constat but that these may be two distinct names of dignity. It evidently refers to the name of dignity, and is matter of description, and, therefore, is a material variance. As to the count for slander, the words laid in that count import the conversation to have been concerning a thing present, the words in proof import the conversation to have been concerning a thing absent. The words proved do not, therefore, appear to be spoken concerning the same thing, as the words stated in the declaration; and, therefore, as to that count also, I am of opinion that the nonsuit was right. BEST J. I am of the same opinion. I think that the words in the declaration "of Waterfork" are part of the description of the title, and not merely referable to the place of residence of Lord Waterpark, and consequently that this is a fatal variance. I also agree with the rest of the Court, as to the objection upon the count for slander, and think that the nonsuit was right upon both grounds. 1819. WALTERS against МАСЕ. Rule discharged. (a) SWANN, Esq. v. SOWELL. ACTION against the defendant as maker of missory note, dated more than six years ago. first, general issue; secondly, statute of limitations. Wednesday, a pro Plea, At Assumpsit on a Plea, first, geno ral issue; 2dly, promissory note. statute of limitations; But there was no plea or notice of set-off. It was proved that on the plaintiff's shewing the defendant the note within six years, the latter said, "You owe me more money: I have a set-off against it." Held by Bayley and Holroyd justices, Best, justice, dissentiente, that that was not a sufficient acknowledgment within six years to take the case out of the statute of limitations. 1819. SWAN against SOWELL. the trial before Best J. at the last assizes for the county of Cornwall, the plaintiff, in order to take the case out of the statute, gave in evidence that within six years the plaintiff had demanded payment of a note of hand which he took from his pocket and shewed the defendant, and said, "You know your hand-writing;" that defendant looked at the note, and said, "You owe me a great deal more money, and I have a set-off against it." Plaintiff said, "Furnish me with your account: I should be sorry to swear to a debt, if I owed you any thing. If you do not furnish me with your account, I shall put this into the hands of my solictor;" that defendant then said, "You may do as you please: I shall defend it." There was contradictory evidence as to this declaration, and the case went ultimately to the jury on the credit of the different witnesses. The jury found a verdict for the plaintiff. Adam in last Easter term obtained a rule nisi for setting aside this verdict, as contrary to the learned Judge's opinion, and the weight of the evidence. On shewing cause the Court suggested, that independently of that, there was not sufficient evidence to take the case out of the statute, and directed that point also to be argued. Pell Serjt., and Selwyn, for the plaintiff, argued, that in order to take a case out of the statute of limitations, it was not necessary that there should be an express promise to pay; it was sufficient if the words used by the debtor amounted to an acknowledgment of an existing debt; for then the law would raise a promise to pay; and they insisted that the answer of the defendant to the application of the plaintiff clearly imported such an acknowledgment. BAYLEY BAYLEY J. (a) As we are all satisfied that there must in this case be a new trial, it is not necessary to call upon the other side. I am of opinion that this declaration, even if implicit credit be given to the witness, is not sufficient to take the case out of the statute of limitations. The question in these cases always is, whether the admission, where no express promise to pay is made, be sufficient for the law to raise from it an implied promise. If a party admits the debt, and does not say that it is satisfied; or refuses to pay it, alleging at the time an insufficient excuse for not paying it, the law will in these cases raise an implied promise to pay the debt then acknowledged to be due. But if at the time the party states that the debt is discharged, that surely can never be considered as an acknowledgment of a subsisting demand, so as to raise such an implied promise. Now here the party admits the bill to be in his hand-writing, but says that he has a set-off to more than the amount. The forbearance on each side may have been mutual, and the case is exactly within the intent of the statute; for during the six years' delay, the witnesses capable of proving the set-off may be dead, and the party may be as incapable of proving it as in the case where payment is alleged. I think, therefore, that this declaration is not an acknowledgment of a subsisting demand, and consequently will not take the case out of the statute. On the other ground, also, I am of opinion, from the learned Judge's report, that this is a verdict clearly against the weight of evidence, and that there ought to be a new trial on both points. (a) Abbott C. J. was absent. 1819. SWAN against SOWELL 1819. SWAN against SOWELL. HOLROYD J. I am of the same opinion on both points. There was not sufficient evidence to raise a new promise, or rather to revive the original promise to pay; for the party, instead of admitting a subsisting demand, insists at the time that the plaintiff has no demand against him. The reason why an acknowledgment takes a case out of the statute is, that it thereby appears that the demand has not been satisfied; and though such acknowledgment be accompanied with an actual refusal to pay, yet if it be admitted that the debt is unsatisfied the law will, notwithstanding, revive the original promise to pay the debt. But it would defcat the whole intention of this salutary statute if we were to hold this acknowledgment to be sufficient. The declaration here is in substance this; "Though I did originally owe this money, yet the debt has been satisfied by a set-off." If that takes the case out of the statute, a plaintiff will gain a great advantage in such a case, by waiting till the witnesses are dead who can prove the set-off, and then entrapping a defendant into such a declaration as this. How can it be contended that an assertion by a defendant that he has a good defence is an acknowledgment of the debt? The case of the declaration of a party on being arrested that he had had the meat, and that 267. was due, but that six years had expired, is quite different. There he admitted the debt to be unsatisfied at the time, and on that ground it was that the decision of the Court was founded. On the other point I agree that there should be a new trial, this verdict being clearly against the weight of evidence. BEST J. It was not suggested at the trial that the words proved to have been used by the defendant ought not to be left to the jury for them to say, whether, if true, they amounted to an acknowledgment of the debt. If such an objection had then been made, I should have directed the jury to find whether the defendant had used the words stated by the witness, and if they found that he had, then as there was no plea, nor notice of set-off, I should have told them that this was a sufficient acknowledgment to take the case out of the statute. And I am now of opinion, on the authority of the cases of Lloyd v. Maund (a), and Rucker v. Hannay (b), that there was sufficient evidence in this case to be left to the jury to consider whether it amounted to an acknowledgment of the debt. I agree with my brothers, that effect is to be given to the whole of the words used, so far as those words bear on the issue to be tried. If the witness, therefore, had said that the defendant had acknowledged that the debt once existed, but added that it was paid, I should have nonsuited the plaintiff; because payment destroys the original debt, and may be given in evidence under the general issue; but a setoff does not destroy the original debt, and cannot be given in evidence without a plea, or a notice of set-off. Now I cannot distinguish between matter of set-off, proved by declarations of the defendant, made at the time of his acknowledging the plaintiff's demand, and the same matter proved by any other witness. It seems to me, that in neither case it is evidence under the ge neral issue. If it were, the plaintiff should, at all events, be permitted to prove that what the defendant said, as to the set-off, was not true; but the plaintiff would not come prepared with evidence to shew the falsehood. In fact, the falsehood of that part of the declaration 1819. SWAN against SOWELL (a) 2 T. R. 760. (b) 4 East. 604. 3D 4 has |