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1835.

REEVES

WARD.

brought against the defendant as executrix; and she has not in the ordinary form pleaded that she has fully administered, and had not at the time of the commencement of the action, or at any time since, had any goods and chattels which were of the testator at the time of bis decease in her hands to be administered; but has omitted the first allegation, that she had fully administered. It appears to me that the short answer to this objection is, that the plaintiff has thought fit to join issue on the plea as it stands—on that which is the material and substantive part of the plea, whatever be its form. Whether or not the plea would be bad on special demurrer, we are not now called upon to decide: it is enough for the occasion to say that the point is first raised after a verdict for the defendant upon a traverse of the substantial part of the plea. Hewlet v. Framingham, 3 Lev. 28, is an authority to shew that a plea of plene administravit alone is ill (a): but I am not aware of any case where the omission of those words has been held to vitiate the plea. The nature of the judgment non obstante veredicto, and the ground upon which it proceeds, is this, that the defendant's plea, if proved or admitted, does not avail as a defence to the action. But it would be strange to say, that, when an issue has been joined on a substantial part of the defendant's plea, and a verdict has been found for the defendant upon such issue, the plaintiff is nevertheless entitled to a verdict in his favour—that, where an executrix has pleaded that she had not at the time of the commencement of the action, nor at any time since, had any goods of the testator in her hands as executrix to be administered, and issue taken thereon, and found for the defendant, the plaintiffs are still entitled to judgment. 2. The next ground is, that the plea did not admit of the evidence offered. That objection is almost answered by the consideration as to the form of the

Second point.

(a) And see Bracebridge v. Baskerville, 1 Leon. 68.

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WARD.

plea. It may be further answered by this, that, if the plea 1835. had contained, as it is contended it ought to have done, an allegation that the defendant had fully administered, inasmuch as no issue could be taken on that allegation, the plaintiffs would still go to trial in precisely the same position as if those words had not been found in the plea. Neither more nor less evidence would have been required to sustain the plea. It is every day's practice, on an issue joined on the fact of the defendant's possession of assets, to give evidence of payments. How can the plaintiffs say they were taken by surprise, when they must have come to the trial prepared to meet precisely the same evidence whether the plea was in the one form or the other? The meaning of the plea is, that the defendant had no goods or chattels of the deceased, at the time of the commencement of the action, or since, undisposed of in the proper course of distribution. 3. As to that part of the rule which has refer- Third point. ence to a new trial-The defendant's son swore that he was present when Archard lent his father the money, and also when his mother repaid it after the death of his father. To confirm the boy's statement the receipt was produced. I am ready to admit, that, if the receipt had not been given at the time, and in the presence of the boy, it would not have been admissible to confirm his testimony. But we ought to see distinctly that this objection was taken at the trial. I see no reason for doubting the truth of the witness's statement; particularly as it is confirmed by the affidavit of Archard, who has sworn that the 141. were paid to him on the 9th December, 1834. Then, if that 141., and the 81. for the funeral, and 101. for the probate, be deducted from the assets confessed, they alone would suffice to reduce the sum in dispute between the parties to a less amount than 201. ; and therefore the case would fall within the general rule, that, where the matter in dispute is of less value than 201., and there is nothing perverse in the verdict, a second trial will not be granted on the ground of the balance of evidence being the other way,

1835.

REEVES

WARD.

Park,J.-I am of the same opinion. The principal question arises on the validity of the plea after verdict; for, whether or not it would be objectionable on special demurrer, we are not now called upon to determine. As the plaintiffs have thought fit to take issue on the plea as it stands, and no issue could by possibility have been taken upon the allegation that is omitted, had it been inserted, the verdict has passed upon the only issue that could have been presented to the jury, and therefore I am not disposed to interfere. Mr. Serjeant Williams, in his note to the case of Noell v. Nelson, 2 Wms. Saund. 220 a., distinctly says that the words in question are superfluous: and this opinion is not combated by the later editors of that highly valuable work, who admit the words to be unnecessary, though they seem to think it better to insert them. That a devastavit might be shewn under an issue taken on a plea framed like the present, appears from the passage cited from Williams's Excutors, and from Newion v. Richards. Where, then, is the hardship on the plaintiffs? I see none; for, the course of the evidence is in no degree varied. The credit due to the statement of the defendant's son was submitted to the jury: they believed it; and the affidavit of Archard now produced puts the matter beyond doubt.

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Gaselee, J.-The plea in this case is not framed according to the general and antient course of the precedents : but still I think the authorities that have been cited shew the allegation, the absence of which is complained of, not to be material or necessary. It struck me at first that the want of such an allegation might prevent the proper application of the evidence to a devastavit: but I feel that difficulty removed by the passage cited from Williams's book on Executors. I incline therefore to agree with the note in Saunders. This precise point did not arise in Newton v. Richards. That was a scire facias, and the question was whether the general plea was suffi

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cient, or whether the defendant should not have gone on to allege how he had administered, so as to shew that no claims of an inferior degree had been satisfied before the commencement of the action. At all events, the objection if available at all, should have been taken on special demurrer. Judgment non obstante veredicto can only be entered where the issue has been taken on a point that is immaterial. How can the issue here taken be said to be immaterial, when it is taken upon the very point upon which it must have been taken even had the plea been framed upon the model suggested on the part of the plaintiffs ?

Rule discharged.

LINLEY v. Bonsor.

Wednesday,

Nov. Ilth. ASSUMPSIT for goods sold and delivered between To take a case November, 1827, and June, 1828. The action was com- statute of limimenced on the 7th July, 1835. The defendant pleaded tations, the

plaintiff gave in the statute of limitations. At the trial before Parke, B., evidence letters

wherein the dem at the last Assizes for Yorkshire, to take the case out of fendant stated the statute, the plaintiff relied upon certain letters written that he would

have nothing to by the defendant to the plaintiff within six years, which do with the

plaintiff's claim, were said to contain an acknowledgment of the debt; and that he wished also upon a part payment. It appeared that the defendant he would make

him a bankrupt, had executed an assignment of his effects for the benefit of and that he

would rather go his creditors, who were to receive a certain composition to gaol than

pay the plaintiff upon the amount of their respective debts. The plaintiff in preference to

others of his

creditors who bad executed a composition deed. The Judge left it to the jury to say whether the letters contained an acknowledgment of the debt, telling them, that, to entitle the plaintiff to recover, it must be such an acknowledgment whence a promise to pay could be inferred. The jury having returned a verdict for the defendant-The court declined to disturb it, holding the direction to be proper.

To shew a part payment within six years so as to bring the case within the exception in the statute, the plaintiff proved a payment of a portion of his demand by one F., the trustee under a deed of composition, who was expressly instructed to make the payment as a full satisfaction, instead of which he handed the money over as a part payment, and took a receipt accordingly. This payment so made was expressly repudiated by the defendant:-Held, that this was not a payment within the exception. VOL. II.

DD

1835.

LINLEY

BONSOR.

had been requested to sign the deed, but declined to do so. Being at a subsequent period pressed by the plaintiff for payment of his demand, the defendant, on the 11th February, 1831, addressed him a letter containing the following:

“ You know I gave up all my affairs, and therefore I consider I have nothing to do with your claim, nor shall I. I wish you would make me a bankrupt: this is in your

power."

A person named Fox, a trustee named in the deed, as the agent of the defendant, and being instructed by him to pay the plaintiff the amount of the composition in full satisfaction and discharge of his debt (the amount of which did not appear on the face of the composition deed), handed over the money to the plaintiff, who received it as part payment, and gave a receipt accordingly. The defendant never assented to this payment, but, on the contrary, expressly dissented. And, in answer to a further solicitation on the part of the plaintiff, the defendant, on the 7th October, 1834, wrote to him as follows, the plaintiff having in the meantime arrested him :

“ I regret the inconvenience you have put me to by the arrest. You know I gave up every thing in Paradise Street, and that you have had the same as the rest. Why should I pay you in preference to those who have executed the deed ? I bad rather go to jail than do so."

These were the letters constituting the acknowledgment, and the part payment upon which the plaintiff relied.

The learned Baron left it to the jury to say whether the letters above set forth contained on the face of them an acknowledgment of the debt; telling them, that, to entitle the plaintiff to recover, it must be such an acknowledge mont whence a promise to pay could be inferred; and whether the part payment by Fox had been acknowledged or acquiesced in by the defendant. The jury returned a verdict for the defendant.

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