1831. BEFORE LORD TENTERDEN, C. J. Dec. 13th. A. having a cause of action against B., is BRIANT v. EICKE, Gent., One &c. ASSUMPSIT. The declaration stated, in substance, that, in consideration that the plaintiff would enter into a bond to the sheriff of Surrey, the defendant underact, but does not took to indemnify him. Plea-General issue. discharged un der the Lords' execute any assignment, alleging that he has no property. After his dis B. a release: this release is good; and there fore, if in an ac It was opened on the part of the plaintiff, that the sheriff of Surrey would not seize certain goods under an excharge, he gives ecution, in a cause of Noakes v. Humphreys, without an indemnity; and that the plaintiff, being a client of the defendant's, was desired by him to join Mr. Noakes, the then plaintiff, in the bond to the sheriff, and that he (the defendant) said he would save the plaintiff harmless. It was further stated by the plaintiff's counsel, that the plaintiff did execute the bond, and was afterwards obliged to pay a sum of money. tion by A. against C., it appear that A. might sue B. if he did not reco ver against C., A. may, notwithstanding this discharge, release B. and make him a competent wit ness. To prove the agreement of the defendant to save the plaintiff harmless, Mr. Noakes was called. The defendant objected that he was not a competent witness, as he would be liable in an action by the plaintiff if the latter did not succeed in the present action. To obviate this objection, the plaintiff released Mr. Noakes. The defendant.-This release, I submit, is not good, as the plaintiff, since the cause of action against Mr. Noakes accrued to him, has been discharged under the Lords' act. To prove which, I have here examined copies of all the proceedings. Lord TENTERDEN, C. J.-Has any assignee been appointed under the Lords' act? The defendant.-No, my Lord. When Mr. Noakes came up under the Lords' act, he swore he had nothing to assign, and therefore no assignment was executed. Lord TENTERDEN, C. J.-The words of the Lords' act (a) are, that "no release of any such prisoner or prisoners, his or her executors or administrators, or any trustee for him, her, or them, subsequent to such assignment and conveyance, shall be pleadable or be allowed of in bar of any action or suit, which shall be commenced by any such assignee or assignees of any such prisoner or prisoners, for the recovery of any of his, her, or their estate or effects." Was this release executed after the plaintiff's discharge under the Lords' act? Sir J. Scarlett.-Yes, my Lord. The defendant.-I submit that this cannot be a good release; the Lords' act requires the party to assign all his property; and if this party had a cause of action against Mr. Noakes, would not the Court call upon him to amend his schedule, and assign it; and, if his assignee sued Mr. Noakes, would a release by the plaintiff be any defence? Can this, therefore, be a good release? Lord TENTERDEN.-This release does not come within the provisions of this act of Parliament; and I must, therefore, receive the witness. Mr. Noakes was examined. Verdict for the plaintiff. Sir J. Scarlett and R. V. Richards, for the plaintiff. The defendant in person. [Attornies-Vansandau, and Eicke.] (a) 32 Geo. 2, c. 28, s. 13. 1831. BRIANT v. EICKE. 1831. BRIANT บ. EICKE. IN the ensuing Term, Curwood moved for a rule to shew cause, why there should not be a new trial. But the Court refused the rule. Dec. 16th. DICKENSON, Gent., v. HATFIELD. If, since the stat. ASSUMPSIT for 5l. 8s. 6d. for a balance due on a pro 9 Geo. 4, c. 14, a defendant by a missory note. Pleas-General issue, and the statute of letter admit a balance to be due, without stating the take the case out of the statute as to entitle the plaintiff to no minal damages. limitations. It appeared that the defendant gave the plaintiff a proamount, this will missory note for 237. in the year 1820, to be paid by instalments; and that, in April, 1824, there were 47. due upon of limitations, so it; when the plaintiff wrote to the defendant on the subject, and received an answer from the defendant expressing regret that the balance was not paid, and saying that his brother should shortly call and pay it. At the bottom of this letter was a postscript, directing that the postage of the letter should be put to the defendant's account. were previously The present action was commenced in January, 1830; so that six years did not intervene between the date of this letter and the commencement of the action. The object of the stat. 9 Geo. 4, c. 14, was to procure that in writing for which words sufficient. Comyn, for the defendant.-I submit that the defendant is barred by the statute 9 Geo. 4, c. 14; for, though the defendant by his letter admits that something is due, he does not specify any particular sum. And it was decided in the Court of Common Pleas, in the last Term, that a written acknowledgment of a debt, without stating the amount, was not sufficient to take the case out of the statute, as Lord Tenterden's act requires that an acknowledgment of the whole debt should be stated in writing (a). (a) Kennett v. Millbank, 8 Bing. 38. This was an action on a promissory note, in which the statute of limitations was pleaded. To take the case out of the statute a composition deed was put in. This Barstow, for the plaintiff, submitted, that even if the Court was with the defendant on this objection, he was still entitled to a verdict for the postage of the letter. Upon the question as to the construction of the act of Parliament he was stopped by the Court. Lord TENTERDEN, C. J.-I am of opinion that this debt is not barred by the statute. The object of the statute was to procure that in writing for which words were previously sufficient. Here there is an acknowledgment of a balance due, but what that balance was we are at a loss to know. The plaintiff is entitled to a verdict for a shilling damages. Verdict for the plaintiff, damages 1s. Barstow, for the plaintiff. Comyn, for the defendant. [Attornies-Dickenson & K., and Egan & W.] 1831. DICKENSON v. HATFIELD. LEAVE was reserved to the defendant to move to enter a nonsuit; but he acquiesced in the verdict, and no motion was made. deed was executed by the defendant, and recited that he was indebted to the plaintiff and others; but the amount of the debts was not specified. The plaintiff never executed the deed, and there was a proviso that if all creditors, whose debts amounted to 10%., did not execute the deed by a certain day, the deed should be void. It was admitted at the trial that the 1831. Dec. 17th. BRADSHAW v. BENNETT. In assumpsit by ASSUMPSIT for money had and received. Plea— vendee against vendor to recover back a deposit paid on the purchase of real property, the defendant at the trial produced (under a notice to pro duce) the agreement which had been signed at the foot of the conditions of sale:-Held, that it was not necessary to call the subscribing witness to prove General issue. This action was brought by the vendee against the vendor to recover back a deposit paid on the purchase of certain property, alleged to be held under the Clayton estate. The plaintiff had purchased the property at auction, and had signed the usual agreement at the foot of the conditions of sale. This agreement was produced by the defendant under a notice to produce. Campbell, for the defendant, objected that the sub the execution of scribing witness must be called. this agreement. Where, in the particulars of sale, property Kelly, for the plaintiff, cited the case of Doe dem. Tyn was stated to be dale v. Hemming (a). held under the C. estate upon three lives, and it appeared in an action to recover back the deposit, that one of the lives had dropped before the sale, and that the property was not held directly under the C. Campbell.-The instrument is admissible without calling the subscribing witness only where the party has a benefit under it; for instance, if there was a lease, and the party enjoyed the land under it; but this is a case where a subscribing witness is most wanted. It is an action on the instrument, which the defendant says he is not to be bound by. The subscribing witness is necessary that the defend- to prove what occurred when this agreement was entered estate:-Held, ant could not call the auc tioneer to prove that he stated before the sale into. Lord TENTERDEN, C. J.-What are the cases in which that the life had it would not be necessary to call the subscribing witness? dropped; but that the defend ant might give evidence to shew that, before the sale, the plaintiff had read the original lease under which the property was held. A party recovering back a deposit paid on the purchase of real property is not entitled to interest. (a) 9 D. & R. 15. And see also the cases of Pearce v. Hooper, 3 Taunt. 60; Orr v. Morris, 6 Moore, 347; and Burnett v. Lynch, 8 D. & R. 368. All the cases on this subject are abstracted in 1 Phill. on Ev. 448. |