pay. It is true, that in the late case of Pittam v. Foster (a), this Court seems to have been of opinion, that the effect of the new promise is to give a new cause of action. The uniform course of pleading, however, is at variance with that doctrine; for the original cause of action, and not the new promise, is always declared on. They cited Green v. Cooke (b), Heylen v. Hastings (c), and Hickman v. Walker. (d) It is true, that in Bland v. Haselrig (e) it was decided, that the acknowledgment of one out of several who were jointly indebted, did not prevent the operation of the statute of limitations in favour of the others; but that case was overruled by the case of Whitcomb v. Whiting. (f) As to the plea of ne unques executor, the fact of Knight's being named in the will as executor, is sufficient evidence of his having been once executor, so as to entitle the plaintiff to a verdict on that issue; and he cited Wentworth, Executors, 184. (g)

ABBOTT C. J. I think the rule for a new trial must be discharged. The plaintiffs have in one set of counts declared upon three promissory notes payable on demand, made by John Tredgold, in his lifetime, and the promise to pay is alleged to have been made by him. To those counts the defendants have pleaded, that John Tredgold did not promise within six years. It appeared in evidence that John Tredgold had died eleven years before the action was brought; and therefore no such promise could be made. Then there was another count, stating that John Tredgold was indebted upon the

(a) 1 B. & C. 248. (c) 6 Mod. 309.

(e) 2 Vent. 151.

(b) 2 Ld. Raym. 1101. S.C. 6 Mod. 309.
(d) Willes, 27.

(ƒ) Doug. 651.

(g) But see also Wentworth, p. 42., and the Year-book, 27 Hen. 8.

pl. 26., and 9 Edw. 4. pl. 33., and Bac, Abr. tit. Executors, (E. 9.)

1823.

ATKINS

against TREDGOLD.

note,

1823.

ATKINS against TREDGOLD.

notes, and died leaving the monies unpaid; and that
the defendants as executors, in consideration thereof,
promised to pay; and there was also a count upon an
account stated, and a promise by the executors. The
question for the Court therefore is, whether any promise
to pay
has been made by the defendants as executors.
I cannot agree with the argument, that the mere exist-
ence of a debt owing by the testator is evidence of a
promise to pay by the executors as executors. There
is certainly no authority for that position; and if that
be so, then we must seek for evidence of that promise,
aliende. Now the evidence given was, that Robert
Tredgold paid interest in 1816. The jury have found
that he paid it in his own right, and not in the character
of executor. There was not, therefore, any thing done
by the executors, in that character; and that being so,
I should feel a difficulty in saying that a case was made
out on those counts, independently of the statute. But
there is also a plea, that the defendants did not promise
within six years. I think there is no evidence of a promise
by all, and certainly not such as to take the case out of
the statute of limitations. The evidence was, a payment
of interest by Robert Tredgold in his own right. Whit-
comb v. Whiting was relied upon to shew that such pay-
ment would take the case out of the statute of limitations.
It is not necessary to say whether that case, which is
contrary to a former decision in Ventris, would be sus-
tained, if reconsidered; but I am warranted in saying,
by what fell from Lord Ellenborough in Brandram v.
Wharton (a), that it ought not to be extended. The
payment was by one of several originally liable. Here
we are called upon to go further, and say, that a payment
by one of several, liable alieno jure, shall raise an im-

(a) 1 B. & A. 463.

plied promise by them all. Such a decision would introduce great difficulty in administering the affairs of testators. Suppose an executor to have waited six years, and then no claim having been made, to dispose of the assets in payment of legacies. He might, if the plaintiffs were to prevail, be subsequently rendered liable to the payment of demands to any amount, by the acknowledgment of a person originally joint debtor with the testator. The inconvenience and hardship arising from such a liability satisfies me that the principle of Whitcomb v. Whiting ought not to be extended to this case. For these reasons I think this rule must be discharged.

BAYLEY J. My opinion in this case is founded, not upon the case of Pittam v. Foster, but upon independent grounds. The plaintiffs cannot take the case out of the statute, as to the first set of counts, because the testator had been dead ten years before the action was brought. But they seek to do that as to the other counts, by shewing an acknowledgment made by one of several who were liable; but that is not the legal effect of the payment made by Robert Tredgold. It is said, that a joint promiser having made a payment within six years, the executors of the other are liable; and the case of Whitcomb v. Whiting is relied upon. That is certainly a very strong case, and it may be questionable whether it does not go beyond proper legal limits. But that case is distinguishable from the present in two particulars. Here, the statute appears to have attached before the payment was made by Robert Tredgold; and therefore John Tredgold, being at that time protected, could not be subjected to any new obligation by the act of Robert. And, secondly, the parties sought to be charged in this

1823.

ATKINS

against TREDGOLD.

1823.

ATKINS

against TREDGOLD.

action by means of an implied promise are not those originally liable, as was the case in Whitcomb v. Whiting. I entirely agree with my Lord Chief Justice, that we ought not to extend the doctrine of that case to exe

cutors.

HOLROYD J. I, also, am of opinion, that the circumstances of this case do not take it out of the statute of limitations. Whitcomb v. Whiting is the only case that can be relied on by the plaintiffs. That case has gone far enough; but it does not govern the present. There, the defendant Whiting was liable, upon a joint promise, at the time when the payment was made. The Court decided, that when one of two joint promisers pays a part, that was to be considered in law as a payment by both. But here, at the time when the payment was made by Robert Tredgold the joint contract had ceased to exist; for it was determined by the death of John Tredgold. The note then became the several note of the parties to it. To hold such a payment to raise an implied promise sufficient to bind the defendants, would be to decide, that, where the promises are several, a promise by one party would bind the rest. The plaintiffs cannot recover in this case, without proving a joint promise by the defendants, as executors ; and in order to do that, the executorship must be proved, although that is unnecessary where the demand is founded on promises made by the testator; for then the plea ne unques executor must be proved by the party pleading it. One of the defendants was not proved to have done any act as executor. But it has been argued, that being named as such in the will he is liable, upon these pleadings, although he has never accepted the office.

4

office. I much doubt that; but it is unnecessary to decide upon that ground (a), inasmuch as this case is distinguishable from Whitcomb v. Whiting, even if that be law. Here, at the time when the payment was made by Robert Tredgold, he was not connected in a joint contract either with John Tredgold or his executors. His separate character only remained.

BEST J. The counts on promises by the testator are disposed of by Pittam v. Foster. Then, as to the others, it is sufficient to say, that the implied promise not having been made by Robert Tredgold in the character of executor, it does not prove the issue. The present case is therefore distinguishable from Whitcomb v. Whiting; beyond which I think the Court ought not to go. The rule must, therefore, be discharged.

Rule discharged.

(a) See Townson v. Tickell, 3 B. & A. 38., and Bonifaut v. Greenfield, 1 Leon. 60. Cro. Eliz. 80.

1823.

ATKINS against TREDGOLD.

Ex parte HAWKINS.

THE prisoner was brought up on a writ of habeas corpus. The return set out a conviction in the following form: "Be it remembered, that on, &c. C. Hawkins hath been duly convicted before me, &c. of having been found and taken on board a certain vessel,

subject and liable to forfeiture under the provisions of

a

certain act of parliament made and passed, &c.; for that the said vessel was on, &c. found hovering within

the limits of a port of this kingdom, to wit, the port of

Rye, in the county of Sussex, and then and there having

been stated that the vessel was hovering without lawful excuse. should have been described as a British subject.

Wednesday,
June 4th.

Where a con-
that "C. H.

viction stated

was convicted of having been

found on board a vessel subject to forfeiture, for hovering within the limits of a port of this kingdom, hav

certain contra

band goods on

board:" Held,

that this was

bad. First,

for that it

should have

Secondly, for that C. H.

on