THE CAVALLA RIVER COMPANY, LTD., through their Agent W. S. MURDOCK, Appellant, V. E. S. PRINCE PEPPLE, Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY
Decided February 9, 1933.
1. An answer which both denies the truthfulness of the complaint and sets up a plea of justification, is evasive and contradictory and is properly ruled out by the trial court.
2. Every allegation of fact in any pleading if not denied specifically or by necessary implication shall be taken as admitted.
3. Where the defendant’s answer is struck from the records of the case, the cause must nevertheless be ruled to trial on its merits.
Appellee, plaintiff below, brought suit against appellant, defendant below, to recover a sum of money. To judgment for plaintiff, defendant excepted. On appeal to this Court, judgment modified.
H. Lafayette Harmon for appellant. A. B. Ricks and E. J. Summerville for appellee.
MR. JUSTICE BEYSOLOW delivered the opinion of the Court.
This case emanates from the First Judicial Circuit Court, Montserrado County, November term, 1932, by bill of exceptions setting forth the points which the appellant believes that the court decided against him erroneously contrary to law : First, because the Judge of the Circuit Court at the February term, 1932, overruled defendant’s plea in counts 1, 2, 3 and 4 of the defendant’s amended answer and ruled the case to trial on its merit. This exception brings up and sets forth the principal and the main law points in the whole case ; there— are some other minor exceptions which will have the consideration of this Court later on.
1. This Court says that an answer which both denies the truthfulness of the complaint and sets up a plea of justification is evasive and contradictory and properly ruled out by the trial court. Ditchfield v. Dossen, I L.L.R. 492. (1) Every allegation of fact in any pleading if not denied specifically or by necessary implication or stated not to be admitted in the pleading of the opposite party shall be taken as admitted. (2) When a party in any pleading denies an allegation of fact in previous pleading of the opposite party, he must not do so evasively but answer the point of substance. (3) Every allegation of fact not denied is admitted in the pleadings—the pleader must either admit or deny every material fact in the pleadings of his opponent, and he must make it absolutely clear which facts he admits of and which he denies. High Court of England, Pleading and Practice, pages 145-148. Hence the judge of the lower court did not err when he ruled out the defendant’s answer completely.
When the defendant’s answer is struck from the records of the case, the case must be ruled to trial on the merits.
2. Defendant cannot raise any subsequent legal law issue to prevent hearing on the case before trial by jury. And the appellate court cannot raise law points and issues for the defendant on the principle of general denial. L.L.R. 317.
3. When money is unlawfully seized by the defendant a case of injury lies. 1 Rev. Stat., § 222-225. 3 Blackstone, Comm. *145
We come now to the facts in the case:
Cavalla River Company employed the plaintiff under the following contract to wit: Contract:
“This agreement made this 3oth day of March A.D. 1929 between Emmanuel Simeon Prince Pepple, of Cape Palmas in the County of Maryland, Republic of Liberia, hereinafter called the party of the first part, and the Cavalla River Company Limited, Liverpool, now transacting business at Cape Palmas, by its agent Mr. A. C. Onis Bud, hereinafter called the party of the second part, witnesseth
“That the said party of the first part agrees to work for the said party of the second part, faithfully, diligently and honestly as clerk in charge of any of the Company’s trading stations or stores or any position of trust whatsoever as may be required of him; party of the first part further agrees to make himself responsible to the said party of the second part for goods, cash produce and any other property belonging to said company, under his care as well as for all shortages in stock and debts that whenever any shortage in goods, cash, produce or any other property entrusted to his care occurs the said party of the first part agrees to allow and permit the said party of the second part to detain his wages and place same against the said amount of shortage and that in the case of the said amount of the said shortage or debt exceeding the amount due to the party of the first part by the said party of the second part then and in that case the said party of the first part agrees to liquidate, settle and discharge said balance without delay. The said party of the first part further agrees to allow a minimum of 20% of his wages per month to stand to his credit in the books of the Company until it reach one hundred pounds sterling clear same to stand to his credit and he agrees to leave the said one hundred pounds with the Company as security.
“The said party of the first part further agrees not to do nor to cause to be done any trade or any other mercantile business with any person firm or corporation, during the life of this agreement, and the said party of the first part further agrees to permit the said party of the second part or his representatives or agent or assigns to take stock at all and any time he or they may desire without any manner of trouble or hindrance whatsoever.”
The defendant Company employed the plaintiff under this definite contract under date 20th March, 1929, to work as clerk in their retail store for wages of £10:0:0 sterling monthly; and the defendant company was permitted under this contract to detain monthly the sum of £2:0:0 from said wages as security until the said amount increased to the sum of £100:0:0 which amount should always remain as full security for any shortage which may occur in the business transaction.
Prior to this, Pepple, the appellee, had deposited with the defendant’s Company the sum of £90:0:0; the accrued interest for April, May, June and July at 5% p.a. being £1:10:0; balance remaining was £70:0:0 and interest on latter amount for August, September, October, at 5% p.a. equalled Lo:17 :6; this was because the said defendant Company was paying a rate of interest of 2% higher than the Bank of British West Africa. This was the inducement which led Pepple to deposit his funds with the C. R. Company. The Cavalla River Company, in keeping with their engagement, allowed Pepple interest for April, May, June and July at 5% per annum which amounted to £1:10:0 and allowed him further to draw from the principal the sum of £20:0:0 at the end of July, leaving still a balance of £70:0:0 to his credit on which they allowed him £0:17:6 as interest for August, September and October. See document 5 on record. We are made to understand from the above, that the deposit department was dealing with Mr. Pepple without any reference to trade; (a) they granted him a certificate of deposit; (b) they gave him interest; (c) they allowed him to draw £20:0:0 out of the amount deposited.
No mercantile firm, corporation or banking house would allow one to deplete or diminish a security whether collateral or otherwise until the former contract agreed upon is matured and cancelled.
There is a principle and usage in the law merchant that if anyone accepts deposits, he becomes responsible to the holder of the pass book or deposit certificate under the principle of the law governing banks and bankings. I Moore, Banking 410, par. 179; 208; 570, par. 300.
To surrender a deposit certificate, the instrument must be signed and transferred to the defendant company. To take over such deposit for debt and claim without assignment, attachment or garnishee is against all usage and banking laws of England and America. i Moore, supra.
Receipts : Let us examine the receipts furnished by the defendant’s company against Pepple’s deposit.
The receipt that is written in lead pencil may have contained matters unknown to Pepple either before or after, as the lead pencil writing is not clear and additional words may have been written before or after as the voucher was written in the hand of an employee of C.R.C., and the words “This closes all accounts” added, as there were ample spaces in the receipt form for such mischief.
In England and America, no one is allowed to give bank receipts in lead pencil; neither are you allowed to give accounts in lead pencil. Moreover, when an account is contested, they may do it tentatively until the debtor acknowledges the account or the balance, but it is not allowed as it is always a subject of litigation and it can be changed at the will of either party.
Let us inspect the book account of the defendant’s company as to the extract account filed in this case. Bouvier says : “An abstract is not valid and conclusive as it may contradict the original account.” Liberian Statutes (Old Blue Book) 34, chapter X, section 9, says that a copy is not sufficient evidence when the original can be produced. When the court demanded the original account the defendant’s company only furnished a copy and a copy is not sufficient evidence unless it is shown that the original is lost. On the contrary, the defendant’s company said they had the original but were not in a position to furnish it.
The majority of the Court having examined the account with great care say that an independent deposit could not have arbitrarily been used to close an account which the plaintiff, now appellee, refuses to acknowledge.
The accountant of the defendant’s company in his evidence (see records, page 6) said plainly that Pepple had three separate accounts; namely, 1. stock account; 2. deposit account; 3. security account. “Now,” says Professor R. H. Carter, one of England’s greatest accountants, “in practical bookkeeping adopted to commercial and judicial accounting, the object of bookkeeping is to exhibit a distinct, correct state of one’s affairs and to enable individuals, firms and companies in trade or otherwise occupied, to ascertain at any time the nature and the extent of their business, the amount of their profit on all available income or as the case may be, the extent of their losses.” To those engaged in trade or commercial pursuits, bookkeeping is absolutely necessary as by it, all transactions should be regulated and their results exhibited; the more simple the system, the better; but care must be taken that the plan adopted is sufficiently comprehensive and explanatory to satisfy not only the persons keeping the books but those who may have occasion to refer to them.
For, however satisfactory it may be for a trader to follow a system which is intelligible to himself alone, circumstances might arise to render the inspection of others necessary—and from their inability to follow out transactions in the book, suspicions will probably be engendered for which there was no real foundation—hence the necessity for the adoption of certain recognized and approved systems which being plainly understood must prove satisfactory to all concerned.
Bookkeeping as a science when conducted upon sound principles is invaluable.
It not only shows the general result of commercial career, but admits of analysis by which the success or failures, the value or other worthlessness of its component parts, or each particular transaction can be easily ascertained ; in a word, on one hand it promotes order, regularity, fair dealing and honorable enterprise ; on the other, it defeats dishonesty and preserves the integrity of man when dealing with his fellows. There are two verdicts obtained by the plaintiff in this case in the court below which would make a judgment in his favor cogent.
In conclusion, suppose we admit that the stock account be blended with the deposit account. How can we determine and say conclusively that Pepple was short when the stocksheets after the stocktaking were not extended, checked and the total certified correct and duly signed by the stockkeeper and witnessed as is customary. A further statement of account drawn up by the defendant company’s agent as witness was very conflicting and irreconcilable as compared to Pepple’s statement.
The defendant’s company agent said that he gave Pepple £5:0:0 for a humanitarian purpose. Any charitable or humanitarian act is not valid consideration to bind a person to legal contract and a faithful performance thereof.
Therefore the appellee, the plaintiff below, was really injured by the detention of his money and property and to his great injury and loss.
Therefore, without entering into a more minute consideration of the facts surrounding this case, the Court being satisfied that the verdict is not contrary to the evidence and the judgment thereon is well founded in law, the judgment of the court below is hereby amended to provide that instead of one thousand and odd dollars the court adjudged that defendant’s company pay the appellee, plaintiff below, it pay the amount of seventy pounds sterling and all accrued interest, and costs in the appellate and lower courts.
And the Clerk of this Court is hereby ordered to inform the judge of the court as to the effect of this judgment.
Judgment amended.
MR. JUSTICE PAGE, with whom MR. CHIEF JUSTICE JOHNSON concurs, dissenting.
This case was entered at the November term of the Circuit Court for the First Judicial Circuit, 1931, on the complaint of appellee against appellant, in which complaint the plaintiff, now appellee, complains:
“That on or about the 28th of March A. D. 1929, Plaintiff while residing at Harper Cape Palmas, Liberia, deposited the amount of L90.0.0. on deposit account as more fully appears by a copy of the receipt for same hereto annexed upon the Expressed UNDERSTANDING and AGREEMENT that said amount bear interest at the rate of five per centum per annum, and that although the plaintiff withdrew Twenty pounds sterling of said amount, and has subsequently and REPEATEDLY DEMANDED the payment of the balance of seventy pounds sterling with the interest thereon which said interest amounts to the sum of Nine pounds one shilling and eight pence up to the filing of this complaint. Still the defendants aforesaid have refused and NEGLECTED to deliver up said amount with the interest thereon to the damage of the Plaintiff in the full sum of Wherefore plaintiff prays judgment against said Defendant.
“All of which said plaintiff is ready to prove. And the said Plaintiff further complains That owing to the unlawful detention of his said property by the defendants aforesaid as outlined in counts one and two of this Complaint the plaintiff aforesaid was compelled to secure the services of LAWYERS to seek his redress in the premises which said services of said Lawyers so retained cost him the plaintiff aforesaid the sum of Two HUNDRED DOLLARS as more fully appears by the statement hereto annexed and marked B and forming a part of this Complaint.”
To this complaint, the defendant in his amended answer in counts one and two raises an issue of law, attacking the unscientific treatment as to the settled form of legal jurisprudence suited to the case brought by the plaintiff ; that is, the defendant in these two counts sets up :
“That the complaint is fatally defective and bad, because it is not suited to the scope of the form of action chosen, that it fails to show any injury done to any personal property of the plaintiff, but tends only to show a purported refusal and neglect of the (Defendant) to deliver up a certain sum of money charged in said complaint to the property of the plaintiff, which if true, makes the defendant only liable in debt for its recovery to the Plaintiff and not Damages.”
The defendant further answering the complaint of the plaintiff in count two says,
“That the said complaint is further defective and bad in that, no action of DAMAGES can be against the recovery of a sum certain due on a written obligation or on a Deposit account of this kind, as will appear by the receipt marked Exhibit ‘A’ and made a part of said complaint, as the relation of the depositor and the depositary is that of a debtor and creditor, and the legal remedy is a suit at law for DEBT and not DAMAGES. Defendants therefore pray that said complaint be dismissed with cost against plaintiff.”
The plaintiff in joining issue with defendants on this point sets up the following answer in count two of his reply, to wit :
“And the plaintiff further replying to the answer of the defendants alleges that the complaint is not defective and bad, and that count two of defendants’ answer is misleading in that it states specifically that NO ACTION of Damages can lie against the recovery of a sum certain due on a written obligation or on an account made in the course of business, when action of Damages can lie for wrongful conduct of the party in business relationship with another party, according to the Statute law of Liberia, and that the written obligation referred to in said count two of Defendants’ Answer is only a receipt showing that the amount owing thereon was deposited with defendants, and said receipt is not of Hand or a written obligation promising to pay plaintiff at any stated time. Wherefore plaintiff prays that the complaint should not be dismissed.”
On inspection of the records we find this issue still contested in the subsequent pleadings leading up to the rebutter.
On the 28th day of January, the issue of this question was submitted for determination to His Honor Aaron J. George presiding in chambers, together with other issues of law raised in the answer and subsequent pleadings of the defendants.
The learned Judge took up the issues of law and we have recorded in the record the following:
“MONROVIA, LIBERIA
January 28,1932.
“The Circuit Court of the First Judicial Circuit, Montserrado County, met today at 2 p.m., in chambers pursuant to adjournment, His Honour Aaron J. George, Judge presiding. The minutes of the previous day’s session read and approved. The case : E. S. Prince Pepple, Plaintiff versus Messrs. The Cavalla River Company, Limited a Mercantile Firm, transacting business in the City of Monrovia and elsewhere in Liberia, through their Agent W. S. Murdock, Defendants, Action of Damages for Personal Injury. Both Attorneys for Plaintiff and Defendants being absent, the Judge recorded the following ruling:
“That the entire Answer of the Defendants is hereby dismissed and the complaint is hereby sustained, as from the contract of both parties does not show that the amount of £90. o. o. sterling was given as security to his being employed but said amount was deposited in the Banking Department of the Cavalla River Company on interest of 5% per annum. And the said amount is a separate transaction from that of the agreement entered into between the Defendants’ firm and Complainant in this action. In such case there being a separate transaction the account should have been kept separate and distinct. For reliance see Moore on Banks and Banking page 611 section 325. The case is therefore transferred to the trial Docket to be tried by a Jury at its February Term A. D. 1932. All cost ruled against defendant in this action, and it is so ordered. The Court ordered Defendant’s exceptions to be noted. Case suspended.
“[Sgd.] W. O. DAVIS BRIGHT, JR.,
Clerk of Court.”
Here endeth the reading of one of the blunders and gross errors committed by the court in this case contrary to fixed rules of law and the statute of this Republic. The statute provision requires, “That the trial of all questions of law shall be by the court.” How the court could set aside the question of law as raised, which goes to the vital substance of the case without deciding same as the law requires together with the other issues of law raised in the pleading, but rule that the entire answer of the defendant is hereby dismissed, and the complaint of the plaintiff sustained, ruling all cost against the defendant in this case, is most puzzling and difficult for us to understand. However, at the May term of court, His Honor Judge Shannon presiding upon the trial of this case left issues as to error of law undetermined and was confronted with a “Motion to dismiss the case for the want of Jurisdiction,” which motion embodies the following:
“Messrs. The Cavalla River Company Ltd., a mercantile firm doing business in the City of Monrovia and elsewhere in Liberia, by and through their Agent W. S. Murdock Defendants in the entitled case respectfully motion this Honourable court to dismiss said case for the following legal reasons to wit:-
“1. Because this case has already been ruled out of court by His Honour Aaron J. George, Resident Judge for the first Judicial Circuit court, when he said inter alia, that the answer of the defendants is dismissed, the complaint is sustained, and all cost ruled against defendants.
“2. And also because said ruling having been pronounced in substance and against defendants, it puts an end to said judicial proceedings in this court, and your honour had no further authority to try same and award further cost.
“3. And also because this court has no authority in law to try suits sounded in damages for detention of a sum certain or money due on legal liabilities, as for example for money lent, paid, had, received or even deposited for safe keeping as in this case. Since damages to personal property is not the proper subject matter over which this court can pronounce a legal judgment for the recovery of a sum certain detained.
“For the CAVALLA RIVER COMPANY LTD., Defendants as aforesaid [Sgd.]
H. LAFAYETTE HARMON
T. GIBLI COLLINS
Counsellors at Law”
To this motion the Judge presiding gave the following ruling, to wit:
“This court in attempting to review the doings of Judge George would not be acting within the scope of authority given by law. 2nd And also because the same points of law embodied in the motion to the jurisdiction of this court, dated August 11, 1932 were contained in a motion submitted to His Honour Judge Shannon who presided over the May session of this Honourable court. And 3rd also because the court will refuse to dismiss the complaint of the plaintiff after trial has begun. . . .”
Here we find the third jump of three judges over the questions of law submitted in the case. The latter (Judge Russell) , however, continued his ruling to state as follows :
“The complaint is clear and unambiguous, which is evidenced by the fact that the petit jury at the last term of court under Judge Shannon was able to arrive at a verdict. In this case the legal sufficiency of the complaint is not brought into question but the correctness of the verdict of the petit jury, based on the facts which were adduced at the trial, is the only point under consideration. Argument on this ensued after which motion was denied by the Court and the exceptions of the defendant’s counsel ordered noted.”
After which the case was argued and submitted to the jury which returned with their verdict in favor of the plaintiff, still leaving the law issues undetermined. On the 1st day of September, 1932, the defendants submitted a bill of exceptions to the trial judge for the removal of this case before this Honorable Court on grounds submitted.
Of the eight exceptions noted we shall only address our-selves to Nos. 1 , 2, 3, 4, and 8, which read as follows :
“Exception 1. Because His Honour the judge of the Circuit Court, First Judicial Circuit at the May term A. D. 1932 over-ruled defendant’s plea in counts 2, 3, and 4 in defendant’s answer and ruled the case to trial on its merits.
“Exception 2. And also because His Honour the Judge of the Circuit Court aforesaid, at the May Term A. D. 1932 over-ruled Defendant’s Motion to dismiss the said Action for want of Legal jurisdiction over the subject matter of the cause, and which ruling was affirmed by the trial Judge at the August term of the said Court, stating inter alia, that although he did not agree with the ruling of his colleague in not sustaining Counts 1 and 2 of Defendant’s amended Answer, yet it was not within his purview to review the opinion and decision of His Honour Aaron J. George, Resident Circuit Judge.
“Exception 3. And also because This Court has no authority in Law to try suits sounding in damages for detention of a sum certain, or money due on legal liabilities, as for example, for moneys lent, paid, had, received, or even deposited for safe keeping as in this case. Since damages to personal property is not the proper subject matter over which this Court can pronounce a legal Judgment, it should not have affirmed said ruling.
“Exception 4. And also because the trial Judge over-ruled the following legal points in a Motion submitted for want of jurisdiction, namely :— (a) That this case has already been ruled out of Court by His Honour Aaron J. George, Resident Judge for the First Judicial Circuit, when he said inter alia, that the Answer of Defendant is dismissed, the complaint is sustained and all cost ruled against the Defendant and Your Honour affirmed said Ruling.”
From the foregoing we observe that the question as set up in defendant’s answer as to the jurisdiction of the court over the case in the form of the action chosen and instituted has traveled from the early stage of the case, as from the answer to the bill of exceptions, in spite of which this case is brought before this Court without any ruling, decision, or action of whatsoever kind having been taken or given by any of the three judges who presided over the case, and these issues remain still dormant and studiously avoided by any of the said three Judges. Each subsequent judge jumped these issues of law in the wake of Judge George whose duty it was according to the statute and rule of court to decide.
Mr. Justice A. Karnga who, since laying down the principle, was advanced to the bench of the Supreme Court of the Republic as Associate Justice, in his treatise on rules of procedure in criminal and civil cases enunciated loudly this principle of law : That all issues of law raised in the pleadings of a case must first be disposed of by the judge before whom such pleadings are pleaded before going into questions of facts to be submitted to the jury. Courts or justices shall only decide questions of law when properly raised in the answer and pleadings. On no subject can counsel argue law to the jury.
“The weight of authority on this point appears to be in the negative. It has been held that in those jurisdictions like ours where the jury is bound to take the law from the court, it shall be within the power of the court to stop counsel attempting to argue questions of law to the jury but to address arguments to the court. In Virginia not only is it held that the jury has no right to take the law except from the court, but it has been ruled expressly, that counsel will not be permitted to address an argument on the law except to the court. This rule is also held by three-fourths of the States in the Union. In the case, State v. Wright, 53 Me., 336, on appeal before the Supreme Court of the United States, Appelton, Chief Justice held : ‘The question seems never to have been directly before the Supreme Court of the United States, sitting in banc; but several of the judges of that court, namely, Baldwin, Thompson, Story, and Curtis, as we have already seen, have emphatically denied the right of the jury to decide the law in any case, civil or criminal ; and we cannot doubt that such will be the decision of the full court if this question ever comes before them.’ [3 Whar. 3011, 3277, and 3278, Note C.] And if the contrary course is pursued the verdict shall be set aside. (Ibid. 3278, bottom; Statute p. 47, sec. 5) .”
This opinion is cited from Mr. Justice Karnga’s Guide to Our Criminal and Civil Procedure26, § 31. The learned author also sets up the following principle (p. 48, § 27) :
“Issue (from exitus, the end of all pleadings) is either upon matter of fact or law. An issue of fact is where the fact only and not the law is disputed. And when one party tenders issue, the other party may immediately join issue; or if affirmative matter be set up in the pleadings, he may at once take issue thereon; and whenever this is done, the issue is said to be joined, both parties having agreed to rest the fate of the cause upon the truth of the fact in question. An issue of fact is determined by the country, that is, by a jury; while an issue of law is decided by the Judge [3 Blk. Corn., Issue; Act, 1912, Page 4, Sec. s].”
These are settled principles of law governing issues of law when raised in the pleadings. In the face of such well settled principles, for the court to pass over issues of law relating to the jurisdiction of the court over the subject matter or the form of action (in this case not being suited to the provision of law in such cases) as brought by the plaintiff, and for this Court to pass over such a wilful and flagrant error when raised before this Court and proceed to pass on the findings of the petit jury in the face of even what is expressed by the last trial judge, over his approved signature, that he did not agree with his colleague in not sustaining counts one and two raised in their answer simply because it was not within his purview to review the decision of His Honor Judge George who passed over this issue of law, is most puzzling for us to understand. It is as mysterious as St. Paul in his meaning when he said, “I show you a mystery; you shall be changed as quick as the twinkling of an eye.”
We unhesitatingly say the judge of the court below erred in not disposing of this question of law setting forth the grounds upon which his ruling was based.
We are therefore of the opinion in passing on this issue that the premises taken in the pleadings, to wit, that the action is one of debt and not damages, is well taken. Blackstone in his Commentaries (Book 3, *154) says :
“The legal acceptation of debt is, a sum of money due by certain and express agreement : as, by a bond for a determinate sum; a bill or note ; a special bargain; or a rent reserved on a lease; where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it. The non-payment of these is an injury, for which the proper remedy is by action of debt, to compel the performance of the contract and recover the specifical sum due. This is the shortest and surest remedy. . . .”
Hence the action should have been brought for debt or assumpsit and not damages, and the court in considering this issue should have dismissed the case, as we fail to see any foundation in law upon which to support the judgment of this Court in favor of the appellee in the action of damages as brought. Assumpsit is where one has had and received money belonging to another without any valuable consideration given on the part of the receiver; for the law considers this to be money had and received for the use of the owner only; and implies that the person so receiving promised and undertook to account for it to the true proprietor, and if he unjustly detains it, an action on the case lies against him for the breach of such implied promise and undertaking. This is a very extensive and beneficial remedy applicable to every case almost where the defendant has received money which equo et bono (by equity and right) he ought to refund. See Blk., Commentaries, Book 3, *163, § 3, case for damages. Mr. Blackstone says as to the damage that may be offered to personalty while in the possession of the owner, as taking a man’s deer, shooting his hog or his dog, poisoning his cattle, or in anywise taking from the value of any of his chattels, or making them in a worse condition than before, these are injuries too obvious to need explanation.
“I have [says Mr. Blackstone] only therefore to mention the remedies given by the law to redress them, which are in two shapes ; by action of trespass vi et armis, where the act is in itself immediately injurious to another’s property, and therefore necessarily accompanied with some degree of force ; and by special action on the case, where the act is in itself indifferent, and the injury only consequential, and therefore arising without any breach of the peace. In both of which suits the plaintiff shall recover damages, in proportion to the injury which he proves that his property has sustained.” Blk. Commentaries, Book 3, *153.
Having thus exhausted the law on the point raised, we shall before concluding this opinion pass on to a review of the facts submitted at the trial supposing the plaintiff had brought the right action against the defendant, in the evidence of this tenor, to wit:
“No 8825
(Identification mark, G)
“Pay Slip
“To CASHIER. C. R. C. COMPANY
“100/–
“Please pay to M. E. S. Prince Pepples, Five Pounds sterling on account of storekeeper’s salary final wages due Mr. Pepple, and in full settlement of all claims.
“[Sgd.] W. S. MU.RDOCK
“Date 17/4/30
“Received the above five pounds sterling
“Date 17/6/30.
“[Sgd.] E. S. PRINCE PEPPLE”
It also appears from the evidence that the plaintiff served the defendant’s firm with whom he deposited said £90:0:0 as storekeeper, and in the course of this business relation he became deficient in his account. In the adjustment said pounds were passed to balance said amount of deficit on April 5th, 1930, which is shown in the account submitted in evidence. We observe that the five pounds given to Mr. Pepple for which he gave a receipt to the defendant in full settlement of all claims does not appear in the account which had been balanced by transfer of the seventy pounds on deposit.
Now the entire transaction having been closed with Mr. Pepple’s acknowledgement of having no further claims against the company in 1930, we find in 1931, eighteen months thereafter, that he instituted this action.
Mr. Justice Karnga (then counsellor-at-law), in his Guide to Criminal and Civil Procedure (p. so, § 30), upholds strongly the principle of estoppel.
“An estoppel,” says he, “is a preclusion, in law, which prevents a man from alleging or denying a fact, in consequence of his own previous act, allegation, or denial of a contrary tenor. It is also,” says the author, “a special plea in bar, which happens where a man has done some act, or executed some deed which precludes him from avering [sic] anything to the contrary.”
This Court taking inspiration from the learned counsellor, also following the same line, ruled in the case East African Company v. Dunbar, I L.L.R. 279 (1895), that the plea of estoppel is a good plea and will prevent a party from denying his own act if well founded ; that neither law nor equity will permit a party to disclaim his own acts as unlawful. This being the case, the receipt given by Pepple, the appellee, to the effect that he gave it in full settlement of all claims which he may have or hold against said company the appellants, he, the said appellee, is barred in both law and equity from bringing, having, or contesting the aforesaid claim against appellants and deriving any benefits therefrom by virtue of the doctrine of estoppel. He is therefore estopped both in law and equity if the rule is to be observed.
There are but two positions in this case which this Court might take; namely, either affirm the judgment of the court below in awarding the appellee $1061.71 equivalent to £221 :0 :4 as the damages sued for, minus the amount £70:0:0 on deposit, or reverse the judgment because the action is not brought within the scope of the form of action which should have been brought and also by virtue of the doctrine of estoppel. He is estopped from asserting any claim against said defendant now because of the receipt given by him.
We are therefore of the opinion that the judgment of the court be reversed and the case dismissed with cost against appellant by virtue of the principle of law and the facts set forth in this decision.
Reversed.