« ForrigeFortsett »
averment that the bill wns presented for payment ),„„„,, when due, that it was refused, and that the defendant had xerms notice thereof. Williams, counsel for the defendant,
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objected that there was no evidence or the presentment, and that a.s the defendant was not bound to pay if he had not had notice, of which his assertion was now made evidence, he had a right also to make conditions as to the nature of the payment which he would assent to, and having promised to pay only by giving a bill at two months upon London, the declaration should have been framed in special assumpsit upon that promise. The learned judge thought that the promise to pay was a sufficient admission of the due presentment, and that the promises need not be stated in the declaration, and overruled the objection, and there was a verdict for the plaintiff. And a rule Laving been obtained in the last term to shew cause why that verdict should not be set aside, and a nonsuit entered,
Littledale, shewed cause- "There were two objections taken at the trial; Jirst, that there was no regular notice; and secondly, that there was no evidence of the presentment. As to the fact that there was no notice, the defendant himself saw the bill in the j^lqintifs hands three months after it was due. ; Tr [Ji/eshard v. Hurst * and in Goodall v. Dolley,f the parties were ignorant of the time of the presentment; but it was admitted, that if the person was acquainted with the true circumstances he would be bound by the promise. Here he knew that the bill Jiad not been paid ; and if there was any doubt of the timely notice, the defendant wuives it by saying, * 1 have not had due notice, but as the debt is a just one I will pay it.' The time for notice must depend upon circumstances. In some cases it may be
given immediately, in others within a week, itf others; 180Ga month, or more, according to the number of hands Lusdik which the bill is to so through. There wa3 indeed not any direct evidence given 01 the presentment on the day; but that ina}' either be proved by the plaintiff', substantively, by positive evidence, or the defendant may as in this case, make such admissions as may render the direct proof unnecessary.' And it would be very hard if a plaintiff' weTe not to be relieved from such proof by the admission of the defendant, because it may often happen that the presentment was made
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Williams, contra. "The question is> whether the promise which is now relied upon was made under the ignorance of any material fact? Now the knowledge of the plaintiffs having the bill in his hands at the time of making the promise, does not afford any inference whether it was duly presented or not. Here is not sufficient evidence of the positive averment in the declaration that the bill was duly presented when due, and if the plaintiff recovers upon this evidence he supports his case not by positive evidence of his own, but by the defendant's inability to meet by positive evidence the positive averments in the declaration. A promise to pay is good evidence to shew that a man has agreed to pay for goods sold and delivered; because it is clear that he must know whether he received the goods or not, and upon the form of the count, there docs not appear to be any omission in the proof; but here is a formal and direct allegation, that the bill was presented for payment when it became due, which is wholly omitted and overlooked in the proof. The plaintiff cannot now resort to the other counts in the declaration, for no evidence was given on those counts, but only upon the bill. In order to make the promise to pay available, it must be esta1806. blished that the promise restored the plaintiff to his Lcnbt* r'gh* or"sw" '§> an^ a'sosupplied proofs; but the proton* mise to pay can only amount to the giving the plainjloi£UTsoi«. ^ ^ right to sue upon that promise, and therefore it ought'to be specialty stated."
Lord Eii.enborough, C.J. "As to the supplying «f proof, tJhere needs no proof by the one party of that which is admitted by the other. In this caje there cannot be any doubt. Here is a person, the indorsee of a bill, who upon being asked for the money says, he has not had proper notice but it is ajust debt and he will pay. It is for the convenience of mankind and the necessary facilitation of the business in courts of justice, that where a man promises to pay, everything shall be presumed to be rite actum. It must therefore be presumed, that it was presented and that he had notice. Here the objection which he makes points only to the notice, and his former objection was only obviated by that admission of the debt and promise to pay, but he does notdeny that there was a proper presentment; be even goes farther, he waves the objection as to the notice and promises to pay. This is not so much a Waiver of the want of presentment as an admission that there existed in that respect no objection. As to the promise of a bill of exchange, that comes to nothing, the want of notice being waived, it comes to the first objection."
k . Role Dischargep.
Roe, on the Demise of Edward Child, and MaeY 1806, his Wife, against Wright.
A devise of oil my estate, lands, SfC. called the Coal Yard, Devise. Estate. in the parish of A. held to pass the fee, otherwise the devise lee'or of the estate would be only the same as a devise of the lands, and it may be read ' all my estate in lands,' Sfc.
'J'HIS was an ejectment brought to recover the pos- Rg'1dLc^>"
session of certain houses, and premises, called the versus Coal Yard, in the parish of St. Giles's, in the county W»«0HT» of Middlesex, the demise being laid on the 2d of June, 1S05. The cause was tried before Lord Ellenborough, at the sittings for Middlesex, after last Michaelmas term; and a verdict was entered for the plaintiff, subject to the opinion of the court on the following case: James Camper, now deceased, being'in his lifetime, and at the date of his will, seised in fee of the premises in question; and also seised and possessed of other freehold, copyhold, and leasehold estates in ■*Esscx, Middlesex, and Huntingdonshire, by his will dated 28th January, 1763, and duly executed to pass real estates, devised in the following manner. "And as touching such worldly and personal estates wherewith it hath pleased God to bless me, in this life, I give, devise, and dispose of the same in the following manner: Imprimis; I give and devise unto my loving wife Sarah Camper, all my lauds, houses, &c. freehold, copyhojd, and leasehold, whatsoever and wheresoever, and to receive the rents and profits thereof during her natural life, and also all my deeds, mortgages, bonds, and writings, and also all my stock, goods, chattels, effects, and personal estate, whatsoever and wheresoever, she paying thereout the legacies hereinafter given and disposed of; and £ do hereby nominate
1806. and appoint my loving wife Sarah Camper, to be sole executrix of this my will ; and after her natural life, my mind and will is, and 1 do hereby order, direct, give, devise, and bequeath, all my lands, houses, &c. freehold, copyhold, and leasehold, in manner following; I give and devise untomy grandson James Wright, all my lands, freehold, copyhold, and leasehold, in the county of Essex, (except herein excepted and reserved, the house I now live in with all the lands, yards, outhouses, stables, and all other conveniences and appurtenances thereunto belonging, to be hereinafter disposed of,) also I give and devise unto my grandson James Wright, alt my estate, freehold, and copyhold, lying and being in the town of Ellington, in Huntingdonshire. And also I give, devise, and bequeath unto my grandson John Wright, all my estate, lands, &c. known and called by the name of the Coal Yard in the parish of St. Giles's, London. Also, I give unto my grandson John Wright, the sum of 5001. to be paid in six months after my decease; also 1 give and devise xinto my grandson James Camper, the house I now live in, with all the lands, yards, outhouses, and all the appurtenances belonging to the same, and also all my houses and lands, commonly called and known by the name of Castle Yard, in Ho/hom, London, and now in the tenure or occupation, of George CHdmixan, Esq. ftiso I give and devise unto my grandson James Camper, £001. to be paid when he shall attain his age of twentyOne years." The said testator departed this life on the 30th day of January, 1?63, without having altered or revoked his said will, leaving Sarah Camper his widow, end his three grandsons, the said James Wright, John Wright, and James Camper, named in bis said will surviving, and the said James Camper, was also bis hen at law. Upon the death of the testator the siid Sarah Canper his widow entered into, and continued in possession of the premises in question, to