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1831.

KENNETT

MILBANK.
MILB

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.

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 gonds

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 dlesex, under a writ of fieri facias; the commission of

f act of bank

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 indem to 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 mone 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.

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.

YOUNG

MARSHALL.

assignee. Perkinson v. Gilford(a), Clerk v. Withers (6), Moreland v. Pellatt, per Bayley J. (c) Although, therefore, the assignee might sue the sheriff in trover for improperly detaining goods to which the assignee was entitled, Price v. Helyar (d), he could not sue him in assumpsit for proceeds arising from the goods after the property in them had been changed by a venditioni exponas under the fi. fa. Besides, by suing in form ex contractu, he treats the sheriff as his agent, and affirms all his previous acts. After affirming the sale, therefore, the Plaintiff cannot claim the proceeds on the ground that the sale was not warranted. At all events, the action is too late after the sheriff has paid the money over in obedience to a writ. Thurston v. Mills. (e) The sheriff, as a public officer, ought to be protected where he acts without notice.

Tindal C. J. The verdict for the Plaintiff in this case may be supported on a principle generally known and acknowledged in Westminster Hall. This is an action by the assignee of a bankrupt against the sheriff of Middlesex, on the ground that he has sold, under a fi. fa., goods belonging to the Plaintiff, and which he ought not to have taken. But no party is bound to sue in tort, where, by converting the action into an action of contract, he does not prejudice the defendant; and, generally speaking, it is more favourable to the defendant that he should be sued in contract, because that form of action lets in a set-off, and enables him to pay money into Court. It has been contended, however, that the action does not lie here, because the Defendant has paid the money over to a judgment creditor without

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notice of the act of bankruptcy. If that were so, I 1831.

on in the Demo should agree that the money was no longer in the De

YOUNG fendant's hands to the use of the Plaintiff: but money paid over on an indemnity, may be said not to have MARSHALL. been paid over at all: the Defendant, however, paid after notice, for he paid upon an indemnity, and that could only have been exacted on knowledge of the facts. The case, therefore, falls within the general rule, that a party is not bound to sue in tort, where, by suing in contract, he produces no injury to the Defendant.

Park J. The indemnity is of itself strong evidence of notice before the payment.

BosanguET J. By relation to the act of bankruptcy, the property was in the Plaintiff at the time of sale. The Plaintiff, who sues in an action for money had and received, does not thereby affirm the acts of the sheriff, he merely waives his claim to damages for a wrong, and seeks to recover only the proceeds of the sale. It is true the sheriff is a public officer, but if he pays over upon an indemnity, he pays with notice, and the Plaintiff, who is entitled, must recover.

ALDERSON J. If ever the question should arise, whether the sheriff is liable when he has sold and paid over without notice of the act of bankruptcy, the Court will determine it; but no such question arises here, because the indemnity is virtually notice. It has been urged, that the property is changed by sale; and so it is as between a purchaser and the party against whom execution has issued, but not as against a party whose goods have been wrongfully taken. By proceeding by the action for money had and received, the party merely waives his claim to damages for the seizure and detention of the goods, and is content to sue for the proceeds.

Rule discharged.

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