LITTLEDALE J. The entry that the proclamations were made according to the form of the statute, signifies that they were made, as required by the statute, in the great sessions. PARKE and TAUNTON JS. concurred. 1832. Doɛ dem. JONES against HARRISON. Rule discharged. June 6th. KENNEDY and Another, surviving Executors of Wednesday, TYSER, against WITHERS. ASSUMPSIT for use and occupation, and on an In assumpsit account stated with the plaintiffs as surviving exe and cutors, upon which count 47. were paid into court; for use and occupation 41. were paid into Court on the account stated. The plaintiff's proved that the defendant being them as survi of T., and hav account with This cause was tried before Patteson J., at the sittings in Middlesex, during the present term. The plaintiffs indebted to gave evidence of sums due, exceeding the 47., and not ving executors covered by the set-off, but it appeared that this part of ing no other the demand had accrued in the lifetime of a deceased them, was executor, and none of the earlier counts were applicable them for payto this proof. The plaintiffs therefore were obliged to fused, saying rely upon the account stated, and they proved that on tha application made by them to the defendant for the amount claimed in the action, he answered that he had the an account against Tyser (the testator) and should not pay it. Kelly, for the plaintiffs, contended that as defendant, by paying 4/. into court, had acknowledged an called upon by ment, and re that he had a cross demand on the funds of the testator. The plaintiffs gave evidence of a debt exceeding 44., and contended that these facts, with the admission implied by the payment into Court, entitled them to recover the larger sum on the account stated, the other counts proving inapplicable: Held, that they could not so recover, for that the averment of an account stated could only refer to a single occasion; and the above mentioned answer of the defendant, with the subsequent payment into Court, merely shewed that upon that accounting which alone was in question, the defendant was found indebted 44 1832. KENNEDY against WITHERS. account stated with the plaintiffs as surviving executors, upon which something was due, and the plaintiffs had proved a claim to more than 47., which the defendant had given no evidence to rebut, the accounting must stand as undisputed, and the sum thereupon due must be that which the plaintiffs had proved. The learned Judge directed a nonsuit, giving leave to the plaintiffs to move to enter a verdict for 401. Kelly now moved accordingly. The defendant by paying 47. into court admitted an account stated upon which he was found debtor to at least that extent. The plaintiffs proved that he was indebted, upon such accounting, to a larger amount; and he gave no evidence to limit it. [Parke J. A sum was demanded of him, and he refused to pay it. You cannot call that an accounting upon which the sum now demanded was found to be due from the defendant, according to the terms used in pleading an account stated.] The defendant did in fact account, and admitted that money was due (as the pleading states) from him to the plaintiffs. [Littledale J. But, if so, he added that he had a cross claim to an equal or greater amount. If his statement is an accounting, the whole of it must be taken together.] It has been held where a plaintiff declared upon a bill of exchange, and also on an account stated, and money was paid into court on this latter count (there being no demand in question but on the bill), that such payment was an answer to the action on all the counts, unless the plaintiff could shew that something more was due, Early v. Bowman (a). Churchill v. Day (b), which was an action (a) 1 B. & Ad. 889. (b) 3 Mann. & Ry. 71. for for work and labour, is to a similar effect. Now here there was no subject of account between these parties, but the demand now in question; the defendant admits a reckoning upon that account, and something due from him, but the plaintiffs shew that more was due than he has admitted or paid. Those cases, therefore, are an authority in their favour. Besides, there is in this case a single cause of action accruing to the plaintiffs as surviving executors, and the only matter which has been in dispute between the defendant and them in that capacity. The defendant admits, by paying money into court on the account stated, that he has accounted with them as surviving executors, and been found indebted to them on that accounting. May not this be taken as a general admission that the defendant has accounted and been found indebted, without reference to any proof of an actual accounting on one specific occasion, or to any circumstances which then took place? LITTLEDALE J. (a) The defendant by paying 41. into Court on the account stated, admits that there has been an accounting upon which he was found indebted in that amount. He does not admit the cause of action, but only the account and the result. By the form of the count the plaintiffs cannot give evidence of more than one accounting. It is not like a count for goods sold, which may have been at several different times. The plaintiff cannot apply that accounting upon which the defendant was found debtor in 47. to one occasion, and then say there was another accounting at a different 1832. KENNEDY against WITHERS. 1832. KENNEDY against WITHERS. time. The account must be taken to be not only of the sum in which the defendant is thereby found indebted, but of the plaintiff's other claims in the cause. Referring to all that occurred, I think it does not constitute such an acknowledgment as entitles the plaintiffs to recover more than the sum paid in. There will therefore be no rule. PARKE J. To give a ground of action on the account stated, there must be an accounting and a sum found due which the defendant admits himself liable to pay but in this case there was no acknowledgment of liability, on the account stated, for the sum claimed by the plaintiffs. TAUNTON J. concurred Rule refused. Thursday, June 7th. York, which was incor The KING against The Sheriffs of the City of YORK. In the city of RULE nisi had been obtained for a mandamus, directed to the sheriffs of the city of York, and the prothonotary of the court of the sheriffs, commanding memory, there them to admit William Smith, one of the attornies of porated before the time of had been a court from very ancient times, held first before the mayor and bailiffs, and, after a charter of Ric. 2., before the mayor and sheriffs. By a by-law made in the 3 & 4 Philip and Mary, by a select body of the corporation who had immemorially made rules and regulations as to the practice of the Court, and who had at their discretion selected the persons admitted to practise as attornies there, it was ordered, that from thenceforth there should be no more than four persons admitted to be attornies in the sheriffs' court; and from that time it did not appear that any more than that number had ever been allowed to practise : Held, that the by-law was reasonable, and that the usage limiting the number of attornies to four was sufficiently ancient to satisfy the statute 2 G. 2. c. 25. 8. 11. Semble, that a maudamus cannot issue to the Judges of an inferior court commanding them, in the first instance, to admit an attorney of K. B. to practise there; but that the mandamus, if any lies, must be to examine whether he is capable and qualified to be admitted according to the statutes 2 G. 2. c. 23., and 6 G. 2. c. 27. this court, and a freeman of the said city, to practise as an attorney in the sheriffs' court. The rule was obtained on an affidavit of Smith, that he was duly admitted an attorney of this court, and had taken out his certificate for the year; and that he had applied to the sheriffs and prothonotary at a court held before them, to be admitted an attorney of their court, and produced the certificate of his admission, &c., and they refused to admit him. It appeared by the affidavits in answer to the rule, that the city of York was incorporated before the time of memory; that from time immemorial there has been a court of record held in the city of York, before certain members of the corporate body, called the court of our lord the king, held at the hall of pleas upon the Ouse Bridge in the city aforesaid, for hearing and determining all pleas arising within the city and its precincts; and that before and at the time of granting the charter of Richard II. after mentioned, such court was held before the mayor and bailiffs of the city; that by a charter of King Henry III., that king had granted to the citizens of York, that they should not be sued without the said city, but should complain before the mayor and bailiffs; that, by charter of Richard II. making the city of York a county, the right of holding pleas, which was before vested in the mayor and bailiffs, was transferred to the mayor and the sheriffs, who were substituted for the bailiffs; that from time immemorial there had been within the said body corporate a select body called The Upper House, who had exercised the power of making by-laws; that, before the charter of Richard II., it consisted of the mayor, aldermen, bailiffs, and twenty-four citizens, and now of the mayor, aldermen, 3 D 4 1832. The KING against The Sheriffs of YORK. |