Held that the special demurrer on the ground of the omission of profert taken by the defendant to the entire declaration was too large.

The ground of general demurrer not having been noted in the paper books, no costs of demurrer were allowed.

demurrer. The question raised by this demurrer, has been already decided by the Court of Exchequer in England, in the case of Ring v. Roxbrough, (2 Tyr. 468). Where it was held, on special demurrer, that the date of the letters of administration was repugnant and inconsistent, and if it could be rejected, the declaration would be bad, for not al- Assumpsit. On the common counts by the plainleging the day on which a material and traversable tiffs, "as Executors." The declaration stated the fact had taken place. It is impossible to distin- several causes of action, to have accrued to them guish that case from the one now before the court. "as Executors," the promise in the conclusion and T. O'Hagan and T. K. Lowry, in support of breach followed the same form. There was no the declaration. The repugnancy relied on is, that profert of the letters testamentary. Special dethe day upon which the promise is alleged to have murrer on the ground of omission of profert. been made, is subsequent to that afterwards laid as Lynch, with Curtis, for the demurrer. This dethe date of the letters of administration; but, in as-claration is clearly bad, it is quite settled that the sumpsit, the day upon which the promise is laid omission of profert in a declaration by executors, is in the declaration is not material, and may be re- a good ground of special demurrer. It will be conjected, Inkersalls v. Samms, (Cro. Car. 130); Han-tended on the other side, that the words "as execubury v. Ireland, (Cro. Jac. 618). (Moore, J.-You tors," may be struck out as surplusage, as it was have averred that the intestate sold goods in 1845, not necessary for the plaintiffs to sue in their execuand that letters of adminstration were granted to torial capacity. Admitting that as to the other the plaintiff in 1844.) Perrin, J.-Administration counts, it does not hold good as to the count on the granted in a man's lifetime is void.) An adminis- account stated. (Pennefather, B.-If you can shew trator is entitled to sue from the time of the death any count necessarily requiring profert the declaof the intestate, Thorpe v. Stallwood, (6 Scott, N.R. ration is bad.) Jenkins and Ux v. Plombe, (6 Mod. 715); Foster v. Bates, (7 Jur. 1093); Patten v. 93,) decided that an insimul computasset between a Patten, (Al. and Nap. 493). (Blackburne, C. J. testator and defendant is not a cause of action perQuoad the property, undoubtedly, the title of the sonal to the executor; Ashby v. Ashby, (7 B.. & C. administrator refers back to the death of the in- 444). (Pennefather, B.-If you can shew that testate). The first date is right, and we can re- there is a misjoinder of causes of action, the declaject the second, Hughes v. Williams, (2 C. M. & ration is bad on general demurrer.) Webb & Ux. v. Ros. 351); Skinner v. Andrews, (1 Saund. 169). Cowdell, (14 M. & W. 820) is pari passu with this (Perrin, J.-In Skinner v. Andrews, the date was case, there such a declaration was held bad for misaverred under a scilicet, here there is none.) (Moore, joinder. Cowell & Ux. v Watts, (6 East. 405); J.-There being no scilicet, we are bound to take Corner v. Shew, (3 M. & W. 350.) it that the intestate was alive on the day stated in the declaration, namely, the 14th April, 1845, it being averred that the intestate on that day sold goods.)

Napier, Q.C. was not heard in reply. BLACKBURNE, C. J.-The allegations in this declaration are plainly inconsistent. The defendant's promise is stated to have been made to the intestate on the 14th April, 1845, and the letters of administration to have beeen granted to the plaintiff on the 21st December, 1844, and these dates are not laid under a videlicet. Ring v. Roxborough is exactly in point. The demurrer must be allowed. Judgment for defendant.

Harris in support of the demurrer. It appears on the face of this declaration that the plaintiffs had a good cause of action, without resorting to their executorial capacity. The cases of Crawford v. Whittall, (1 Dougl.4, note) and Ellis v. Bowen, (For. 98) are conclusive, that in such a case profert is unnecessary. As to the count on an account stated, the plaintiff might have sued on it in his own right. (Williams on Exor. 514); Needman v. Croke. (Freeman, 538.) (Lefroy, B.-Do those authorities go beyond this, that the plaintiff has his election to sue either in his personal right, or as executors ?) The demurrer here is too large, being to the whole declaration, and the defendants admit all the counts to be good, except that on an account stated. (Pennefather, B.-But here is a misjoinder, which is fatal on general demurrer.) That point is not noted, and defendant cannot therefore now rely

upon it.

Lynch in reply.- Had we relied on the misjoinder, the plaintiffs would have contended that though the other counts in the declaration might be sustained by the plaintiffs in their personal capacity, yet as they profess to declare as executors, their is no misjoinder. (Pennefather, B.-If your objection as to misjoinder must be waived, your case fails, as the demurrer is too large, being to the whole declaration.) Our case is that there is no misjoinder, the plaintiffs declaring as executors throughout, and concluding accordingly; and therefore profert is necessary.

PER CUR.-The case referred to ( Webb & others

v. Cowdell,) governs this the demurrer, therefore, must be allowed; but as the defendant has not complied with the practice of the court requiring him to note the points for argument on general demurrer, let the plaintiffs be at liberty to amend,

and let there be no costs as to the demurrer.*

MURTAGH v. CRAWFORD.-June 13 and 16.

Statute of Limitations, (9 Geo. 4. c. 14.)-Acknowledgment in writing by co-contractor-Evidence. An acknowledgment by one maker of a joint and several promisory note, indorsed on the note, that interest had been paid thereon. Held not to be evidence against his co-contractor, either as an acknowledgment of the fact of payment, or, after the indorser's death, as an entry made by a deceased person against his interest.

This was a motion to change the verdict had for the plaintiff into a non-suit, in pursuance of the leave reserved. The action was Assumpsit by the payee against the surviving maker of a joint and several promissory note, as follows:

"Twelve months after date, we jointly and severally promise to pay Mr. William Murtagh of Lis. gunal, the sum of £100 sterling, with interest at 6 per cent. per annum, until paid, for value received "Dated 8th day of Dec. 1838. C. Crawford. "James Lee, (present).

on account.

J. Crawford."

The defendant pleaded the general issue, and the statute of Limitations. At the trial before the Lord Chief Baron, in the sittings after Hilary Term, 1847, the plaintiffs offered the following indorsement on the note as evidence to take the case out of the statute of Limitations: "Interest on the within bill has been paid to the 8th of Dec. 1844, therefore it is good for six years more from this date, and I will give a renewal as soon as my son John comes to the country. (present,) James Lee. C. Crawford." The defendant's Counsel objected to this evidence, on the grounds, that as an acknowledgment against a co-contractor, it was expressly excluded by the 9 Geo. 4. c. 14, s. 1, and secondly, it was not evidence of the fact of payment. The learned Chief Baron admitted the evidence as an entry made by a deceased person against his interest; but reserved liberty to the defendant to move to enter a nonsuit, if the Court should be of opinion that it ought not to be

admitted in evidence.

Tompkins, (2 Cr. M. & Ro. 722.) (Taylor on Ev 727.) Waugh v. Cope, (6 Mee. & W. 824.) Ashby v. James, (11 M. & W. 542.) Hyde v. Johnson, (2 Bing. N.C. 776.) Moore v. Strong, (1 Bing. N. C. 441.) Bewley v. Power, (Hayes and Jon. 368.) Bateman v. Pinder, (3 Q. B. 574.)

S. Ferguson, and O'Hagan, contra-The question is whether a written acknowledgment of payment by a deceased joint contractor will take the case out of the statute with respect to the survivor. contractor undoubtedly is within the Act. The A written acknowledgment of the debt by a joint question in Willis v. Newham rested wholly on its being an oral statement, there is consequently no No acknowledgment however solemn will take the analogy between that case and this. (Lefroy B case out of the statute as against the co-contractor.) No solemnity of acknowledgment of a debt will do So. This is a solemn written admission of the fact of payment; the judgment of Baron Garrow in Willis v. Newham is rested wholly on the ground of its being a loose verbal statement-no court has yet decided that the law applicable to oral statements of Payment is to be extended to written acknowledg ments of payment. The obiter dictum of Tindal, C. J. in Clarke v. Alexander is no decision. In Maghee v. O'Neil, (7 M. & W. 535,) Lord Abinger, speaking of Bayley v. Ashton, (12 A. &E. 493,) says, "If the question were res integra, and the Court, for the first time, were called on to put a construction on the Act, I should certainly say, that the mode of payment of principal or interest, was left by Lord Tenterden's Act to be proved as at common law." In Maghee v. O'Neil, (7 M. & W. 531,) Parke, B. expressed his opinion that the cases had gone too far. Seeing the reluctance with which the courts have adopted Willis v. Newham, this Court will be slow to apply it to the present case, if there be a real distinction. The oral admission of payment relied on

in that case is absent from this, the words of the Act are, "That no joint contractor shall lose the benefit of the said enactments, (21 Jac. c. 16, and 4 Anne, c. 16, Eng.) or either of them so as to be chargeable in respect, or by reason of any written acknowledg ment or promise, made and signed by any other." But "that nothing therein was to lessen the effect of any payment made by any person," leaving the evidence of payment to be made as before the passing of the Act. In Waters v. Tompkins, the Court admitted an oral admission in order to show to what account the wife

had paid the money. Bevan v. Gething, (3 Q. B. 740.) Moore v. Strong, (1 Bing. N. Č. 441) proved aliunde, oral evidence may be given to show (Pennefather, B.-Undoubtedly where payment is

the section is clear, "That nothing shall lessen the

Brewster, Q.C. with Napier, Q.C. and J. Robin son.-The question rests entirely on the admissibility of this memorandum, as evidence of payment of interest. The acknowledgment must be signed by the party to be charged with the debt, and the signature by an agent is not sufficient. Bayley v. Ash-upon what account it was paid.) The proviso of ton, (12 Ad. & El. 493,) Clarke v. Alexander, (8 Scott, N. R. 147,) Eastwood v. Saville, (9 Mee. & W. 615.) If the fact of payment be proved aliunde, an acknowledgment, not signed, is admissible to shew that fact has been correctly proved. Bevan v. Gething, (3 Ad. & El. N. C. 740.) But it is settled that there must be proof of actual payment, and that no mere acknowledgment of the fact will suffice. Willis v. Newham, (3 You. & Jer. 518.) Maghee v. O'Neil, (7 Mee. & W. 531.) Waters v.

effect of any payment," here the debtor has put into words the payment he admits he has made. The view the Court is inclined to take, will create a strange anomaly-this indorsement, if made by a deceased stranger against his own interest would be evidence against the defendant; is the plaintiff to be in a worse position because this admission of tor? The question is whether from the terms of the payment has been made by a deceased co-contracindorsement you should consider it as taking the case out of the statute. The manifest intention of

interest, so much as is against may be used in evidence. This indorsement would then be evidence against the deceased contractor if alive; and the question then is, has it against the co-contractor the same effect as in other cases? I am of opinion, giving the Act its full operation, that this indorsement cannot be relied on to take the case out of the statute as against the co-contractor, although it would be evidence against strangers.

pro

the deceased contractor was to give evidence against himself for six years. Cur. vult adv. June 16.-PIGOT, C.B. now delivered judgment. The question is, whether the indorsement on the note in this case will take the debt out of the statute of Limitations. The plaintiff's counsel rested their arguments on two grounds, First, that being an acknowledgment of payment it was evidence against the surviving contractor; and Secondly, that being an entry made by a deceased person against his in- Pennefather, B.-The Act 9 Geo. 4. cap. 14, terest, and containing an admission of the payment contains two provisions, the first respecting promises of six years interest, it was evidence of the fact of made by the party himself; with regard to that it is payment. This case was endeavoured to be distin- express that no parol acknowledgment shall be guished from Willis v. Newham. The words of the sufficient to take the case out of the statute. The Act on which that question arose were, "That no- second applies to joint contractors, and is, "that no thing therein contained shall alter, or take away, or promise or acknowledgment by one, shall have the lessen the effect of any payment, of any principal, effect of taking the case out of the statute with resor any interest, made by any person whatsoever," pect to the other." There is an exception, that a and the Court distinctly ruled that evidence of pay-payment by the party who has made the ment could not be made by a parol acknowledgment mise, or by his joint contractor, will take the case of the fact, but there must be evidence of actual out of the statute. The question then is, what is payment. The evident import given to the word, evidence of payment? It appears to me, consideracknowledgment, so as to take a case out of the ing both the words of the Act, the decisions thereon, statute, is, that it must be an admission of a subsist- and the object of the Legislature, that the fact of ing debt, or instead, there must be evidence of the payment must be proved by evidence aliunde, that fact of payment. In this case we are called on to is, that parol, or written acknowledgments of paygive effect to a written acknowledgment of the payment bythe joint contractor are not sufficient evidence ment of interest, although it is conceded that such of that fact, it must be proved by evidence different an acknowledgment of the debt by the same co-con- from the acknowledgment, otherwise the statute is tractor would not take the case out of the statute as wholly got rid of. If the acknowledgment of the debt against the other. It was contended that the mis. be insufficient, it appears to me that the acknowchief relied on in Willis v. Newham did not exist ledgment of the payment is likewise so; it was the here, and that the courts have struggled against the object of the Legislature to protect one joint condoctrine laid down in that case; and that the words tractor from the acts of his co-contractor. This view in the subsequent part of the section, as to joint con- is in accordance with all the decisions, therefore, tractors, are to receive the same construction as without considering whether an acknowledgment those in the preceding; and, that the indorsement against the parties own interest would not be in some in this case contained two distinct things, first, an cases evidence, I am of opinion this verdict must be acknowledgment of the debt, and secondly, of the set aside. payment of interest. Although the two are coupled in some degree, it is impossible not to adopt the construction of the Act given by the Court in Willis v. Newham. The consequence is that this acknowledgment does not take the case out of the statute. On the second ground I entertained considerable doubt; the words of the statute are, "that one cocontractor is not to be made chargeable by reason only of any written acknowledgment made or signed by any other, provided that nothing herein contained shall alter, or take away, or lessen the effect of any payment, of any principal, or interest by any person whatsoever;" from this it appears that an acknowledgment, in order to have the effect of taking the case out of the statute, must be in writing, but that the mere fact of payment, if proved, will be sufficient. From the cases, I take this to be such an entry, as far as regards the party making it, as would make the endorsement evidence against the whole world. It doubtless was written for the purpose of taking the note out of the statute, and contains two statements, one against, the other in favour of the interest of the person making it. The authorities, Williams v. Geaves, (8 Car. & Pay. 592,) Turner v. Cross, (2 Stra. 826,) Clarke v. Wilmot, (1 You. & Col. V. C. 53,) Pickering v. Bishop of Ely, 2 You. & Col. V. C. 258,) clearly establish, that when an entry is partly for, and partly against

RICHARDS, B-The Court in expounding this statute, must work out the objects of the Legislature. The language of the Act is express, that no parol acknowledgment of the debt shall be sufficient to take the case out of the statute of Limitations. In Willis v. Newham the Court held that no admission of part payment would take the case out of the statute. That authority is binding in the present case. It was contended that as the fact of payment might be proved by a parol statement, that this indorsement being a written statement of that fact, when taken in connection with, and identified by the document itself, was written evidence of the fact of payment. I am clearly of opinion that it is no more than a parol acknowledgment by a co-contractor, and consequently will not take the case out of the statute. It was then argued that this indorsement being an entry by a deceased co-contractor against his interest, is admissible as evidence of a part payment. If I could make up my mind that this entry was admissible for that purpose, I should have some difficulty in saying that it would not take this case out of the operation of the statute. I think it is not an entry against the interest of the writer, and therefore not admissible.

LEFROY, B.-I cannot conceive how this case can be taken out of the statute by this promise. The Act treats of two classes of persons, first of indivi