He ac

1812.

LEAPER

against TATTON.

liable then, because the bill was out of date.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saying that the bill was out of date, and that he had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, Ist, 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

1812.

LEAPER against TATTON. .

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 (a) 1 N. R. 21.

(6) 10 Mod. 312. cited in Str. 22. (c) Peake's N. P. Cas. 68.

by

1812.

LEAPER

against TATTON.

ed

out

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 acknowledg-
ment 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 re-
cast 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 ob-
jection.

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; acknowledg-
ing his acceptance, and that he has not paid it, creates
a debt.
Per Curiam,

Rule discharged.

AN

INDEX

TO THE

PRINCIPAL MATTERS.

1. A

Page 215

one of

ACTION ON THE CASE.

APPRENTICE.
1.

into the oc-
cupation of a cottage, with

than three months afterwards, they
less

are subject to an action on the case,
wages on that account, does
not occupy it as a tenant, but the

for the consequential injury within

three months after the falling of
master may properly declare on it

the wall. Roberts v. Read, M.
as his own occupation in an action

53 G. 3.
on the case for a disturbance of a
right of way over the defendant's

ADMIRALTY,
close to
such cottage.
And it

See IMPRESS, 1, 2.
matters not that the cottage was
divided into two parts,

APPRENTICE,
which only was in the occupation
of such servant, the other being See Bills or Exchange, 5. Set-
occupied by a tenant paying rent.

TLEMENT BY APPRENTICESHIP.
Bertie v. Beaumont, T. 52 G. 3. 1. The statute 20 G. 2. c. 19. s. 4.

empowering justices of peace, upon
2. Though the general highway act, complaint made on oath by any

13 G. 3. c. 78. s. 81. directs that master against his apprentice, for
actions against any persons for any any misdemeanor, miscarriage, or
thing done or acted in pursuance ill behaviour in his service, to hear
thereof, shall be commenced within and determine the offence, and com-
three calendar months after the fact mit the offender, is not repealed by
committed, and not afterwards; stat. 6 G. 3. c. 25. s. 1., empower-
yet if surveyors of highways, in ing the justice to oblige an appren-
the execution of their office, under tice absenting himself from his
mine a wall adjoining to the high master's service to serve out, after
way, which does not fall till more the expiration of the apprenticeship,

such

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