and the jury found that they did. However reluctant we may be, still we cannot help yielding to the objection taken. The result of all the cases upon the subject is, that if the carrier only limits his responsibility, that need not be noticed in pleading; but if a stipulation be made, that under certain circumstances he shall not be liable at all, that must be stated. Now here it appeared that in either of two events the carrier was not to be responsible at all; and that exception was not stated in the declaration. The plaintiffs would have been nonsuited but for the necessity of leaving it to the jury to say what was the contract. The defendants are, therefore, entitled to have a nonsuit entered

now.

Rule absolute for entering a nonsuit. (c)

Scarlett and Marryat were to have supported the rule.

(c) See Howell v. Richards, 11 East, 633; Thornton v. Jones, 2 Marsh. 287; Tempany v. Burnand, 4 Campb. 20.

*JOHN ATKINS and WILLIAM ATKINS, Executors of JOHN [*23 ATKINS v. HENRY TREDGOLD, ROBERT TREDGOLD, JAMES ROLFE, and JOHN KNIGHT, Executors of JOHN TREDGOLD, deceased.

A. and B. made a joint and several promissory note. A. died, and ten years after his death B. paid interest upon the note. In an action brought upon the note against the executors of A., it was held that the payment of interest by B. did not take the case out of the statute of limi tations, so as to make A.'s executors liable.

DECLARATION in assumpsit upon three promissory notes made by John Tredgold, deceased, and payable on demand to John Atkins, deceased. The first bore date the 17th January, 1806, and was for 3001. The second was for 2007., and bore the same date. The third was for 300/., and bore date the 17th January, 1809. There were counts for interest for money paid, lent and advanced, had and received, and upon an account stated between the two testators. In all these counts the promises were alleged to have been made by John Tredgold, deceased, to John Atkins. Another count stated that John Tredgold, before his decease, was indebted to John Atkins, in his lifetime, for principal and interest upon the several promissory notes mentioned in the former counts, and for money lent and advanced, money had and received, money paid, laid out, and expended, and for money due and owing from Tredgold to John Atkins upon an account stated between them; and that John Tredgold, since deceased, in his lifetime, being so indebted, and the said several sums of money remaining wholly due and unpaid, the said defendants, as executors as aforesaid, after the death of Tredgold, and before the death of Atkins, promised Atkins to pay him the said sums of money, upon request. There was another count upon an account stated between the defendants as executors, and Atkins, and a *promise by the defendants as executors to pay the sums then found to [*24 be due. The defendants pleaded, as to the first set of counts, that John Tredgold did not promise; upon which issue was joined. Secondly, to those counts that the cause of action did not accrue within six years; upon which issue was tendered and joined. And as to the promises in the latter set of counts, that the executors did not promise; upon which issue was joined. And further, as to the promises in those counts, that the defendants did not, within six years, promise; upon which issue was also tendered and joined. The defendant Knight also pleaded ne unques executor, upon which issue was tendered and joined; and also that no goods or chattels of the testator ever came to his hands to be administered; as to which the plaintiffs, in their replication, prayed judgment of assets quando acciderint. At the trial before ABBOTT, C. J., at the London sittings after Trinity term, 1822, the three promissory notes stated in the declaration were produced in evidence; by them, John

Tredgold and Robert Tredgold jointly or severally promised to pay on demand the several sums therein mentioned. It appeared that Atkins had lent to Robert Tredgold the money for which the promissory notes were given, as securities; and that John Tredgold, who was the father of Robert Tredgold, only became a party to the notes as surety. John Tredgold died in March, 1810, and by his will made the defendants his executors. But defendant Knight did not prove the will or do any act as executor. It was proved that Robert Tredgold continued to pay interest on the notes after the death of his father, and that the last payment was made by him in May, 1816. It appeared by his books, produced in evidence, that these payments were made by him out of his private estate John Atkins died in September, 1816, and by his will appoint

*25] ed the plaintiffs his executors. Upon these facts the lord chief justice

told the jury, that John Tredgold having died eleven years (a) before the commencement of the action, no express promise could have been made by him within six years; and therefore that the verdict upon the first set of counts must be for the defendants. And as to the question arising upon the pleas to the second set of counts, viz., whether there was any promise by the executors within the six years, he told the jury, that if they thought that the payments made by Robert Tredgold were made by him in his character of executor, they should find for the plaintiffs upon those counts. If, however, they thought the payinents were made by him on his own account, as the joint maker of the notes, then they were to find for the defendants. The jury having found a verdiet for the defendants, a rule nisi was obtained in last Michaelmas term for a new trial, on the ground that the payment of interest within six years by Robert Tredgold, who was one of the joint makers of the note, even on his own account, was an admission of an existing debt due upon the note itself; and, upon the authority of Whitcomb v. Whiting, Doug. 651, took the case out of the statute, even against the representatives of the other joint promiser. The Solicitor-General, (with whom were Scarlett and E. Lawes,) now showed cause. The jury have found, upon the evidence, that there was no promise by the defendants, as executors. The question therefore is, whether the payment of interest within six years, by one of two persons jointly and severally liable on a promissory note, after the death of the other, is such an

admission of the existence of the debt as will bind the executors of the

*26] deceased person. Considering this as a several note, it is quite clear

that a payment of interest by Robert Tredgold could not affect John, or his executors. Considering it as a joint note, Robert, after the death of John, would be liable as survivor; and, consequently, payment made by him on account of the note would be a payment in his own right, and not in right of the personal representatives of parties jointly liable with him. Such a payment would, therefore, operate as an admission of an existing debt due from him only. In Whitcomb v. Whiting, Doug. 651, the four joint promisers were all alive at the time when the payment of interest was made by one; and that time they were all jointly liable on the note. Here, at the time when the payment of interest took place, the joint liability had ceased by the death of John, and Robert became the only person liable. He was then stopped by the Court. Gurney and Selwyn, contrà. It has never been decided that the effect of the statute of limitations is to cancel or extinguish the original demand. In Leaper v. Tatton, 16 East, 420, Lord ELLENBOROUGH says, "The promise is an acknowledgment by the defendant that he had not paid the bill; and as the limitation of the statute is only a presumptive payment, if his own acknowledg ment that he has not paid the bill be shown, it does away the statute." the payment of interest within six years, by one of the joint makers of the note, is an acknowledgment by him that it has never been paid by any of the parties to it. The effect of the payment therefore is, to revive the note itself; and (a) The action was commenced in January, 1822.

Here,

when once the debt is revived, it exists as the original uncancelled debt of the testator, and the law will raise an implied promise in his executors to pay. *It is true, that in the late case of Pittam v. Foster, 1 B. & C. 248, this Court seems to have been of opinion, that the effect of the new pro[*27 mise 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, 2 Ld. Raym. 1101; S. C. 6 Mod. 309; Heylen v. Hastings, 6 Mod. 309, and Hickman v. Walker, Willes, 27. It is true, that in Bland v. Haselrig, 2 Vent. 151, 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, Doug. 651. 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.(a)

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 *notes, [*28 and died leaving the moneys 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 existence 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, aliunde. Now the evidence 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. Whitcomb v. Whiting was relied upon to show that such payment 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 sustained, if reconsidered; but I am warranted in saying, by what fell from Lord ELLENBOROUGH in Brandram v. Wharton, 1 B. & A. 463, 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 *implied promise by them all. Such a decision would introduce great difficulty in administering the [*29 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 (a) 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.)

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 showing 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 action by means of an implied promise are not those originally *30] 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

executors.

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 I much doubt pleadings, although he has never accepted the office. *31] 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

Ex parte HAWKINS.

Where a conviction stated that "C. H. was convicted of having been found on board a vessel subject to forfeiture, for hovering within the limits of a port of this kingdom, having certain contraband goods on board:" Held, that this was bad. First, for that it should have been stated that the vessel was hovering without lawful excuse. Secondly, for that C. H. should have been described as a British subject.

[*32

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 had 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 *on board, &c. (various contraband articles ;) which offence hath been duly proved, &c. And the said C. Hawkins being a seafaring man, and fit and able to serve his majesty in his navy, I do hereby adjudge the said C. Hawkins to serve in his majesty's naval service," &c. The return having been read, Platt moved that the prisoner might be discharged, because it did not appear on the face of the conviction that the vessel was liable to forfeiture; and, secondly, because it was not alleged that Hawkins was a British subject. Jervis showed cause. The conviction does show that the vessel was liable to forfeiture, for it states that she was found hovering within the limits of a port of this kingdom. By the 24 G. 3, c. 47, s. 1, it is enacted, "That if any ship or vessel shall be found at anchor or hovering within the limits of any of the ports of this kingdom, or within four leagues of the coast thereof, or shall be discovered to have been within the said limits or distance, (and not proceeding on her voyage, wind and weather permitting, unless in case of unavoidable necessity and distress of weather,) having on board any brandy, &c., or any goods liable to forfeiture by any act of parliament upon being imported into Great Britain; then not only all such goods, but also the ship or vessel on board which they shall be found as aforesaid, shall be forfeited." The words in the parenthesis, "not proceeding on her voyage," &c. apply only to vessels discovered to have been found within a certain distance of the coast, and not to those which are found hovering with the goods specified on board. That is of itself an offence, and subjects the vessel to forfeiture. Then the 45 G. 3, c. 121, s. 7, makes liable to arrest all British subjects *found or discovered to have on board any ship or vessel liable to forfeiture under the provisions of that or any other act for hovering, unless they prove that they were passengers; and the 3 G. 4, c. 110, gives a general form of conviction, which has been followed in this case, and which does not require that the offender should be described as a British subject.

[*33

Platt, contrà. The words "not proceeding on her voyage," being in a parenthesis, must apply to all the preceding parts of the section; and it is reasonable that they should do so, for a vessel may hover legally and with the intent to proceed on her voyage as soon as the wind or tide will permit. According to the construction contended for on the other side, a vessel cannot lie-to for any person, however innocent, without being liable to forfeiture. Then, as to the second objection, it is true that the 3 G. 4, c. 110, gives a general form of conviction; but that requires the offence to be set out, and the allegation that the party was a British subject, is part of the description of the offence; for unless he be such subject he is not within the operation of the 45 G. 3, c. 121, Kite and Lane's case, 1 B. & C. 101, shows that the general form of conviction does not dispense with the necessity of stating these matters correctly.

s. 7.

Per Curiam. The offence is not sufficiently described in the conviction, for