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days from the service hereof, further proceedings will be stayed.”
III. AND IT IS FURTHER ORDERED, That in Hilary and Trinity terms, a plaintiff in any country clause may file or deliver a declaration de bene esse, within four days after the end of the term, as of such term.
AND IT IS FURTHER ORDERED, That the rules heretofore made in the Court of King's Bench and Common Pleas respectively, for avoiding long and unnecessary repetitions of the original writ in certain actions therein mentioned, shall be extended and applied to the Courts of King's Bench, Common Pleas, and Exchequer of Pleas, to all personal and mixed actions; and that in none of such actions shall the original writ be repeated in the declaration, but only the nature of the action stated, in manner following: viz. A. B. was attached to answer C. D. in a plea of trespass, or in a plea of trespass and ejectment, or as the case may be, and any further statement shall not be allowed in costs.
V. AND IT IS FURTHER ORDERED, That upon staying proceedings, either upon an attachment against the sheriff for not bringing in the body, or upon the bail-bond, on perfecting bail above, the attachment or bail-bond shall stand as a security, if the plaintiff shall have declared de bene esse, and shall have been prevented for want of special bail being perfected in due time from entering his cause for trial, in a town cause in the term next after that in which the writ is
returnreturnable, and in a country cause at the ensuing assizes.
AND IT IS FURTHER ORDERED, That the expense of a witness called only to prove the copy of any judgment, writ, or other public document, shall not be allowed in costs, unless the party calling him shall, within a reasonable time before the trial, have required the adverse party, by notice in writing, and production of such copy, to admit such copy, and unless such adverse party shall have refused or neglected to make such admission.
VII. AND IT IT IS FURTHER ORDERED, That the expense of a witness called only to prove the hand writing to, or the execution of, any written instrument stated upon the pleadings, shall not be allowed, un less the adverse party shall, upon summons before a Judge, a reasonable time before the trial, (such summons stating therein the name, description, and place of abode of the intended witness,) have neglected or refused to admit such handwriting or execution, or unless the Judge, upon attendance before him, shall indorse upon such summons, that he does not think it reasonable to require such admission.
VIII. AND IT IS FURTHER ORDERED, That in all cases in which any particular number of days, not expressed to be clear days, is prescribed by the rules or practice of the Courts, the same shall be reckoned exclusively of the first day and inclusively of the last day, unless the last day shall happen to fall on a
Sunday, Sunday, Christmas-day, Good Friday, or a day appointed for a public fast or thanksgiving, in which case the time shall be reckoned exclusively of that day also.
AND IT IS FURTHER ORDERED, That the above Rules shall take effect on the first day of next Easter term.
TENTERDEN. J. VAUGHAN.
END OF HILARY TERM.
In the Second Year of the Reign of William IV.
Wyatt v. Hodson.
THIS was an action on a promissory note for 10001., Under 9 G.4. which the Defendant, as a surety, had made jointly c. 14. payment
of interest and severally with his brother in November 1824.
within The statute of limitations having been pleaded, the years by one Plaintiff proved payment of interest by the Defendant's
orest by the Defendonte of several joint
contractors brother up to 1828; whereupon a verdict was found for takes a debt the Plaintiff, with leave for the Defendant to move to out of the
statute of set it aside, and enter a nonsuit, on the ground that limitations as payment of interest by a joint contractor would not, as against all. against the co-contractor, revive a debt barred by the statute.
- Vol. VIII.
Jones Serjt. having obtained a rule nisi accordingly,
Wilde Serjt., who shewed cause, referred to 9 G. 4. c. 14. s. 1., which provides that nothing therein contained shall alter, take away, or lessen the effect of any payment of any principal or interest made by any person whatsoever; and to Whitcomb v. Whiting (a), Jackson v. Fairbank (6), Perham v. Raynal (c), Burleigh v. Stott (d), Pease v. Hirst (e), and Chippendall v. Martin (g) to shew that payment of interest by one of several joint contractors is an acknowledgment of debt binding on the others; when the Court called on
Jones. (Andrews Serjt. was with him.) The decision in Whitcomb v. Whiting, on which the subsequent cases are founded, was disapproved of in Atkins v. Tredgold (1), and is incompatible with Bland v. Haselrig. (i) And the 9 G. 4. c. 14., which has enacted that even an actual promise to pay shall not revive a six years' debt, unless such promise be in writing, could never mean to give a greater effect to an implied promise. Now the payment of interest is only an acknowledgment from which a promise to pay may be implied, and though by an exception in the statute it is enacted, that payment of interest by any person whatsoever shall prevent the time of limitation from taking effect, yet that must be confined to the individual paying, or an executor or administrator; the word whatsoever being substituted for executor and administrator, which immediately before occur in the clause limiting the effect of a promise by one of many joint contractors. “ No joint contractor, or executor or administrator of any contractor, shall lose the benefit of