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said mortgage, and to give a receipt for the same sufficient to take the case out of that statute. Sap

. as agent of such person within 20 years next before posing Willis v. Newham to be law, the question the 1st day of Jan. 1847. The Master, by his re- arises, whether the language used in 9 Geo. 4, is port, dated the 1st day of January, 1848, found that similar to the words of the statute of Limitations

. Elizabeth Creed was entitled, on foot of the mort- I think the distinction taken is well grounded, that gage, to the sum of £461 for principal and interest

, the clauses in the 40th sec. are distinct and separate, from the 1st of Feb. 1827. To this report the mort- and that there are no grounds whatsoever to graft gagor objected, on the grounds, that no sufficient one upon the other. An ackuowledgment of the evidence was laid before the Master to authorize him right must be in writing, signed by the party to to report that the interest on the mortgage debt was whom the same is payable, or his agent. But with paid up to and for the 1st day of Feb. 18:27, and that respect to the fact of payment, I must consider the the right of Elizabeth Creed to recover the claim on evidence with regard to the rules of common law, said mortgagee was barred by the 40th sec. of the and therefore overrule these objections, with costs. 3 & 4 W. 4. c. 27.

Chatterton, for Elizabeth Creed, the petitioner.The objection to the Master's report is, That there EQUITY EXCHEQUER.- TRINITY TERM. was no acknowledgment in writing as required by COCHRANE v. FITZPATRICK.-June 20. the 40th sec. of the 3 & 4 W.4, c. 27. The question is,

Practice-Receiver-Chancery jurisdiction. whether a payment, proved by a document in the handwriting of the debtor, but not signed by him, If a receiver be appointed in a plenary suit in is sufficient to take the case out of the statute of Chancery, the court of Exchequer will restrain Limitations. There are two distinct modes of taking a receiver, appointed in a petition matter in the the case out of the 40th sec. each complete in itself


latter court, from interfering further with the and not to be governed by the other. The first is, land over which he was appointed, till the Char. “Unless, in the mean time, some part of the princi cery suit be concluded. pal money, or some interest thereon shall have been Otway moved that the receiver appointed in the paid." The second, “Or some acknowledgment of petition matter be discharged. A prior creditor the right thereto sball have been given in writing, having filed a bill in Chancery, the Master of the signed by the person to whom the same shall be pay- Rolls directed a receiver to be appointed in that able, or his agent to the person entitled, or his court, when the receiver in this was discharged

. agent.” The cases of Bailey v. Ashton, (12 Ad. & Pennefather, J. contra.—The court of Chancery Ell. 493,) Maghee v. O'Neil, (7 M. & W. 531,) and has no jurisdiction to remove the receiver bere. Eastwood v. Saville, (9 M.&W. 615,) decided upon If good cause for his retention can be shewn, the Lord Tenterden's Act

, and which were relied upon order in Chancery must fail. Bruen v. Brown, (6 in the office, cannot be applied to the construction Ir. Eq. Rep. 214); Mills v. Mills, (9 Ir. Eq. Rep. I.) of this, the objects and language of which are wholly Counsel was instructed to shew cause in Chancery

, different; the words in the former are “no acknow- but by reason of some fatality, was unable to atledgment or promise by words only." Frost v. Ben tend. It still is in my power to sew a state of gough, (1 Bing. 266,) and College v. Horn, (3 Bing facts which would prove the necessity of retaining 119,) were also referred to.

him here. The prior creditor has possession of a Hughes, Q. C., for the mortgagor, in support of fund more than sufficient to pay him. the exceptions.—There is nothing in the document PENNEFATHER, B.—Conformably with the opito show that it was written after 1827, and therefore nion I formerly gave, I think that where a receiver if evidence at all, it is evidence of a payment to 1827, is appointed in a plenary suit, by a prior creditor, and is therefore not within twenty years. Ld. Ten the receiver in a petition matter must be dis. terden's act, and the 3 & 4 W. 4.c 27, were passed charged. to remedy the same evils, and the words in which RICHARDS, B.-The cause, if any, should be the debt was secured does not alter the danger that shewn in Chancery. There is great difficulty in was contemplated. Cited Willis v. Newham, (3 Y. not allowing the competent court to adjudicate on & J. 518.)

the equities of the parties; the Master of the Rolls Chatterton in reply, submitted that the Court has given bis opinion, and we bave not the power could not be called on to presume that this payment of contradicting it. was made in advance, and cited Dowling v. Foxall, LEFROY, B.The court, where the suit is insti. (1 B. & Beat. 193,) and Bodkin v. Vesey, (1 Jones, tuted, can best deal with the case ; parties can be Ex. 139.)

added, and by a consent, justice can be adminisJuly, 16.—MASTER OF THE Rolls-In this case tered for all, and the clashing of jurisdictions prethere was a memorandum in the handwriting of the vented. If the court of Chancery bad ordered that mortgagor, Robert Creed, of his having paid inte. the petition creditor should consent, or tbat he should rest on a mortgage of Feb. 1816, up to the 1st of be restrained from proceeding in this court

, there Feb. 1827. The memorandum was not signed, would be no doubt as to the mode of proceeding. This and the question arises, whether it is sufficient evi- amounts virtually to that The order of the Master dence of payment within the 40th sec. of the 3 & 4 of the Rolls is a courteous mode of saying that an W. 4, c. 27, to take the case out of that statute. order to discharge the receiver bere should be The decisions cited in support of the objections, granted, in pursuance of his order. Instead of disa have all been decided under the 9 Geo. 4, c. 14. charging our receiver, it will be better to restrain Willis v. Newham establishes that a verbal acknow- him, as supposing a sufficient portion of land sold ledginent of the payment of part of a debt is not in the court of Chancery to pay off

' prior debts

, it

might be convenient to allow the receiver to act acquiesce in said possession-That on the 2nd of with respect to the remaining portion.

July, in the same year, plaintiff's solicitor wrote to Per Cur.* _Let the receiver account, and be the solicitor of the Company, offering any further restrained from further interference, and on ac- information in his power_That after much delay counting, let him have his costs.

a case on behalf of the Company was laid before

counsel, in the month of February, 1848, by their ANDERSON v. NewRY AND WARRENPOINT Rail solicitor, and that counsel advised that the money WAY COMPANY.-June 27.

should be paid into court-That the solicitor of the

Company told plaintiff's solicitor, in a personal InjunctionRailway Company enteringwithout interview, that he was ready to pay the money to the leave, or Lodging Money in Bank.

plaintiff or his trustees, and would that night write Where a Railway Company having agreed to pur- to London to procure payment thereof_That on chase lands, entered and carried on their works the 24th of February, plaintiff's solicitor wrote to without the leave of the vendor ; or having lodged the solicitor of the Company, remonstrating on the in Bank, or paid the purchase money-The non-fulfilment of his promise; to which the solicitor court granted an injunction to restrain them of the Company replied on the 26th, “I did really until the money be paid.

write to London at the time I told you, as to the

purchase money in this matter, and sent a copy of This was an injunction suit against the Newry and the opinion ; upon reading which it is not unlikely Rostrevor and Warrenpoint Railway Company: the directors reckoned on further delay. I now The bill

, after setting forth the title of the plaintiff send you a copy of case and opinion of counsel, to certain lands, and the formation of the Company from which you will see that the trustees of Mr. by their act of incorporation, and the Company's Anderson's settlement (meaning the plaintiff) could clauses, Land clauses, and Railway clauses acts

, not give the Company a legal discharge for the stated, That on the 10th October, 1846, a notice, signed by the directors, and the solicitor of the Com- purchase money ; and if this be so, I would, on the

part of the Company, advise that interest at 5 per pany, was addressed to the plaintiff and others, to cent. be paid Mr.

Anderson” (the plaintiff)— That the effect that the Company would require, and that until the receipt of this letter, plaintiff was not it was their intention to purchase and take for the apprised of the contents of said opinion—That purposes of said Railway, certain lands (describing plaintiff having declined this offer, his solicitor, on them, and referring to the plans lodged in office of the 24th of March, 1848, wrote to the solicitor of the clerk of the peace, &c.) a portion of the lands the Company, requiring him to pay the purchase which were the property of the plaintiff – That the money, with interest thereon, from the date of the plaintiff was anxious to facilitate the defendants in inquisition, at 5 per cent. to the plaintiff, or otherthe purchase of said lands, and for that purpose wise to lodge the same in bank, pursuant to the empowered Mr. Dobbin, his solicitor, to treat with provisions of the Land consolidation clauses act-, the Company—That it was ultimately agreed be That the tenants of the said purchased lands had tween plaintiff's solicitor, and the solicitor of the refused to pay their rents without an abatement in Company, that £1000 should be given for the respect of the land taken by the said Company, estate and interest of the plaintiff in the lands re

That the Company since their entry had made quired by the Company—That the Company pro- various works, ditchings, &c., with a view to the ceeded to acquire a title to the said lands, by the completion of said Railway, and had otherwise verdict of a jury inquisition, and judgment thereon dealt with said lands without the sanction or ac-- That in pursuance of the warrant of the Com quiescence of plaintiff

. The bill then prayed that pany, the sheriff summoned a jury for the 7th of the Company might be ordered and decreed to May, 1847, who, on the 13th of the same month, deposit in the Bank of Ireland, in the name, and in presence of the solicitors for the parties con- with the privity of the accountant-general of the cerned (plaintiffs and defendants), awarded to court, the sum of £1000, to be placed in pursuance the plaintiff

, in respect of said premises, the sum of the provisions of the lands clauses consolidation previously agreed upon-That no judgment had act, to the credit of the plaintiff

, and forthwith pay been signed by the sheriff on the said inquisition to the plaintiff lawful interest from the first day of -- That by a letter dated the 24th of May, 18-17, May, 1846, to the day of lodgment, and that the the solicitor of the Company requested plaintiffs said Company, their agents, servants, and worksolicitor to furnish him with a concise abstract of

men be, in the meanwhile, restrained by injunction plaintiff's title, as he was anxious to save the Com- from digging, cutting, &c, the said land on which pany costs, and merely wanted such information as they have entered, or from proceeding with any would enable him to prepare a proper conveyance work on said lands, or from spoiling, or holding solicitor furnished the required abstract That no possession, or entering thereon, &c.

The defendants admitted the agreement, and the reply was given thereto till the 4th of July follow- finding of the inquisition stated in the bill ; but the same year, the Company, without the knowledge of Company, through their solicitor, applied for liberty

affidavit stated that shortly after the inquisition, the permission of the plaintiff, or his solicitor, entered to enter into possession, on lodging the purchase and took possession of said lands—That plaintiff money in a private bank, in the names of mutual or to

trustees—That no reply was given to that applicaBefore Pennefather, Richards, and Lefroy, B. B., tion, and believing that the parties interested, even Pigot, C.B., at Nisi Prius.

without the lodgment of the money, would have no

objection, the Company-having settled with all be only material when its effect is to encourage a other parties--entered into possession, and carried party to do that, which he would not otherwise have on their works from that time to the present–That done. The Company in this case do not pretend to they had made considerable advances, and would be resist the payment of this demand, and they admit much injured if an injunction were to issue–That the rights of the plaintiff. How then can they assert counsel had given an opinion that a valid title that they have suffered in having been permitted to could not be made without certain releases being do that which they would in any event have done? made, and that it was hoped arrangements could The question comes to this—Can a Railway Com. be made to obviate the necessity of lodging the pany, having taken possession of land under the money– That the plaintiff and his solicitor knew provisions of the legislature, set themselves up a the Company were in possession, and that the trespassers, for the purpose of resisting the jurisCompany would not have entered, if they had been diction of this court, and contend that they are at aware of the plaintiff's objection.

liberty to enter and dig up another person's land, Warren, Sergeant, with M Mechan, for the without his consent or having paid for it? When plaintiffs. The defendants have in no respect com- I consider the nature and constitution of these plied with the provisions of the act of parliament. companies, that their incorporation renders them The 38th section of the 8 Vic. c. 18, requires all inaccessible to law process—that they are procompanies to pay to the vendors, or lodge in bank hibited from taking possession, except on certain to their credit the amount of the purchase money terms—that in this case the Company has not de agreed upon. In the present case the defendants, nied the justice of the demand—it appears to me a without the plaintiffs knowledge or consent, entered strong case for the interference of this court. 1 on the land, and commenced their works. Under will grant an immediate injunction to be dissolved such circumstances, a court of equity will grant an on the money, with interest at 5 per cent being injunction where irreparable mischief will happen, lodged in bank, and notice thereof given to plain although

the wrong doer may also be liable in tres- tiff's solicitor, and the costs of the motion being

Crockford v. Alexander, (15 Ves. 138.) paid."
Our remedy at law, in the present instance, is de-
ficient and difficult to be attained. (Pennefather,
B.-Alexander v. Crockford was decided on the

QUEEN'S BENCH.-MICHAELMAS TERM. ground that the waste was irreparable; the court

HUNTER V. MACAN.—November 3. there exercised a very proper interference. Is there any case where an injunction has been granted on

Demurrer-Letters of AdministrationInconthe ground that the purchase money was not paid?)

sistent Date. In Hyde v. Great Western Railway Company, (í A declaration by an Administratrix stated a debt to Rail. °C. 280), the court, on an ex parte motion, the intestate, and a promise to pay him in his granted an injunction restraining the company from lifetime, laying the day on the 14th of April

, proceeding with their works, until payment of the 1845. The letters of administration were afterpurchase money, they having entered without leave. wards stated to have been granted to the plaintiff

, The principle of courts of equity is to aid the pro “since the death of the intestate, on the 21st De visions of the legislature, by preventing the com cember, 1844.Held on special demurter, that pany from exceeding the power given them. The this date was repugnant, and if rejected, the deplaintiff does not seek to undo what has been done, claration would be bad, for want of alleging the but merely to restrain them from committing fur day, on which a material fact had taken place

. ther injury. The Company entered without leave, Assumpsit by the plaintiff, administratrix of Arthur and there has been no acquiesence in that posses- Hunter, deceased. “For that whereas the defendant sion. The 89th sec. imposes a penalty of £25 each on the 14th of April, 1845, at &c. was indebted to day, for the entry the Company admit they have the said Arthur in his lifetime, &c.” in the common made, and this court will restrain by injunction form. “ Yet he hath disregarded his promise, and what a court of law will repress by penalties. bath not paid any of the said monies, or any part They referred to Armstrong v. Waterford and thereof, to the said Arthur in his lifetime, or since Limerick Railway Company, (10 Ir. Eq. Rep. his death to the said plaintiff, to whom since the 60); Colman v. East Counties Railway Company, death of the said Arthur, on the 21st of December, (4 R. C. 524); Rigby v. Great Western Railway 1844, adminstration of the intestate's goods was Company, (4 R. C. 75); Jainay v. Lucun and granted, to the damage of the plaintiff as adEly Railway Company, (4 R.C. 615); Innocent v. ministratrix of £300." Profert of the administraNorth Midland Counties Railway Company, (1 R. tion, in form aforesaid. Demurrer, showing for C. 256); Attorney-General v. Manchester and Leeds cause, that the said defendant promised to pay the Railway Company, (1 R.C. 45.)

said Arthur Hunter, the several sums of money in Hughes, Q. C., with R. Moore, contra—If the the said declaration mentioned on the said l4th Company have entered illegally, they are trespas- of April, 1845. Whereas it appears in and by the sers, and as such the plaintiff has his legal remedy said declaration, that letters of administration bad against them. No irreparable waste has been com- been and were granted to the suid plaintiff of the mitted in this case. Deere v. Guest, (1 M. & Cr. estate and effects of the said Arthur Hunter on the 516); Sandys v. Murray, (1 Ir. Eq. Rep. 29,) 21st of December, 1844, &c. (Drury on lujunctions, 164.)

Dix, with him Napier, Q.C. in support of the PenneFATHER B.—I do not think there is any force in the objection as to acquiescence, which can Pigot, C.B., Richards, and Lefroy, B. B. were absent

demurrer.—The question raised by this demurrer, Held that the special demurrer on the ground of the has been already decided by the Court of Exche omission of profert taken by the defendant to the quer in England, in the case of Ring v. Roxbrough, entire declaration was too large. (2 Tyr. 468). Where it was held, on special de- The ground of general demurrer not having been murrer, that the date of the letters of administration noted in the paper buoks, no costs of demurrer was repugnant and inconsistent, and if it could be were allowed. 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. OʻHagan 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 iutestate, 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. 331); 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 Harris in support of the demurrer. It appears the declaration, namely, the 14th April, 1845, it on the face of this declaration that the plaintiffs had being averred that the intestate on that day sold a good cause of action, without resorting to their exgoods.)

ecutorial capacity. The cases of Crawford v. WhitNapier, Q.C. was not heard in reply.

tall, (1 Dougl.4, note) and Ellis v. Bowen, (For. 98) BLACKBURNE, C. J The allegations in this de- are conclusive, that in such a case profert is unclaration are plainly inconsistent. The defendant's necessary. As to the count on an account stated, promise is stated to have been made to the intestate the plaintiff might have sued on it in his own right. on the 14th April, 1845, and the letters of admin-|(Williams on Exor. 514); Needman v. Croke. istration to have beeen granted to the plaintiff on Freeman, 538.). (Lefroy, B.-Do those authothe 21st December, 1844, and these dates are not rities go beyond this, that the plaintiff has his laid under a videlicet. Ring v. Roxborough is election to sue either in his personal right, or as exactly in point. The demurrer must be allowed. executors ?) The demurrer here is too large, being Judgment for defendant.

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, EXCHEQUER OF PLEAS-TRINITY TERM. which is fatal on general demurrer.) That point is SHARP AND OTHERS V. SHEARMAN.—May 22, and not noted, and defendant cannot therefore now rely

June 2. Demurrer-Executors-Omission of Profert.-joinder, the plaintiffs would have contended that

Lynch in reply.- Had we relied on the misCosts.

though the other counts in the declaration might A Declaration containing only the money counts, be sustained by the plaintiffs in their personal

and commencing and concluding in the usual capacity, yet as they profess to declare as executors, form by an Executor, but omitting profert of the their is no misjoinder. (Pennefather, B.-If your letters testamentary-Held bad on general demur- objection as to misjoinder must be waived, your rer, on the grounds, that though the other counts case fails, as the demurrer is too large, being to might be upheld as disclosing causes of action per- the whole declaration.) Our case is that there is sonal to the plaintiffs, the count on an account no misjoinder, the plaintiffs declaring as executors stated could only be sustained by them in their throughout, and concluding accordingly; and thereexecutorial capacitytherefore there was a mis- fore profert is necessary. joinder.

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

upon it.

ques pay

v. Cowdell,) governs this the demurrer, therefore, Tompkins, (2 Cr. M. & Ro. 722.) (Taylor on Ev must be allowed ; but as the defendant has not 727.) Wargh vs Cope; (6 Mee. & W.824.)

, Ashby complied with the practice of the court requiring v. James, (11 M. & W. 542.) Hyde v. Johnson him to note the points for argument on general (2 Bing. N.C. 776.) Moore v. Strong, (1 Bing. N. demarrer, let the plaintiffs be at liberty to amend, C. 441.) Bewley v. Power, (Hayes and Jon. 368.) and let there be no costs as to the demurrer.* Bateman v. Pinder, (3 Q. B. 574.)

S. Ferguson, and O'Hagan, contra- The

tion is whether a written acknowledgment of MURTAGH v. CRAWFORD.-June 13 and 16. Statute of Limitations, (9 Geo. 4. c. 14.)- Acknow- case out of the statute with respect to the survivor.

ment by a deceased joint contractor will take the ledgment in writing by co-contractor-Evidence.

A written acknowledgment of the debt by a joint An acknowledgment by one maker of a joint and contractor undoubtedly is within the Act. The

several promisory note, indorsed on the note, that interest had been paid thereon. Held not to be question in Willis v. Newham rested wholly on the

being an oral statement, there is consequently do evidence against his co-contractor, either as an acknowledgment of the fact of payment, or, after No acknowledgment however solemn will take the

analogy between that case and this. (Lefroy the indorser's death, as an entry made by a de- case out of the statute as against the co-contractor.) ceased person against his interest. This was a motion to change the verdict had for the so. This is a solemn written admission of the fact

No solemnity of acknowledgment of a debt will do plaintiff into a non-suit, in pursuance of the leave of payment; the judgment of Baron Garrow in reserved. The action was Assumpsit by the payee Willis v. Newham is rested wholly on the ground of against the surviving maker of a joint and several its being a loose verbal statement--no court has yet promissory note, as follows:

decided that the law applicable to oral statements of “Twelve months after date, we jointly and seve- payment is to be extended to written acknowledg. rally promise to pay Mr. William Murtagh of Lis: ments of payment. The obiter dictum of Tindal, gunal, the sum of £100 sterling, with interest at 6 C. J. in Clarke v. Alexander is no decision. In per cent. per annum, until paid, for value received Maghee v. O'Neil

, (7 M. & W.535,) Lord Abinger

, on account.

speaking of Bayley v. Ashton, (12 A. &E. 493.) says, “Dated 8th day of Dec. 1838. C. Crawford. “James Lee, (present).

“ If the question were res integra, and the Court,

J. Crawford." for the first time, were called on to put a construcThe defendant pleaded the general issue, and the tion on the Act, I should certainly say, that the mode statute of Limitations. At the trial before the Lord of payment of principal or interest

, was left by Lord Chief Baron, in the sittings after Hilary Term, 1847, Tenterden's Act to be proved as at common law.' the plaintiffs offered the following indorsement on in Maghee v. O'Neil, (3 M. & W. 5310) Parke, B. the note as evidence to take the case out of the star expressed his opinion that the cases had gone too tute of Limitations : “Interest on the within bill far. Seeing the reluctance with which the courts have has been paid to the 8th of Dec. 1844, therefore it adopted Willis v. Newham, this Court will be slow is good for six years more from this date, and I will to apply it to the present case, if there be a real give a renewal as soon as my son John comes to the distinction. The oral admission of payment relied on country. (present,) James Lee. C. Crawford.”

in that case is absent from this, the words of the Act The defendant's Counsel objected to this evidence, are, " That no joint contractor shall lose the benefit on the grounds, that as an acknowledgment against of the said enactments, (21 Jac. c. 16, and 4 Anne, a co-contractor, it was expressly excluded by the 9 Geo. 4. c. 14, s. 1, and secondly, it was not evidence in respect, or by reason of any written acknowledg


c. 16, Eng.) or either of them so as to be chargeable of the fact of payment. The learned Chief Baron ment or promise, made and signed by any other." But admitted the evidence as an entry made by a deceased that nothing therein was to lessen the effect of any person against his interest ; but reserved liberty to the defendant to move to enter a nonsuit, if the payment made by any person," leaving the evidence of Court should be of opinion that it ought uot to be in Waters v. Tompkins, the Court admitted an oral

payment to be made as before the passing of the Act

. admitted in evidence.

admission in order to show to what account the wife Brewster, Q.C. with Napier, Q.C. and J. Robin- had paid the money. Bevan v. Gething, (3 Q. B. son. The question rests entirely on the admissibility 740.) Moore v. Strong, (1 Bing. N. C. 441.

) of this memorandum, as evidence of payment of in-|(Pennefather, B.-Undoubtedly where payment is terest. The acknowledgment must be signed by the party to be charged with the debt, and the sig. proved aliunde, oral evidence

may be given to show nature by an agent is not sufficient. Bayley v. Ash- the section is clear, “ That nothing shall lessen the ton, (12 Ad. & El. 493,) Clarke v. Alexander, (8 effect of any payment," here the debtor has put into Scott, N. R. 147,) Eastwood v. Saville, (9 Mee. & words the payment he admits he has made. The

If the fact of payment be proved aliun- view the Court is inclined to take, will create a de, an acknowledgment, not signed, is adınissible strange anomaly--this indorsement, if made by a to shew that fact has been correctly

proved. Bevan deceased stranger against his own interest would be v. Gething, (3 Ad. & El. N. c. 740.), But it is evidence against the defendant; is the plaintiff 80 settled that there must be proof of actual payment, be in a worse position because this admission of and that no mere acknowledgment of the fact will suffice. Willis v. Newham, (3 You. & Jer. 518.) for? The question

is whether

from the terms of the

payment has been made by a deceased co-contracMaghee v. O'Neil, (7 Mee. & W.531.) Waters v. indorsement you should consider it as taking the

See Blakesley v. Smallwood, 8 Q. B. Rep. 538. case out of the statute. The manifest intention of


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