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![handle is hein.slavery/ssactsengr0244 and id is 1 raw text is: KEMBLE V. MILLS
if B. [755] contract to indemnify A. against the costs of an action, A.'s cause of
action against B. arises when A. pays the costs, and not when the costs are incurred,
or when A.'s attorney delivers his bill of costs. The learned judge overruled the
objection, but gave the defendant leave to move to enter a nonsuit.
A verdict having been found for the plaintiff, damages 461.,
Bompas Serjt. now moved according to the leave reserved. The defendant is
entitled to a nonsuit, inasmuch as the plaintiff did not establish the affirmation of
either of the issues. The evidence did not make out the special promise, and the
cause of action accrued more than six years before the commencement of the action.
In Battley v. Faulkner (3 B. & Aid. 288), a plea of actio non accrevit infra sex annos,
was held to be a sufficient answer to an action for not delivering wheat according to
contract, where the period for delivery was more than six years before action brought,
though the declaration [756] alleged special damage which had accrued within six
years. In Howell v. Young (5 B. & C. 259; 8 D. & R. 14) it was held that the statute
of limitations began to run from the time at which the defendant, an attorney, had
been guilty of the misconduct for which he was sued, and not from the time at which
the misconduct was discovered.
TINDAL C. J. The only real question is, what was the contract into which the
defendant entered when he asked the plaintiff to lend him his acceptance. The
intention of the parties to that contract must be taken to be, that the defendant should
be considered as the real acceptor of the bill, and should do that which a real acceptor
ought to do, that is, take up the bill when it became due. Lending an acceptance is
a well known phrase, and is always understood in the sense I have stated.
Upon the other point which has been raised, there can be no doubt that the statute
of limitations begins to run from the time of payment.
BOSANQUET J. and COLTMAN J. concurred.
MAULE J. This is the ordinary case of an accommodation acceptance. The cause
of action accrues when the plaintiff is damnified.
Rule refused.
[757] KEMBLE v. MILLS. Nov. 12, 1840.
[S. C. 2 Scott, N. R. 121 ; 9 D. P. C. 446; 1 Drink. 22. Discussed, Carew v. Duekworth,
1869, L. R. 4 Ex. 318.]
Where, by an agreement, concurrent acts are to be done by the plaintiff and the
defendant, a declaration against the defendant for not doing the act on his part,
should allege that the plaintiff was ready and willing to do the concurrent act on
his part. But if the plaintiff merely allege that he was ready and willing to perform
the agreement on his part, it is sufficient, if the defendant demur generally, or if
he plead over.-Where a declaration in assumpsit describes the terms of the contract
in language denoting that a particular act, which the plaintiff has engaged to do, is
to be independent of, or concurrent with, an act or acts to be done on the part of
the defendant, if, from the position of the parties, or from the nature of the agree-
ment, such act is to be considered as intended to constitute a condition precedent,
the proper course is, to plead non assumpsit, and give the special matter in evidence,
per Maule J.-If the defence be specially pleaded, semble, that the plea will be bad
on special demurrer, as amounting to the general issue,-per eundem.-Want of
notice of the dishonour of a cheque on a banker is sufficiently excused, primh facie,
by alleging that the banker had no effects of the drawer, and had received no con-
says, If the words 'after the fact committed' are to be considered as equivalent to
the words ' after the cause of action' in the statute of limitations, then the plaintiff
has clearly a right to recover, for he may treat the removal into Oxfordshire itself as
a trespass, and sue in respect of that cause of action, and the subsequent sale, both
being within the limited time, as he would have recovered if the original seizure had
been more than six years before, and the subsequent removal within six years of the
commencement of the suit and the ordinary plea had been pleaded. Ibid. 201.
Vide ante. 557 (a).
I MAN. & G. 755.](ViewImageLocal?handle=hein.slavery/ssactsengr0244&div=1&collection=&method=preview&ext=.png&size=3)