member of the firm, maintain an action against the indorser, without some evidence of the transfer of the bill to them as trustees, by the firm, by delivery or otherwise. TINDAL C. J. I think there is no ground for disturbing this verdict. It is objected, that though the plaintiff was the holder of the bill at the time of the trial, yet, as it appears to have been out of his possession at a former time, he ought to have shewn how he reacquired dominion over it. Now the Plaintiff is the drawer of the bill; it is in his custody at the time of the trial, and primâ facie he must be taken to be a bonâ fide holder. The declaration of 1829 is no proof of the facts alleged in it; for aught that appears to the contrary, it may be the mere fiction of a pleader, for it was not proved even that a writ was sued out. There is no evidence, therefore, that the bill was ever out of the hands of the Plaintiff. Even had that appeared, it was for the Defendant to shew that it did not come properly back. The answer to this objection, therefore, is, that the Defendant has not gone far enough in his proof. With respect to the statute of limitations, the only question is, whether the letter of September the 30th 1827, contains a conditional or qualified promise to pay the debt. I think it is not qualified in any way. It contains a direct acknowledgment of a balance of 30l. 9s. 9d. being due, and on the very bill now in suit, for no other is shewn to have existed. The words, "I cannot comply with your request yet," are an admission that something is due. "The best way for you would be to send me the bill that you hold, and draw another for the balance of your money, which will be Sol. 9s. 9d." This passage is relied on for the Defendant, as shewing that the balance was not at that time ascertained; but in ordinary parlance it means that 30l. 9s. 9d. is Gg 3 your 1884. DABBS บ. HUMPHRIES. 1834. DABBS your balance. "Draw the bill at two months, and I will make it payable at Knotts." He gives the Plaintiff the opportunity of drawing if he pleases, but the admission HUMPHRIES. as to the amount due is unqualified. The case, therefore, is taken out of the statute, and the Plaintiff is entitled to retain his verdict. PARK J. I am of the same opinion. The main question is as to the statute of limitations, as to which it has been contended that the Defendant's letter contains no more than a conditional acknowledgment. If there be any thing of a condition, it is as to the surrender of the old bill upon a new one being drawn. There is no condition in respect of the sum due or the liability to pay. But it does not appear to me that the letter contains any condition. And if it referred to any other bill accepted by the Defendant, as it has been argued for the Defendant, the Defendant should have established that, in proof. The expression 30l. 9s. 9d. will be the balance, means, in common parlance, is the balance. The case, therefore, is not inconsistent with the decisions which have been cited. BOSANQUET J. I think there was no evidence at the trial to impeach the Plaintiff's title. He was the drawer, the Defendant the acceptor of the bill; and in order to rebut the presumption arising from the Plaintiff's being, under such circumstances, the holder of the bill, a declaration was produced, according to which the Plaintiff appeared to be suing jointly with another person, on a bill corresponding with the present; but the proceeding does not appear to have been continued, nor any thing to have occurred which could shew that the bill had been satisfied, or that the title to it was out of the Plaintiff. In Machill v. Kinnear, the plaintiff was not the drawer of the bill, which was the subject of the action, and and the facts of that case were altogether different from those of the present. 1834. DABBS V. As to the question upon the statute of limitations, we must read the Defendant's letter as plain persons would HUMPHRIES. do: so reading it, it is impossible to consider it other than a direct acknowledgment, that 30l. 9s. 9d. is due to the Plaintiff. I agree, that if an acknowledgment be accompanied with a condition, the law will treat the promise to pay as conditional; but the acknowledgment here is unconditional; and as to the identity of the bill no evidence was given of the existence of any other. The whole of the circumstances were left to the jury, and there is no reason for disturbing the verdict. ALDERSON J. I am of the same opinion. As to the point upon the Plaintiff's title to the bill, there was not sufficient evidence to raise it. The Plaintiff was the holder of the bill, and the declaration of 1829 did not, of itself, cast sufficient doubt on his title to call on him to account for his possession. With respect to the statute of limitations, if the jury believed that this was the bill referred to, the Defendant's letter is sufficient to take the case out of the statute. In one respect, indeed, there is a condition in the letter: the Plaintiff could not have compelled the Defendant to give a new bill, without first delivering up the old one: but the acknowledgment of a debt of 301. 9s. 9d. is absolute and unconditional. Rule discharged. VOL. X. END OF HILARY TERM. Gg 4 CGP 1834. Feb. 1. (IN THE EXCHEQUER CHAMBER.) GARLAND V. CARLISLE. UPON error from the Common Pleas, the judgment of that Court in this cause was, after argument, now affirmed. (See 7 Bingh. 298.) The point decided being in effect the same as that upon which judgment has so recently been given at great length in Balme v. Hutton (a), confirming the principle established by Cooper v. Chitty (b), Lazarus v. Waithman (c), Price v. Helyar (d), Carlisle v. Garland (e), Potter v. Starkie (g), Wyatt v. Blades (h), Lee v. Lopes (i), and Dillon v. Langley (k), it would be superfluous, in these reports, to give the case at length. Gurney B., Taunton, J. Parke, and Littledale Js. were for affirming the judgment upon the point decided in Balme v. Hutton, and Bolland, Vaughan, and Bayley Bs. with Denman C. J., were for reversing it on that point, to the extent of 445l., the value of the goods detained for the execution-creditor. To the extent of 51., the value of goods detained for sheriffs' poundage, the Court was unanimous for affirming the judgment of the Court below. (a) 9 Bingh. 471. Judgment affirmed. (g) Sela. N. P. 1431. & S. 260. (b) 3 Campb. 396. (i) 15 East, 239. 2 M. REGULÆ GENERALES. IT IS ORDERED, That from and after the first day of Easter term next inclusive, the following rules shall be in force in the Courts of King's Bench, Common Pleas, and Exchequer of Pleas, and Courts of Error in the Exchequer Chamber. 1. No demurrer, nor any pleading subsequent to the declaration, shall in any case be filed with any officer of the Court, but the same shall always be delivered between the parties. 2. In the margin of every demurrer, before it is signed by counsel, some matter of law intended to be argued shall be stated; and if any demurrer shall be delivered without such statement, or with a frivolous statement, it may be set aside as irregular by the Court or a Judge, and leave may be given to sign judgment as for want of a plea. Provided that the party demurring may, at the time of the argument, insist upon any further matters of law, of which notice shall have been given to the Court in the usual way. 3. No rule for joinder in demurrer shall be required; but the party demurring may demand a joinder in demurrer, and the opposite party shall be bound, within four days after such demand, to deliver the same; otherwise judgment. 4. To a joinder in demurrer no signature of a serjeant or other counsel shall be necessary, nor any fee allowed in respect thereof. 5. The issue or demurrer book shall on all occasions be made up by the suitor, his attorney or agent, as the case may be, and not, as heretofore, by any officer of the Court. 6. No motion or rule for a concilium shall be required; but demurrers, as well as all special cases and special verdicts, shall be set down for argument, at the request of either party, with the Clerk of the Rules, in the King's Bench and Exchequer, and a Secondary in the Common Pleas, upon payment of a fee of 1s.; and notice thereof shall be given forthwith by such party to the opposite party. 7. Four clear days before the day appointed for argument, the plaintiff shall deliver copies of the demurrer book, special case, or special verdict, to the Lord Chief Justice of the King's Bench or Common Pleas, or Lord Chief Baron, as the case may be, and the senior Judge of the Court in which the action is brought; and the defendant shall deliver copies to the other two Judges of the Court next in seniority; and in default thereof by either party, the other party may, on the day following, deliver such copies as ought to have been so delivered by the party making default; and the party making default shall not be heard until he shall have paid for such copies, or deposited with the Clerk of the Rules in the King's Bench 1834. |