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1831.

CORBETT

BROWN.

know if such be the case. Any further information you may please to give will oblige us, and which we shall be happy to apply in promoting your son's object, provided we can consistently do so. We shall be glad of an answer by return of post; and are, &c.

CORBETT, Simes, and Co.” “ In reply to your letter of yesterday, I beg to acquaint you that the statement made to you by my son Henry as to the 3001, is perfectly correct, as I advanced him the money, being the utmost I could spare at the present time, in consequence of having a numerous family.

“I hope my son's dealings with you will be at all times as correct as the present statement; and am, &c.

JAMES Brown.” In consequence of the Defendant's letter, the Plaintiffs trusted H. Brown from time to time to a large amount, and he soon became bankrupt in their debt, paid a dividend of 8s. 6d. in the pound, and left the Plaintiffs losers of the sum of 3891. 10s. 7d. The 3001. Defendant had lent to H. Brown about three weeks before his letter to the Plaintiffs, the Defendant taking, at the time of the loan, H. Brown's promissory note for the amount, payable on demand, with interest at 5 per cent., which interest was paid up to the time of H. Brown's bankruptcy; but the Defendant declined to prove the 300l. as a debt under his son's commission. The jury found for the Defendant; whereupon,

Wilde Serjt. obtained a rule nisi to set aside this verdict as contrary to the evidence, the Plaintiffs having requested to know whether the Defendant's son had 300l. capital, of his own property, and the Defendant, having stated such to be the fact, when he knew his son had none but borrowed capital.

Jones

1831.

CORBETT

Brown.

Jones Serjt., who shewed cause, contended that the Defendant was warranted in the answer he had given, money lent by a parent being commonly intended as a gift; as it turned out in this case, the father having forborne to prove for his debt under the son's bankruptcy. Besides which, money borrowed, when once in the son's disposition, was as much his own property, and as applicable to mercantile purposes, as money realized by himself.

TINDAL C. J. We think there ought to be a new trial in this case on payment of costs; the jury having drawn a conclusion from the Defendant's letter, which, it seems to the Court, its contents do not warrant.

GASELEE J. concurred.

BOSANQUET J. A party who sets up in business on borrowed capital is in very different position in point of credit from a party who sets up unembarrassed with debt.

ALDERSON J. The question is, whether, from the statement's being false within the Defendant's knowledge, the Court must not infer fraud.

Rule absolute.

1831.

Nov. 17.

KENNETT V. MILBANK.

trus

Defendant, by 'HIS was an action on a promissory note, to which a deed reciting that he

the Defendant pleaded the statute of limitations. was indebted To take the case out of the statute, the Plaintiff put to Plaintiff

in a deed of 13th of March 1829, between the Defendant and others, assigned his of the one part, and the Plaintiff and one Cooper of the property to other; by which, after reciting that the Defendant was Plaintiff, in

pav all indebted to the Plaintiff and others, the Defendant assuch creditors signed a freehold estate and all his property to the Plainas should sign. tiff and Cooper, in trust to sell the same, and pay such the schedule of debts an- creditors as should sign their names to the schedule of nexed; pro- debts annexed, if the Defendant should have omitted to vided that if all did not pay 6s. 8d. in the pound by the 20th of December then sign, the deed next; with a proviso that if all the creditors, whose debts should be void.

: amounted to 101., did not sign by the 13th of August signed, nor was then next, the deed and all the covenants should be the amount of void. his debt stated: Held, not a

The Plaintiff never executed the deed, and the amount sufficient ac- of his debt was no where stated; but it was admitted by knowledgment counsel at the trial, that the promissory note sued on to take Plaintiff's debt out was the only debt due. of the statute It was objected, that the recital in the deed was not a of limitations, although it sufficient acknowledgment of the specific debt to take it was admitted out of the statute of limitations; and the verdict was

that he taken for the Plaintiff, with leave for the Defendant to had but one debt. move to set it aside, and enter a nonsuit instead.

Andrews Serjt. having obtained a rule nisi accordingly,

Wilde Serjt. shewed cause. The recital in the deed is a sufficient acknowledgment in writing to satisfy the

statute

1831.

KENNETT

MILBANK.

statute 9 G. 4. c. 14. It is stated in the deed, without qualification, that the Defendant was indebted to the Plaintiff; and it was admitted at the trial, that there was no other debt besides the promissory note. Before the statute 9 G. 4., a promise to pay was implied from an unqualified admission of debt. Tanner v. Smart (a), Haydon v. Williams (6), Gibbons v. MCasland (c), Mountstephen v. Brook.(d) The statute has merely required that the acknowledgment shall be in writing; for if it did not give the same effect to the acknowledgment when once established by writing, as was given before to a parol acknowledgment, it would be worse than nugatory. It may be collected, however, from the language of the statute itself, that an unqualified acknowledgment in writing was to have the same effect as before; for, after reciting that questions had existed as to the effect of acknowledgments and promises, it enacts, “ that in actions of debt, or upon the case, grounded upon any simple contract, no acknowledgment, or promise by words only, shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactments, or either of them, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby."

TINDAL C. J. The rule for entering a nonsuit in this case ought to be made absolute. The question is, whether the debt which the plaintiff seeks to recover has been taken out of the operation of the statute of limitations by any evidence adduced at the trial. Independently of the statute 9 G. 4. c. 14. I should have had

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1831.

KENNETT

MILBANK.

no doubt. But by that statute it is enacted, “ that in actions of debt, or upon the case grounded upon any simple contract, no acknowledgment, or promise by words only, shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactments, or either of them, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby.” The question, therefore, is, whether we have any evidence in writing of an acknowledgment or promise with respect to this debt. Evidence of promise there is none. A deed was put in, by which the Defendant, after reciting that he was indebted to the Plaintiff and others, assigned his property to the Plaintiff and Cooper in trust to sell the same and pay the creditors who should sign their name to the schedule of debts annexed, in case the Defendant should have omitted to pay 6s. 8d. in the pound by a given day; with a proviso that the deed and all the covenants in it should be void, unless all the creditors whose debts amounted to 101. signed within a certain time. The deed was never executed by the Plaintiff, nor does it even specify the amount of his debt. It cannot, therefore, be considered evidence of a promise; and the less so, as it became void for want of execution by the creditors within the stipulated time. Is it, then, evidence of an acknowledgment? By the 9 G. 4., which was passed to put an end to doubts which had arisen on the statute 21 Jac. 1., it is required that the whole of the acknowledgment shall be in writing. The deed in question is made in trust for those creditors who shall come in and sign the schedule ; but the plaintiff's name is not there; and the acknowledgment ought to go to amount as well as to credit, otherwise the Plaintiff might claim one thousand pounds as easily as one. It has been contended, indeed,

that

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