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CASES [ 607 j

ARGUED AND DETERMINED

IN

THE COURT OF KING'S BENCH,

IN

Trinity Term,
In the Forty-fifth Year of the Reign of GEORGE III.

The Company of Proprietors of the LIVERPOOL Tuesday,

June 18th. Water Works against ATKINSON.

The Same against HARPLEY.

of a bo

12 months :"

TN debi on bond, dated 1st of January, 1902, the plaintiffs The condition in their declaration set forth the condition of the bond ; 8

citing that the whereby, after reciting that the defendant had agreed with defendant had

and agreed with the the company to collect and receive the several rents and , other revenues of their works at Liverpool, from time to lect their reve

nues " from time for 12 months, from the date thereof; and that the time to time for company having required security for the due performance 12

and afterwards of the said office of receiver, in the manner and to the stipulating effect after mentioneci, T. Ilarpley had agreed to join with times thereafthe defendant in the bond for that purpose, upon the condi- ter during the

continuance of tion thereunder written : the condition was thereby declared such his emto be, that if the defendant “should from time to* time, and ployment, and

" for so long as at al} tiines thereafter, during the continuance of such bis he should con

U rine and in tinue to be em employment,” use due diligence in collecting and receiving

COTCCs and receiving ployed,” he all rents and sums of money woich should (a) grow and would justly ae

count and obey become due to the company, their successors or assigurs orders, &c.com at Liverpool, from and in respect of their said works; and fines the obli

gation to the should, as often as requested by the company, their suc. period of 12

months men(a) In the condition, as afterwards set forth, on oyer, in the defendant's "

honorer in the defendants. tioned in the plea, the word annually was here introduced. .

recital. VOL. VI.

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J 803. cessors, &c. well and truly pay and account for to the Liverpool comPany a' Liverpool, to their satisfaction, all such sums Water-woik* as he the defendant should have received from any person again$t t0 l^e comPany's use, and render to the company, their ATki.tsojf. successors, &c. from time to time a true account in writing of all sums by him theretofore received on acccount of the said works, for the rents and other revenues thereof, or on account of the company, &c. and for which he ought to be charged or chargeable, and should then also deliver up to the company all books of account, vouchers, &e. whatsoever belonging to the company then in his custody; and also if the defendant should, " so long as he should continue and be employed by the company from time to time observe and perform the orders of their committee as far as the same should concern his said employment, and justly and truly in all other respects behave himself in the said office or emploj7ment of receiver of the aforesaid rents and other revenues, and duly account for the same as aforesaid, then the said writing-obligatory was to be void, or else to be in full force. The plaintiffs then averred, that the defendant continued and was employed by the company in the said office or employment of receiver, in the condition mentioned, for. a long time after the making of the said writing obligatory, viz. From the date thereof until and [ 509 1 upon the 14th of September, 180*, and during that lime received divers sums from divers persons (a) to the company's use, amounting in the whole to 400/.; and then assigned as a breach the not accounting for and the paying the same. There were other general counts in debt for so much received to the use of the company, and upou an account stated

The defendant, after craving oyer of the bond and of the condition, which was set forth in the same words as stated in the declaration, with the addition of the word aiutwjlli/ in the place before noted, pleaded, That for twelve months from the date of the obligation he did from time to time collect and account, &c. (in the words of the condition) and did pay to the company all sums received by him duiingthe

(a) Viit note (4) to z Siiuud. 4(1.

•aid

said twelve months, to the use of the company, &c.; and so 1805. pleaded performance of the condition. Liverpool

Replication. That the defendant, after making the writing- Water-wo.ki obligatory, and after the expiration of twelve moDths from ligaPinl7 the date thereof, and during the time that he continued and Athsjox. was employed in the said office or employment of receiver as in the condition mentioned, received the sums in the declaration mentioned, and broke the condition in manner and,form as complained of. To this there was a general demurrer and joinder. There were similar pleadings in the other action against Uarpley the surety.

Richardson, in support of the demurrer, contended that the replication, which alleges a receipt of money not accounted for by the defendant after the expiration of 12 months from the date of the obligation, was no answer to the plea of performance of the condition to account for the 12 months, during which period alone, the obligation was [ 510 "j in force; and that tiie subsequent words in the recital of the condition, requiring security for the performance of the office " in the manner or to the effect after mentioned," or the further words in the condition binding the defendant to account from time to time and at all times thereafter during the continuance of such his employment, must be taken with reference to the period of 12 months before named, for which he was appointed to collect the revenues of the company, and for which the surety was bound. And he cited Lord Arlington v. Merricke, (a)nsin point; in the note (b) to which the principal cases on the subject are collected, viz. Horton v. Day (c), Wright v. Russell, (d), and Barker v. Farker (e). And he observed, that there would be no injustice in this construction, as the principal would still be liable in an action for money had and received for all sums received by him for the company.

J. Clarke, contra. The condition of the bond is- so plain to account for all sums received by the defendant ,

"at all times during the continuance of his employment," that it is not necessary to call in aid the recital in order to explain those words; neither does the sense of the con

(a) 2 Saund. 411. (») H», 414- »>y Mr. Serjt. William,

(c) lb. Sty. iX, and All. 10. (d) j Wits. 53:, mid i Blac. Rep. 934.

(«) 1 Term Rep. 187.

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