1848.

the action, otherwise the objection would have been good." MIDDLEDITCH So here also there is a promise to pay the balance. [He also referred to Baber v. Harris (a).]

บ.

ELLIS.

Cur. adv. vult.

The judgment of the Court was now delivered by

ROLFE, B.-This case was tried before my Brother Platt, last Michaelmas Term, and a verdict was found for the plain tiff, subject to leave reserved to the defendant to move to enter a nonsuit, if the Court should be of opinion, that, under the circumstances of this case, an action of debt on an account stated would not lie.

A rule nisi for entering a nonsuit having been granted pursuant to this leave, the same was argued last term before the Chief Baron and my Brothers Alderson, Platt, and myself.

The plaintiff was mortgagee under a mortgage from the defendant, with a power of sale, and the mortgage deed contained the ordinary covenant by the defendant to pay the principal sum secured, with interest. The mortgaged property was afterwards sold by the plaintiff under the power, but it did not produce sufficient to discharge the debt due to the plaintiff. A meeting afterwards took place between the plaintiff and defendant, when an account was stated between them, charging the defendant with the full amount of principal and interest, and giving him credit for the net proceeds of the sale. It may be taken that the defendant admitted the balance of this account to be correctly ascertained, and that he promised to pay it. The verdict was for that balance; and the only question is, whether, on this state of facts, an action of debt on an account stated can be maintained; and we think it cannot.

The general principle is clear, that where a debt is

(a) 9 A. & E. 532.

1848.

V.

ELLIS.

secured by a bond, covenant, or other specialty, there the obligation by simple contract is gone. The lesser security MIDDLEDITCH is merged in the greater. But the plaintiff contended that that doctrine does not apply in the present case, for, though the original debt was secured by a covenant, yet, that, here there was a subsequent statement of accounts, so that the defendant on that occasion made himself liable by a new contract to pay the balance remaining due; and, in support of this proposition, he relied on the case of Foster v. Allanson (a). In that case the plaintiff and defendant had entered into articles of partnership, under seal, for seven years, and they covenanted with each other to adjust and make a final settlement at the end of the partnership, and then to divide the stock and profits equally between them. Before the expiration of the seven years, they agreed to dissolve the partnership, and they came to a settlement of accounts, in which were included several items not relating to the partnership. A balance was found to be due, on this settlement, to the plaintiff; and it was held, that, notwithstanding the specialty, the plaintiff might recover that balance in an action of assumpsit on an account stated; but the judgment of Ashurst, J., goes expressly on the ground that this was a new transaction, and that the account was stated of other matters besides the items due under the deed; and, though Buller, J., says, that, even if no other articles had been introduced, he should have been of opinion that assumpsit would lie, yet that opinion was founded on the circumstance, that the dissolution of the partnership, and subsequent settlement of account, constituted, in point of law, a good consideration for a new promise.

Now, in the present case, none of the circumstances relied on in Foster v. Allanson are to be found. The defendant is charged with nothing but the money se

(a) 2 T. R. 479.

v.

ELLIS.

1848. cured by the deed; there is no consideration for the sugMIDDLEDITCH gested new liability, except the ascertaining how much remains due on the deed. It is a perversion of language to speak of this as an account stated: it is merely a process adopted for the purpose of ascertaining how much of the original debt has been discharged; and all which is really done is to make out to what extent the defendant remains liable upon the deed. This does not entitle the plaintiff to proceed as on a new liability arising from an account stated; and so the rule for a nonsuit must be made absolute.

Rule absolute.

June 23.

In an action of assumpsit on a

port of an aver

claration, that

ASSUMPSIT

KING v. COLE.

SSUMPSIT on a guarantie.—The declaration stated, guarantie, the that one Joseph Wilkinson was indebted to the plaintiff plaintiff, in sup in a certain sum; and thereupon, in consideration that ment in the de- the plaintiff would agree to accept payment by instalments, of the said debt from the defendant, and would execute an indenture, purporting to be made by and between &c., (describing it,) and thereby release unto the said J. Wilkinson the said debt, the defendant promised to pay the debt by instalments. Averment, that the plaintiff did agree to accept payment of the debt by instalments, and did execute the said indenture, and did thereby release the said J. Wilkinson. Breach, nonpayment of the instalments.

he had executed a certain indenture, gave in evidence the following document, signed by the defendant: "In con

sideration of your having by indenture agreed to accept payment

of the debt owing to you by A. B., by The defendant pleaded non assumpsit, and a traverse the following instalments: that the plaintiff executed the said indenture modo et that is to say, 108. in the formâ; upon which pleas issue was joined. At the trial pound, on the 18th day of August next, &c., I promise to guarantee the payment of the instalments." There was evidence, that, when A. B.'s creditors received the guarantie, they signed the deed at the same time:-Held, that, under the circumstances of the case, the true construction of the guarantie was, "that, if at some future time the plaintiff shall have released the debt, the defendant will guarantee the same to him;" and, therefore, that it did not prove the averment in the declaration.

of the cause, before Rolfe, B., at the last Spring Assizes at Liverpool, the present case was immediately preceded by one of Hassall v. Cole, in which the pleadings were the same. In support of the second issue, a deed was produced, but was rejected, as being improperly stamped; and the plaintiff then produced the following guarantie:

"Mr. John Hassall-In consideration of your having, by indenture bearing date the 18th day of February, 1847, agreed to accept payment of the debt owing to you by J. Wilkinson, of Birkenhead, amounting to the sum of 650l., by the following instalments: that is to say, the sum of 3251., part thereof, being at the rate 10s. in the pound, on the 18th day of August, 1847, and the sum of 325l., the residue of the said debt, on the 18th of February, 1848, and of your having, by the same indenture, released the said J. Wilkinson from such debt, I do hereby guarantee to you the payment of such debt or sum of 650%., at the times and in manner aforesaid. Dated this 18th of February, 1847.

"WILLIAM COLE."

It was proved that Cole signed agreements in this form, addressed to each of Wilkinson's creditors, and delivered them to his attorney, who carried them, with the indenture, to his creditors, each of whom, when he executed the deed, received his signed guarantie from the attorney at the same time. It was contended, on the part of the plaintiff, that the guarantie was an admission by the defendant, that the plaintiff had released Wilkinson, and was original evidence of such release, though the indenture was not read. It was objected, for the defendant, that the guarantie was no admission of a past release, but rather of a future one; in which latter case there was 'a variance between the guarantie and the declaration, which was open under non assumpsit. It was also objected, that

1848.

KING

v.

COLE.

1848.

KING v.

COLE.

there was a variance, as the guarantie did not admit such a release as that stated in the declaration. The learned judge reserved leave to the defendant to move to enter a nonsuit, if the Court should be of opinion that the amendment ought not to have been made, reserving power to the plaintiff to amend the declaration, if the Court should think fit.

The present case of King v. Cole was then called on; and, it being agreed that the pleadings and facts in all respects were the same as those in Hassall v. Cole, a similar verdict was entered, with similar leave to move, the same evidence to be evidence in both cases.

Knowles moved accordingly, and obtained a rule nisi for a nonsuit, or for a new trial, on the ground that there was no evidence to support the averment of the release; but, on the other grounds, the Court refused the rule.

Martin and Tomlinson shewed cause (June 22).-The only question is, whether there was evidence to support the averment in the declaration, that the plaintiff executed the release; and it is submitted that there was. The cases of Slatterie v. Pooley (a), and Howard v. Smith (b), are expressly in point. In the former of these, the rule was laid down, that a parol admission by a party to a suit is always receivable in evidence against him, although it relate to the contents of a deed or other written instrument, and even though its contents be directly in issue in the cause. In the latter case, Tindal, C. J., in delivering the judgment of the Court, concluded by saying, "We are of opinion that the statements made by the plaintiff himself, of the terms upon which he was actually holding the premises, were admissible against him, notwithstanding what had passed respecting the written agreement under which the