BRACKENBURGH, Demandant; MR. Vouchee. Tenant; TATTON, R. Serjeant Rough moved that this recovery might be amended by the insertion of the words "woodlands in the parish of Warton," which had been omitted in the exemplification of the recovery-roll. In the deed to lead the uses, that part of the property in question was described as being a moiety or half part of two woodlands, called Owen Wood, and High Wood, in the parish of Warton, in the county of Lincoln. The recovery was suffered in the third year of the reign of King George the Third-1763. The learned Serjeant produced an affidavit, shewing that the possession had, ever since the passing of the recovery, gone according to the deed. Per Curiam Fiat (a). (a) See Cooke, Demandant; Yates, Vouchee, ante, p. 296; S. C. 4 Bing. 90. UPTON V. ELSE. Saturday, May 5th. THIS was an action of assumpsit tried before Lord Chief On a plea of the Justice Best, at the last Assizes at Nottingham. The declaration consisted of the common money counts. The defendant pleaded actio non accrevit infra sex annos. The plaintiff replied, that the cause of action accrued within six years: whereupon issue was joined. At the trial, the plaintiff gave evidence of a conversation he had with the defendant, within six years of the com statute of limitations-Held, that a new promise infra sex annos need not be declared on specially, although made thirteen years after the accrual of the original cause of action. 1827. UPTON บ. ELSE. mencement of the action, but about thirteen years after the accrual of the original cause of action, wherein he admitted the debt, and promised to pay it. His Lordship, being of opinion that this was a sufficient acknowledgment to take the case out of the statute, directed the Jury to find for the plaintiff. Mr. Serjeant Spankie now moved for a rule nisi, that this verdict might be set aside, and a nonsuit entered, or a new trial had. He submitted, that the plaintiff could not recover for so stale a demand under the common counts, but should have declared specially on the new promise; for that the issue taken on the replication had reference to the original cause of action on which the plaintiff's demand arose, and not to any subsequent promise. Lord Chief Justice BEST.-We have every wish to give full effect to the statute. Probably the new promise ought in strictness to be declared on specially; but the practice is inveterate the other way, and we cannot get over it (a). Mr. Justice PARK concurred. Mr. Justice BURROUGH.-Notwithstanding the statute, the original debt remains; the remedy only is gone. Mr. Justice GASELEE.-The only case in which it has been held necessary to declare specially on a promise of this kind, is that of an executor or an administrator. Rule refused. (a) See the statute 9 Geo. 4, c. 14. 1827. AYTON, Gent. One &c., v. BOWLES. Saturday, May 5th. THIS was an action of assumpsit upon an attorney's bill. On a demand Plea-The statute of limitations. year The cause was tried before Lord Chief Justice Best, at the Sittings at Westminster after the last Term. It appeared that the action arose out of a demand for business done by the plaintiff for the defendant in the 1813. To take the case out of the statute, evidence was given of an acknowledgment or promise made by the defendant, in a conversation with the plaintiff, within six years of the commencement of the action. This promise was to the effect following, viz. that the defendant would be happy to pay the debt if he could, that a sum of money was due to the defendant from one Gurney, and that, if the plaintiff could recover it from him, he might deduct thereout the amount of his own debt. His Lordship, being of opinion that this was only a conditional promise, and that the defendant's ability to pay should have been shewn, directed the Jury to find for the latter. Mr. Serjeant Taddy now moved for a rule nisi, that this verdict might be set aside, and a new trial had.—He submitted, that, until the late case of A' Court v. Cross (a), a bare acknowledgment of a debt was deemed sufficient evidence of a promise, to take a case out of the statute; that the evidence in this case shewed something more than a mere ac (a) 11 B. Moore, 198; S. C. 3 Bing. 329. There, in assumpsit for money lent, the defendant plead ed actio non accrevit infra sex annos. To take the case out of the statute, the following declaration made by the defendant to the officer, on his being arrested, was given in VOL. XII. X evidence-"I know I owe the mo- being made for payment of a debt barred by limitations, the the statute of defendant said, he would be happy to pay it if he could, that a sum was due to him from one G., and that, if could recover that debt, he might pay himself thereout: Held, that conditional pro the plaintiff this was a mere mise, and that the defendant's ability to pay must be shewn, to entitle the plaintiff to reco. ver. 1827. ΑΥΤΟΝ บ. BOWLES. knowledgment of an existing debt-the defendant pointing out a particular fund out of which the plaintiff might procure payment; and that there was nothing like a refusal to pay, as in Leaper v. Tatton (a), nor any thing calculated to repel the inference of a promise to pay. Per Curiam.-This case falls within the principle of A'Court v. Cross, which seems to meet the justice of the statute. The promise was clearly conditional, and, before he could be entitled to recover on it, the plaintiff should have shewn the defendant to be of ability to pay. Rule refused. Monday, May 7th. The plaintiff and defendant each kept an account with a banker at M. In October, the plaintiff de sired the defendant to pay in to his account a sum due to him for rent. The defendant wrote to the that he had caused the amount to be transferred to his account, and THIS EYLES V. ELLIS. was an action of covenant brought to recover a sum of 2057. alleged to be due to the plaintiff from the defendant for one year's rent of a farm demised to the latter, and also the sum of 17. 18s. for poor-rates, payable by the tenant. The cause was tried before Mr. Serjeant Onslow, at the last assizes at Maidstone. The plaintiff and defendant each kept an account with plaintiff, stating Messrs Edmeads & Co., bankers, at Maidstone. In October, 1825, the plaintiff applied to the defendant for 2057. due for rent, and requested him to pay the amount in to his acthe plaintiff sent count with Messrs Edmeads & Co. The defendant, on the 22nd of that month, wrote to the plaintiff, informing him that he had caused the 2057. to be transferred to his account at the bankers', whereupon the plaintiff sent the defendant by return of post a receipt for the year's rent. By some mistake, however, the transfer was not made until the 8th him a receipt by return of post. The sum, however, was not actually transferred until the 8th December. On the 9th, notice of the transfer was sent to the plain tiff by post, which did not reach him till the 11th. On the 10th the banker stopped payment:Held, that the transfer was equivalent to payment. (a) 16 East, 420. December. On the 9th, the defendant wrote to the plaintiff informing him that it had then been done; the bankers also wrote to the same effect. These letters were not received by the plaintiff (who resided in Hertfordshire) until the 11th December. Messrs Edmeads & Co. stopped payment on the 10th. At the time the transfer was made in the bankers' books, the defendant's account was overdrawn about 1,1007. The learned Serjeant was of opinion that this transfer was equivalent to a payment. The Jury accordingly returned a verdict for the plaintiff, for 17. 18s. Mr. Serjeant Taddy now moved for a rule nisi, to increase the verdict to 2067. 18s. He submitted that the transfer made by the bankers could not be deemed equivalent to a payment, inasmuch as the notice did not reach the plaintiff in time to give him an opportunity of availing himself of the transfer by drawing out the sum. Lord Chief Justice BEST.-I am of opinion that the learned Serjeant was right. The plaintiff made the bankers his agents for receiving the money; he directed his tenant to pay it in to his account with them. The question is, was that which was done equivalent to payment. At first, when the receipt was given, there was no payment; but afterwards the amount of the rent was transferred by the bankers to the plaintiff's account. Though no money was actually transferred, yet, as the bankers gave the plaintiff' credit for the amount, that was equivalent to an acknowledgment by them that they had received the rent from the defendant on account of the plaintiff. The plaintiff might then have drawn for the sum thus transferred; and the bankers could not have refused to honour his draft, after having entered the amount to his credit. 1827. EYLES v. ELLIS |