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![handle is hein.slavery/ssactsengr0084 and id is 1 raw text is: WALKER V. MELLOR
Lord Denman C.J. We need not decide whether an imprisonment can be confessed
and avoided in this way : but, as to the assault, it is a manifest contradiction in terms
to say that the defendant assaulted the plaintiff by his permission.
Patteson J. I doubt much as to the imprisonment: but the plea is clearly bad as
to the assault; and, if bad for any part, it is bad for all. An assault must be an act
done against the will of the party assaulted: and therefore it cannot be said that a
party has been assaulted by his own permission.
Coleridge J. If the plea had been only not guilty, the defendant might have shewn
that the act was done in the course of sport between the parties, [478] and by the
plaintiff's leave. This plea is therefore specially demurrable.
Wightman J. I agree, and for the reasons already given.
Judgment for plaintiff (a).
WALKER against MELLOR. Wednesday, February 9th, 1848. In indebitatus
assumpsit for goods sold and delivered, where there has been a sale in point of
fact, the defendant cannot shew, under non assumpsit, that the plaintiff had no.
title to the goods at the time of the sale.
[S. C. 2 Car. & K. 346; 17 L. J. Q. B. 103; 12 Jur. 268.]
Assumpsit for goods sold and delivered. Pleas: non assumpsit, payment and set.
off: on which issues were joined.
On the trial, before Rolfe B., at the Liverpool Spring Assizes, 1847, it appeared,
that, by an agreement in writing dated 28th October 1846, the plaintiff agreed to sell
and the defendant to buy all the bricks in a certain croft at 19s. per thousand; that
the bricks were counted on the day of the contract, and possession of them given by
the plaintiff to the defendant, who put up a bar and lock on the field where the croft
was, and subsequently carried away two barge loads. The defence set up at the trial
was, that certain parties, named Cook and Webster, had had prior dealings with the.
plaintiff for malt; and that, plaintiff being in their debt, they, on the 26th of October,
agreed with the plaintiff's wife, by word of mouth, for the purchase of the croft of
bricks at 20s. a thousand; and that, after notice of the sale by plaintiff to defendant,.
they took possession of a considerable portion of the bricks. The jury, by [479]
direction of the learned Judge, found a verdict for the plaintiff.
In Easter term, 1847, Watson obtained a rule nisi to enter a verdict for the defen-
dant, or a nonsuit.
Hugh Hill now shewed cause. The facts proved at the trial constitute no defence
to the action; if they do, they ought to have been specially pleaded. The sale to.
Cook and Webster, on the 26th October, by the plaintiff's wife, was incomplete; and
no property passed. The contract was not sufficiently perfect to pass any property
in the bricks until they had been counted, and their number ascertained. (On this
point he cited Simonds v. Swift (5 B. & C. 857), and Tansley v. Turner (2 New Ca. 151).
The argument is omitted, as the judgment of the Court turned on the second point
only.) Then, assuming that there had been a prior sale, in point of fact, by an
authorised agent of the plaintiff to Cook and Webster, that sale should have been
specially pleaded, as was done in Allen v. Hopkins (13 M. & W. 94), where to an
action for goods sold the defendant pleaded, in substance, that the plaintiff, pretend-
ing to be executor and to have a right to sell the goods, sold them to the defendant,
plaintiff not being the executor, and having no right to sell them, and that the defen-
dant paid the real administrator the value of the goods. [Wightman J. What would
be the nature of the plea here, if specially pleaded 7] It would be an answer, if it
alleged a sale under an express warranty by the vendor that the goods were his, and
shewed that they had been taken away by a party having a prior title, and that [480]
the defendant had derived no benefit from the contract; or the plea might allege
fraud. This would bring the case within Jones v. Bowden (4 Taunt. 847), or Peto v.
Blades (5 Taunt. 657). Under Reg. G. Hil., 4 W. 4, Pleadings in Particular Actions,
I., 1, in an action of indebitatus assumpsit for goods sold and delivered non assumpsit
operates as a denial of tht sale and delivery in point of fact. The defendant cannot,.
(a) See Bingham v. Clements, 12 Q. B. 260, 262.
11 Q. 1. 47&8](ViewImageLocal?handle=hein.slavery/ssactsengr0084&div=1&collection=&method=preview&ext=.png&size=3)