Bennett v Francis
| Jurisdiction | England & Wales |
| Judgment Date | 23 November 1801 |
| Date | 23 November 1801 |
| Court | House of Lords |
English Reports Citation: 126 E.R. 1433
IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER AND IN THE HOUSE OF LORDS
[550] bennett v. francis. Nov. 23d, 1801. Where money is paid into Court generally upon a declaration in contract, it is an admission ol the existence of a contract in every transaction which is capable of being converted into a contract by the assent of the parties. Therefore where a Defendant who had possessed himself of goods belonging to the Plaintiff, and had sold parl and kept the residue in specie, paid money into Court generally upon a declaration containing a count for goods sold and delivered, it was held that he hid thereby admitted the transaction to have been converted into a contract, and that the Plaintiff was entitled to recover the value of all the goods under the count for goods sold and delivered (a)3. Assumpgit lor goods sold and delivered, money lent and advanced, money paid, money had; and received, and on an account stated. The Defendant pleaded generally ^a)1 But all the cases agree that where part of an answer is read against a party he may insist on having the whole read, Lynch v. Clerks, 3 Salk. 154, per Holt, Ch. J., or at least on reading the remainder himself. The Earl of Bath \. Bathersea, 5 Mod. 9. Gilb. Law of Ev. 51, Ed. 3, unless the part read be merely to shew the incompetency of a witness as interested in the event of the cause, Sparin v. Drax, Mich. 27 Car. 2, Bull. N, P.; 238, 2d ed. An answer indeed being treated as the admission of the party against whom it is read, it does seem reasonable that the whole admission should be read to the Jury for the purpose of shewing under what impressions that admission was made, though some parts of it be only stated upon hearsay and belief. But whether the party against whom the answer is read be entitled to have such parts of it as are not expressly sworn to left to the Jury as evidence (however slight) of any fact, does not appear to have been hitherto decided. (a)2 Vide Sfyaw v. Everett, ante, vol. i. p. 222. Angerstein v. Faughan, ibid, in hotia. Lechmere v^Bict, ante, p. 12, and Thya.lt v. Young, ante, p. 72. (a)5 Vide Mellish v. Allnutt, 2 M. & S. 106. Broadhurst v. Baldwin, 4 Price, 58. 1434 bennett v. francis 2 bos. & poi. ki. to the declaration, 1st, non assumpsit as to all except 41. 3s., upon which plea issue waa joined ; 2dly, a tender of the said 41. 3s., and paid this sum into Court generally. The Plaintiff admitted the tender and took the money out of Court. The cause was tried before Chambre, J., at the Guildhall Sittings after last Easter Term, when it appeared that the action was brought to recover the value of four out of six hides belonging to the Plaintiff, which had come to the bauds of the Defendant. Two out of the six hides had been returned by the Defendant; one had been sold by him for II. 12s., but the money had not been paid over to the Plaintiff; and the three others remained in the Defendant's possession. The Plaintiff conceiving himself entitled to the value of all the hides, sent in a bill of parcels to the Defendant, in which he charged for the four which had not been restored to him as follows : " One hide at 21 10a.; two ditto 31. j one ditto 11. 12s.; total 71. 2s." The Defendant did nob dispute the Plaintiff's right to the value of one hide which had been sold, but claimed the other three as his own. The Jury being satisfied that all the six hides belonged to the Plaintiff, gave him a verdict for 21. 19s., which, together with the 41. 3s. paid into Court, made up the value of the four hides for which the Plaintiff bad not received any thing. The learned Judge in making his report observed, that the 41. 3s. tendered and paid into Court was more than the value of the single hide which had been sold by the Defendant, and for which the money bad not been paid over, and that indeed it did not precisely appear to what it was intended to be applied. Leave was given to the Defendant to move to enter a nonsuit, if the Court should be of opinion that the Plaintiff could not recover in thia action. Accordingly a rule nisi for this putpose having been obtained on a former day, Beit, Serjt., dow shewed cause. In a case of this kind, though a tort may have been committed by the Defendant, yet the [551] Plaintiff is at liberty to waive the tort and bring his action as upon a contract. The value of the goods being...
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Thompson v Jackson
...N. P. C. 15; Jenkins v. Tucker, 1 H. Bla. 90; Gutteridge v. Smith, 2 H. Bla. 374; WatHns v. Tower, 2 T. E. 280; Bennett v. Francis, 2 Bos. & P. 550 Mutter v. Hartshorn, 3 Bos. & P. 556 ; Yate v. Willan,1 East, 128; Clarke v. Gray, 6 East, 564; Godsatt v. Boldero, 9 East, 72, 79; Cox v. Brai......