ACCORD AND SATISFACTION.

In an action of assumpsit by the plaintiffs, assignees of H, a bankrupt, the declaration alleged that the defendant was indebted to the bankrupt, before his bankruptcy, in the sum of 1,000l. for goods sold, &c. which promise was stated to have been made before his bankruptcy: plea, that after the making of the promises, and before H became a bankrupt, and before the commencement of the suit, upon an account stated between H and the defendant, of and concerning the sum in the declaration, the defendant was found to be indebted to H in the sum of 4001., for which said sum defendant gave the bankrupt a bill of exchange, which he accepted for and on account of the said several promises and undertakings in the said counts mentioned; and by reason whereof the defendant became liable to pay the bill; the plaintiff having replied over, and the defendant having demurred, it was holden to be an insufficient plea, because the mere acceptance of 4001. does not necessarily operate in point of law as an extinguishment of the debt of 1,000l. Thomas v. Heathorn, 2 B. & C. 477, s. c. 3 D. & R. 647.

In an action for an excessive distress of rent, the precise sum laid in the declaration under a scilicet, need not be proved; the material allegation to be supported, being that of a smaller sum than distressed for being due; and after an excessive distress taken, the parties coming to an amicable arrangement respecting a sale, will not divest the tenant's right of action for such distress, unless that arrangement be by an agreement, which may be pleaded as an accord and satisfaction. Sells v. Hoare, 2 Law J. C.P. 56, s. c. 1 Bing. 401, s. c. 7 B. Mo. 36, s. c. 1 C. & P. 28.

To an action on a deed, the plea of accord without satisfaction is no bar. Parker v. Ramsbottom, 3 B. & C. 257, s. c. 5 D. & R. 138, s. c. 3 Law J. K.B. 16.

If A pay for B a smaller sum in satisfaction of a greater, it is a bar to the plaintiff's claim, because, by suing B he commits a fraud on A, whom he induced to advance his money on the faith of such advance being a discharge of the debtor. Welby v. Drake, 1 C. & P. 557. [Abbott]

ACCOUNTANT GENERAL.

Where the taxed costs of the plaintiffs have been paid in a creditor's suit, specialty creditors, among whom the whole of the fund in court has been apportioned, are entitled to the production of the order and office copies of reports, necessary to enable them to get the money out of court, without contributing to the extra costs of the plaintiffs. Lechmere v. Brasier, 4 Law J. Chanc. 95, s. c. 1 Russ. 72. See stat. 1 Geo. 4. c. 35.

ACCOUNTANTS.

A and B are employed as accountants to manage the affairs of a bankruptcy, after a dividend has been declared. B makes out the checks for the debts proved, and also for a claim made, and all of them are signed by the assignee. B receives the dividend on the claim and keeps it, afterwards the

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claim is substantiated, and the assignees pay the dividend over again, and bring an action to recover the same amount from A, as surviving partner : -The Court held, that the action was well brought. Hughes v. Borroduile, 1 Law J. K.B. 74.

ACCOUNT.

(A) BILL FOR. (B) ACTION of. (C) ACCOUNT Rendered. (D) ACCOUNT STATED.

(A) BILL FOR.

An infant administratrix may be compelled in equity to account. Hindmarsh v. Southgate, 1 Law J. Chanc. 24.

Where a plaintiff suing in formâ pauperis establishes title to an account from the defendant, it is no objection to his obtaining a decree for an account, that the defendant has produced evidence uncontradicted by the plaintiff, to shew that the balance of the account will be against the plaintiff. Smith v. Taggart, 1 Law J. Chanc. 90.

H, a solicitor, advances monies for subsistence to R, an infant, who, upon attaining his full age, was entitled to certain property; R, shortly after be reaches the age of twenty-one years, signs a memorandum, by which he acknowledges himself indebted to H, in respect of those advances, in the sum of 1,218.; and upon this memorandum, H recovers a verdict against him: Held, that, even though the memorandum could not be impeached as obtained by fraud, yet in consequence of the relation in which H placed himself towards R, it will not prevent R from having an account taken in a court of equity of the sums really advanced to him by H. Revett v. Harvey, 2 Law J. Chanc. 39, s. c. 1 S. & S. 502.

A, being at the time abroad, became a tenant in common with B, and died fifteen years afterwards, without having been during that period in England, and being all the time ignorant of her right as tenant in common; B continued all along in possession, and receipt of the rents and profits of the premises : Held, that B's possession did not amount to an ouster; and that A's representative could sustain a bill for an account against B, without previously recovering the possession. Johnson v. Burslem, 2 Law J. Chanc. 168.

A, B, C, being partners, A dies intestate; the partnership is continued by B and C, without any settlement of accounts; and B afterwards assigns his share of the profits to D: Held, that, D cannot sustain a bill for the necessary accounts, unless he cause a limited administration to be obtained, and make the limited administrator a party: That a bill, to which A's personal representative is not a party, is demurrable, notwithstanding that it contains an allegation, that A's next of kin refuses to take out administration, and prevents the plaintiff from doing so. Cawthorne v. Chalie, 3 Law J. Chanc. 125, s. c. 2 S. & S. 127.

A class of persons being empowered by act of parliament to regulate the application of the produce of certain rates levied on the class, the majority of them directed a sum to be applied to purposes not

warranted by the act; and the treasurer paid acearing to that direction: Heid, that, notwithstanding the assent of the majority of the class to the wrong, one or more of the class could sustain a hell on behalf of himself or themselves, and the rest of the class, against the treasurer for an account: and that the Attorney General was not a necessary party to such a suit. Bromley v. Smith, 5 Law J.

Chane. 53, &. c. 1 Stm. 8.

A having admitted B to an interest in an adventore, B makes remittances to the agent of the concern in London, which he directs to be carried to the account of A, and he also remits money to A, for A to remit to the agent on his account; the agent kept the account with A only: Held, that B could not sustain a bill for an account against the agent. Marwell v. Greg, 6 Law J. Chanc. 128.

It is not now necessary, that a bill for an account soo'd contain an offer by the plaintiff to pay the balance if found against him. The Colombian Government v. Rothschild, 1 Sim. 103.

To a bill for an account, the defendant pleads in bar to the account, up to a certain date, deeds amounting to a release; but the sum, in respect of which the release was given, is not averred to comprise the whole of the monies received by him, in respect of the subject of account, prior to that date: Heid, that the plea was bad, as not covering the whole of what it professed to cover. Reeve v. Dunston, 3 Law J. Chanc. 155.

A bill for an account alleged, that the matters in question had been submitted to arbitration, and that a pretended award had been made, but charged cirosmatances to invalidate the award; the defendant pleaded the submission entered into in pursuance of the statute, and the award made in consequence of it. Held, that such a plea is a good defence to the b. Yates v. Bainard, 4 Law J. Chanc. 61.

The taking of an account will not be stayed pending an appeal.

It is not the habit of the court to direct security to be given for the result of an account. Nerot v. Burnand, 2 Rusa, 56.

A defendant having stated in his answer, that, by carrying on business on a farm, and with stock, belonging to the assets of an intestate, he had made proft, but that, sa he had not kept any accounts, wod had blended the transactions of the farm with bus other cameerns, he could not set forth the amount of the profita, it was ordered, that, in taking the Menamik against him, annual rests should be made, and internat calculated at b per cent. upon those Walker, Woodward, 1 Russ.

(C) ACCOUNT RENDERED.

Where paymasters, having received intimation from the Board of Ordnance, that increased pay would not be allowed to certain officers, suffered one of them to draw the full allowance; and five years after the above order, delivered an account to the officer's representatives, admitting the acceptance of the full sum: it was holden, that such account was evidence to shew that they had received the money to his use, and that after such a lapse of time they could not be permitted to say it was a mistake, and have the money refunded. Skyring v. Greenwood, 1 C.& P. 517, s. c.4 B.& C. 281, s. c.6 D. & R. 401. If a person be agent to two parties, who are indebted to each other, and render an account to one of them, that he has received money for his use from the other, he is bound by that account, although he never received the money; unless he can shew that the entry was made unintentionally and by mistake. Shaw v. Picton, 4 Law J. K.B. 29, s. c. 4 B. & C. 715, s. c. 7D. & R. 201.

The agent for the grantee of several annuities, delivered him four accounts in the course of eighteen months, and gave him credit for all the half-yearly instalments of the several annuities then due, but stated that some of them had not been received. He charged commission on all the instalments, and paid the balance of the accounts as if they had been received, and, in the later accounts, never brought forward those sums, nor intimated that he expected them to be repaid: Held, upon a bill of exceptions, that the jury were properly told by the Judge, that they might infer an agreement, whereby the agent made himself personally responsible for the payment of those annuity instalments-in default of payment by the grantors. Shaw v. Woodcock, 5 Law J. K.B. 294, s. c. 7 B. & C. 73.

(D) ACCOUNT Stated.

Semble-An account stated may be given in evidence without being stamped. Wellard v. Moss, 1 Bing. 134, s. c. 1 Law J. C.P. 18.

An absolute and not a qualified acknowledgment is indispensable, to enable the plaintiff to recover under the account stated. Evans v. Verity, 1 R. & M. 239. [Littledale]

Evidence of the admission by a defendant of certain facts, from which his legal liability may be only inferred, is not sufficient evidence in support of a declaration upon an account stated.

Nor, Semble, a compulsory admission made before Commissioners of Bankrupt.

Accordingly, where a defendant, in an examination before Commissioners of Bankrupt, admitted that he had received a sum of money on account of the bankrupt, with knowledge of a previous act of bankruptcy, it was held that this was not sufficient to maintain a declaration upon an account stated

between the defendant and the plaintiffs as assignees. Tucker v. Barrow, 6 Law J. K.B. 121, s. c. 7 B. & C. 623, s. c. 1 M. & R. 518, s. c. 3 C. & P. 85, 89, s. c. 1 M. & M. 137, 139.

One Lythgoe being indebted to the plaintiff, gave him an order upon the defendant, his (Lythgoe's) tenant, to pay the debt out of the rent next coming due. Plaintiff sent the order to the defendant, without directly communicating with him thereon. On settling the next rent between Lythgoe and the defendant, the defendant produced the order to Lythgoe, and promised to pay the amount to the plaintiff, upon which Lythgoe gave him a receipt for the whole rent, but received only the difference between the sum due to the plaintiff and the whole rent. Under these circumstances, the plaintiff cannot recover the amount of the order from Lythgoe, in an action for money had and received, or upon an account stated. Wharton v. Walker, 3 Law J. K.B. 183, s. c. 4 B. & C. 163, s. c. 6 D. & R. 288.

A verbal agreement was made for the purchase of some turnips growing in a field. After the purchaser had removed the principal part, the seller said to him, "You owe me 3l.;" to which he replied, " I will send it before I draw any more turnips." He afterwards drew all the turnips, but did not send the 31.: Held, that it was recoverable on the account stated. Pinchon v. Chilcott, 3 C. & P. 236. [Best]

The defendant promised the plaintiff, that, if she would take a lease of certain premises, he would give her 20l. towards putting them in repair. The plaintiff, having accepted the lease and done the repairs, demanded the 201. The defendant promised to pay it at a certain future time: Held, that, notwithstanding the special counts of the declaration could not be supported, the original agreement being for the conveyance of an interest in land, the defendant's subsequent promise was sufficient to entitle the plaintiff to a verdict on the account stated. Seago v. Deane, 6 Law J. C.P. 66, s. c. 4 Bing. 459, s. c. 1 M. & P. 227, s. c. 3 C. & P. 170.

Proof of the acknowledgment of a debt upon a bill of exchange, is sufficient to maintain a count upon an account stated; though there may not have been any other dealing between the parties; and though the plaintiff and defendant were not original parties to the bill; and, consequently, though there was no original privity of contract between them. Wagstaff v. Boardman, 5 Law J. K.B. 139.

If, on a plea of a stated, account, the defendant avers that the account was truly stated in writing, and admitted by the other party to be a full, true, and settled account, and then pleads the same as a stated account, the plea is bad. Taylor v. Simson, 2 Law J. Chanc. 123.

A plea of a stated account is not faulty, because it avers various circumstances relative to that account; provided that the amount is positively averred to be a stated account, and is pleaded directly to the bill. Taylor v. Shaw, 2 Law J. Chanc. 125.

An account stated cannot be pleaded in bar to an action of assumpsit. Roades v. Barnes, 1 Ken. 391, s. c. 1 Burr. 9, s. c. 1 W. Black. 65: s. P. Adderley ▼. Evans, 1 Ken. 250.

A stated account is a clear statement of accounts, testified by the signature of the parties, as evidencing their approbation of the settlement, so as to

bring the proof to a single point, and not to require evidence by the examination of numerous witnesses. Attorney General v. Brooksbank, 2 Y. & J. 37.

ACTION.

(A) WHERE MAINTAINABLE. (B) PARTIES TO. (C) FORM OF.

(a) Assumpsit or Trover. (b) Case or Trespass. (D) NOTICE OF. (E) COMMENCEMENT OF.

(A) WHERE MAINTAINABLE.

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An action does not lie against a person, who has committed an injury by unavoidable accident; but if any, the least blame be imputable to him, although he be innocent of any intention to injure, an action is sustainable. Wakeman v. Robinson, 1 Bing. 213, s. c. 8 B. Mo. 63: s. P. 2 Chit. Rep. 639.

An action on the case lies against the executrix of an attorney for the negligence of her testator, in making insufficient inquiries as to the validity of a security, upon which the client advanced money. Wilson v. Tucker, 1 D. & R. N.P.C. 30, s. c. 3 Stark. 154. [Abbott]

A, an engineer employed by B, is liable to C for any damage done to him, by the works which he has constructed on the premises of B, as long as they are under his management. Witte v. Hague,

1 Law J. K.B. 9, s. c. 2 D. & R. 33.

Case lies for an excessive distress for rent; the tenant having tendered the rent to his landlord before the distress was levied. Branscomb v. Bridges, 1 Law J. K.B. 64, s. c. 1 B. & C. 145, s. c. 2 D. & R. 256, s. c. 3 Stark. 171.

If a statute prescribes a particular remedy for an offence, the party's remedy by action is not necessarily abrogated; hence where an act prohibited other persons than the scavenger from carrying away dust from certain houses under a penalty, to be recovered before a justice of the peace: Held, that the scavenger might nevertheless maintain an action. Ward v. Bird, 2 Chit. Rep. 582.

An action on the case will not lie for detaining the plaintiff's cattle in the pound, after tender of amends made subsequently to the impounding. Sheriff v. James, 1 Bing. 341, s. c. 8 B. Mo. 334, s. c. 2 Law J. C.P. 5, and see note.

A court of justice will not assist a party to a fraud who is proceeding against his companion in fraud.— Neither party is to be assisted.

But where a fraud had only been contemplated, in order to make a pretended transfer of goods, and had not been carried into effect, either by a formal instrument, or by change of possession,-it was held, that the owner of the goods was not precluded from maintaining an action of trespass against a third person who had forcibly taken possession of the goods. Weare v. Deare, 5 Law J. K.B. 125.

A plaintiff cannot recover for goods sold, which he knows are to be applied to an illegal purpose, though he be not active himself in their being so applied, and be no sharer in the advantage to be

derived therefrom. Hutton v. Wey, 5 Law J. K.B. 220.

A publican cannot recover for beer furnished to third persons, by the order of an individual who has previously become intoxicated by drinking in his house. Brandon v. Ord, 3 C. & P. 440. [Best]

A person forged a power of attorney, under which, stock, which stood in the names of certain trustees, was sold out and transferred to the buyers. The sum produced by the sale was carried to a fund belonging jointly to the person who forged, and his partners. Two of his three partners knew of the money thus produced being carried to their partnership fund; but did not know that it was produced by a forgery. The person who committed the offence was afterwards convicted and executed for another forgery; no laches or connivance being attributable to the trustees: Held, that they might adopt the transfer, (though as against them it would not have been binding; and though it originated in a forgery ;) and recover the amount of the produce from the other partners. Stone v. Marsh, 5 Law J. K.B. 201, s. c. 6 B. & C. 551, s. c. 1 R. & M. 364.

An action lies in the English Courts, on a Scotch judgment of horning, against a Scotchman born. Douglas v. Forrest, 6 Law J. C.P. 157, s. c. 4 Bing.

686.

An action will lie upon the decree of a Colonial Court of Equity, for the balance of an account between partners. And in such an action, the Court will look at the substance, without regarding the form of the proceedings upon which the decree is founded. Henley v. Soper, 6 Law J. K.B. 210, s. c. 8 B. & C. 16, s. c. 2 M. & R. 153.

An action does not lie for the amount of the plaintiff's distributive share of an intestate's estate, admitted by the administrator to be in his hands. Jones v. Tanner, 6 Law J. K.B. 71, s. c. 7 B. & C. 542, s. c. 1 M. & R. 420.

The plaintiff declared in case against the defendant, for not repairing his fences, per quod the plaintiff's horses escaped into the defendant's close, and were there killed by the falling of a hay-stack: Held, that the damage was not too remote, and that the action was maintainable. Powell v. Salisbury, 2 Y. & J. 391.

(B) PARTIES TO.

Quære-Whether a person, using his own carriage and hiring a pair of horses and a job coachman for the day, is liable for any damage occasioned through negligent or careless driving by the job coachman? -Held in the negative, by the Lord Chief Justice Abbott and Mr. Justice Littledale; in the affirmative, by Mr. Justice Bayley and Mr. Justice Holroyd. Laugher v. Pointer, 4 Law J. K.B. 309, s. c. 5 B. & C. 457, s. c. 8 D. & R. 556.

Where a person went in his own carriage to Ascot races, having hired the horses and postilions, and, through the negligence of the latter, the carriage was driven against the horse and gig of another person,-it was held, that the owner of the horses and master of the servants, was liable to an action, at the suit of the party injured, and that the owner of the carriage was not liable. Smith v. Lawrence, 2 M. & R. 1, s. c. as Smith v. Roberts, 6 Law J. K.B. 268.

If certain commissioners under a private act of

Parliament, may sue and be sued by their clerk, it is not necessary, at the trial of an action brought in the name of the clerk, to prove that he sues by their authority. Truwhite v. Depree, 2 C. & P. 557. [Abbott]

An action upon a contract may be maintained in the name of a party who has transferred his interest therein, if there is not good evidence to shew that such transfer was agreed to by the other party or parties concerned in the contract. Holland v. Webb,

6 Law J. K.B. 92.

An action cannot be maintained jointly by two plaintiffs, where the wrong done to one is no wrong done to the other. Where, therefore, an action was brought, and a verdict obtained by two plaintiffs against a defendant for a malicious arrest, the declaration alleging, by way of special damage, the false imprisonment of both, as well as the expenses incurred by them:-The court ordered the judgment to be arrested. But the jury having by their verdict, confined the damages to the expenses which the plaintiffs had been jointly put to in procuring their liberty, the Court ordered the postea to be amended. Barratt v. Collins, 10 B. Mo. 446.

A, being appointed the managing director of two companies, who had power to sue in his name, ordered a stove to be put up in the house in which the business of the two companies was carried on, at their joint expense: the Court held, that for a breach of that contract he might sue for damages, and describe himself as their managing agent. Beaumont v. Sylvester, 2 Law J. K.B. 10.

By an act of Parliament the justices at the Quarter Sessions assembled, or at any adjournment, were empowered to build, or cause to be built, a bridge, and it was enacted, that they might contract for the building of the same, and that every contractor for such work should give sufficient security for the due performance of his contract to the clerk of the peace, and that the said justices, at any General Quarter Session, or adjournment of the same, might appoint such of the justices as they should think fit to superintend the building, &c. The expenses were to be provided for out of the county rate; and it was enacted, that in all actions or proceedings at law, the said justices might sue, or be sued, in the name of the clerk of the peace, and that no actions should abate by the death of any such clerk, but that the clerk of the peace for the time being should always be deemed the plaintiff, defendant, or respondent, &c. in all such actions, &c. or proceedings at law respectively; and it was provided, that every such clerk of the peace should be reimbursed all damages, &c. and expenses which he should have paid, or be subject or liable to, on account thereof out of the money to be raised by virtue of the act. The plaintiff covenanted with the defendants, who were the superintending justices, and were described in the indenture as the major part of the justices assembled at the General Quarter Sessions, to build the bridge; and the defendants covenanted, that they, or the treasurer for the county, should pay him a certain sum of money by instalments. The plaintiff having declared in covenant against the defendants for the non-payment of two instalments, it was determined, that the defendants were not liable, and that the remedy given by the statute was against the clerk of the peace.

Allen v. Waldegrave, 8 Taunt. 566, s. c. 2 B. Mo. 621.

In error upon a declaration in an action on the case against several defendants as common carriers, for negligently conveying the plaintiff as a passenger, whereby, &c.: Held, that the action being framed upon a breach of duty imposed by the custom of the realm, which, therefore, was a breach of the law, and the declaration being framed as upon a misfeasance, a verdict and judgment given against some of the parties only was not erroneous, and was afterwards affirmed in the Exchequer Chamber. Bretherton v. Wood, 3 B. & B. 54, s. c. 6 B. Mo. 141, s. c. 9 Price, 408.

(C) FORM OF.

(a) Assumpsit or Trover.

The servant of A, a farmer, having been ordered by his master to sell some sheep for ready money, sold them on trust to a person to whom he was indebted, and who refused to deliver them back to the real owner, or to pay for them, without deducting the money due to himself from the servant. The master brought an action for goods sold and delivered, and the court held, that the plaintiff had a right to waive the tort and sue in assumpsit. Jones v. Batch, 1 Law J. K.B. 106.

The plaintiff's servant took to the defendant a carriage-spring to repair, who undertook to return it by a certain time, which he did not do: upon being applied to for the spring, he refused to give it up until he was paid: Held, that trover would not lie, it being the breach of a contract; and, therefore, assumpsit was the proper remedy. Fairman v. Grimble, 2 C. & P. 266. [Abbott]

If there appears to be in the hands of the defendant, a certain quantity of goods, which he has undertaken to deliver, the plaintiff may maintain trover, since he is not obliged to bring a special action of assumpsit. Smith v. Cook, 2 C. & P. 277. [Best]

(b) Case or Trespass.

Case, and not trespass, lies for the negligent, careless, and improper driving of a horse and chaise, against the plaintiff, though the evidence proved the act to have been violent and immediate-(Graham B. dissent.) Lloyd v. Needham, 11 Price, 608.

Taking from a churchyard a tombstone, and obliterating the inscription on it, is the subject of an action of trespass, and not case. Spooner v. Brewster, 3 Bing. 136, s. c. 1 C. & P. 34.

Falsely,, maliciously, and without any probable cause, procuring the warrant of a justice to search the premises, and apprehend the person of A, on suspicion of felony, and thereby causing his premises to be searched and his person imprisoned, is properly the subject of an action on the case, and not trespass. Elsee v. Smith, (in error,) 2 Chit. 304.

(D) NOTICE OF.

Where a notice of action was in the form of a declaration, the Court held it sufficient, it expressing the cause of action so as to be understood. Gimbert v. Coyney, 1 M'Clel. & Y. 469.

It is not necessary that the Christian names of two attornies, who are partners, should be indorsed

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on the back of a notice of action against a magistrate for a false imprisonment. James v. Swift, 4 Law J. K.B. 43, s. c. 4 B. & C. 681, s. c. 6 D. & R. 625, s. c. 2 C. & P. 237.

A notice of action to a magistrate, under 24 Geo.2. c. 1, must fully describe the cause of action; but need not state the form of action intended to be brought.

But if it mention one form of action, the plaintiff cannot resort to any other, even though the notice shew that the mention of that particular form of action is under a mistake. Ford v. Abdy, 5 Law J. M.C. 41, K.B. 66.

A notice of action to a person entitled to notice under any act of parliament, which notice complains of an injury committed in the house of the party complaining, is sufficient if it give a correct though not a legal description of the house. And, accordingly, a notice of action for a trespass committed in a house described as in "West-Square, Lambeth," which would be a correct description of the house in popular meaning, was held to be sufficient; although the strictly legal and correct description would be "in the parish of Saint George the Martyr," and which description the plaintiff gave it in his declaration. Gibbs v. Stead, 6 Law J. K.B. 378, s. c. 8 B. & C. 528.

In the notice of action, to a Justice of the Peace, for illegally issuing a distress-warrant against the goods of the plaintiff, the warrant was stated to have been directed to J. B., and, on its being produced at the trial, it was found to have been direc ted to E. H.: Held bad. Aked v. Stocks, 6 Law J. C.P. 106, ib. C. M. 62, s. c. 4 Bing. 509, s. c. 1 M. & P. 346.

A statute enacted, that no plaintiff should recover in any action commenced against any person, for anything done or performed in execution or under the authority of the act, unless notice thereof in writing should be previously given twenty-eight days before the commencement of the action : Held, that a notice was necessary in those cases only, in which the party against whom the action was brought, had reasonable ground for supposing that the thing done by him, was done in execution of or under the authority of the Act. Cook v. Leonard, 6 Law J. M.C. 99, s. c. 6 B. & C. 351.

(E) COMMENCEMENT OF.

The date of filing the plaintiff's bill is, primá facie, the date of the commencement of an action. Woolridge v. Bishop, 6 Law J. K.B. 101, s. c. 7 B. & C. 406.

It is not necessary that the writ be produced, in order to shew when the action was commenced. Therefore, where the cause of action accrued on the 1st of February, after the first day of Hilary term, (the declaration being entitled generally of Hilary term,) and the attorney on the trial proved that he received no instructions to commence the action until after the 1st of February, but the writ was not produced-this was held to be sufficient evidence that the action was not commenced until after that day. Lester v. Jenkins, 6 Law J. K.B. 324, s. c. 8 B. & C. 339.