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1831.

KENNETT

MILBANK.

that this part of the acknowledgment has been supplied by the admission of counsel in Court; but that is not sufficient where the statute requires the acknowledgment to be in writing, and the only object of the admission is to save the time of the Court. Suppose, before the statute of 9 G. 4., the statute of limitations had been pleaded, and the counsel for the Defendant had admitted his handwriting, would that alone have taken the case out of the statute ? If not at a time when the whole of the admission might be by parol, why should it have that effect when the whole of the acknowledgment is required to be in writing ? The recent statute was intended to protect parties against demands made after an unreasonable time, and no injustice is done in giving it full effect.

GASELEE J. I am of the same opinion. The deed recites that the Defendant was indebted to the parties in the sums set opposite to their names; but no sum is mentioned as the plaintiff's debt, and, therefore, there is no evidence of any acknowledgment in writing. There is also another point in this case on which a difficulty arises: an acknowledgment before the time limited by statute has elapsed, has been held evidence from which a promise to pay may be inferred; but it is not clear that such an inference would be drawn where the acknowledgment is after the six years; and if there be any promise in this case, it is qualified with the condition that it should be void unless all the creditors whose debts amounted to 101. should sign the deed within a given time. The admission by counsel was made without prejudice, and cannot be taken into account.

BOSANQUET J. The late statute requires that the whole of the acknowledgment shall be in writing. The

acknow

1831.

KENNETT

MILBANK.

acknowledgment here is only in general terms, that the Defendant is indebted in the sums set opposite to the names of the parties, but no sum is specified as the amount of the Plaintiff's claim; therefore, without the additional evidence in writing of that sum, there is no such acknowledgment as the statute requires.

An acknowledgment, however, can only operate as evidence of a promise; and if it be accompanied with qualifications which shew it was not meant to operate as a promise, it will not be sufficient to take a debt out of the operation of the statute of limitations. The evidence here is a deed, which concludes with a proviso that unless all the creditors of a certain class come in and sign within a given time, the deed and the covenants contained in it shall be void. The acknowledge ment was part of the deed, and has become void for want of the condition required to give it validity.

ALDERSON J. The enactment which requires the acknowledgment of a debt to be in writing, must apply to the debt for which the plaintiff is suing. The acknowledgment here is only of some debt; but of what, remains to be made out by parol evidence. To admit such evidence under these circumstances, would defeat the whole object of the recent statute. It might lead to conflicting testimony, and produce all the inconvenience which that statute was designed to obviate.

Rule absolute.

[graphic]

1831.

Nov. 19.

YOUNG, Assignee of YOUNG, a Bankrupt, v. MARSHALL and POLAND, Sheriff of Middlesex.

THIS was an action for money had and received, The sheriff - brought by the Plaintiff, as assignee of Young, a sold goods

under a fi. fa., bankrupt, to recover the proceeds of certain goods of without notice the bankrupt sold by the Defendants as sheriff of Mid- of a previous

cact of bankdlesex, under a writ of fieri facias; the commission of

0 ruptcy by the bankrupt having been issued against Young on an act of Defendant, bankruptcy anterior to the writ of fi. fa.

and paid over

the proceeds of The Defendants had no notice of the bankruptcy the sale to the until after the levy, when they paid the proceeds over Plaintiff upon

an indemto the execution creditor under an indemnity.

nity: Held, A verdict having been found for the Plaintiff, that the De

fendant's as

signee might Taddy Serjt. obtained a rule nisi to set it aside, on properly sue the ground that the action was misconceived, and ought the sheriff in

an action for to have been trover; contending that the action for money had and received did not lie, at least against and received. a public officer, where the money had been paid over and the property changed.

action was misconce the action for money bived.

Wilde Serjt., who shewed cause, was proceeding to urge, that the sheriff, having paid over under an indemnity, stood in the same situation as the party indemnifying, when the Court called on

Taddy to support his rule. By the sale under the execution, the property in the goods was changed, and ceased to be the property of the bankrupt or his

assignee.

1831.

CORBETT

BROWN.

business of warehousemen for and during all that time had used exercised and carried on, and still did use, exercise, and carry on, at, &c.; that the Plaintiffs, so being warehousemen, and so using, exercising, and carrying on the said trade and business, one Henry Brown, before the committing of the grievance by the Defendant thereinafter next mentioned, on the 15th of April 1830, at, &c. applied to the Plaintiffs, and then and there stated, that he was about to commence business at Norwich, and that he had 3001. capital, his own property, to commence business with, at, &c., and then and there requested the Plaintiffs to sell goods to him Henry Brown in the way of the plaintiffs’ trade and business of warehousemen, and then and there referred the Plaintiffs to the Defendant to corroborate the statement of him, Henry Brown, that he had capital 3001. of his own property, to commence business with at, &c., whereof the Defendant afterwards, and before the sale of the goods by the Plaintiffs to the said Henry Brown thereinafter next mentioned, on, &c. at, &c. had notice, and was then and there requested by the Plaintiffs to inform them if the said Henry Brown had 3001. capital, his own property, to commence business with at, &c.; nevertheless the defendant, well knowing the premises, and that Henry Brown had not 300l. capital, his own property, to commence business with, at, &c., but fraudulently intending craftily and subtilly to deceive and injure the plaintiff in that behalf, to wit, on, &c. at, &c., falsely, fraudulently, and deceitfully informed the Plaintiffs, in answer to their enquiry, that the statement so made to them by Henry Brown as to the 300l. was perfectly correct, as the Defendant had advanced him, Henry Brown, the money; by means and in consequence of which information so given by the Defendant to the Plaintiffs as aforesaid, they, not knowing to the contrary, but believing therefrom that Henry

Brown

1831.

CORBETT

BROWN.

Brown had 3001. capital, his own property, to commence business with, at, &c., afterwards, to wit, on, &c. and on divers other days and times to wit, at, &c. were induced to give credit to Henry Brown, and did then and there sell and deliver to him divers goods on credit, at or for divers prices, in the whole amounting to a certain large sum of money, to wit, the sum of 7001.; whereas in truth and in fact the said Henry Brown, at the time of the Defendant so giving the information to the Plaintiffs as aforesaid, had not 3001. capital, his own property, to commence business with, at, &c., and the Defendant, at the time of his so giving the information to the Plaintiffs, well knew the same; and whereas in truth and in fact the Defendant, at the time of his so giving the information to the Plaintiffs, had not advanced the said sum of 3001., or any sum whatever, to Henry Brown. Averment, that Henry Brown now is in bad and insolvent circumstances, and that the sum of 7001. is wholly due and unpaid to the Plaintiffs, and that they are likely to lose the same.

Plea, not guilty, and issue thereon..

At the trial before Tindal C. J., London sittings after last term, it appeared that H. Brown, being about to open a shop at Norwich, applied to the Plaintiffs for a supply of goods upon credit; and upon enquiry as to his circumstances, he stated he had a capital of 3001. to begin with. The Plaintiffs were particular in their enquiries, and H. Brown referred to his father (the Defendant) to corroborate the truth of his statement; whereupon the following correspondence took place between the plaintiffs and the Defendant:

“ Your son, Mr. Henry Brown, has purchased goods of us, and referred us to you in order to corroborate his statement of having 3001. capital, his own property, to commence business with at Norwich. We require to D 2

know

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