Kennedy v Kelly

• Jurisdiction: Ireland
• Judgment Date: 10 November 1866
• Date: 10 November 1866
• Court: Exchequer (Ireland)

Exchequer.

KENNEDY

and

KELLY.

Smith v. GrantIR 3 Ir. Com. Law Rep. 585.

Martin v. M'Hugh 6 Ir. Jur., N. S. 279.

Cock v. MahonyIR 3 Ir. Com. Law Rep. 240.

Dunsandle v. FinneyIR 10 Ir. Com. Law Rep. 171.

COMMON LAW REPORTS. 391 , M. T. 1866. Exchequer. KENNEDY v. KELLY.* Nov. 10. THE plaint in this case claimed the sum of 44. 4s. 3d. "on account of money payable by the defendant to the plaintiff for goods sold and delivered by the plaintiff to the defendant." "And on account of money found to be due from the defendant to the plaintiff on accounts stated between them." To this the defendant pleaded, "that no money was owing from the defendant to the plaintiff for " goods sold and delivered by the plaintiff to the defendant as " alleged ; and that no money was found to be due." Edward Litton, now moved to set aside this defence. It amounts to the general issue : Smith v. Grant (a). M'Mahon. This plea is not too large. It raises only one issue-namely, whether the goods were sold or not. If defendant had said no money is due it would be a different thing. That was the plea in Smith v. Grant. Being in the past tense, it denies the conÂÂsideration. Martin v. M'Hugh (b) shows what the issue here would be. Litton, in reply, cited Cock v. Mahony (c).-[PICOT, C. B. Martin v. M'Hugh is a case different from the present one. There there was a bill of particulars which admitted certain. payments, and the plaint went on to claim for a balance. The defendant took defence as to a particular matter, and denied the contract as to that.-FuzuERA.LD, B. It would be open to them, under this defence, to prove that no debt ever arose, because the goods were delivered in accord and satisfaction of an antecedent debt.]-M'Mahon. No ; not where I say " sold and delivered." (a) 3 Ir. Corn. Law Rep. 585. (6) 6 Ir. Jur., N. S. 279. (c) 3 Ir. Corn. Law Rep. 240. * Before the Full Court. 392 COMMON LAW REPORTS. James Greene (amicus Curia) referred to the dictum of the LORD CHIEF BARON ill Dunsandle v. Finney (a). PIGOT, C. B. There are certain forms of pleading well known to the ProÂÂfession; and any. departure from those forms is, prima facie, an objection to a pleading. In England the general issue still exists ; and a defence, such as is here in question, might come within it. But in this country we have no rule which expounds the meaning of defences of that character. In England, general rules limit the application of certain general pleas, giving them such a...