« PreviousContinue »
liable then, because the bill was out of date.
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
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 the defendant that he had not paid the bill, and that
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
ACTION ON THE CASE.
into the oc-
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.
See IMPRESS, 1, 2.
TLEMENT BY APPRENTICESHIP.
empowering justices of peace, upon
13 G. 3. c. 78. s. 81. directs that master against his apprentice, for