In the Queen's Bench.-Faunin v. Anderson. Rule refused. In the Queen's Bench. Before the Right Honorable LORD DENMAN and FANNIN V. ANDERSON.-June 19, 1845. STATUTE OF LIMITATION-PLEADING. Where one of several persons, against whom there is a joint cause of action, is beyond seas when the cause of action arises, the action may be brought within six years after the return of such person by virtue of sect. 19, of stat. 4 Ann. c. 16. Assumpsit upon an agreement to supply plaintiff with goods, within twelve months from a certain day, laid under a videlicit. Plea, the statute of limitations. Held that the declaration was not bad for want of an averment that defendant did not within twelve months from a day certain supply plaintiff, the objection not being pointed out by special demurrer to the rejoinder; and, farther, that the objection was cured by the plea. the former swore that about March, 1843, | mistake; but, in the present instance, that he remembered defendant borrowing 207. is by no means clear, as the case was left of the plaintiff, and giving him a promis- to the jury entirely upon the credibility of sory note; that he heard the plaintiff say the witnesses. that he had this money back again; and that the money was borrowed to take "The Marlborough" of the witness; and that the defendant having had no use for the money, (not being able to take "The Marlborough,") the plaintiff had it back again; that the conversation took place in the evening at witness' house, (a public-house,) where there had been a good deal of drinking. The same witness swore that he heard the plaintiff say the same thing a second time not long after. The other witness, George Land, deposed that he was the brother of the defendant and of the plaintiff's wife, and that he had heard the plaintiff say, on several occasions, that the defendant had repaid him in 51. notes. The deputy-sheriff told the jury that the making of the note was admitted on the pleadings; that its being in the plaintiff's possession was prima facie evidence that it had not been paid; and that, as the thrashing on each side was withdrawn, and the defendant's set-off not proved, the only question was, whether the note had, in fact, been paid; that this ASSUMPSIT.-For that whereas heretowas in a great measure a question of cred-fore, to wit, on the 29th of December, ibility, and wholly for them. The jury A.D., 1836, in consideration that plaintiff, returned a verdict for the plaintiff for 161. at the request of defendant, (he, the said defendant, then being an exporter of beer, to wit, from Liverpool to parts beyond the seas,) had undertaken, and then faith fully promised the said defendant to do all the work required in bottling beer for defendant for exportation, upon certain terms and conditions, amongst others, then agreed upon between defendant and plaintiff, that is to say, that defendant should within twelve months from a certain day, the said plaintiff with at least 500 hogsto wit, the day and year aforesaid, supply 17s. Barstow now moved for a rule to shew cause why the verdict should not be set aside and a new trial had, the verdict being against the weight of evidence. He admitted that the manner in which the case had been left to the jury was unexceptionable, but contended that, unless there was any inflexible rule against inquiring into the weight of the evidence in case of trials before a sheriff, this was proper case for the interference of the court. a PATTESON, J.-I thought that the rule as to examining into evidence was the same whether the trial took place before a sheriff or a judge; and that, if, in the former case, the verdict really was against the weight of evidence, I do not see why there should not be a new trial, provided the amount is sufficient to warrant it. In either case, however, the court must be satisfied that the verdict was palpably a heads of beer to bottle for the said defendant, in manner and form and for the purpose aforesaid. Averment of mutual promises. Breach, that defendant did not, nor would, within twelve months from the said day, to wit, the day and year aforesaid, supply the said plaintiff with at least 500 hogsheads of beer to bottle for said defendant, in manner and form aforesaid, to the said plaintiff's damage of £800. Second plea, that the said supposed cause of action in the said declaration mention In the Queen's Bench.-Fannin v. Anderson. half, for and in respect of the supposed causes of action in the declaration mentioned. Special demurrer; and joinder therein. 66 ed, did not accrue to the plaintiff at any | the said William Anderson in this honortime within six years next before the com- able court, and in other the courts of this mencement of this suit. Verification. kingdom, being proper courts in that beReplication, that defendant, before, and at the respective times, when the said several causes of action, and each of them, in the declaration mentioned, accrued to the plaintiff, was in parts beyond the seas, to wit, at New-Orleans, and not in any part of the United Kingdom of Great Britain and Ireland, nor in either of the islands of Man, Guernsey, Jersey, Alderney, and Sark, nor in any island adjacent to either of them, being part of the dominions of her majesty, and that defendant afterwards, to wit, on the 1st of December, A.D., 1841, returned from the said parts or places beyond the seas, where defendant so was as aforesaid, into this kingdom, which said return of defendant was his first return into this kingdom from the said parts or places beyond the seas, where defendant so was as aforesaid, after the accruing of the said several causes of action. That, except and until such return as aforesaid, defendant did not, at any time after the accruing of the said causes of action, or any of them, return, or come to, or be in, nor was he in the said United Kingdom, or any part thereof, or in any or either of the islands aforesaid, or of such adjacent islands as aforesaid. Rejoinder, that the supposed promise in the declaration mentioned was made by defendant jointly with one William Anderson, then and thereafter being the brother and partner in business of defendant, and the said supposed promise was never made by defendant alone, or without the said William Anderson. That the supposed causes of action in the declaration accrued to the plaintiff against defendant, jointly with the said William Anderson, and not at any time against defendant alone, or without the said William Anderson; and that, after the supposed accruing of the supposed causes of action, and much more than six years, to wit, eight years before the commencement of this suit, the said William Anderson was in this kingdom, and not beyond the seas, and then and thence for a long space of time, to wit, for eight years, stayed and continued in this kingdom; and plaintiff could and might, during the time aforesaid, which began much more than six years before the commencement of this suit, have sued Peacock, in support of the demurrer. Where one of two persons, against whom there is a joint cause of action, is beyond the seas, the statute of limitation is no answer. In the case of plaintiff, which is provided for by sec. 7 of Stat. 21, Jac. 1, c. 16, it has been decided that the absence of one plaintiff does not prevent the statute from running, and the action must be brought within six years after the cause of action arises. Perry v. Jackson, 4 T. R. 516. But there is a distinction between the words of that statute and the enactment in sect. 19 of Stat. 4, Ann. c. 16, which refers to defendants as well as in the reason of the thing. The words, or any of them," in the latter statute, refer to the words "any person or persons" at the beginning of the section, the intermediate words being in a parenthesis: they have no force if applied to the cause of action; and if it had been intended to refer to them, the words would have been "or any of them." [Patteson, J.-The statute does not say, that the action may be brought against the partners who have remained within the seas. Suppose an action brought against the debtor after his return, and he pleads in abatement, the plaintiff would be defeated. But, according to the words of the statute as you construe them, the action could be only against the party who has been beyond the seas.] This action is only brought against that party. Suppose that of two partners, one solvent and the other insolvent, the solvent partner is out of the country; if the creditor sues the partner within the jurisdiction, he would get a judgment, which would conclude him from recovering the debt from the solvent partner. So, if the partner within the jurisdiction became bankrupt, and obtained his certificate, he would plead his bankruptcy and certificate, and the other partner would be exempt. [Patteson, J.Suppose you sued both jointly, and proceeded to outlawry against the absent partner, could you not go on with the ac In the Queen's Bench.-Fauniu v. Anderson. tion against the other? You may declare a question was made, whether the declaagainst one defendant alone who has appeared. Or, if he could not obtain judgment of non pros against you for not going on, the action would be preserved.] In Morton v. Grey, and Bothwick, 9 B. & C. 544, it is said, that the plaintiff must obtain time to declare, as where there is one defendant only. It is a good replication to a plea in abatement, that the other defendant has a personal discharge. Can one defendant plead the statute of limitations for another? He might not have been willing to take advantage of the statute. Crompton, contra.-It follows, from the argument on the other side, that no mercantile house, having a partner abroad, could have the benefit of the statute. The partner remaining within the seas, and sued alone, would have contributed against his partner when he returned. It would not be thought necessary to include defendants, in the original statute of limitations, 21 Jac. 1 c. 16, because a plaintiff could keep an action alive against his debtor, by taking out successive writs, even without proceeding to outlawry. He might take out process against both, and enter continuances. But an outlawry against one defendant is not an end of the action, nor does it sever the joint action. Fort v. Oliver, 1 M. & S. 242. [He also cited Alderson, B., in Rhodes v. Smethurst, 4 Mee. & W. 42, 63; affirmed 6 Mee. & W. 351.] The statute of 4 Ann, c. 16, makes the same exception in favor of plaintiffs, where one of the defendants is abroad, as the stat. 21, Jac. 1, c. 16, had done in the case of the absence of a plaintiff. Further, the declaration is bad for not stating that the defendant did not supply the plaintiff with the goods agreed upon within twelve months. Parkinson v. Whitehead, 2 Mee. & G. 329; Owen v. Waters, 2 Mee. & W. 91. Peacock, in reply. If the argument on the other side prevails, a creditor having two debtors would be worse off than a creditor who has one. Suppose both of the partners were abroad, must the creditor bring his action upon the return of one or both? Cur. ad. vult. LORD DENMAN, C. J., now delivered the judgment of the court.-In this case the ration was good, by reason of the want of an averment, that the defendant did not, within twelve months from a day certain, supply the plaintiff, &c. We think the declaration is good, notwithstanding that objection. It is true, that, if the action was really brought within twelve months, the defendant could not safely traverse the averment, unless he had actually supplied the plaintiff with 500 hogsheads of beer before the action, and, therefore, before the time had elapsed in which he was bound to supply them: but the informality of the averment, which might put the defendant into that difficulty, should have been pointed out as cause of demurrer. In Parkinson v. Whitehead, 2 M. & G. 329, which is the case most resembling present, there was no averment that the defendant did not, within two years, build the houses; the only averment was, that he did not, nor would build them, and that they were still unbuilt. Again, the objection is cured by pleading the statute of limitations, a plea which must be false, if the twelve months from making the agreement had not elapsed; the case is therefore within the principle of Brooke v. Brooke and others, 1 Sid. 184. The question, therefore, arises as to the sufficiency of the rejoinder, which depends upon the construction of the stat. 4 Ann, c. 16, s. 19, whether the absence beyond the seas of one of several co-contractors, against whom there is a cause of action, prevents the statute of limitations (21 Jac. 1, c. 16) from running. For the plaintiff it was contended, that the words "or any of them," in the statute of Ann, referred to the persons liable to actions, and not to actions enumerated in the clause; but we are fully satisfied, on considering the language of the clause; and comparing it with the corresponding section in the statute of James, that those words " or any tions, and not to the persons. No case of them," refer to the acute of Ann; but on that of James it was appears to have been decided on the statdetermined, in the case of Parry v. Jackintended co-plaintiff's be within seas, the son, 4 T. R. 516, that, if one of several statute does run: the reason given by the court is, that one plaintiff can act for the others, and use their names in an action, and, therefore, the protection of the stat Common Pleas.-Rawlings v. Bell. quence sustained: HELD, that the action could not be maintained without proof that the falsehood of the representation was known to the party making it, or that the representation was made with an intent to deceive. ute is not wanted. With respect to the defendants, however, the reason does not apply; the plaintiff cannot bring the absent defendant into court by any act of his; and, therefore, if he be compelled to sue those who are within the seas, without THIS was an action on the case, the dejoining those who are absent, he may claration in which stated, that the defenpossibly recover against insolvent persons, dants heretofore, to wit, on, &c., did reand lose his remedy against the solvent present and affirm to the plaintiff that the ones, who are absent. On the other hand, defendant Jane was lawfully and of right if he sues out a writ against all, and either entitled to seize and distrain the goods continues it without declaring, or pro- and chattels then being in and upon a ceeding to outlawry against the absent messuage, tenement, and premises, being parties, declares against those who are the Rose and Crown public-house, in within seas, he is placed in precisely the Clare-court, Clare-market, in the county same situation as if the statute of Ann of Middlesex, for a certain sum of money, had never passed, and obliged to incur fruitless expense, the avoiding of which seems to have been the object of the statute of Ann. That statute cannot have been passed in order to keep the plaintiff's remedy alive, for such object was easily attained before the statute by suing out a writ, and continuing it. We think the statute intended to render such a form unnecessary wherever, by reason of the absence beyond seas of any of the intended defendants, the plaintiff cannot have his complete remedy against all whom he is entitled to sue, and who, indeed, he would be bound, under the risk of a plea in abatement, to sue, if they were within the jurisdiction of the court. Upon the whole, we think the distinction taken in the argument between co-plaintiff and co-defendant is a sound distinction, and that the plaintiff in this case is entitled to our judgment. to wit, £39 7s. 6d., which the defendants then represented and affirmed to the plaintiff to be due from one James Augustus Lamb to the defendant Jane, for the rent of the said messuage, tenement, and premises; and the defendants then requested the plaintiff to seize and distrain the goods and chattels then being on the said messuage, tenement, and premises, as bailiff of the defendant Jane, for the said pretended arrears of rent, and then retained and employed him as such bailiff. And the plaintiff avers, that, confiding in the said representation and affirmation of the defendants, and believing the same to be true, and not knowing to the contrary, he the plaintiff did afterwards, to wit, on the day and year aforesaid, as bailiff of th defendant Jane, under and by virtue of the said retainer and employment, seize and distrain, as a distress for the said pretended arrears of rent, certain goods and chattels of Philip E. Dover, of great value, to wit, £150, then found and being in and upon the said messuage, tenement, and premises; and the plaintiff, relying on the said representation and affirmation, and believing the same to be true, and not knowing to the contrary, as such baiRAWLINGS V. BELL and another.-July 2, retainer and employment, then impounded liff, and under and by virtue of the said Judgment for plaintiff. Court of Common Pleas. Before the Right Hon. Sir NICHOLAS TINDAL, 1845. HUSBAND AND WIFE TORT-FEASORS-FALSE REPRESENTATIONS-INDEMNITY. The plaintiff declared that the defendants, who were husband and wife, had represented to the plaintiff that the wife was entitled to distrain certain goods for rent due to the wife, and that the defendants had employed plaintiff, as bailiff, to distrain for the rent. The declaration then negatived the truth of this representation, and stated damage which the plaintiff had in conse the said goods and chattels so distrained as aforesaid, and detained the same so impounded from thence until afterwards, to wit, on the 22nd day of December, in the year aforesaid, when John Kinnersley Hooper, Esquire, and Jeremiah Pilcher, Esquire, then being sheriff of the county of Middlesex, as such sheriff, upon the complaint of the said Philip E. Dover, and upon the said Philip E. Dover, giving Common Pleas.-Rawlings v. Bell. a bond to the sheriff conditioned to prose- of the said distress, entitled to seize and cute his suit of replevin against the plain- distrain any goods or chattels in or upon tiff for taking and detaining the said goods the said messuage, tenement, or premises, and chattels, caused the said goods and for the said sum of money, or any part chattels to be replevied and delivered to thereof, nor had she any right, title or the said Philip E. Dover; and the said authority to distrain upon the said mesPhilip E. Dover afterwards, to wit, on suage, tenement, and premises, or any part the day and year last aforesaid, in the thereof, or to authorize or direct the said county court of the said sheriff in and for distress; by means of which said several the said county of Middlesex, levied his premises the plaintiff was forced and obplaint against the now plaintiff in an ac-liged to, and did afterwards, to wit, on tion of replevin, for taking and unjustly the 8th day of January, in the year of our detaining the said goods and chattels, and Lord 1845, necessarily pay to the said prosecuted the same against the now plaintiff in the said county court, and in the court of our lady the Queen, before her justices at Westminster, into which the same was duly removed until afterwards, to wit, on the 24th day of April in the year of our Lord 1844, when the said Philip E. Dover, by the consideration and judgment of the last-mentioned court, recovered against the now plaintiff in the said action of replevin 462 9s., which, in and by the said court were adjudged to the said Philip E. Dover for his damages which he had sustained as well by reason of the taking and unjustly detaining the said goods and chattels as for his costs and charges by him about his suit in that behalf expended. And the plaintiff further avers, that he, relying on the said representation and affirmation of the defendants, and believing the same to be true, and not knowing to the contrary, with the authority and at the request of the defendants, heretofore to wit, on the 22nd day of December, in the year of our Lord 1842, duly appeared to and defended the said action in the said county court, and afterwards, to wit, on the 12th day of June, in the year of our Lord 1843, believing as aforesaid, and at the like request of the defendants, duly appeared to and defended the said action in the said court of our lady the Queen, before her justices at Westminster, and pleaded and made divers cognizances therein for the said pretended arrears of rent at the like request of the defendants, he the plaintiff during all the time aforesaid believing and relying on the said representation and affirmation, whereas, in truth and in fact, the defendants deceived the plaintiff in this, to wit, that the defendant Jane was not, at the time of making the said representation and affirmation, or at the time Philip E. Dover a large sum of money, to |