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liable then, because the bill was out of date.
knowledged that it was his acceptance. The witness
said that the plaintiff would take the money by instal-
ments: but the defendant said that he would not pay
it: it was not in his power to pay it.
His Lordship,
on objection taken that this was not sufficient evidence
of an acknowledgment of an existing debt to take the
case out of the statute, and still less so upon the issue
as framed, observed that although the defendant's merely
saying that the bill was out of date, and that he had
nothing to do with it, might have amounted to nothing
more than his pleading the statute of limitations in his
own person; yet that his saying that he could not pay
it, that it was not in his power to pay it, might be con-
sidered as an acknowledgment of his continuing liability
to pay it: and thereupon a verdict was taken for the
amount of the bill, reserving leave to the defendant's
counsel to move to set it aside, 1st, upon the point
whether a sufficient acknowledgment was proved to
take the case out of the statute; and 2dly, whether, the
evidence was admissible, as the record was framed.

A rule for setting aside the verdict was accordingly obtained; and now upon its being called on, after Lord Ellenborough, C. J. had read the report, and referred to the case of Gould v. Johnson (a), his Lordship observed that the plea of actio non accrevit infra sex annos was quite unexceptionable, as it was a form of pleading which applied either to an executory or an executed contract; and he called on E. Lawes to support the rule, who agreed to what his Lordship had stated, but contended upon the evidence that it was not sufficient

VOL. XVI.

(a) 2 Ld. Ray. 838.

Ff

to

1812.

LEAPER

against ΤΑΤΤΟΝ.

1812.

LEAPER against ΤΑΤΤΟΝ.

to take the case out of the statute, the proof being only of a promise to pay when he was of sufficient ability, without any proof of his ability, which Mansfield, C. J. in Bicknell v. Keppell (u), seemed to think necessary in such a case. In the next place he contended, that supposing the promise sufficient to take the case out of the statute, the plaintiff should have declared on the special promise, and not on that which arises from the legal liability of the defendant to pay the bill according to the tenor of his acceptance; the evidence so far from proving that the defendant was liable, according to the tenor of his acceptance, proving the reverse, viz. that the law had discharged him from all liability on his acceptance. The issue here is upon a promise by this very bill, and therefore it is impossible that evidence of a subsequent promise can prove a promise by this bill; in Stafford v. Forcer (b), where in an action against an administrator upon a promissory note, it appeared on the face of the declaration that the cause of action accrued above six years before the testator's death, it was held that a verdict would not cure the defect, but that it was ground for arresting the judgment. And though in Williams v. Dyde (c) a subsequent promise by a bankrupt after he was discharged by his certificate, was allowed to be given in evidence upon a count for goods sold, and a plea of discharge under his certificate, yet that was a general count, and not like a count on a bill of exchange where the promise is to pay on a day certain.

Lord ELLENBOROUGH, C. J. As to the sufficiency of the evidence of the promise it was an acknowledgment (b) 10 Mod. 312. cited in Str. 22.

(a) 1 N. R. 21.

(c) Peake's N. P. Cas. 68.

by

by the defendant that he had not paid the bill, and that he could not pay it; and as the limitation of the statute is only a presumptive payment, if his own acknowledgment that he has not paid be shewn, it does away the statute. Then as to the form of declaring insisted upon, it is enough to say that it has never been in use, but that it is the common practice to declare on the original contract, and if the statute be pleaded, the only question is, whether the defence given by it has been waived. If the objection were good, it would be necessary to recast all the modes of declaring by way of obviating the possibility of the defendant's taking advantage of the statute of limitations. But there is no occasion to go further into the question, because in this case there is a count on an account stated, which removes all objection.

LE BLANC, J. This was not an express promise to pay when he was able, like the case alluded to in argument.

BAYLEY, J. It was certainly good evidence upon an account stated; it was evidence of a debt; acknowledging his acceptance, and that he has not paid it, creates a debt.

Per Curiam,

Rule discharged.

1812.

LEAPER

against ΤΑΤΤΟΝ.

END OF MICHAELMAS TERM.

Ff 2

AN

INDEX

TO THE

PRINCIPAL MATTERS.

ACTION ON THE CASE.

A

1. SERVANT put into the oc-
cupation of a cottage, with
less wages on that account, does
not occupy it as a tenant, but the
master may properly declare on it
as his own occupation in an action
on the case for a disturbance of a
right of way over the defendant's
close to such cottage. And it
matters not that the cottage was
divided into two parts, one of
which only was in the occupation
of such servant, the other being
occupied by a tenant paying rent.
Bertie v. Beaumont, T. 52 G. 3.
Page 33

2. Though the general highway act,
13 G. 3. c. 78. s. 81. directs that
actions against any persons for any
thing done or acted in pursuance
thereof, shall be commenced within
three calendar months after the fact
committed, and not afterwards;
yet if surveyors of highways, in
the execution of .their office, under-
mine a wall adjoining to the high-
way, which does not fall till more

See

1.

APPRENTICE.

than three months afterwards, they
are subject to an action on the case,
for the consequential injury within
three months after the falling of
the wall. Roberts v. Read, M.
53 G. 3.
Page 215

ADMIRALTY,

See IMPRESS, 1, 2.

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TLEMENT BY APPRENTICESHIP.
The statute 20 G. 2. c. 19. s. 4.
empowering justices of peace, upon
complaint made on oath by any
master against his apprentice, for
any misdemeanor, miscarriage, or
ill behaviour in his service, to hear
and determine the offence, and com-
mit the offender, is not repealed by
stat. 6 G. 3. c. 25. s. 1., empower-
ing the justice to oblige an appren-
tice absenting himself from his
master's service to serve out, after
the expiration of the apprenticeship,

such

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