Leaper against Tatton
| Jurisdiction | England & Wales |
| Judgment Date | 28 November 1812 |
| Date | 28 November 1812 |
| Court | Court of the King's Bench |
English Reports Citation: 104 E.R. 1147
IN THE COURT OF KING'S BENCH
[420] leaper against tatton. Saturday, Nov. 28th, 1812. In assumpsit against the defendant as acceptor of a bill of exchange, and upon an account stated, evidence that the defendant acknowledged his acceptance and that he had been liable, but said that he was not liable then, because it was out of date, and that he could not pay it, it was not in his power to pay it, was held sufficient to take the^case out of the statute, upon a plea of actio non aeerevit infra sex annos. The plaintiff may declare on the,original promise, although he relies on the subsequent promise to take the case out of the Statute of Limitations. The plaintiff declared in assumpsit as the indorsee of a bill of exchange, drawn on the 10th of October 1796, by M. Smith, upon the defendant, at two months' date, for 201. 5s., payable to the order of the drawer, which was accepted by the defendant, and afterwards indorsed by the drawer to the plaintiff; and the special count con- (a)1 3T. E.531. (b) 2 East, 2. (c) Cowp. 671. (d) 3 T. E. 632. (a)2 6 T. E. 265. 1148 LEAPEB V. TATTON 16 EAST, 421. eluded with this averment" of which said indorsement the defendant afterwards, &c. had notice, by reason of which said premises and according to the said custom and by the law of merchants, he the defendant then and there became liable to pay to the plaintiff the said sum-of money specified in the said bill of exchange, according to the tenor and effect of the said bill of exchange, and of his said acceptance thereof ; and being so liable, the defendant, in consideration thereof, afterwards promised," &c. The declaration also contained the common money counts. The defendant pleaded non assumpsit, and also that the several causes of action in the declaration -mentioned, did not accrue to the plaintiff at any time within six years next before the exhibiting of the plaintiff's bill. To the last plea the plaintiff replied that the said several causes of action did accrue to the plaintiff within six years, &c. At the trial before Lord Ellenborough, C.J., at Guildhall, the question turned upon evidence of an acknowledgment by the defendant to take the case out of the Statute of Limitations : a witness swore that the defendant, when applied to for payment, shortly before the action was commenced, said that he had been liable, but was not [421] liable then, because the bill was out of date. He acknowledged that it...
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