1827. PIERCE บ. BREWSTER. A Court v. Cross has decided that a mere acknowledgment of a debt barred by the statute of limitations will not revive it; there must also be an unconditional promise to pay, or, if conditional, the contingency must be shewn to have happened. The evidence given in this case clearly amounted to no more than a conditional promise to pay the plaintiff's demand when the outstanding debts due to the firm were collected. In every conversation proved, these debts were alluded to. In Swan v. Sowell (a), the defendant did not deny the debt, but said that the plaintiff owed him a great deal more money, and that he had a set-off against the note: and Mr. Justice Bayley and Mr. Justice Holroyd were of opinion that that was not sufficient to take the case out of the statute. [Lord Chief Justice Best. The line adopted by the Court of King's Bench in that case was giving effect to the defendant's set-off, though not pleaded.] In Besford v. Saunders (b), it was held, that a bankrupt who has obtained his certificate is not liable in assumpsit upon a promise to pay when he is able a debt due before his bankruptcy, unless such ability be shewn. Here, upon the fair construction of all the several conversations proved to have been had with the defendant Brewster touching this debt, nothing like an unconditional promise to pay appears. Where the expressions used are equivocal, the onus of proof as to their tendency rests upon the plaintiff. Lord Chief Justice BEST.-The conclusion to which we have arrived in this case will not in any degree militate against our decision in A'Court v. Cross. It is perfectly clear, that, where a man simply admits that he owes a debt, and at the same time affirms that he will not pay it, such an acknowledgment does not amount to a promise to pay, so as to take the case out of the statute; for, to entitle the (a) 2 Barn. & Ald. 759. (b) 2 H. Blac. 116. plaintiff to recover, there must be a cause of action accruing within six years, and, unless there is a promise, or that which amounts to a promise to pay within the six years, there can be no cause of action. I am clearly of opinion that this case was properly left to the Jury. They were directed to find whether or not there was a promise to pay. They have found that there was. I therefore see no reason for disturbing the verdict. It has been contended that the promise, at most, was conditional, to pay when the outstanding debts due to the firm were collected. But I do not think the promise proved was a conditional one. The defendant Brewster merely observed that it was hard upon him to be called upon to pay, when there were so many outstanding debts due to the concern uncollected; and, when applied to again in 1823, he desired that the account might be handed to Whittle, who was to settle the business. That, of course, meant by paying it. That this was his meaning is clear from the context; for, he further says, that he had put the debts into the hands of an accountant: and, although he afterwards said that he might refuse to pay altogether, but that he would not act in that way; that was a mere commentary upon the former part of the conversation, it superadded no condition. Mr. Justice PARK.-The latter part of the evidence, of the defendant's having said that he had put the matter into the hands of an accountant to settle, is very strong when coupled with his remark as to the over-charges. In A'Court v. Cross, this Court brought back the previous authorities to a certain point; and our decision has since been confirmed by the Court of King's Bench (a). There can be no doubt in this case that the defendant Brewster himself contemplated his liability from the year 1815, up to the date of the last conversation, in 1823. The case was pro (a) In Tanner v. Smart, 6 Barn. & Cress. 603. 1827. PIERCE บ. BREWSTER. 1827. PIERCE 1. BREWSTER. perly left to the Jury, and the learned Baron who presided at the trial is not dissatisfied with their verdict. Mr. Justice GASELEE (a).-The case of A'Court v. Cross is not the last upon this subject that has come before this Court. The same principle was involved in Scales v. Jacob (b). Whether the admission of the debt amounts to a promise to pay, is a question proper to be left to the Jury. In the present case, I am clearly of opinion that there was that which amounted to an absolute and unconditional promise to pay. In a variety of conversations had with the defendant Brewster, in the years 1820 and 1823, he is represented to have said, that, although he might refuse to pay, yet he would not act in that way; he was also proved to have referred to an accountant, who he said was to settle the business, and to have objected to certain charges in the account. Upon the whole, I think the Jury were well warranted in coming to the conclusion they did. Rule discharged. (a) Mr. Justice Burrough was at Chambers. (b) 11 JB Moore, 553; S. C.3 Bing. 638. Saturday, June 23rd. who has in that PARKER V. YATES. An attorney, THIS was an action of replevin for taking the plaintiff's goods. The defendant avowed for five years' rent due to him from the plaintiff, at 207. a year, payable quarterly. Plea-non tenuit. character received papers from a client, cannot be called to produce them in a cause, al though he does not act therein as the attorney of the party. The cause was tried before Mr. Baron Vaughan, at the last Assizes at Worcester. To prove the tenancy, the defendant called one Wilson, an attorney, who had formerly been employed professionally by the plaintiff, in obtaining his discharge under the Insolvent Debtors' Act. He was called upon to produce a receipt given by the defendant to the plaintiff for rent due in respect of the premises, which receipt he admitted to be in his possession; but stated that it had come into his hands in his character of attorney to the plaintiff. On the part of the plaintiff, it was contended that the witness could not be called upon to produce any thing that had come to his hands confidentially, whilst acting as the professional adviser of the party. The learned Baron thought, that, under the circumstances, the witness could not be compelled to produce the receipt; and that the plaintiff ought not to be placed in a more unfavourable situation in consequence of having placed the document in the hands of his attorney, than he would have been in had it remained in his own possession. A verdict was thereupon taken for the plaintiff, leave being reserved to the defendant to take the opinion of the Court upon the above objection. Mr. Serjeant Peake accordingly, in the last term, obtained a rule nisi that this verdict might be set aside, and a new trial had. The learned Serjeant was now called upon by the Court to support his rule.-He submitted, that, inasmuch as Wilson was not the attorney for the plaintiff in the cause, but had only acted in the capacity of his agent in obtaining his discharge under the Insolvent Debtors' Act, he could not object to produce the receipt. Lord Chief Justice BEST.-All confidence between attorney and client would be utterly destroyed, if the attorney were held to be liable to be called upon to produce documents that have come to his possession, or to prove facts that have come to his knowledge, in his character of attorney. All that is held by the attorney must be considered as being still in the hands of the client. (a) Communications made by a party to an attorney are confiden Rule discharged (a). tial, although not relating to a 1827. PARKER บ. YATES. 522 1827. PARKER v. YATES. the time they are made. In Cro- and it was afterwards drawn by another-it was held, that the attorney was precluded from giving evidence of these facts in an action afterwards brought by the son, wherein the validity of the deed was attempted to be disputed, although he was not the attorney in the cause. Saturday, June 23rd. The Court refused to set aside the service of a writ of attach ment of privilege, on the ground that a wrong year was stated in the English notice. HARMER V. LANE. MR. Serjeant Wilde, on a former day, obtained a rule nisi to set aside the service of an attachment of privilege, on the ground of an irregularity in the English notice at the foot of the process; the notice being to appear in 1807, instead of 1827. Mr. Serjeant Taddy, who now shewed cause, referred to the case of Steel v. Campbell (a), where it was held, that, if the English notice require the defendant to appear at a return day in an impossible year, it is not such an irregularity as will induce the Court to set aside the proceedings. The Court observed that there was no case contradicting Steel v. Campbell; and the rule was (a) 1 Taunt. 424. (b) In Humphries v. Collingwood, 2 Barn. & Ald. 642; S. C. 1 Chit. 384, it was held to be no objection Discharged, with costs (b). to the notice at the foot of a bill of Middlesex, that it wholly omitted to state the year. |