 5 Scott, N. E. 664). It is usually said that the taking of the note or bill suspends the creditor's remedy for the time it has to run, for that it amounts to an agreement by him not to sue for that time in consideration of the debtor giving the note or bill: see Simon v. Lloyd (2 C. M. & E. 187, 189, 3 Dowl. P. C. 813). It may be observed, however, that, where the obligee of a bond even expressly covenants not to sue for a certain time, this cannot be pleaded in bar to the action on the bond, but is a covenant only, for a breach of which the obligor may bring his action : Ayloffe v. Scrimpshire (Carth. 63, 1 Show. 46, Comb. 123, 124, 2 Salk. 573). And the reason seems to be, that, if such covenant were allowed to operate in suspension of the action, the right of action would be altogether lost, inasmuch as it is a rule, that, where a personal action is once suspended by the voluntary act of the party, it is for ever gone and discharged : Fryer v. Gildridge (Hobart, 10); Dorchester v. Webb (Cro. Car. 373); per Powell, J., in Wankford v. Wankford (2 Salk. 302, 303). In truth, [194] then, this abeyance of the creditor's right to sue seems an anomaly which the law has admitted, as in other instances, as part of the law-merchant, in (e) 5 T. E. 513; upon the authority of an unreported case of Richardson v. Sidcman, 446 BELSHAW V. BUSH 11 C. B. ] respect of mercantile securities." The question is, how far this...
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...ambiguity in the word "pay" in the lease: "But such contention is inconsistent with the decision in Davis v. Gyde, as explained by Maule J. in Belshaw v. Bush. The learned Judge in the latter case, after pointing out that the cases in which a bill given on account of a simple contract debt ......