Robert Floyd waters, Administrator of Edmound Waters, against The Earl of Thanet
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1842 |
| Date | 01 January 1842 |
| Court | Court of the Queen's Bench |
English Reports Citation: 114 E.R. 295
IN THE QUEEN'S BENCH
S. C. 2 G. & D. 166; 11 L. J. Q. B. 87; 6 Jur. 708.
robert floyd waters, Administrator of Edmund Waters, againsl the eakl of THANET. 1842, Defendant, being drawer of two bills of exchange of which plaintiff was holder, gave him a written promise that, in consideration of plaintiff having agreed not to proceed against him, defendant thereby debarred himself of all future plea of the Statute of Limitations in case of his being sued, and thereby promised to pay the bills, " whenever my circumstances may enable me to do so, and I may be called upon for that purpose." In an action of special assurapsit on this agreement: Held that, under stat. 21 Ja. 1, c. 16, a. 3, the limitation of action ran from the time of defendant becoming able to pay, though plaintiff had made no demand, and had not been informed by defendant, or otherwise had knowledge, of such ability. [S. C. 2 G. & D. 166 ; 11 L. J. Q. B. 87 ; 6 Jur. 708.] Assumpsit, on a writ issued 30th December 1839. The declaration contained three counts. The third count stated that, before the making of the promise of defendant after mentioned, in the lifetime of Edmund Waters, E. Waters was the holder of two bills of exchange drawn by the defendant upon Richard Wilson (stating the amounts and dates): which said bills, at the time of the making of the promise of defendant next mentioned, were in the possession of E. Waters, overdue and unpaid, whereof defendant, at the time of making the said promise, had notice : and thereupon afterwards, to wit 13th April 1803, " in consideration that the aaid Edmund Waters, in bis lifetime, at the request of the defendant, would not proceed against the defendant for the recovery of the amount of the said two bills of exchange [758] until the circumstances of the defendant enabled him, the defendant, to pay the same, the defendant then, and in the lifetime of said Edmund Waters, to wit on the day and year last aforesaid, promised the said Edmund Waters to debar himself, the defendant, of all future plea of the Statute of Limitations in case of his, the defendant's, being sued for the several amounts of the said two bills and of the interest accruing thereon at the time of his being so sued, and that he, the defendant, would pay them separately or conjointly, with the full amount of legal interest on each and both of the said two bills, whenever be, the defendant, might be called upon for that purpose, and the circumstances of him, the defendant, should enable him to pay the same:" averment that E. Waters, confiding, &e., "did, from the time of the making of the said last mentioned promise of the said defendant until the 30th day of November 1838, forbear to proceed against the defendant for the recovery of the respective amounts of the said two several bills, or either of them, or of the interest accruing thereon, and did, from the time of the making of the said last mentioned promise of the defendant until the 23d day of November a.d. 1838, forbear to call upon the said defendant for the payment of the amount of the said two last mentioned bills or either of them, or any interest accruing thereon, when the said Edmund Waters in his lifetime called upon the said defendant and required him, the defendant, to pay the same, according to the tenor and effect of his last mentioned promise:" further averment " That, although, at the time the defendant was so called upon as last aforesaid, the circumstances of the defendant enabled him, the defendant, to pay the several amounts of the [759] said two several bills and the interest accrued and accruing thereon, nevertheless the defendant disregarded hia said last mentioned promise, and did not nor would, then or at any other time before the commencement of this suil, pay the amount of either of the bills, or interest," to E. Waters in his lifetime, or to plaintiff, administrator, &c., since his death ; and the bills, and all interest thereon, were still due and unpaid to plaintiff, administrator, &c. 296 WATERS 1). THE EARL Of THANET 4 fc B. tao. Plea (last), to all the counts, that the supposed causes of action did nob nor did any or either of them accrue at any time vrithin six years, &c. Verification. Replication. That heretofore, and in the lifetime of E. Waters, to wit 30th November 1838, defendant being indebted to E. W. in respect of the said several promises and causes of action in the said declaration, E. W., for the recovery of his damages by him sustained on occasion of the non-performance by defendant of the said several promises, sued and prosecuted out of the Court, &c. (Common Pleas) a certain writ, &c., called a writ of summons, bearing date the day and year last afore said, directed to defendant, whereby he was commanded by our lady the Queen, within eight days after the service of that writ on him, inclusive of the day of such service, to cause an appearance to be entered for him in the said Court in an action on promises at the suit of the said E. W.; and defendant was thereby required to take notice that, in default, &e. (following the writ): which writ was so sued out of the said Court by the said E. W. with intent that the defendant might, by virtue thereof, appear in the said Court to answer him in the said action, and that the said E. W. might there-[760]...
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...[1963] SR (NSW) 340 at 345 per Herron J, 350-352 per McClemens J, 354 per Brereton J; Waters v Earl of Thanet (1842) 2 Ad & El 757 at 769 [114 ER 295] per Lord Denman CJ, Williams Coleridge and Wightman JJ). In Waters 2 Ad & El 757, the Earl promised to pay the full amount of his debt and i......
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