the request of a married woman. Her inheritance in the estate V.-C. W. will be converted by the sale into money; and although her husband cannot touch the former, he may the latter.] Mr. E. Cutler then referred to sect. 3, and said :-I have evidence to prove that a sale and a distribution of the proceeds of the property would be more beneficial for the parties interested than a division of it between or among them. Mr. Vincent, for the Defendant, asked that the purchase-money to arise from the sale might be paid to trustees for the parties. SIR JOHN WICKENS, V.C., after referring to France v. France (1), continued: I will make a decree, as prayed by the bill, for the sale of the land. The purchase-money must be paid into Court, and there must be a vesting order as to the infant's share, with a reservation of further consideration. Solicitors: Messrs. Farrer, French, & Tatham; Mr. Percy C. F. Tatham. 1872 HIGGS v. DORKIS. BOURDIN v. GREENWOOD. [1870 B. 102.] Promissory Note-Subsequent Indorsement by Maker of his Name and Date- L., in 1846, promised to pay, three months after date, to B. or to C., his wife, the sum of £500. B. died in 1863, leaving C. surviving. There was an indorsement on the note in L.'s handwriting of his name and the year 1866. C. died in 1868: Held, that it was not intended to make a new note, and that there was a THE (1) Law Rep. 13 Eq. 173. V.-C. W. 1871 Nov. 22; V.-C. W. 1871 BOURDIN v. GREENWOOD. which he was struggling to maintain himself, gave, in that year, a promissory note in the form following: 66 Wheatly, Oxon. January the sixth, 1846. "Three months after date I promise to pay to Dominic François Bourdin, Esq., or to Sarah Matilda Bourdin, his wife, the sum of five hundred pounds for value received. £500 0s. Od. William Hawkes Langley." D. F. Bourdin, who died on the 30th day of October, 1863, by will dated the 25th day of July, 1856, appointed S. M. Bourdin his sole executrix, and she proved the will. In January, 1866, S. M. Bourdin represented to W. H. Langley that he ought to sign some document which would give her a legal claim notwithstanding the lapse of time. He proposed to her that he should sign the promissory note anew, and alter the date, and suggested that that would be sufficient acknowledgment to keep the debt alive. He altered the date of the promissory note from 1846 to 1866; signed the note on the back thus:-" W. H. Langley, 1866;" and handed it so signed to S. M. Bourdin. S. M. Bourdin, who died on the 14th day of January, 1868, by will dated the 5th of June, 1865, appointed the Plaintiff, François Hippolyte Bourdin, her sole executor, and he proved the will. W. H. Langley was for many years in pecuniary difficulties, and incurred heavy expenses in litigation, in which he, after the death of Mr. and Mrs. Bourdin, established his title to some real estate of the value, as alleged, of £10,000 or £12,000. W. H. Langley, who died on the 16th of February, 1870, by will in January, 1869, after bequeathing a legacy of £300 to Henry Hansler, in consideration of his advances to him of £300 or £350, gave the rest of his property, real and personal, to the Defendants, Henry Greenwood and Phoebe Greenwood, in certain shares, the share of Phoebe Greenwood to be divided equally among all her children living at her death, share and share alike. In February, 1870, administration with the will annexed of the estate and effects of W. H. Langley, was granted to the Defendant Henry Greenwood. The Plaintiff prayed that the sum of £500 owing to the estate of D. F. Bourdin or S. M. Bourdin, together with such interest thereon as the Court should think fit, might be paid to the Plaintiff by a short day, or that in default the personal and real estate of W. H. Langley might be administered under the direction of the Court, and that the real estate might be sold; for accounts and inquiries, and for a receiver. Mr. Karslake, Q.C., and Mr. E. Cutler, for the Plaintiff : The original note was dated in January, 1846. There has been an alteration in the figures, but how, by whom, and under what circumstances it was made there is no evidence at all. It is not, however, material to fix the precise date of the alteration, as the debtor wrote his name and the figures "1866" on the back of the note; and that is a perfectly good acknowledgment. It was not necessary that the amount of the debt should be stated in the acknowledgment. This was not a commercial transaction, but a case of assistance rendered to a poor man. Though there is no case in the books where the signature of the debtor on the back of a note has been held to be an acknowledgment, yet, having regard to the alteration made and to the other circumstances, there is enough to relieve the Court from deciding that the Plaintiff has no claim because of the Statute of Limitations. It is submitted that a fresh stamp was not necessary, but if it should be considered that it was necessary, the document can be stamped now. [They referred to Jones v. Ryder (1); Rendell v. Carpenter (2); Cheslyn v. Dalby (3); Blanckenhagen v. Blundell (4); Hart v. Prendergast (5); Dabbs v. Humphries (6); Darby & Bosanquet on Statutes of Limitations (7); Byles on Bills (8); 9 Geo. 4, c. 14, s. 8 (Lord Tenterden's Act).] Mr. Hemings (Mr. Dickinson, Q.C., with him), for the Defendant: If the signature and date 1866 constituted a promise to pay, the note was made a new one, and as such, it should have been restamped. That not having been done, the Defendants are entitled to say that there is nothing to sustain this suit. If that objection (1) 4 M. & W. 32. (2) 2 Y. & J. 484. (3) 4 Y. & C. Ex. 238. (5) 14 M. & W. 741. (6) 10 Bing. 446. (7) Chap. iv., p. 45, 49, et seq. V.-C. W. 1871 BOURDIN V. GREENWOOD 1871 BOURDIN V.-C. W. should not be considered a sufficient defence, then it may be contended that there is no proof that the signature of the debtor on the back of the note was written in 1866; and that being so, there is nothing to take the case out of the Statute of Limitations. [He cited Holmes v. Jaques (1), Rackham v. Marriott (2), and Hamelin v. Bruck (3).] V. GREENWOOD. Mr. Karslake, in reply, referred to Ex parte Yates (4). During the arguments some letters written by the parties were read and commented upon, but in the view of the Court they were not evidence. Dec. 9. SIR JOHN WICKENS, V.C.: This is a creditor's suit, and the only question is whether the debt in respect of which the Plaintiff sues is barred by the Statute of Limitations. The Rev. William Hawkes Langley gave to Dominic François Bourdin, who had lent him money, a promissory note dated the 6th of January, 1846, by which he promised to pay to Dominic François Bourdin, or to Sarah Matilda Bourdin, his wife, £500 at three months after date. Dominic François Bourdin died in 1863, and his wife Sarah Matilda became his executrix. She died in January, 1868, and the Plaintiff is her executor, and the derivative executor of Dominic François Bourdin. The Defendants are the administrator and the devisees of Langley, the debtor. Of course the debt is barred by the statute unless there has been something to exclude its operation. What is relied on by the Plaintiff for that purpose is an indorsement on the note in Langley's handwriting, which is as follows: "W. H. Langley, 1866." The production of the note with this indorsement upon it is the only evidence in support of the Plaintiff's case. Some letters in 1869 were relied on at the bar, but those not having been pleaded cannot operate as an acknowledgment for the present purpose; and it is therefore unnecessary to consider their effect. (1) Law Rep. 1 Q. B. 376. (3) 9 Q. B. 306. 1871 BOURDIN v. It is difficult, I think, to resist the inference that Mr. Langley v.-C. W. must have indorsed his name, and the date 1866, on the note for the purpose of acknowledging that the debt was then due: that he did it for some purpose is clear, and it is hardly pos- GREENWOOD. sible to suggest any other. It must be taken that some time in the year 1866 Mrs. Bourdin, who was one of the alternative payees and the executrix of the other, produced the note to the maker, who then indorsed it, and wrote the year when he did so, and handed it back to her. If he had prefixed" Due," or any similar word, the matter would have been too clear for argument, since the paper itself identified the debt; and the question is, whether the want of the word makes any difference. I think that it does not on principle, and that it would be too narrow a construction of Lord Tenterden's Act to say that there is here no acknowledgment made or contained in a writing signed by the party chargeable. It is true that there is here no writing except the signature and the date, but if they together involve an acknowledgment, as I think they do, the want of any other writing can hardly be fatal. It should be mentioned that on the note itself the date 1846 was converted into 1866, and this alteration is pleaded by the Plaintiff as done by Mr. Langley at the time of the indorsement. There is no proof that it was so, though the thing seems not improbable. It was urged that that alteration disclosed an intention to make a new promissory note, and not to acknowledge an existing one, and that the case is one not of old note and acknowledgment, but of new note, bad for want of a stamp. Considering that the original signature is not cancelled; that the note is still left as an alternative promise to pay to two persons, one of whom was dead, and that the new signature is written on the back of and across the note, I think it the better conclusion that it was not really intended to make a new note in the strict sense of the word, but simply to acknowledge an existing one. The Plaintiff is, therefore, entitled to the usual decree. Solicitors: Messrs. Cutler & Turner; Mr. J. P. Poncione, Jun. |