cases on that statute from Heyling v. Hastings, Salk. 29; Com. 54, to Dabbs v. Humphries, to shew from how slight an acknowledgment the Courts have implied a promise to pay.

TINDAL, C. J. The only point before us is, whether the question submitted to the jury by the learned baron was correct; and I think that substantially it was. The inquiry arises under the 9th G. 4, c. 14;—was this an acknowledgment, or a promise, to take the defendant's case out of the statute of limitations? The words of the 9 G. 4, are not only promise, but acknowledgment; and in employing the two words the legislature must have intended some distinction between them. There can be no difficulty in understanding what is a promise, and under that statute it is clear that the letters in question contain no promise to pay the plaintiff's claim; for in one of them the defendant, repudiating the demand made on him, desires the plaintiff to make him a bankrupt; and, in the other, says he will rather go to gaol than pay.

Then, is there any acknowledgment? A distinct and unqualified acknowledgment would have the same effect as a promise, because from such an acknowledgment the law implies a promise to pay. But why should an acknowledgment be construed as a promise, when it is accompanied with what is a contradiction of any promise?

I see no reason for putting any such construction on the acknowledgment; and, since the decision in Tanner v. Smart, many of the older cases on the subject cannot be sustained.

*245]

I think, therefore, the learned baron was justified in telling the jury that in order to bind the defendant the acknowledgment must be such as would authorise them to apply from it a promise to pay.

We need not go into the question whether or not the action of assumpsit is within the statute of James. It is rather late, after so many decisions on the subject, to raise that question; but if there were any doubt, it is set at rest by the recent act.

:

The

The second point is, whether there has been in this case any payment of part of the debt, such as to take the case out of the operation of the statute. words are, "Nothing herein contained shall alter, or take away, or lessen the effect of any payment of any principal or interest made by any person whatsoever;" that is, of any payment made by the principal debtor, or any one acting by his authority that never can mean a payment made by a stranger, and without authority. Here, the defendant having entered into a composition deed, authorized one of his trustees to tender the plaintiff a part of his debt in satisfaction of the whole instead of that, the trustee paid it, and it was accepted, only as a part payment. The defendant complained of this at the time; and it cannot be taken as any part payment sanctioned by him. The rule, therefore, for a new trial must be discharged.

GASELEE, J. I am of the same opinion. There is no branch of the law on which there have been so many decisions as on the statute of limitations. At one period the Courts went so far as to say "I won't pay" was a sufficient acknowledgment to take a case out of the operation of the statute. Some time *246] ago, however, the tide of authority changed, and the Courts required, *if not a promise, at least something from which a promise to pay might be implied. The words of the late statute are, "promise or acknowledgment:" that means, an acknowledgment from which the law would imply a promise to pay. Is it possible to imply such a promise from these letters? So far from it, the defendant says he would rather go to jail than pay the money. This, therefore, is not such an acknowledgment as will take the debt out of the operation of the statute.

With respect to the effect of the payment, the money was delivered to the trustee to pay it in full and not in part. The payment in part, therefore, was without authority, and cannot be binding on the defendant.

VOL. XXIX.-34

Then it is urged that the learned baron ought not to have left the question tɔ the jury, but ought himself to have put a construction on the letters. It was left to the jury, however, with strong directions, and the verdict being right, this is no ground for setting it aside. Rule discharged.

PARK, J., was absent at Chambers.

SHARP v. JOHNSTON. Nov. 12.

Affidavit of a prisoner in the Fleet is sufficient without the deponent's addition, if it appear that he is a prisoner.

If an affidavit in a cause in an English court be sworn in Ireland before one who is not a commissioner of the English courts, the signature of such person must be verified.

UPON the ground of a defect in the affidavit to hold to bail, a rule nisi had been obtained for discharging the defendant out of the custody of the warden of the Fleet, upon filing a common appearance.

W. H. Watson, who shewed cause, objected to the affidavit on which this rule had been obtained that it *did not, pursuant to rule 5 Hil. 2 W. 4, state [*24

the defendant's addition.

Wilde, Serjt., for the defendant. The affidavit discloses that the defendant is a prisoner in the Fleet, at large on a day rule; being therefore an inmate of the prison of the court, he is in effect before the court, and no addition can be requisite. This is an exception from the general rule. None of the reasons on which that rule is founded can apply to the defendant; the plaintiff has him in custody, and can be under no difficulty where to find him. In Jackson v. Chard, 2 Dowl. Pr. C. 469, it was held, that where a prisoner defendant makes an affidavit in a cause, his addition need not be given.

Watson. In Lawson v. Case, 2 Dowl. Pr. C. 40, it was held that an affidavit made by a defendant in a cause, could not be read unless his addition were inserted.

TINDAL, C. J. I am for adhering to the spirit and terms of the rules for uniformity of practice, and unless I saw that this case were clearly an exception, I should be unwilling to proceed further in the hearing: but when the defendant is a prisoner in the Fleet, and out on a day rule, how can he give a more particular description?

Watson then proceeded to support the affidavit on which the defendant had been holden to bail.

That affidavit had been sworn at Athlone in Ireland before John Gaynor, a commissioner of the Irish courts, but not of the Court of Common Pleas in England; and it had been objected on behalf of the defendant, that as the 3 & 4 W. 4, c. 42, enables the Judges of this *court to appoint [*248 commissioners for taking affidavits in Ireland, the present affidavit was not sworn before a competent authority, and no assignment of perjury could be made upon it.

Watson pointed out the inconvenience that would ensue in districts where there is no English commissioner, if none but commissioners appointed under this act of parliament could take affidavits, and contended that the capacity of being the subject of an assignment of perjury was not essential to the validity of the affidavit; French v. Bellew, 1 M. & S. 302; O'Mealy v. Newell, 8 East, 364; Kilby v.Stanton, 2 Younge & J. 75; Ellis v. Sinclair, 3 Younge & J. 273. But upon this point the Court pronounced no decision, for it appeared that Gaynor's signature had not been verified by affidavit; whereupon

TINDAL, C. J., said,-This may be disposed of on a single point. It appears

that Gaynor is only a commissioner of the Court of Common Pleas in Ireland. If so, his signature ought to have been verified by affidavit. The rest of the Court concurring, the rule was made

Absolute.

*249]

*PLIMLEY and Another v. WESTLEY. Nov. 13.

Plaintiff received from defendant, in payment for goods, a promissory note indorsed by defendant, but not made payable to order: the note having been dishonoured by the maker, Held, that plaintiff was entitled to recover the price of the goods, notwithstanding he had omitted to give defendant due notice of the dishonour of the promissory note.

In this action on a promissory note, with a count for goods sold and delivered, the following case was, by consent of the parties, submitted for the opinion of the Court::

The defendant being indebted to the plaintiffs in the sum of 217. 16s. for goods sold and delivered, indorsed and delivered to them, and they took, on or about the 10th of February, 1834, on account of such debt, a promissory note for 217. 168., made by Robert Holden, payable two months after date to Messrs. Ryton and Walton, without the words "or order," but indorsed by Ryton and Walton and John Knight and Co., from the latter of whom the defendant had received it for a valuable consideration.

When the note became due, viz., on the 9th of March, 1834, it remained in the hands of the plaintiffs, but it was not presented for payment until the 18th of March, being nine days after it became due. It was dishonoured, and was never paid.

On the 25th of March, 1834, the defendant received from the solicitors of the plaintiffs a letter, requesting payment of the amount, on the ground that the note not being negotiable for the want of the words "or order," the holders had no claim upon any of the parties to it except the defendant, from whom they received it.

The defendant refused to pay the note or debt for which it was indorsed to the plaintiffs, upon the ground that he was discharged by their laches. Ryton and Walton and Knight and Co. respectively refused to pay the note, *250] on the ground that they were discharged *from liability by the neglect to present the note for payment, and their not having received due notice of dishonour.

The question for the opinion of the Court was, whether the defendant was liable to the plaintiffs upon the promissory note, or for the original debt for which it was indorsed to them; or was discharged from all liability.

If the Court should be of opinion that he was liable to the plaintiffs, either upon the note or for the original debt, then a judgment was to be entered for the plaintiffs by confession for 1007. immediately after the decision of the case, or otherwise, as the Court might think fit: and if the Court should be of opinion that the defendant was not liable either on the note or for the original debt for which it was indorsed for the plaintiffs, then a judgment of nolle prosequi was to be entered for the defendant, immediately after the decision of the case, or otherwise, as the Court might think fit.

S. B. Harrison, for the plaintiffs. The defendant is not discharged from the payment due for the goods by the delivery of the promissory note or by the plaintiffs' omission to present it to the maker. The note not being transferable for want of the words "or order,"-Bayley on Bills, 97, Hill v. Lewis, 1 Salk. 133, the plaintiffs had no claim against the maker or indorsers, and therefore, in not presenting the note, were guilty of no laches. Nor could they sue the defendant as being virtually, by his indorsement, the maker of a new note pay

able to themselves, unless there had been a second stamp for that indorsement. The note not being negotiable, the first stamp was exhausted by the contract of the drawer. In Penny v. Innes, 1 Cr. M. & R. 439, where a second stamp was held to be unnecessary, the bill was negotiable.

*Here the Court called on

[*251

Talfourd, Serjt., for the defendant. The contract of the defendant on delivering the note was not an absolute, but a qualified contract; a contract to pay if the drawer of the note failed to do so. The defendant, therefore, was entitled to have the note presented to the drawer, and to receive notice of its dishonour, whether the maker were legally bound to pay it or not. If the plaintiffs meant to rely on the want of legal liability in the maker, they should have raised the objection when they received the note; otherwise they put the defendant off his guard, and expose him to loss, which, if he had received due notice of the objection, or of the dishonour of the note, he would not have sustained. That is the principle on which notice of dishonour by an acceptor has been required, even where a bill has been drawn for the accommodation of an indorsee, and neither the indorsee nor the drawer had any effects in the hands of the acceptor. Cory v. Scott, 3 B. & Ald. 619; Norton v. Pickering, 8 B. & C. 610.

TINDAL, C. J. I think the plaintiffs are entitled to judgment on the count which proceeds on the original consideration for the debt. The question is, whether the original claim has been satisfied by the delivery of this note or not: and we must see whether the plaintiffs had any means of enforcing payment of the note, or whether it was in their hands merely waste paper. Now it is clear from the cases of Hill v. Lewis and Smith v. Kendall, 6 T. R. 123, that unless there be, on the instrument, authority to indorse, the indorsee can enforce payment neither of a promissory note nor of a bill of exchange. Here there was a simple promise to pay to Ryton, and Walton, *and to no one [*252 else the payee had no authority to indorse; and the holder could neither sue the indorsee, nor the indorsee the maker. I don't see, therefore, what prejudice the defendant can have sustained. Had there been a second stamp, the defendant's indorsement might have operated as the making of a new note; but as this was a promissory note at first, the stamp then affixed was exhausted, and the second transfer was a nullity for want of a second stamp. The plaintiffs, therefore, having no security of which they could avail themselves, were remitted to their original right.

The rest of the Court concurred.

Judgment for plaintiffs.

EDWARDS v. BARNES and Another. Nov. 13.

Devise of "all my freehold and leasehold; and all my money, securities, stock, goods, chattels, and all other my property whatsoever and wheresoever; to hold the same unto and for the use of the devisee, her heirs, executors, administrators, and assigns:" Held to pass testator's copyhold property.

THE plaintiff was the purchaser, at a sale by auction, of certain ground rents, arising out of certain lands, principally copyhold, but a small part freehold, situate at Brixton and Upper Tulse Hill, in the county of Surrey, sold by the defendants to the plaintiff on the 27th of June 1834, on condition that the plaintiff should have a conveyance thereof at Michaelmas 1834. This action was brought to recover from the defendants the sums of 7237. deposit in part of a sum of 48201. purchase money, and 707. 58. 10d. auction duty, paid by the plaintiff, as purchaser of the said ground rents, to the defendants: and the breach assigned in the declaration was, that, at the time of such sale, and at

the time when the said *purchase ought to have been completed, the de*253] fendants had not, nor could they procure any such title to the said copyhold premises from whence the said ground rents arose, or to the said ground rents, as enabled them to make to the plaintiff a valid and effectual conveyance of the said ground rents; whereby they were prevented from making to the plaintiff such conveyance as was stipulated for on the said purchase according to the said condition.

The defendants pleaded that, at the time of such sale, and at the time when the said purchase ought to have been completed, they had and were able to procure such a title to the said ground rents, and to the copyhold premises from whence the said ground rents arose, as enabled them to make to the plaintiff a valid and effectual conveyance thereof according to the said condition: and thereupon issue was joined.

Upon a special case the facts were as follows:-In the year 1808 James Doubtfire, of Stoke Damarell, in Devonshire, was seised in fee of the said freehold premises, and was also seised in his demesne as of fee, according to the custom of the manor of Lambeth, of the said copyhold premises, of which manor the said copyholds were held; out of which said freehold and copyhold lands the ground rents in question issued. In 1810 he was admitted to the said copyholds, and at the same time surrendered the same to the use of his will. At the time of making his will therein-after mentioned, he continued so seised of the said freehold and copyhold premises; and was also possessed of certain leasehold property situate in Muffett Street and Cross Street, City Road, in the county of Middlesex; at Brixton Causeway and Nelson Square, in the county of Surrey; and of a ground rent of 117. per annum issuing out of a house in Nelson Square. He was not seised or possessed of any other land or ground rents whatsoever.

*254] *Being so seised and possessed, on the 6th of August 1823 he made and published his last will and testament in all respects duly executed for the purpose of passing freehold and copyhold estates, as follows:-"I give, devise, and bequeath unto my wife, Mary Doubtfire, all my freehold and leasehold, and all my money, securities for money, stock in government funds, goods, chattels, and all other my property, whatsoever and wheresoever, to hold the same unto and for the use of my said wife, Mary Doubtfire, her heirs, executors, administrators, and assigns for ever, subject nevertheless to the payment of nearly 607. per annum to my sister, Sarah Hendy, of one annuity,arising from part of the ground rents payable to me out of my manor at Brixton, in the county of Surrey, and the other part out of the ground rents payable to me from Muffet Street and Cross Street, City Road,-to hold the said annuity or sum of nearly 607. yearly unto my said sister, Sarah Hendey, her heirs and assigns for ever. And I constitute and appoint my said wife, Mary Doubtfire, my sole executrix of this my last will and testament, hereby revoking all former wills by me made. In witness," &c.

The said James Doubtfire died very shortly after making his said will, and the same was duly proved in the Ecclesiastical Court. There never was any such manor as the manor of Brixton. Previously to the making of the said will, no part of his freehold, leasehold, or copyhold property was subject to any annuity. At the time of the death of James Doubtfire, the ground rents payable to him out of his leasehold properties in Muffet Street, City Road, and at Brixton Causeway, amounted to 50l. a year, and no more, after deducting the sum of 17. payable annually for ground rent in respect of the same; and the freehold lands at Brixton were worth abont 107. a year. After the death of *255] the said James Doubtfire, Mary Doubtfire, his widow and devisee entered into the receipt of the ground rents arising out of the freehold and copyhold premises at Brixton and Upper Tulse Hill, and continued in receipt thereof until the time of her death, and was admitted to the said copyholds, and in May 1824 surrendered the same to the use of her will.