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1804 ** another county, which are still within time, but which the plaintiff
i i agrees to abandon.
Maxbtaem. 'T'H E plaintiff had declared in a penal action for bribery,
and had laid the venue in York. The declaration
contained a great number of counts for offences laid there.
Another plaintiff in another similai action had obtained
a rule to change tbe venue from York to the town and
county of Hull, as to such offences declared on as were
committed in Hull, and to strike out the rest. In fact, tbe
plaintiff had several causes of action both in the county
of York, and the town and county ofHull; but as to those
which had been committed in Hull, the time was elapsed
to which the action is limited by the statute. It being
objected that by this means, the plaintiff might proceed
in actions which were not within time, but for which he
had better evidence than those in Yorkshire, there being
no affidavits that the causes of action were the same; this
rule, after some contest, was granted by the Court,
who ordered the plaintiff to abandon the 1st, 2d, and 3d,
and other counts, specifying them.
On a subsequent day in the term, the plaintiff in this cause obtained a similar rule to change the venue. But in this case it appeared, that the plaintiff had supposed, bf mistake, that he could give evidence of acts of bribery 9n Hull, as well as in Yorkshire, there being some actsol bribery committed in each place, and this election being in Yorkshire. He therefore did not bring on his cause for trial at the assizes, and now moved to change the venue. It was endeavoured to distinguish this from the former case: but by
Lord Ellenborouh, C. J. " If it had never been decided that the venue may be changed in cases where the statute of limitations had run, the rule would have been quite as good, if not better, than at present. But it has been' decided often, that where there has been no unnecessary delay the party may change the venue in a penal action though the time for bringing a new action has elapsed. The plaintiff has agreed to abandon the causes of action 1804. which accrued elsewhere, and that appears to be some Dove11 advantage to the defendant. The difficulty would have vertut been in permitting amendments at all in such cases; AS"*E but having got so far, there can be no reason for rejecting the present motion.
The plaintiff, however, agreed not to bring or cause to bebrought by any person wliomsoever, any other action against the defendant for the like offences.
Bryan versus Horseman.
A BARE acknowledgment of a debt within iix years is sufficient to take the case out of the statute of Imitations in assumpsit. Semble. It is so even where the acknowledgment of the debt dors not raise, or actually rebuts, any inference of a promise to pay.
'J'HIS was an action for goods sold and delivered, tried Bar* before Lord Ellen Borough, C. J. at the sittings Hors"* at Westminster after last Michaelmas term. The demand was for 261., for xvheat delivered about seven years before the action brought. The defendant pleaded the statute of limitations, and a verdict was found for the plaintiff'.
BosANQU£T,/br the defendant, now moved to set it aside, and that a new trial should be granted. He stated, that the only evidence was that of the two persons who arrested the defendant. One Searle said, that w hen he applied to the defendant, he seemed surprised, and said that he did not owe theplaintiff any thing ; that there were more than six years elapsed since the business was transacted,
lao*. [Lord Ellenborough, " That testimony was not Bhvas sufficient."]
[obskman. One Caprii was then called. He had some conversation with the defendant, at which Scarle was not present. The effect of his evidence was, that the defendant said, lie did not consider himself as liable. "I consider myself I do not owe Mr. Bryan a farthing! 'Tis beyond six years. I acknowledge the receipt of the wheat, and I paid part, and there is something due."
Bosanquet then urged, that from the nature of the action of assumpsit, the mere existence of the debt is not the foundation of it, for it arises out of the promise made in consequence of the debt; and after stating the several decisions respecting promises and acknowledgments to take debts out of the statute, and the progressive changes in the opinion of the courts upon the subject, contended, that, although an acknowledgment of a debt has been held to be evidence of a promise, upon a presumption that aman who acknowledges a debt means to act honestly and to pay it, because it is due; yet, if the whole of the evidence stated above were considered, it rebutted all presumption of a promise to pay, and therefore fell within the distinction in Owen v. Wolley*: where it is said, that, although a promise is not necessary to take the case out of the statute,*yet there must be an acknowledgment of a debt; and therefore, where the defendant said, "I acknowledge the receipt of the money, but the testatrix gave it me," Clive, Baron, held it not sufficient.
Lord Ellenborough, C. J. "Horseman admitted the debt was due; that was evidence to be left to the jury."
The Court, however, granted a rule to shew cause, and his lordship observed, that there was good sense in the distinction, that it should be such an acknowledgment a*
Buller's Nisi Prius, 148.
did Ml rebut the inference of a promise; but afterwards, 18°4. before the rule was called ori to be argued, Lord Ellen- Urya* BOBnrcH said, that the court had considered the case, „ ,vr"', a:i<l that the rule, that the acknow ledgment of the existence 'I' a debt, to be considered as evidence of a promise, is a fmhtion for an action of assumpsit, has been acted upon r» uniformly, that the
Rule for a wetr trial must be Discii Aug&d.*
Wain versus Bradbury.—January 28. '80*
W ytyment of money to the sheriff" upon an arrest, it will heprenmedthat it uax paid as a deposit in lieu of bail, ynder the M, 43 Geo. III., unless a discharge, or some achnowledgnut in writing, be given to the defendant for the debt and tints. The paiimenI of the debt with 10/. raises u strong preemption that it is not an absolute payment in discharge of the titbt and costs,
"PMIS was a rule calling upon the sheriff of Middlesex Waiw
to bring into court the money deposited in this case, Beadbc'kt. W lieu of bail, for the purpose of being paid over to the tyatdunt. The defendant having put in bail,
Edward Jones, the attorney for the defendant, snore, that the defendant being arrested on a Saturday night, he went to him on the Sunday, and ad(ised him to make a deposit, and gave orders that
'CosaxIjvkt referred to most of the cases on the subject; ■■i.Halk. 28; Carth. 470; 2 Show. 126"; 2 Ventr. 151; 2 Burr. '"99; 2 Term Rep. 700; Whit combe v. Whiting, Duiig. (i52; lidtvn v. l'airbaak, 2 11. Bl. 340. in order to take the opinion af the court on the first motion, the defendant being a distressed fcm, and his lordship promised to give him the opinion of the fort, if strongly against him, before flic rule was called on.
the sheriff's office should be searched at seven o'clock the next morning, in order that the deposit might be made as speedily as possible: that he then called upon him on the Monday, and made a deposit of the debt, and 1(>1.
The slKrijfs officer swore that nothing was said at the time concerning a deposit, and that he received the money as payment of the debt and costs, and had paid it to the plaintiff. There was no receipt or acknowledgment in writing given on either side.
Lord Ellenborough, C. J. "As there was not any discharge or receipt given to the defendant to shew that he had paid the debt and costs, it must be presumed that the money was paid under the act of parliament. The sum paid hits the act of parliament to a penny; it is the debt and the 10/. And [ think that somethiug like this should be understood, 'that it will be presumed, that the money was taken under the act, unless a discharge is given, or something to shew that the money is not paid under the act; in order to prevent it from being converted into an engine of great oppression.
Erskine, for the slieriff and the plaintiff, observed, that the defendant did not swear to merits.
Lawrence, J. "That is not necessary, where money is paid as a deposit, and you claim it as absolute payment."
Lord Ellenborough, C. J. "This has been sometimes erroneously called my act. The truth is, I altered these clauses a little, and made them less mischievous than otherwise they would have been. But I am afraid they fire productive of more mischief than good after all."
• At the first opening of the case, the Court suggested that the plaintiff, being the party interested, should be brought before the court, and the rule would have stood over till it had been served on him, as well as the sheriff, had not Euskinb consented to appear for both. Garro.v and Andrews went -for the defendant.