ABSTRACT
Maugham v Hubbard (1828, Court of King’s Bench) ASSUMPSIT for money had and received. Plea, not guilty. At the trial before Lord Tenterden CJ, at the Middlesex sittings after last term it appeared that the action was brought to recover from the assignees of the bankrupt 20l. paid by the plaintiff to the bankrupt before his bankruptcy. The bankrupt being called as a witness on the part of the plaintiff stated, that he had dealt with the plaintiff several years; that in November 1822, 20l. was received from the plaintiff, which was not carried to the account. A rough cash-book kept by the plaintiff was then put into his hands; in which there was the following entry: ‘4th of November 1822. Dr-R Lancaster. Check 20l. RL.’ The bankrupt then said, ‘The entry of 20l in the plaintiff’s book has my initials, written at the time; I have no recollection that I received the money; I know nothing but by the book; but seeing my initials, I have no doubt that I received the money.’ It was contended that the paper on which this entry was made ought to have been stamped as a receipt; but Lord Tenterden CJ was of opinion, that though it was not itself admissible in evidence to prove the payment of the money the witness might use it to refresh his memory; and that his having said that he had no doubt that he received the money was sufficient evidence of the fact. A verdict was found for the plaintiff, but liberty was reserved to the defendant to move to enter a nonsuit, if the Court should be of opinion that this evidence ought not to have been received. Robinson now moved accordingly, and contended, that as the entry in the plaintiff’s own book could be used for no other purpose than that of proving the receipt of the money by the bankrupt, it ought to have been stamped. Here the witness stated that he had no recollection of the fact of the receipt of the money. The effect of allowing the witness to look at the entry to refresh his memory was to make it operate as a receipt, and it ought, therefore, to have been stamped ...
