ACCOUNT STATED.

See INFANT, 4.

1 An administratrix sued for a debt due to the
intestate. It appeared that the debt accrued
more than six years before the commence-
ment of the action; but that, within six
years, the defendant and the agent of the
administratrix went through the account to-
gether, and struck a balance, which the de-
fendant promised to pay as soon as he could.
-Held, that the administratrix was entitled
to recover on a count upon an account stated
with her, and that the statute of limitations
was no bar. Smith v. Forty.

126

2. A party may recover the amount of an I.
O. U. on a count upon an account stated.
Payne v. Jenkins.

See Regula Generalis.

ADMINISTRATOR.

324

607

appear in the course of the defendant's case,
that there was a written agreement relating
to the matter, which cannot be read for
the want of a stamp. Secus, if the fact come
out in the course of the plaintiff's case.
Fielder v. Ray.

61

2. A party published a prospectus for the pub-
lication of a county map and gazetteer,
stating that the map would contain "the
exact limits of every parish and township
in the county." The defendant agreed to
take a copy of each. They were published,
and there were lines on the map denoting
the boundaries of townships, but no distinct
lines to show the boundaries of those
parishes which consisted of several town-
ships-Held, that the map was not accord-
ing to the prospectus, and that the defendant
was not bound to take the map, although,
by reference to the gazetteer, it could be as-
certained what townships were in each
parish. Teesdale v. Anderson.
198

3. A tradesman holding a situation in a public
office, being indebted to several persons,
they met together, and signed an agreement,
in which they stated, that he, being unable
to make immediate payment, they agreed to
accept payment by his covenanting and
agreeing to pay to a trustee of their nomi-
nation, one third of his annual income, and
executing a power of attorney as a collateral
security. The debtor did not sign the agree
ment, but attended the meeting, and express-
ed his willingness to comply with its terms.
Before anything had been done in execution
of the agreement, one of the creditors, who
had signed it, brought an action against the
defendant for his original debt:-Held, that
he could not recover. Good v. Cheeseman.

AMENDMENT.

513

1. The Judge, at the trial, will not allow an
amendment under the stat. 9 Geo. 4, c. 14,
where there is a variance which would not
have occurred if common care had been used
in the drawing of the declaration. Jelf v.
Oriel.

22
2. In a declaration on a bill of exchange, the
date of the bill was stated to be the 26th of
March; it really was the 29th. The cause
was undefended, and the judge allowed the
variance to be amended under the stat. 9
(677)

3. A solicitor to a commission of bankrupt
may maintain an action for the amount of
his bill up to the choice of assignees, with-
out having had his bill taxed by the com-
missioners, under s. 14 of the bankrupt act,
6 Geo. 4, c. 16, that provision applying only
cases between the assignees and the
estate. Taylor v. M' Gaugan.

to

96

4. If an attorney sue out a writ against A., at
the suit of B., without any authority, ex-
press or implied, from B. for so doing, and
A. pay the costs of such writ to the attorney,
A. may recover back the amount of those
costs, by bringing an action for money had
and received against the attorney; but if the
attorney had any authority, either express
or implied, from B., to sue out the writ,
such action for money had and received will
not lie against the attorney, even though B.
had no cause of action against A. Dupen v.
Keeling.
102
5. A., an attorney, did business for B., another
attorney, in a cause in which B. was a par-
ty:-Held, that A. could not recover the
amount of his charges, without proof of his
having delivered his bill, under the stat. 3
Jac. 1, c. 7:-Held also, that, under such
circumstances, A. might recover a sum of
money lent on a distinct account, but not
for disbursements made in the cause. Hem-
318
ming v. Wilton.

6. An agent to a country attorney need not
deliver a bill under the stat. 3 Jac. 1, c. 7, s.
1, if the charges be for agency in causes in
which the defendant was the attorney and
in which the plaintiff acted as his agent.
520
Sandys v. Hornby.

4.

5.

6.

so employing the attorney, and not the peti-
tioning creditor, is the person liable to pay
the attorney the costs of suing out the com-
Pocock v. Russell.

mission.

14

If an action be brought against the assignees
of a bankrupt, and, before the trial, the
bankrupt obtains the signature of a sufficient
number of creditors to his certificate, and
be willing to release his surplus, but his cer-
tificate has not been allowed by the Lord
Chancellor; the Judge will not put off the
trial to give time to obtain the allowance of
the certificate by the Lord Chancellor, so as
to make the bankrupt a competent witness
for the assignees. Tennant v. Strachan, 31
If bills be paid in at a banker's as short
bills (i. e, bills which the bankers are to pre-
sent when due, and carry the proceeds to
account), and after a commission of bank-
rupt has issued against the bankers, but
before the choice of assignees, a person, on
behalf of the customer by whom they were
paid in, calls at the banking-house to de-
mand a return of these bills, the answer he
receives is evidence in an action of trover,
brought against the assignees for the reco-
very of such bills: but if, before the choice
of assignees, some of the bills were paid,
the customer cannot recover the value of
such bills as were so paid, in an action of
trover against the assignees.

Ib.

If the assignees, when called on to return
the bills, claim a right to retain such as
have not been paid, alleging that the bank.
rupts had discounted them for the customer
before the bankruptcy, this is presumptive
evidence that these bills were the bills paid
in by such customer.

Ib.

If a customer pay into the hands of his
banker certain bills, as short bills, and, after
the bankruptcy and choice of assignees, the
assignees present them for payment, and re-
ceive the proceeds, and claim to hold the
proceeds against the customer, they are lia-
ble in trover.

lb.

If a person, after notice of an act of bank-
ruptcy, sets up a claim of lien upon certain
deeds, and the bankrupt pay the sum he de-
mands to get possession of the deeds, the
assignees cannot question the amount of this
lien, unless there be a count for money had
and received to the use of the assignees; but
if the person had really no just claim at all,
the assignees may recover back the sum in
an action for money had and received to the
use of the bankrupt; however, if it appear
that the defendant never received any money,
but that A., who was to have conveyed a
house to the bankrupt, at his desire mort-
gaged it to the defendant, an action for mo-
ney had and received will not lie. Noble v.
Kersey.
90
Commissioners of bankrupt committed a
witness for refusing to read the entries in an
account:-Held, that they were liable to an
action for false imprisonment for so doing,
because this was not a question:-Held, also,
that the circumstance of the witness speak-
ing of it as a question at the time of his re-
fusal made no difference. Isaac v. Impey.
113
8. A defendant, in a suit by assignees of a
bankrupt, was told, at an interview with the
attorney for the assignees (which was ar-
ranged by his own attorney, but which he
thought proper to attend alone), that his at-
torney had proposed that he should admit

7.

every fact, except the merits, provided the
plaintiffs would waive their right of holding
him to bail; and he was asked, whether
that proposal was made with his authority.
He replied, that it was; and that he was
ready to carry it into effect, as the only ques-
tion he wished to try was, whether he was li-
able on the undertaking he had given:-
Held, that this amounted to an admission of
the right of the assignees to sue, although no
mention was made of it in the conversa-
tion. Semble, that it would have been oth-
erwise, if, without further explanation, he
had only said that he wished to try upon the
merits. Held, also, that having received
advantage from the admission in the waiver
of the right to hold to bail, he could not af-
terwards withdraw it, and insist upon proof
of the bankruptcy. Davies v. Burton, 166
9. A bankrupt assigned all his property to
two trustees, one of whom was the petition-
ing creditor, who was present at the execution
of the assignment by the bankrupt, and exe-
cuted it himself, but not in the presence of
any attorney or solicitor :-Held, that this was
not such an assignment, as, being communi-
cated to a creditor of the bankrupt, before
the receipt by him of money from the bank
rupt, would enable the assignees to recover
such money as money received after and
with notice of an act of bankruptcy. Bur-
bidge v. Watson.

170

10. A bankrupt, who was in prison for debt,
did not surrender to his commission, nor did
he apply to have the time for his surrender
enlarged, nor did he apply to be brought up
to surrender under sect. 119 of the bankrupt
act, 6 Geo. 4, c. 16, nor did he give notice
to the commissioners that he was in prison:
-Held, that under these circumstances he
was not indictable under s. 112 of the stat. 6
Geo. 4, c. 16, for not surrendering to his com-
mission, even though the imprisonment could
be shown to have been collusive. Rex v.
Mitchell.
251

11. If, in an action by the assignees of a bank-
rupt, notice of disputing the trading, &c.,
has been given; and it appear that part of
the amount claimed could not have been re-
covered by the bankrupt; the proceedings
under the commission are not sufficient proof
of the trading, &c., to entitle the assignees
to go for their whole claim, and they will, on
such evidence, be restricted to that part of
their claim which the bankrupt could have
recovered. Gibson v. Oldfield.
313

12. If a trader buy goods and sell them again
on the same day at more than thirty per cent.
less than he bought them for, this may be an
act of bankruptcy under sect. 3 of the bank.
rupt act; but, to make it an act of bankrupt.
cy, the Jury must be satisfied that the per-
son to whom the trader sold the goods must
have been led to suppose that the trader was
a person going to become bankrupt, who
wished to get money into his hands to cheat
his creditors. Cook v. Caldecot.

315

BILL OF EXCHANGE AND PROMIS
SORY NOTE.

See AMENDMENT, 1, 2. INSOLVENT, 1, 3, 6,
8. LIMITATIONS, STATUTE OF, 1, 2. PART-
NERS, 1.

1. A foreign bill of exchange was drawn by A.
upon C. & Co., who resided at Liverpool, in
favour of L. R. & Co., and by A. endorsed
to the plaintiffs. The bill was drawn, “Sixty
days after sight, pay to L. R. & Co. in Lon
don," &c. It was refused acceptance by the
drawee, but accepted under protest for ho
nour of the drawer by the defendants as fol-
lows:-"Accepted under protest for honour
of L. R. & Co., and will be paid for their
account if regularly protested and refused
when due." This bill was presented for
payment at the residence of the drawees in
Liverpool, and protested at Liverpool for
non-payment; but it was not presented for
payment, or protested, in London. where the
drawees had not any house of business:-
Held, that the holders were entitled to reco-
ver against the acceptors for honour; and
that, under these circumstances, a present-
ment in London and protest there were not
necessary. Mitchell v. Baring.

2.

35

If A. authorize B. to draw bills upon him,
and B. do so, A. is not liable to be sued as the
drawer of those bills. Therefore, where, by
a resolution of the directors of a mining com.
pany, four directors were necessary for the
doing of any act; and three of the directors
were called trustees, and those three gave a
power of attorney to the agent of the com.
pany to draw bills:-Held, that the other
directors were not liable on those bills, as
the power of attorney was not executed by
four directors. Ducarry v. Gill.

121

3. The plaintiff had accepted a bill for 148,
for the accommodation of T., who gave it to
N. for a particular purpose; N. borrowed
101. of the defendant, and gave him this bill
as a security. This sum of 101. was repaid
by N., but the bill was not given up and the
defendant endorsed it for value to R., who,
when it was dishonoured, caused both the
plaintiff and T. to be arrested, and the plain-
tiff paid the amount of the bill, and the costs
of both arrests:-Held, that the plaintiff was
entitled to recover the amount of the bill
from the defendant, but not the costs of the
two arrests. Roach v. Thompson.
194

4. A banker in London, corresponding with a
banker abroad, has the same right, with re-