Irving and Another v Veitch
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1837 |
| Date | 01 January 1837 |
| Court | Exchequer |
English Reports Citation: 150 E.R. 1069
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. M. & H. 313; 7 L. J. Ex. 25. Followed, In re Stock; Ex parte Amos, 1896, 66 L. J. Q. B. 140; 75 L. T. 422; 3 Manson, 324. Referred to, Evans v. Nicholson, 1875, 32 L. T. 780. Applied, M'Donnell v. Broderick, [1896], 2 Ir. R. 157.
irving and another v. veetck. Exch. of Pleas. 1837.- The defendant was indebted to the plaintiffs in a balance of 224;')!., for which they held his overdue promissory note. In 18:37, the plaintiff' and defendant agreed that the defendant should pay the balance as follows: - 2451. in cash, and the remainder by annual payments of 3001. 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 2451. was paid, and the 3001. was also duly paid in 1828 and 1829, but the defendant made default in payment of it in September 18;!0: - Held, that the plaintiffs were entitled, at any time within six years from September 1820, to sue the defendant on the promissory note, or for the balance remaining due, on a count upon an account stated. - Where a debtor draws a bill of exchange, to be applied in part payment of the debt, and the bill is paid when clue by the drawee to the creditor, it operates as part payment, to defeat the Statute of Limitations, only from the time of the delivery of the bill by the debtor, not from the time of its payment. [S. C. M. & H. 313 ; 7 L. J. Ex. 25. followed, In re Stock; Ex jiarte Amos, 189f , G6 L. J. q. B. 140; 75 L, T. 422; 3 Manson, 324. Referred to, Evan* v. Nichokon, 1875, 32 L. T. 780. Applied, McDonnell v. Hwtkrick, [1896], 2 Ir. R. 157.] The first count of the declaration stated, that the defendant, heretofore and in the lifetime of Sir Thomas Reid, Bart., and George Irving deceased, to wit, on the 30th November, 1824, made his promissory note in writing, and delivered the same to the plaintiffs and the said Sir Thomas Reid and George Irving, trading under the firm of Messrs. Keid, Irving, and Co., and thereby promised to pay them the sum of 11871. 10s. on the ,'ilst December, 1825, which period had elapsed before the commencement of this suit. The second count was on another note of the same amount and date, payable to the same parties on the 3 1st December, 182(!. There were also counts for money lent by the two plaintiffs to the defendant, money paid, money had and received, interest, and on an account stated between the defendant and the plaintiff's. The defendant pleaded, first, the Statute of Limitations to the whole declaration ; secondly, non-assumpsit to the common counts. At the trial before Lord Abingor, C. B., at the London Sittings after Trinity Term, the following appeared to be the facts of the case : - The plaintiff's, Mr. John Irving and Sir John Kae Keid, Bart., in conjunction with their late partners, Sir Thomas Keid and Mr. George Irving, merchants in London, trading under the firm of Keid, Irving, and Co., were the [91] agents and correspondents in London of the defendant, who was a merchant in Madeira, and held for many years the situation of British consul general and agent in that island. In the year 1824, the defendant, who was indebted to Messrs. Keid, Irving, and Co. in a considerable sum, having come over to England, was arrested at their suit for 50001. and upwards, and, while in custody, he entered into the arrangement for the payment of the debt set forth in the following letter : - "Messrs. Keid, Irving, and Co. "London, 30th Nov. 1824. "Gentlemen, - I beg to recapitulate, in order to prevent any misunderstanding hereafter, the terms upon which you have consented to discharge me from the action you commenced for the recovery of your balance against me, and to accept a composition for the payment of your debt: and I hereby confirm the arrangement most fully on my part. My uncle, Mr. Robert Veitch, has, in consideration of your acceding to the arrangement, consented to advance you 10001. in part payment of the debt, and you are from this elate to debit his account with you to that amount : I have also this day given an order on Mr. Simon Cock to pay you the further sum of 10001. 1070, TRVTNO V. VEITOH 3M. &W. 92. out of the first monies which may come into his hands arising out of property or effects received or to be received by him, belonging to me or to my late firm of Scott, Priiigl$, Veitch, and Co. ; and I confirm that order as irrevocable. " I now enclose you my two promissory notes, payable to your order, for 11 H71. 10s. each, the one due the 31st December, 1825, and the other the 31st December, 1826 ; and these notes are given to you in payment of the remainder of your claims against me, and agreed by you to be received, when paid, in full of all demands. As a security for these two notes, I hereby distinctly confirm the appropriation of the proceeds of certain Madeira wines [92] shipped by my house at Madeira to Mr. John Park for sale, and you will apply such proceeds towards the discharge of tho said notes ; and in case the proceeds of the wines should exceed the amount of tho notes, you will be accountable to me for such surplus as may be received by you on that account; but in the event of their falling short of the said amount, and the same not being paid otherwise when due, I hereby engage, being required by you to do so, to make my salary as consul of the island of Madeira subject to the payment of whatever balance may remain unpaid You will please to hand me my acceptances in your hands given on account of the old balance due from my Madeira firm, retaining only that one for 25~ 0l, which bears the indorsement of my uncle Mr. Robert Veitch, whose liability in respect thereof is not intended to lie weakened or in any way affected by the present arrangement. "HENRY vkitch." [Then followed a list of the wines referred to as shipped by the defendant to Mr. Park.] The notes inclosed in the above letter were those declared on in the present action. When they respectively became due, the wines had not been disposed of; and they were accordingly presented for payment to Mr. Cock, at whose residence they were made payable by the defendant, but were not paid. Messrs. Reid, Irving, and Co. did not however protest them for nonpayment, or give the defendant any notice of their dishonour; and matters remained in tho same state until July 1827, when the defendant, having again come to England, made, through Mr. Cock, further propositions for the settlement of the plaintiffs' claim. The plaintiffs, in answer to this application, wrote to Mr. Cock as follows : "S. Cock, Esq. " [Jroad Street Buildings, 30th July, 1827. "Dear Sir,-We have perused your memorandum of tho [93] terms proposed by Mr. Veitch. We do not at all agree in his view of the agreements not binding him to payment until the wines shall have been realized, for the fact of bills having been taken forms a conclusive argument against it. The bills brought the debt to a fixed date, and the wines formed a collateral security. We are therefore justified in calling for the immediate payment; but having said thus much for the justice of our cause, we will add, that we continue in the same desire we have always expressed, to give Mr. Veitch all the indulgence that consists with it; we are therefore willing to accede to his proposal to reduce the debt to 20001. by a present pa3'ment, and discharging the 20001. by equal payments in five years ; the wines to remain with us, and go against the last instalment pro tanto : but we must insist on its bearing interest, the arrange ment being (as we contend) to oblige Mr. Veitch, and not us. We subjoin a note of the sum due to us, which will amount on the 1st proximo to 22451. 17s.; and con sequently Mr. Veitch will have to pay us 2451. 17s. in cash, besides the 20001. and interest^ to be secured to us; and we should wish to know in what shape the security on bis salary is proposed to be given, as wo require it to be made an effectual oue.- Weare,[&c., -, " reid, irving, and Co." On tjhe receipt of this letter the defendant wrote to Mr. Cock as follows: - "S. Cock, Esq. "London, 24th Septeml er, 1827. " Dear Sir,-In consequence of the discussions that have taken place regarding the arrangement required to be made for the final liquidation and settlement of my accounts with Messrs. Reid, Irving, and Co., and in order to effect this object, I have to request you will accept my draft for 2451. 17s. at four months' date in their favour, and further pay them out of my salary as H. M. agent and consul general at Madeira, which, ag my duly authorized [94] attorney, you are entitled to receive at the Foreign 3M.&W.95. 1BVLNG V. VEITOH 1071 Office, the sum of .'5001. annually, commencing the .'iOth Sept. 1828, until by such annual payments, together with the remittances of the proceeds of wine at Calcutta, (which Messrs. Reid, Irving, and Co. are authorized, by their agent at that place, to sell for my account), the remaining balance of 20001. shall lie discharged, and for which they hold my over-due acceptances.-I am, &c., " henkv veitch." Mr Cock accordingly accepted the defendant's bill at four months for 2451. 17s., which was duly paid : and he also paid to the plaintiff's the instalments of .'iOOl. each, out of the consular salary, which fell due on the : 0th .September, 1828, and on the 30th September, 1829 ; but the instalment which became duo on the :iOth September, 1830, was not paid, tt appeared also, that in the year 1829, Messrs. Ferguson and Co., of Calcutta, sold, on the defendant's account, certain portions of the wines above mentioned, and drew for the amount of such sale, on their correspondents in London, a bill for 11121. Us., dated 29th September, 1829, payable six months after sight to Held, Irving, and Co. This bill arrived in London...
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