1804.

DOVER

VEI SUS

in another county, which are still within time, but which the plaintiff agrees to abandon.

MAESTAERS. THE 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 similar action had obtained a rule to change the 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, the plaintiff had several causes of action both in the county of York, and the town and county of Hull; 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.

But

On a subsequent day in the term, the plaintiff in this cause obtained a similar rule to change the venue. in this case it appeared, that the plaintiff had supposed, by mistake, that he could give evidence of acts of bribery in Hull, as well as in Yorkshire, there being some acts of 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 which accrued elsewhere, and that appears to be some advantage to the defendant. The difficulty would have been in permitting amendments at all in such cases; 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 be brought by any person whomsoever, any other action against the defendant for the like offences.

VENUE CHANGED.

1804.

DOVER

versus

MAESTAERS.

BRYAN versus HORSEMAN.

A BARE acknowledgment of a debt within six years is sufficient to take the case out of the statute of limitations in assumpsit. Semble. It is so even where the acknowledgment of the debt does not raise, or actually rebuts, any inference of a promise to pay.

BRYAN

versus

THIS was an action for goods sold and delivered, tried before Lord ELLEN BOROUGH, C. J. at the sittings HORSEMAN. at Westminster after last Michaelmas term. The demand was for 261., for wheat delivered about seven years before the action brought. The defendant pleaded the statute of limitations, and a verdict was found for the plaintiff.

BOSANQUET, for 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 when he applied to the defendant, he seemed surprised, and said that he did not owe the plaintiff any thing; that there were more than six years elapsed since the business was transacted.

1804.

BRYAN versus

HORSEMAN.

"That testimony was not

[Lord ELLENBOROUGH, sufficient."]

One Capell was then called.

He had some conversa

tion with the defendant, at which Searle was not present. The effect of his evidence was, that the defendant said, he did not consider himself as fiable. "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 a man 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 ELLEN BOROUGH, 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 as

Buller's Nisi Prius, 148.

did not rebut the inference of a promise; but afterwards, before the rule was called on to be argued, Lord ELLENBOROUGH said, that the court had considered the case, and that the rule, that the acknowledgment of the existence of a debt, to be considered as evidence of a promise, is a joundation for an action of assun:psit, has been acted upon uniformly, that the

RULE for a new trial must be DISCHARGED,'

1804.

BRYAN

versus

HORSEMAN.

WAIN versus BRADBURY.-January 28.

1804.

ON payment of money to the sheriff upon an arrest, it will be presumed that it was paid as a deposit in lieu of bail, under the stat. 43 Geo. III., unless a discharge, or some acknowledg. ment in writing, be given to the defendant for the debt and costs. The payment of the debt with 107. raises a strong presumption that it is not an absolute payment in discharge of the debt and costs.

THIS was a rule calling upon the sheriff of Middlesex

WAIN

versus

to bring into court the money deposited in this case, BRADBURY.

in lieu of bail, for the purpose of being paid over to the defendant. The defendant having put in bail,

EDWARD JONES, the attorney for the defendant, swore, that the defendant being arrested on a Saturday night, he went to him on the Sunday, and advised him to make a deposit, and gave orders that

* BOSANQUET referred to most of the cases on the subject; viz. Salk. 28; Carth. 470; 2 Show. 126; 2 l'entr. 151; 2 Burr. 1099; 2 Term Rep. 760; Whitcombe v. Whiting, Doug. 652; Jackson v. Fairbank, 2 II. Bl. 340. in order to take the opinion of the court on the first motion, the defendant being a distressed man, and his lordship promised to give him the opinion of the court, if strongly against him, before the rule was called on.

1804.

WAIN

versus

BRADBURY,

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 101.

The sheriff's 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 acknowledg ment in writing given on either side.

"As there was not

Lord ELLEN BOROUGH, C. J. 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 107. And I think that something 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 sheriff 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 are productive of more mischief than good after all." RULE ABSOLUTE.

At the first opening of the case, the COURT suggested that the plaintiff, being the party interested, should be brought be fore the court, and the rule would have stood over till it had been served on him, as well as the sheriff, had not ERSKINE consented to appear for both. GARROW and ANDREWS were for the defendant.