Yates v. Gardiner.

The plea of the Statute of Limitations having been proved, the defendant's counsel contended that the account having been stated respecting the contract alleged in the first count, that account was stated without consideration, and the plaintiff was not entitled to reCover. The learned judge overruled the objection; and the jury found a verdict for the plaintiff on all the issues raised on the first count, except the Statute of Limitations, and for the plaintiff on the account stated for the amount of the purchase money.

Burnie having obtained a rule for a new trial, on the ground of misdirection,

Crompton now showed cause. The conveyance to the plaintiff was not a condition precedent to his liability to pay the purchase money. The account that was put in showed that the defendant was bound by the terms of the agreement to pay the purchase money on the 1st of January; and the plaintiff is entitled to recover on the account stated. (He was then stopped by the court.)

Burnie, in support of the rule. The contract contained in the account stated is the same as that which is alleged in the first count; and then, inasmuch as the defendant obtained a verdict upon the Statute of Limitations, which was pleaded to the first count, the plaintiff is not entitled to succeed upon the account stated.

[Platt, B. The agreement contained in the account stated is a different contract.]

There must be a previous consideration for an account stated; Thomas v. Hawkes, 8 Mee. & W. 140; s. c. 10 Law J. Rep. (N. s.) Exch. 240; and in the present case the consideration was contained in the first count, and there was not to be a separate contract on the second count. Laird v. Pim, 7 Mee. & W. 474; s. c. 10 Law J. Rep. (N. S.) Exch. 259, applies to this case. The defendant was not bound to pay until a conveyance had been executed to him.

[Parke, B. Laird v. Pim differs from this case: there the payment was to be made on the completion of the conveyance; here, by the terms of the agreement, the defendant was bound to pay the purchase money on the 1st of January, without any conveyance at all.] He referred to Scadding v. Eyles, 15 Law J. Rep. (n. s.) Q. B. 364.

PARKE, B. I think this rule must be discharged. The defendant, in this case, agrees to pay the purchase money of the land on the 1st of January, without a conveyance; he is, therefore, bound to pay it, and a tender of a conveyance need not be averred. This case differs from Laird v. Pim, inasmuch as, in that case, the money was not to be paid until the conveyance was completed; but here the defendant agrees to pay in advance, and relies upon the plaintiff afterwards giving him a conveyance. The defendant, by stating that account, makes himself a debtor for the money on the 1st of January. Admitting the argument respecting the plea of the Statute of Limitations

Yates v. Gardiner.

to the first count to be right, yet here there is a fresh agreement. The defendant, in the paper dated the 19th of January, 1849, says, “I hereby acknowledge the above account to be correct, the amount owing by me, as cash, the 12th of January, 1849, being 10,5371. 7s. 1d. (Signed) Henry Gardiner." There is, therefore, an account stated, which makes the defendant at that time debtor for the amount.

ALDERSON, B. The defendant uses the word "cash," which means that he is bound to pay immediately.

PLATT and MARTIN, BB., concurred.

Rule discharged.

CROWN CASES

RESERVED

FOR THE CONSIDERATION AND DECISION

OF THE

COURT OF CRIMINAL APPEAL;

DURING THE YEAR 1851.

[Coram LORD CAMPBELL, C. J., ALDERSON, B., COLERIDGE, J., PLATT, B., and TALFOURD, J.]

A. bargaining with B. about some waistcoats, said, "You must go to the lowest price, as it will be ready money." B. said, "Then you shall have them for twelve shillings," to which A. assented. A. then said he should put the waistcoats into his gig, which was then standing at the door. B. replied, "Very well." A. drove off with the waistcoats, without paying for them, and absconded for two years.

The jury returned the following verdict: "In our opinion, the waistcoats were parted with conditionally, that the money was to be paid at the time, and that A. took them with a felonious intent:".

Held a larceny in A.

AT the General Quarter Sessions of the Peace for the county of Durham, held at the city of Durham, before Rowland Burdon, Esq., chairman, on the 30th day of December, A. D. 1850, the prisoners were indicted for having, on the 10th day of October, A. D. 1848, stolen two waistcoats, the property of Charles Hall Bowser.

The prisoners pleaded not guilty.

On the trial it was proved that, on the said 10th day of October, A. D. 1848, the prisoners, Cohen and Collins, called at the shop of the prosecutor, Charles Hall Bowser, who was a tailor, residing at Chesterle Street, and who agreed to make each of the prisoners a suit of clothes, which had to be sent to Newcastle.

After giving the order, one of the two prisoners took the prosecutor to a public house, where he gave him some liquor. After their return to the shop, the prisoner Cohen asked the price of two waistcoats. which were in the window. The prosecutor said they were fifteen

1 2 Den. C. C. 249.

Regina v. Cohen & Collins.

shillings. Cohen said, “You must go to the lowest price, as it will be for ready money." The prosecutor said, "Then you shall have them for twelve shillings;" which was agreed to by the prisoner Cohen.

The prisoners had a gig standing at the prosecutor's shop door, and the prisoner Cohen said he would put the waistcoats into the gig, in which Collins was sitting, to which the prosecutor replied, “Very well." The evidence proved that Cohen had not any money, but that Collins had; and when Cohen went out to the gig, the prosecutor said he thought he went out to get the money from Collins. Cohen had, previous to this, asked the prosecutor to lend him thirty shillings. Immediately after the waistcoats had been placed in the gig, Cohen got in, and they drove off full gallop. Upon inquiry, next day, it was found that the prisoners had given a fictitious address. From that time up to December, A. D. 1850, the prosecutor has been unable to apprehend the prisoners.

It was contended, on behalf of the defence, that there was no case to go to the jury, inasmuch as it had been proved by the prosecutor that a complete sale of the goods had taken place, and that he had voluntarily delivered them to Cohen. This was overruled by the chairman, and the jury found Cohen guilty of stealing the waistcoats, and Collins not guilty. Cohen was discharged on bail, to appear when called upon to receive the judgment of the court. The jury, in answer to the chairman, said, in their opinion the waistcoats were parted with conditionally, that the money was to be paid at the time, and that Cohen took them with a felonious intent.

The question for the opinion of this court was, whether the conviction of Cohen for larceny was proper.

On the 26th of April, Huddleston, for the prisoner, said that the only question was, whether the term "conditionally" in the verdict meant that the prosecutor parted with his property in the waistcoats on the condition of being paid for them by the prisoner some time or other; as, if so, it would be no larceny in Cohen, but a purchase on

credit.

ALDERSON, B. It means that the waistcoats were to belong to the prisoner when the prisoner complied with the condition of paying twelve shillings, and not before.

LORD CAMPBELL, C. J. The goods were clearly taken animo fu randi. Collins was in great luck to get off. This is an express finding of the jury, that the prosecutor only parted with the possession of the goods.

The rest of the court concurred.

Regina v. Hill.

[Coram LORD CAMPBELL, C. J., ALDERSON, B., COLERIDGE, J., PLATT, B., and TALFOURD, J.]

A lunatic, under confinement in a lunatic asylum, is admissible as a witness, if the judge considers him competent in point of understanding, and to be aware of the nature and sanction of an oath.

The lunatic may be examined and cross examined, and witnesses called on either side, in order to determine the question of competency: but when admitted, it is for the jury to determine whether his testimony is affected by his insanity, and what degree of weight is to be attached to it.

THIS prisoner was tried, before Coleridge, J., assisted by Cresswell, J., at the February sittings of the Central Criminal Court, 1851, for the manslaughter of Moses James Barnes; he was convicted, but a question was reserved for the opinion of this court, as to the propriety of having admitted a witness of the name of Richard Donelly on the part of the prosecution.

The deceased and the witness were both lunatic patients in a Mr Armstrong's asylum, at Camberwell, at the time of the supposed injury, and they were, at that time, placed in a ward called the Infirmary. It appeared that a single sane attendant (the prisoner) had the charge of this ward, in which as many as nine patients slept, and that he was assisted by three of the patients, of whom the witness Donelly

was one.

It was opened for the prosecution, that the witness Donelly was to be called, and, therefore, on both sides, some evidence was gone into in the course of the case; and before he was called, in order to found and to meet the objection to his competency, Muncaster, who had been an attendant in charge of the infirmary ward before the prisoner, stated that "Donelly labors under the delusion that he has a number of spirits about him which are continually talking to him; that is his only delusion; he has never been free from it, to my knowledge, since I have known him."

Joseph Stuart Burton, the medical superintendent, stated the same; but added, "I believe him to be quite capable of giving an account of any transaction that happened before his eyes. I have always found him so; it is solely with reference to the delusion about spirits that 1 attribute to him being a lunatic; when I have had conversation with him on ordinary subjects, I have found him perfectly rational, but for this delusion; I have seen nothing in his conduct or demeanor, in answering questions, otherwise than the demeanor of a sane man."

James Hill, a doctor in medicine, who had been formerly a medical superintendent at the same asylum, stated: "The memory of an in

1 2 Den. C. C. 254. 5 Cox, C. C. 259. 15 Jur. 470. 20 Law J. Rep. (N. s.) M. C. 222.