Shum and Others v Farrington
| Jurisdiction | England & Wales |
| Judgment Date | 10 February 1797 |
| Date | 10 February 1797 |
| Court | House of Lords |
English Reports Citation: 126 E.R. 1108
IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER AND IN THE HOUSE OF LORDS
Followed, Calvert v. Gordon, 1829, 7 Barn. & Cress. 812. Distinguished, Hichinbotham v. Leach, 1842, 10 Mee. & W. 363.
skum and others v. farrington. Feb. 10th, 1797. [Followed, Calvert v. Gordon, 1829, 7 Barn. & Cress. 812. Distinguished, Hichinbotham v. Leach, 1842, 10 Mee. & W. 363.] Debt! on bond conditioned for J. S. rendering account to the Plaintiffs of all monies which he should receive as their agent. Defendant pleads performance in the words of the condition. Plaintiffs reply that J. S. received divers sums of money amounting to 200G1. belonging and relating to the Plaintiffs' business as their agent, and hath not rendered to the Plaintiffs an account of the said 20001. or any part thereof. This replication being specially demurred to for generality, was held sufficient (a)2. Debt en broad for 20001. Upon ayer craved it appeared that the Defendant and one Robert Spratlin, the (a)1 It^seraaj, however, that non damnificatus would not have been a good plea in this ease, e?em if tha condition had not been for payment of a sum of money. For in a note to QuSer v. Southern, 1 Saund, 116, by Mr. Serjb, Williams, this distinction is tjakau. Where the condition is to discharge or acquit the Plaintiff from such a bo ad or other particular thing, the Defendant must set forth affirmatively the special matter! of peirfbrinahee J but when the condition is to discharge and acquit Plaintiff from, any damage by reason of such bond or other particular thing, then non damnificatus is a gpodiplea. ; See; the authorities there cited. (j) Analogous to this case ia principle are those decisions where it has been holden, thai if a bond be conditioned for the payment of a sum of money at a certain day, though really given by way of indemnity, the debt accrues from the day mentioned in. Che condition, and does not await the damnification. Touissant v. MartmnaM^ 2 Term Rap. 100. Martin v. Court, 2 Terra Hep. G40, and Hodgson mud ofhersv. Ball, 1 Term R^p. 97.-Nothing dabors the bond can be pleaded to shew that it is an indemnity bond. Mease v. Mease, Gawp. 47. ()* Vide Sale v. Reed, 8 East, 80. Wilcacks v. Nichdls, 1 Price, 109, 1 BOS. * PUL. 641. SHUM V. FARRINGTON 1109 elder, became jointly and severally bound to the Plaintiffs, as brewers and copartners, in the above sum, conditioned for the good behaviour of Robert Spratlin the younger, employed by the Plaintiffs as their agent or factor in their business as brewers, and for his duly rendering and paying to the Plaintiffs a true, and just, and fair account, payment, and delivery of all monies, bills, &e. belonging or relating to their trade as [641] auch agent or factor, wherewith he should be entrusted or which he should receive or be concerned in as agent for the Plaintiffs. The Defendant pleaded that Robert Spratlin, the younger, was employed as the Plaintiffs' agent at Colcheater, and averred performance in the words of the condition. Replication, That "the said Eobert Spratlin the younger whilst be so continued to manage and conduct the said business of the Plaintiffs as their agent or...
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