Z. Gardner's Administrator v. F. Peyton, Jr.

Z. Gardner’s Administrator v. F. Peyton, Jr. Non assumpsit within five years, &c., is not a good plea to an action of assumpsit upon a promise to collect money and account for it. Tfie cause of action does not arise until the money has been received by the defendant and demanded by the plaintiff. Assumpsit by the defendant, as an attorney at law to collect a debt due to the plaintiff’s intestate, and to account for the same when collected. The declaration avers that the defendant collected the money, but refused to pay it to the plaintiff on demand. [MAJORITY — (Thruston, J.,] The Court (Thruston, J., absent,) on general demurrer, decided that the plea of non assumpsit infra quinqué aimos, was not a good plea to an action upon such a promise. At the trial, upon the issue on the plea of actio non accrevit, Mr. Neale, for the defendant, contended that the action accrued upon the receipt of the money by the defendant, and cited 3 Bl. Com. 25 ; Law of Virginia of November 19, 1792, p. 97, § 12; Law of Virginia, December 17, 1792, for limitation of actions, p. 107, § 4; Taylor v. Armistead, 3 Call, 200; Skinner v. McClure, 1 Rand. 284; 2 Harrison’s Digest, 1458; Manning’s Index, 57; 2 Tucker’s Com. 388, 430; and thereupon moved the Court for an instruction to the jury to that effect. But the Court refused, and stopped Mr. Taylor, for the plaintiff, who was about to reply; being of opinion that the cause of action did not accrue until demand of payment, and the defendants refusal to pay. Verdict for the plaintiff.