Lechmere, Bart., and Others v Fletcher
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1833 |
| Date | 01 January 1833 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 549
EXCH. OF PLEAS.
S. C. 3 Tyr. 450; 2 L. J. Ex. 219. Referred to, Edmunds v. Downes, 1834, 2 Cr. & M. 459; 4 Tyr. 173. Followed, Bird v. Gammon, 1837, 3 Bing. (N. C.) 883; 5 Scott, 213; 3 Hodges, 224; Hartley v. Wharton, 1840, 11 A. & E. 934; 3 P. & Dav. 529; Blyth v. Fladgate, [1891] 1 Ch. 337.
lechmere, bart., and others v. fletcher. Exch. of Pleas. 1833.-A promise in writing, signed by the party chargeable thereby, to pay his proportion of a joint debt more than six years old, is a sufficient compliance with the provisions of the 9 Geo. 4, c. 14, s. 1, to take the case out of the statute of limitations, though no amount is specified in the promise; and a, plaintiff suing on such promise is not confined to nominal damages, but may recover the whole of such proportion upon proving the amount by extrinsic evidence.-A. and B. were jointly indebted to C. ; after more than six years had elapsed since the debt accrued, A. promised in writing signed by him to pay his proportion when applied to. Afterwards, 0. sued A. and B. jointly, in indebitatus assumpsit, on the original joint cause of action. B. pleaded the general issue, and A. pleaded the general issue and the statute of limitations. A verdict passed against B. on the general issue, and for A. upon the general issue and upon the issue on the statute of limitations, and judgment was entered for C. against B,, and for A. against C. C. afterwards brought a fresh action against A., and declared specially on the new promise to pay his proportion :-Held, that neither the recovery against B., nor the verdict and judgment for A., were any answer to the action against A. on the new promise.-Payment of money into Court on a special count framed on such new promise to pay the defendant's proportion, and averring the amount of such proportion under a videlicet, does not admit, or preclude the defendant from disputing, the amount of such proportion. [S. C. 3 Tyr. 450; 2 L. J. Ex. 219. Referred to, Edmunds v. Dowries, 1834, 2 Cr. & M. 459 ; 4 Tyr. 17.3. Followed, Hird v. Gammon, 1837, 3 Bing. (N. C.) 883 ; 5 Scott, -J13; 3 Hodges, 224; Hartley v. IVharton, 1840, LI A. & E. 934; 3 P. & Dav. 529; Blyth v. Flout gate, [1891] 1 Ch. 337.] The first count of the declaration stated, that the defendant and one Thomas Fulljames, heretofore and more than six years before the commencement of this suit, to wit, &c., were indebted to the plaintiffs in a large sum of money, to wit, 2501., for work and labour, commission, money lent, &c. &c.; and that the defendant and Full-j_624]-james promised to pay the plaintiffs on request; the count then proceeded as follows :- And whereas before and at the time of the making of the promise of the defendants hereinafter next mentioned, six years from the making of the said promise of the said defendant and Thomas Fulljames to [ ay the said monies to the plaintiffs, and from the time the causes of action of the plaintiffs in respect of the said monies accrued, had elapsed, and the right of action of the plaintiff's against the defendant and Thomas Fulljames for the recovery of the said monies had, by reason of such lapse of time, but not otherwise, become barred, by virtue of the statute in such case made and provided; and at the time of the making of the defendant's promise next mentioned, ;the said several monies had not, nor had either of them or any part thereof, been in any mariner paid or satisfied to the plaintiffs or either of them, and they were justly entitled to receive the same monies, to wit, in the county aforesaid. And thereupon, after the said lapse of six years, and within six years next before the commencement of this suit, to wit, &c., the defendant, in consideration of the premises, by a certain memorandum in writing then and there signed by him, promised the said plaintiffs to pay them, at any time, his, the defendant's, proportion of the said monies, in case the plaintiffs would apply, arid on their applying to him for the same ; and the plaintiffs aver, that the defendant's proportion of the said monies so unpaid amounted to a certain sum, to wit, a moiety of the said monies ; and that they, the said plaintiffs, afterwards, to wit, &c., applied to the defendant for, and required him to pay to them, such his, the defendant's, proportion of the said monies. 55D LECHMERE V. FLETCHER 1 C. & M. 6Z8 The second count stated the defendant and Fulljames to be indebted, as in the first count, and then proceeded as follows: And whereas the said several last-mentioned monies being unpaid and unsatisfied, the defendant afterwards and within six years next before the commencement of this suit, to wit, &c., in consideration of the premises [625] respectively, and that the plaintiffs would apply to him for his proportion of the last-mentioned monies, then and there promised to pay his, the defendant's, proportion of the last-mentioned several monies respectively to the plaintiffs, on such application being made; arid the plaintiffs aver that the defendant's proportion of the last-mentioned several monies was and ia a moiety thereof; and that they afterwards, to wit, on &c., applied to him for payment thereof, to wit, in the county aforesaid. The third count was the common indebitatus count. Pleas-non assumpsit to the whole declaration, and the statute of limitations to the third count; and 10s. was paid into Court on the special counts. At the trial before Parke, J., at the last Spring assizes for the county of Gloucester, it appeared that the defendant and Fulljames, more than six years before the writing of the letter hereinafter mentioned, were indebted to the plaintiffs in the sum of 2501. In 1830, the plaintiff's wrote to the defendant claiming that sum; and in April, 1831, the defendant wrote a letter to the plaintiffs, in which he said that Fulljames had managed the cash concerns of the inclosure (out of which the transaction arose), and added, "I will at any time pay my proportion of the debt clue on application for the same." Evidence of the amount of the plaintiff's...
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