LIMITATIONS, (STATUTE OF). (1). When it begins to run. The defendant was indebted to the plaintiffs in a balance of 2245l., for which they held his overdue promissory note. In 1827, the plaintiff and defendant agreed that the defendant should pay the balance as follows:2457. in cash, and the remainder by annual payments of 300l. a year out of his salary as a consul abroad, and by the proceeds of certain wines consigned by him to India; and that the plaintiff should hold his promissory note as a security for the payment of the account. The 2151. was paid, and the 300l. was also duly paid in 1828 and 1829, but the defendant made default in payment of it in September 1830-Held, that the plaintiffs were entitled, at any time within six years from September 1830, to sue the defendant on the promissory note, or for the balance remaining due, on a count upon an account stated. Irving v. Veitch, 90 (2). Part Payment. Where a debtor draws a bill of exchange, to be applied in part payment The following letter from the defendant to the plaintiffs' attorney was held not to be a sufficient acknowledgment of a debt to take the case out of the Statute of Limitations :"Since the receipt of your letter (and indeed for some time previously,) I have been in almost daily expectation of being enabled to give a satisfactory reply to your application respecting the demand of Messrs. M. against me. I propose being in Oxford to-morrow, when I will call upon you on the matter." The construction of a doubtful document, given in evidence to defeat the Statute of Limitations, is for the Court, and not for the jury. If it be explained by extrinsic facts, they are for the consideration of the jury. Morrell v. Frith, 402 LIQUIDATED DAMAGES. See RESTRAINT OF TRADE. MASTER AND SERVANT. Declaration in case stated that the plaintiff was a servant of the defendant in his trade of a butcher; that the defendant had desired and directed the plaintiff, so being his servant, to go with and take certain goods of the defendant in a certain van of the defendant then used by him, and conducted by another of his servants, in carrying goods for hire upon a certain journey; that the plaintiff, in pursuance of such desire and direction, accordingly commenced and was pro ceeding, and being carried and conveyed by the said van, with the said goods; and it became the defendant's duty to use proper care that the van should be in a proper state of repair, and should not be overloaded, and that the plaintiff should be safely and securely carried thereby nevertheless, that the defendant did not use proper care that the van should not be overloaded, or that the plaintiff should be safely and securely carried; in consequence of the neglect of which duties, the van gave way and broke down, and the plaintiff was thrown to the ground, and his thigh fractured: -Held, on motion in arrest of judgment, after verdict for the plaintiff, first, that it was sufficiently to be collected from the declaration that the defendant directed the plaintiff to go in the van; but, secondly, that, even in that case, the action was not maintainable. Priestley v. Fowler, MONEY PAID. 1 L. & Co., being the bankers of K., received on his account a cheque for 1001. from one E. T., drawn by him upon the Bank of England, which cheque was lost by L. & Co. E. T., at the request of L. & Co., wrote to the Bank of England, requesting them not to pay the cheque if presented. E. T, was afterwards requested by L. & Co. to give them another cheque for the same amount, upon receiving an indemnity from all loss which he might sustain by so doing, which E. T. promised to do, and the indemnity was accordingly sent. E. T. subsequently wrote to L. & Co. to say he could not conveniently send the cheque, but that he would take the earliest opportunity of handing them the amount. L. & Co. were called upon and obliged to pay the amount of the lost cheque to K.:Held, under these circumstances, that an action by L. & Co. against E. T., for money paid, or on an account stated, could not be supported. Lubbock v. Tribe, 607 MONEY HAD AND RECEIVED. 1. The plaintiff having married a lady possessed of funded property, to which she was entitled by the settlement on her marriage with a former husband, they employed the defendant to dispose of it, and out of the proceeds first to pay off a mortgage of the former husband, and to prepare a settlement of the residue, the interest to be secured for the wife for life, with remainder to the plaintiff for life if he survived her, with reversion to her children: the defendant and two other persons to be trustees:-Held, that although the defendant had paid over to the plaintiff certain sums out of the proceeds of the sale (after payment of the mortgage,) the plaintiff could not sue him for the residue, as money had and received to his use. Mileham v. Eicke, 407 2. Where an action was brought in the name of A. against B. on a bill of exchange, but it appeared that C., the drawer of the bill, was the real plaintiff, and that A. only lent his name because C. was unwilling that his should appear, and that A. gave no instructions to and had no communication with the attorney; and the attorney received a sum of money from B. on the settlement of that action:-Held, in an action for money had and received by A. against the attorney, to recover such sum, the jury having found that it was received for C. and not for A., that the plaintiff could not recover. Clark v. Dignam, 478 3. On the 1st September, 1834, a seizure of spirits was made by the officers of excise on the plaintiffs' premises. The plaintiffs applied to the Commissioners of Excise for the Ꮓ Ꮓ ? 700 MONEY HAD & RECEIVED. restoration of the spirits; first, on security being given for payment of any penalties incurred; then, on payment of their value, to abide the result of the inquiry; which requests were refused. A writ of appraisement having been sued out, in order to the condemnation of the goods, the plaintiffs proposed to the Commissioners to pay the amount at which they were appraised, upon their restoration. The Commissioners answered "that they could accept no offer for the restoration of the seizure, the acceptance of which might prejudice the proceedings for penalties;" whereupon the plaintiffs stated, that, by their paying the money, "they gave up all claim to the seizure, and held themselves responsible for such proceedings for penalties as the Board might think fit to institute." The Commissioners thereupon agreed to restore the spirits; and accordingly, on the 11th September, the appraised value was paid by the plaintiffs to the defendant, the ReceiverGeneral of Excise, and the spirits were restored to them. An information for penalties was subsequently filed against the plaintiffs, in which a verdict was taken for the Crown, by consent, for a mitigated amount of penalties. In November, 1836, the plaintiffs gave the defendant notice of action, and re-demanded the mo ney-Held, that the plaintiffs could not recover back the money so paid, in an action for money had and received, inasmuch as it was paid on a binding agreement, made upon good consideration, whereby the plaintiffs agreed that it should not be recoverable back; and further, that they were precluded from recovering by the provisions of the 7 & 8 Geo. 4, c. 53, s. 98.-Held, also, that, at all events, the action could not be maintained against the defendant, inasmuch as the money was received by PARTIES TO ACTIONS, A. & B. carried on business toge ther as solicitors in partnership, and held themselves out as such, and the defendant employed them in that capacity. By the agreement under which A. & B. entered into business together, B. was to receive annually out of the profits the sum of 300%., but he was not to be in any manner liable to the losses of the business, and was to have a lien on the profits for any losses he might sustain by reason of his liability as a partner :→→→ Held, that A. & B. were properly joined as plaintiffs in an action for work and labour, as the money, when recovered, would be the joint property of both until the accounts were ascertained and the division took place. Bond v. Pittard, 357 PAWNBROKERS' ACT, Trover for certain gold and silver watches. Plea, that the defendant was a pawnbroker, and that they were deposited with him as pledges and security for a sum of money advanced, and which had not been repaid. Replication, that before they were so pledged, it was corruptly agreed that the defendant should lend and advance to the plaintiff a sum exceeding 10, to wit, 777. 11s. 7d., and that defendant should forbear and give day of payment thereof to the plaintiff until the expiration of one year next after such loan or advancement, and that plaintiff for such loan, &c. should give more than lawful interest, &c.; and that, for securing the repayment of the sum, with interest, the plaintiff should pledge the watches with defendant: that in pursuance thereof the watches were deposited and the money advanced, and the interest agreed to be paid exceeded the rate allowed by law, whereby the agreement was wholly void. Issue thereon. At the trial, it was proved that the watches were deposited, but that no agreement was made as to the time they should remain in pledge. The Judge, upon application, amended the record by inserting, after the words, "until the expiration of one year after such loan," the words " redeemable in the meantime." The plaintiff having recovered a verdict: -Held, on motion to enter a nonsuit, that this was a contract within the Pawnbrokers' Act, and that it was to be assumed from the circumstances that the plaintiff had dealt with the defendant in the character of, and upon the usual terms of dealing with, a pawnbroker. Nickisson v. Trotter, 130 PENAL ACTION. 1. What is. An action of debt for penalties for not setting out tithes, on the stat. 2 & 3 Edw. 6, c. 13, is a penal action within the stat. 21 Jac. 1, c. 4, s. 4, and therefore the new rules as to pleading do not apply to such a case, and nil debet is still a good plea to such an action. Earl Spencer v. Swannell, 154 2. Amendment in. The Court allowed the declaration in a penal action (against a magistrate for acting without a qualification) to be amended after special demurrer, on the terms of the defendant's pleading de novo, and the plaintiff's undertaking to try at the next assizes; although the declaration had already been once before amended on the plaintiff's application, and although the defendant produced affidavits that the plaintiff was a person in indigent circumstances, and that he (the defendant) was advised and believed that he had a good defence on the merits. Jones v. Edwards, 218 PENALTY OR LIQUIDATED DAMAGES. See RESTRAINT OF TRADE. PLEADING. See APOTHECARIES' ACT. MASTER AND SERVANT. 1. General Points. (1). Rule to Plead several matters. Where several pleas are pleaded, which amount only to one entire answer to the declaration (as the general issue to part, payment to other part, &c.), no rule to plead several matters is necessary. Archer v. Garrard, 63 (2). Pleading issuably, construction of. The common order for "time to plead, pleading issuably," applies to the plea only. Woodman v. Goble, 304 on The declaration stated that the defendant was indebted to the two plaintiffs and one M. in his lifetime for money found to be due from the defendant to the plaintiffs and M. an account stated between them, laying the promise to the plaintiffs and M. in his lifetime. Breach, that the defendant hath disregarded his promise, and "hath not paid any of the said monies, or any part thereof:”– Held, first, that the accounting was sufficiently shewn to have been between the defendant and the plaintiffs, and not between the plaintiffs only; 2dly, that the breach was sufficient. Debenham v. Chambers, 128 (3). Misjoinder of Counts against Executor. Counts for goods sold to and work and labour done for the defendant, as executor, cannot be joined with count for money found to be due on an account stated with the defendant as executor. Corner v. Shew, 350 (4). For not accepting Goods. Assumpsit. The declaration stated that the defendant, carrying on business at Liverpool, sent and delivered to the plaintiffs, carrying on business at New Orleans, an order to purchase cotton for the defendant, viz., if they, the plaintiffs, could purchase cotton at such price as to stand in, laid down in Liverpool, all charges included, Liverpool fair, 94d. per lb., good fair, 10d. per lb., then the plaintiffs were to purchase cotton to the extent of 200 bales, and if at d. per lb. under those prices, 300 bales; if at d. per lb. under those prices, 400 bales; and to draw bills of exchange on the defendant for the amount of the price. The declaration then averred that the plaintiffs accepted the order, and promised to perform all things therein contained to be by them performed, and in consideration of the premises the defendant promised to accept and receive the cotton to be purchased by the plaintiffs in pursuance of the order, and to accept any bill drawn by the plaintiffs on the defendant for the price of the cotton. The declaration then averred that the plaintiffs did purchase a large quantity, to wit, 206 bales of Liverpool fair cotton, at such price as to stand in 91d. per lb. laid down in Liverpool, all charges included: it then stated the shipping of the cotton, that the plaintiffs drew a bill for the amount, that afterwards, to wit, on &c., the said cotton arrived in Liverpool, and then was ready to be delivered to the defendant, of all which he had notice: and the plaintiffs afterwards, to wit, on &c., requested the defendant to accept the said cotton, and to accept the said bill of exchange, which was then presented to the defendant for acceptance. Breach -that the defendant did not nor would accept the cotton so purchased, or any part of it, and did not nor would accept the bill, or pay or satisfy the plaintiffs for the said cotton:Held, on demurrer, that the declaration was ill, as it did not sufficiently shew that the plaintiffs were ready and willing to deliver the 200 bales only. Dixon v. Fletcher, 146 |