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1 306.

-).UNDIR o tersus ROBERTSON,

averment that, the bill was presented for payment
wheu due, that it was refused, and that the defendant had
notice thereof. Williams, counsel for the defendant,
objected that there was no evidence of the presen:-
ment, and that as 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 inonths upon London, the di-
claration should have been framed in special assump-
sit 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
þaving been obtained in the last term to shew cause
why that verdict should not be set aside, and a non-
súit entered, i
· LITTLEDALE, shewed cause. « There were two ob-
jections taken at the trial; first, that there was no
regular, notice; and secondly, that there was no evi-
dence of the presentment. As to the fact that there
was no notice, the defendunt himself saw the bill in the
plaintiff's hands three months after it was due, : In
Bleshard v. Įlurst,* and in Goodall v, Dolley,t the
parties were ignorant of the time of the present-
ment; but it was admitted, that if the person was ac-
quainted with the true circumstances he would be
bound by the promise. Here he knew that the bill
had not been paid ; and if there was any doubt of
the timely nolice, the defendant waives it by saying,
• I have not had due notice, but as the debt is a just
one I will pay it.' The time for notice must de-
pend upon circunstances. In some cases it may be

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ROBERTSON,

given immediately, iq others within a week, iu others; 1806. a month, or more, according to the number of bands . LUDIE which the bill is to go through. -. There was indeed versus pot any direct evidence given of the presentment on the day; but that may 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 plaintif were not to be relieved froin such proof by the admission of the defendant, because it may often happen that the presentinent was made by himself?”

WILLIAMS, contrà. « 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 bis 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 does 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 ayailable, it must be esta

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blished that the promise restored the plaintiff to his right of swing, and also supplied proofs ; but the promise 'to pay can only amount to the giving the plaintiff a right to sue upon that promise, and therefore it ougbl to be specially stated.”

Lord ELLENBOROUGH, C.J. “ As to the supplying of proof, there needs no proof by the one party of that which is admitted by the other. In this case there can not be any doubt. Here is a person, the indorser of a bill, who upon being asked for the money says, he has not had proper notice but it is a just 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 not deny that there was a proper presentment; he 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."

RULE DISCHARGED.

180

Roe, on the Demise of EDWARD Child, and Mary

his Wife, against Wright.

A dedise of all my estate, lands, fc. called the Coal Yard, Devise. Estate.

in the parish of A, held to pass the fee, otherwise the devise Fee, or for lite. of the estate would be only the same as a devise of the lands, and it may be read. all my estate in lands,' &c.

CHILD

THIS was an ejectment brought to recover the pos- Ros dem. session of certain houses, and premises, called the versus

s WRIGHT. Coal Yard, in the parish of St. Giles's, in the county of Middleser, the demise being laid on the ed of June, 1805. The cause was tried before Lord Ellenborough, at the sittings for Middleser, after last Michaelmas term; and a verdict was entered for the plaintiff, subject to the opinion of the court on the following case : James Cumper, now deceased, being'in bis lifetime, and at the date of his will, seisęd in fee of the premises in question; and, also seised and possessed of other freehold, copyhold, and leasehold estates in Essex, Middleser, 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 lands, houses, &c. freehold, copyhold, and leasehold, whatsvever 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 theseout the legacies hereinafter given and disposed of; and I do hereby nominate

1806.

Roe dem.
CHILD

tersi s WRIG UT.

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 I do hereby order, direct, give, devise, and bequeath, all my lands, houses, &c. freehold, copyhold, and leasehold, in manner following; I give and devise unto my 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 disa posed of,) also I give and devise unto my grandson James Wright, all my estate, freebold, 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 I give and devise unto my grandson James Camper, the house I now live in, with all the lands, yards, outhouses, and all the appartenances belonging to the same, and also all my houses and lands, commonly called and known by the name of Castle Yard, in Holborn, London, and now in the tenure or occupation, of George Oldmitan, Esq. also I give and devise unto my grandson James Camper, 5001. to be paid when he shall attain his age of twentyone years." The said testator departed this life on the 30th day of January, 1763, without having altered or revoked his said will, leaving Sarah Cumper his widow, and his three grandsons, the said James Wright,

John If right, and James Camper, named in his said will surviving, and the said James Camper, was also his heir at law. Upon the death of the testator the said Sari Camper his widow entered into, and continued in possession of the premises in question, 10

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