1838. LUBBOCK TRIBE. Each of Pleas, to their customer, for which they were responsible. Then as to the account stated; the form of it shews that it cannot be supported in this case; it supposes an antecedent debt-a debt "before that time due and owing." Here there was no debt at all due from the defendant to the plaintiffs the cheque drawn upon the Bank of England could not make the defendant a debtor to them. The plaintiffs were never to receive the money for their own use; they were only the agents of the company. He cited Spencer v. Parry (a), and Hansard v. Robinson (b), and was then stopped by the Court. Lord ABINGER, C. B.-Whatever inclination we may feel not to allow Mr. Tribe to keep this money any longer in his hands, the Court are compelled to pronounce the objection Mr. Platt has taken to be a just one, and that the defendant was not a debtor to the plaintiffs; though I entertained a doubt upon it at the trial. It appeared that the defendant was indebted to the Kellewerris Company for certain shares, and when they threatened to bring an action against him for the amount, he said, "I have paid it (by cheque or note of hand) to your agents," the plaintiffs. If he did so, and they afterwards refused or neglected to present the cheque at the proper time, and lost it, they are accountable to the Kellewerris Company, and he is not accountable to them: when they failed to present the cheque in due time, they made it their own, and they are bound to pay the company, and cannot recover from the defendant. Then as to the account stated: I have often observed that there is a good deal of confusion in the books on questions of accounts stated,-not the older books, but the modern ones; they lay down this, that where there is any promise to pay a sum of money as due (a) Nev. & M. 770; 3 Ad. & Ell. 331.. (b) 7 B. & C. 90. 1838. LUBBOCK บ. TRIBE. from A. to B., it is evidence of an account stated; which Exch. of Pleas, means this, that the simple promise, if it stand unex plained and uncontradicted, is evidence to go to a jury that the plaintiff claims that sum to be due, and that there are matters of account between the parties; it does not go further than that; and it is only when you come to look at the facts on which the promise was made, that you are enabled to see whether it is an account stated or not. Here there was nothing due from the defendant to the plaintiffs at all the only thing in respect of which they had a claim upon him was upon his promise, and they might have had an action against him for not performing that promise, because no doubt it was made upon a good and sufficient consideration; but it was not in the nature of any debt due from the one to the other at all. PARKE, B.-I am of the same opinion. It seems to me that the action is not maintainable either on the count for money paid, or on the count upon the account stated. As to the count for money paid, the money was not paid on the account of the defendant at all. When he gave the cheque, and the plaintiffs received it to the account of the Kellewerris Company, they became liable to the company for the due presentation of the cheque. They, however, lost it, and the defendant became exonerated. altogether; he was not liable to pay any more than he would be liable to pay through the means of his cheque. If it was a valid cheque, and would have been paid on due presentment, which I collect from the circumstances of the case, the plaintiffs would become responsible for the full amount of it to the Kellewerris Company. In that state of things, a correspondence takes place between the plaintiffs and the defendant, which amounts to a special agreement, that he is to give a fresh cheque if the plaintiffs will give him an indemnity; and on that 1838. LUBBOCK บ. TRIBE. Exch. of Pleas, agreement it appears to me an action might be maintained; but not, I think, for money paid, because the payment of the money does not exonerate the defendant from any liability at all; it is not money paid to his use; it is money paid to the plaintiffs' own use, who are bound to make good the amount to the Kellewerris Company. This case falls within the principle which was correctly laid down in the case cited by Mr. Platt, of Spencer v. Parry. I am therefore of opinion that the count for money paid cannot be supported in this case. Then as to the account stated. The form of that count is "for money found to be due from the defendant to the plaintiffs on an account then and there stated between them;" whereas, according to the correspondence between these parties, all that passed was a special agreement for the giving of another cheque; and if that were held to be an account stated for money due and owing, it would be going to a much greater length than the Courts have yet gone, in extending the meaning of the account stated. It appears to me that nothing more is to be collected from the letters, than a repetition of a special promise upon a sufficient consideration; and that the proper course to be pursued would have been for the plaintiffs to have brought an action for the breach of such promise. BOLLAND, B.-I am of the same opinion. As to the count for money paid, it appears to me that it cannot be supported, for the reasons which have been given by my brother Parke; there was no debt at all that made the defendant liable for money paid. Then, in regard to the account stated, it was the only part of the declaration which I thought originally, when the case first came before us, could be supported; but I am now of opinion that that count also cannot be made available. The distinction taken by the Court in this case was taken also in the 1838. case of Tucker v. Barrow (a). There Bayley, J., states, Erch. of Pleas, that an admission of a subsisting debt is necessary as evidence to support an account stated. Here there was no subsisting debt at the time. ALDERSON, B., concurred. Maule then applied for leave to amend :— Sed per Curiam.-We have no power to direct an amendment. It would in fact be stating an entirely new cause of action. Rule absolute. (a) 7 B. & Cr. 624; 1 M. & Ry. 518. LUBBOCK บ. TRIBE. TROUP v. BoFFI. To an action deli of indebitatus Plea, suit, assumpsit in sold and de1001. for goods livered, &c., the defendant pleaded his the Insolvent ASSUMPSIT to recover 100%. for goods sold and vered, and the like sum upon an account stated. that heretofore and before the commencement of this to wit, on the 12th July, 1837, at a Court then held by Thomas Barton Bowen, Esq., one of her Majesty's Commissioners for the Relief of Insolvent Debtors, at Dover, in the county of Kent, he the defendant, then being an insolvent debtor in actual custody, and a prisoner in the gaol of Dover Castle, by a certain order of adjudication then duly made in that behalf, was duly discharged according to a certain act of Parliament made and passed in the seventh year of the reign of his late Majesty King George defendant in his schedule, the Fourth, intitled "An act to amend and consolidate yet yet he had the laws for the Relief of Insolvent Debtors in England," not any of and from the said several promises and causes of ac- filing of the petition, or of tion and each and every of them, in the declaration men- the time appointed for the Act; to which the plaintiff replied, that although he, the plaintiff, was named and inserted by the hearing upon it:-Held, on demurrer, that the replication was bad, as it did not allege that the plaintiff was a creditor to the amount of 51., so as to be entitled to notice under the 42nd section of the 7 Geo. 4, c. 57. Exch. of Pleas, tioned, and the said order and discharge still remains in 1838. TROUP v. BOFFI. full force. Verification. Replication. That although the plaintiff was named and inserted by the defendant as a creditor of the defendant for and in respect of the causes of action in the declaration mentioned in the schedule of the defendant, and of and from the debts contained in which, and no other, the defendant was, by the said order in the said plea mentioned, discharged; yet the plaintiff in fact further says, that he the plaintiff did not at any time before the making of the said order, have any notice whatever of the filing of the petition upon which the defendant applied for his discharge as aforesaid, and of the said schedule, and of the time and place appointed for hearing the matters of such petition and schedule. And the plaintiff further says, that at and thence continually from the time of the filing of the said petition and schedule, until the making of the said order, he the plaintiff was resident within the United Kingdom, to wit, in the city of London, and he could and might, and ought to have been served with such a notice, according to the said statute, and whereof the said defendant always well knew. Verification. To this replication there was a demurrer assigning the following causes :-For that the defendant hath by his plea pleaded that he was duly discharged from the several promises and causes of action in the declaration mentioned, according to the act of Parliament in the plea mentioned, and by the order of adjudication in the plea also mentioned, and that such order then remained in force, yet the plaintiff hath not by his replication denied the matters so pleaded as aforesaid, nor replied any matter or thing which shows that the defendant was not entitled to the benefit of the act, or that the defendant was not duly discharged according to the provisions thereof. And also, for that the plaintiff, although he hath by his replication admitted that he was named and inserted by the |