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1832.

BEFORE MR. JUSTICE LITTLEDALE,

(Who sat for the Lord Chief Justice.)

WHIPPY and Another v. HILLARY.

Feb, 7th. GOODS sold. Pleas-General issue, and the statute A letter, stating

that an appointof limitations.

ment of funds to The delivery of the goods was admitted; and, to take the pay a debt, due case out of the statute of limitations, the following letter dant to the plain

tiff had been was put in:

made, and that

Mr. Y. was one of 10th October, 1825.

the trustees; but “Gentlemen-1 have hitherto deferred writing to you must elapse be

that some time regarding your demand upon me, in consequence of some fore the trustees family arrangements, through which I should be enabled to will not take the

case out of the discharge your account, and which were in

progress, not

statute of limihaving been completed.

tations, as it is

at most only a “ I have now the satisfaction to inform you, that an ap- promise to pay

as soon as the pointment of sufficient funds for this purpose has been trustees are in signed, of which Henry Young, Esq., 12, Essex-street, cash. But, semStrand, is one of the trustees, to whom I have given in ditor's remedy

would be by a a statement of your account, amounting to 981. 8s. 6d. bill in equity

against the trusIt will, however, be unavoidable that some time must elapse before the trustees can be in cash to make these payments; but I have Mr. Young's authority to refer you to bim for any further information you may deem requisite on this subject. I remain, Gentlemen, your obedient servant,

A. W. Hillary."

tees.

Curwood, for the defendant.--This letter is not an absolute, but a conditional promise, and will not support the declaration. This is merely a promise that the money shall be paid out of a particular fund, and not a general pro

mise to pay

Mr. Justice LITTLEDALE. I think that this is not suffi

1832.

cient to take the case out of the statute of limitations; and I think that the plaintiffs ought to have gone to Mr. Young for the money.

.

WHIPPY

v. HILLARY.

For the defence, Mr. Young was called. He stated, that he was not in funds till about three months after the bringing of the present action; and that, as soon as he was so, he sent to the plaintiffs to offer them the sum mentioned in the letter.

Coltman, for the plaintiffs.--I submit that this acknowledgment is sufficient, under the statute 9 Geo. 4, c. 14. It is not necessary that there should be a new promise; an acknowledgment of the debt is sufficient. Here we have an absolute acknowledgment, and the law raises the promise. This is not like the case of a bankrupt's certificate, because there the debt is extinguished.

Comyn, on the same side.--An acknowledgment in writing would be sufficient, although there was not a promise of any kind.

Curwood.The act of Parliament only requires that to be in writing which before might be by parol. If there be an acknowledgment alone, that will be enough; but, if the acknowledgment be coupled with a condition, you cannot take the acknowledgment without the condition; you must take the whole together.

Mr. Justice LITTLEDALE.-I am of opinion, that this letter is not sufficient to take the case out of the statute. If the acknowledgment be accompanied by a condition, you must take the whole together. In this letter, the defendant refers to Mr. Young. At most it is only a promise to pay when Mr. Young is in funds; but I have great doubts whether the plaintiffs' only remedy is not by a bill in equity against Mr. Young. I shall nonsuit the

1832.

plaintiffs, giving leave to move to enter a verdict for the plaintiffs.

Nonsuit, with leave to move.

WHIPPY

HILLARY.

Campbell, Coltman, and Comyn, for the plaintiffs.

Curwood and Capron, for the defendant.

[Attornies-J. Miller, and Fladgate, Young, & Jackson.]

In the ensuing Term, Campbell moved to set aside the nonsuit; but the Court

Refused a rule.

See the statute 9 Geo. 4, c. 14, set forth ante, Vol. 3, p. 298.

In the case of Tanner v. Smart, 6 B. & C. 603, it was held that a promise to pay as soon as the party was able to do so, would not take a case out of the statute of limitations, without proof of his ability.

In the case of Haydon v. Williams, 4 M. & P.811, it was held, that where a written promise to pay a debt, barred by the statute of limitations, has been lost, parol evidence may be given of its contents; but it seems, both from this

case and from that of Tanner v.
Smart, that, if the promise be con-
ditional, the plaintiff ought to de-
clare specially

See also the cases of Robarts v.
Robarts, ante, Vol. 3, p. 296; An-
sell v. Ansell, Id. p. 563; Chippen-
dale v. Thurston, ante, Vol. 4, p.
98; Smith v. Forty, Id. p. 126;
Fearne v. Lewis, Id. p. 173; Cory
v. Bretton, Id. p. 462; Lang v.
Mackenzie, Id. p. 463; and Dick-
inson v. Hatfield, ante, p. 46.

As the following case is on the same subject, we have inserted it here.

Sittings in London, after Hilary Term, 1832.

COR. MR. JUSTICE J. PARKE.

GIBSON V. BAGHOTT, Esq.

Feb. 18th. ASSUMPSIT for goods sold, and work and labour. Pleas -- First, A defendant had general issue; second, infancy; third, the statute of limitations. Re- written a letter

to T., to make

a proposition to the plaintiff respecting a debt he owed him; and in this letter he desired T. to arrange with the whole of his creditors. T. wrote a letter to the plaintiff, offering an acceptance for 7s. 6d. in the pound on the debt:—Held, not sufficient to take the case out of the statute of limitations.

1832.

GIBSON

BAGHOTT.

.

plication denying the infancy, and alleging that the cause of action was within six years.

To take the case out of the statute of limitations, a letter from the defendant, dated June 6th, 1829, to a person named Turner, was put in. By this letter, the defendant desired Mr. Turner to make a proposition to Messrs. Stultz respecting a debt due from the defendant to them, and then went on as follows:-“Do what you can to arrange with the whole of my creditors, and you will much oblige, dear sir, your's truly, T. Baghott."

Mr. Turner stated, that the defendant mentioned to him the names of all his creditors, and stated that he owed the plaintiff about 271. for saddles and bridles he had had when in the army. It also appeared that on the 27th of June, 1829, Mr. Turner wrote to the plaintiff a letter, in the following terms :

“5, Wych-street, Drury-lane,

June 27th, 1829. Gentlemen,--I am directed by Mr. Thos. Baghott, to offer you 7s. 6d. in the pound for the amount of your debt due from him to you. Should you be inclined to accept that sum, Mr. T. Baghott will give you his acceptance at three months for the amount. Your debt he states to be about 271. I will join him in the bill, as further security for you, should you be inclined to take it. I shall do myself the pleasure of calling upon you to-morrow, when I trust you will favor me with an answer. I am, Gentleinen, your obedient humble servant,

“ Edw. E. Turner.” Addressed -"Messrs. Gibson."

66

F. Pollock, for the defendant, submitted that this was not enough to take the case out of the statute.

Burstow, for the plaintiff.—Here are two letters, the one from the defendant, making Mr. Turner his agent to arrange with his creditors; and the other is a letter from the agent to the plaintiff, acknowledging the debt.

Mr. Justice J. Parke.—There is nothing signed by the defendant, which acknowledges any debt due to the plaintiff.

Barstow.—Must not the two letters be taken together?

Mr. Justice J. PARKE.--I doubt whether the second letter, even if signed by the defendant, would be enough to take the case out of the statute; but, as it is not, I think I must nonsuit the plaintiff.

Nonsuit.

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Rex v. SLANEY, Gent., One &c.

Feb. 8th. INFORMATION for several libels, imputing that a A witness is not daughter of Mr. Fane, (who was dead at the time of the only not bound

to answer a libels), had committed adultery with a gentleman named question, the an

swer to which Joddrell.

would criminate

him, but he is The first count of the information, after setting forth not bound to anthe state of Mr. Fane's family, charged that the defendant

swer any ques

tion, the answer wrote and published five anonymous letters to Mr. Fane, to which would

tend to crimiand a letter to Mr. Lowndes, and also a printed placard. nate him. A

witness is, The second count, charged him with printing and pub- therefore,'not lishing the letter to Mr. Lowndes only. The third bound to answer

whether he count stated the five anonymous letters, and also cer- wrote an adver

tisement refertain advertisements in newspapers, without charging any ring to libellous of them to have been either written or published by

letters which the prosecutor had received; and

though he is bound to answer whether he knows in whose handwriting it is, he is not bound to name the person, as it may be himself.

A clerk who has seen numerous letters addressed by a party to his employer, and has acted on those letters, may prove the handwriting of such party.

An information for a libel stated that the prosecutor had received certain anonymous letters, and that of and concerning those letters the defendant published a libellous placard. The defendant was proved to have caused the placard to be published. In the placard it was asked if the prosecutor had not received certain warning. The prosecutor stated that he understood that to refer to the letters, and that he should not have understood the meaning of the placard if he had not received the letters:~Held, that the letters might be read in evidence as explanatory of the placard, without proof of the bandwriting of them.

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