Woodhams v Newman
| Jurisdiction | England & Wales |
| Judgment Date | 01 May 1849 |
| Date | 01 May 1849 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 259
IN THE COURT OF COMMON PLEAS
S. C. 6 D. & L. 683; 18 L. J. C. P. 213; 13 Jur. 456. See note to Beswick v. Capper, 7 C. B. 669.
woodhams v. ( newman. May 1, 1849. [S. C. 6 D. & L. 683; 18 L. J. C. P. 213 ; 13 Jur. 456. See note to Beswick v. Capper, 7 C. B. 669.] A defendant is not entitled to enter a suggestion to deprive a plaintiff of costs, under the 129th section of the county-courts act, 9. & 10 Viet. c. 95, where the debt or demand, originally exceeding 201., is reduced below that sum by a claim of set-off. -:The words "on balance of account or otherwise," in s. 58, have reference to a debt reduced by payments, or a balance settled and ascertained before action brought. This was an action of debt for work and labour and materials, goods sold and delivered, money paid, and money found due upon an account stated. [655] Pleas,-first, except as to so much of the causes of action in the declaration mentioned as related to the sum of 181. 4s. 2d., parcel of the moneys in the declaration mentioned, and the damages sustained by the plaintiff by reason of the nonpayment thereof, nunquam indebitatus;-secondly, except as in the introductory part of the first plea was excepted, a set-off for work and labour, goods sold and delivered, (a) See Wilson v. Sevan, post, p. 673. 260 WOODHAMS V. NEWMAN re.B.656. money lent, money paid, money had and received, and money found due upon an account stated;-thirdly, as to the said sum-of 181. 4s. 2d., parcel, &c., and the damages sustained by the plaintiff by reason of the non-payment thereof, payment of that sum and Is. into court, and no damages ultra. The plaintiff .joined issue on the first plea, pleaded never indebted to the second, and took the money out of court in satisfaction pro tanto. At the trial, at the first sitting in Middlesex in this term, the plaintiff proved that the defendant was indebted to him, in respect of the causes of action in the declaration, to the amount of 841. lls. 5d. beyond the sum paid into court. The defendant claimed to set off a demand amounting to 841. 17s. 4|d., which, with the exception of one item, was not disputed. The jury having returned a verdict for 20s. only beyond the sum paid into court, and the judge having declined to certify, under the 129th section of the 9 & 10 Viet, c. 95, that the action was fit to be brought in the superior court, R. Clarke, on a former day in this term, obtained a rule calling upon the plaintiff to shew cause why he should not bring in the record, and the defendant be at liberty to enter a suggestion thereon to deprive the plaintiff of his costs, he having obtained a verdict for a less sum than 201., and the demand being one for the [656] recovery of which a plaint might have been entered in a county-court, pursuant to the statute 9 & 10 Viet. c. 95. The affidavit upon which the motion was founded, stated, that the plaintiff "is a plumber and glazier, and resides, and carries on business, at 47 High Street, Portland Town, in the county of Middlesex;" that the action was commenced on the 8th of February, 1849 ; that, at the trial, the plaintiff proved a demand exceeding 201., and the defendant proved a set-off to such an amount as reduced the plaintiff's demand to a less sum than 201., including the moneys paid into court, and that thereupon the jury gave a verdict for the plaintiff for 20s., and no more; that, before and at the time of the commencement of the action, the deponent (the defendant) dwelt and carried on his business at St. Paul's Koad, Camden Town, in the county of Middlesex, and that all the work mentioned in the plaintiff's particulars of demand, and alleged in the declaration to have been done, and the materials for the same provided, and in respect of which said work and materials the said verdict was, in part, so obtained as aforesaid, were so done and provided at Camden Town aforesaid, and at St. John's Wood, in the said county of Middlesex; and that all the goods mentioned in the said particulars of demand were purchased by the deponent of and from the plaintiff at Portland Town aforesaid, and delivered to the servants of the deponent at Portland Town aforesaid, being the sale and delivery in the declaration mentioned, and in respect whereof the said verdict was in part obtained as aforesaid ; that, at the time when this action was commenced, the plaintiff did not dwell more than twenty miles from the defendant, and did, and istill does, dwell within twenty miles of the defendant; that the cause of action arose, in some material point, within the jurisdiction of the county-court within which the defendant dwelt and carried on [657] his business at the time this action was commenced; that the place where the defendant dwelt before and at the time when this action was commenced as aforesaid, and where he still dwells, and where the said work was done and the said materials provided and the said goods delivered as aforesaid, was, at the time when this action was commenced, and still is, within the jurisdiction of the county-court of Middlesex, and that such county-court was opened and established, and a plaint might have been entered in the said court for the sum recovered from this deponent by the plaintiff in this action, and due from the deponent to the plaintiff, before and at the time that this action was commenced, and the deponent then was liable to have been summoned in the said county-court for the sum recovered against him in this action. The affidavit then proceeded to negative that either of the parties was an officer of the county-court, and to negative that...
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