Haydon, Assignee of Sutton, a Bankrupt, v Williams

JurisdictionEngland & Wales
Judgment Date26 November 1830
Date26 November 1830
CourtCourt of Common Pleas

English Reports Citation: 131 E.R. 63

COURT OF COMMON PLEAS

Haydon, Assignee of Sutton, a Bankrupt
and
Williams

S. C. 4 Moo. & P. 811; 9 L. J. C. P. (O. S.) 16.

[163] haydon, Assignee of Sutton, a Bankrupt, v. williams. Nov. 26, 1830. [S. C. 4 Moo. & P. 811 ; 9 L. J. C. P. (0. S.) 16.] 1. Where a written promise to pay a debt barred by the statute of limitations, has been lost, oral evidence of the contents of the writing may be given. - 2. Such" a promise, if conditional, must be declared on as conditional, notwithstanding the 9 G. 4, c. 14, and notwithstanding it was given within six years from the time of contracting of the debt. Assumpsit for work and labour performed by Sutton as a surgeon and apothecary, and for medicines delivered to the Defendant, in 1820. The declaration was in the common form, and of Michaelmas term 1828. At the trial before Tindal C. J., London sittings after last Hilary term, the Plaintiff called as a witness Sutton the bankrupt, who stated, that about Midsummer 1823, he had received a letter from the Defendant, which he had since lost, and searched for in vain, in which letter the Defendant, referring to a demand for payment of his debt, said, that he was incapable then of paying the money, but would pay as soon as he had it in his power, and begged that instructions which had been given for suing him might be countermanded. It was objected on the part of the Defendant, that oral evidence of the written acknowledgment of the debt ought not to have been received; and that the evidence when received, did not sustain the declaration, which supposed an absolute, not a conditional promise. A verdict was taken for the Plaintiff, subject to a motion for a nonsuit on these points. Jones Serjt. moved accordingly, in Easter term ; urging that, by admitting parol evidence of an acknowledgment of a debt barred by the statute of limitations, the whole object of the statute 9 G. 4, c. 14, which requires that such acknowledgments shall be in writing, would be defeated ; and he referred to Willis v. [164] Nuneham (3 Young & Jar. 518), where an oral acknowledgment of the payment of part of a debt within six years, was held not sufficient within the statute 9 G. 4, c. 14, to take the case out of the statute of limitations. But even if the evidence were admissible, a written acknowledgment under that act ought at least to be as clear as an oral acknowledgment before the act : but an oral acknowledgment before the act, containing a promise...

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17 cases
  • Hodsden against Harridge
    • United Kingdom
    • Court of the King's Bench
    • 1 January 1845
    ...debt when able, without proof of his ability. 2 H. Black. 116, Besford v. Saitnders. [6 B, & C. 603, Tanner v. Smart. 9 D. & R. 549, S. C. 7 Bing. 163, Haydon v. Williams. 4 M. & P. 811, S. C. accord. So where in an action on a promissory note payable with interest, the plaintiff, in order ......
  • Courtenay v Williams
    • United Kingdom
    • High Court of Chancery
    • 20 July 1844
    ...of those mentioned in the judgment, were cited:-Rowtkdge v. Ramsay (8 Ad. & El. 221), Kennett v. Milbank (8 Bing. 38), Eaydon v. Williams (7 Bing. 163), Whippy v. Hillary (3 B. & Ad. 399), Higgins v. Scott (2 B. & Ad. 413), Mills v. Fowlces (5 Bing. N. C. 455), Linsell v. Bonsor (2 Bing. N.......
  • Hunter v Hunter, Executrix
    • Ireland
    • Queen's Bench Division (Ireland)
    • 7 November 1869
    ...M & W. 350; 7 L. J. Ex. 105. Ford v. BeechUNK 11 Q. B. 852; 27 L. J. Q. B. 114. Harris v. OsbournENR 2 Cr. & M. 659. Haydon v. WilliamsENR 7 Bing. 163. Ryall v. Rowles 2 Tudor, L. C. 665, and notes thereto, p. 722, 3rd ed. Wilson v. GabrielENR 4 B. & S. 243. Jeffs v. DayELRENR L. R. 1 Q. B.......
  • Anne Dodson v Mackey
    • United Kingdom
    • Court of the Queen's Bench
    • 14 January 1835
    ...unqualified; Fearn v. Lewis (6 Bing. 349): or, if it is conditional, the performance of the condition must be proved ; Haydon v. Williams (7 Bing. 163): there ought to be a promise implied; Brigstocke v. Smith (1 Cr. & M. 483; S. C. 3 Tyrwh. 445): and the amount payable ought to be specifie......
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