Philpot v Briant
| Jurisdiction | England & Wales |
| Judgment Date | 19 May 1828 |
| Date | 19 May 1828 |
| Court | Court of Common Pleas |
English Reports Citation: 130 E.R. 945
IN THE COURT OF COMMON PLEAS, AND OTHER COURTS
S. C. 1 Moo. & P. 754; 6 L. J. C. P. (O. S.) 182: at Nisi Prius, 3 Car, & P.244. Referred to, Oriental Financial Corporation v. Overend, 1871-74, L. R. 7 Ch. 146 (n); L. R. 7 H. L. 348.
philpot v. brunt. May 19, 1828. [S. C. 1 Moo. & P. 754; 6 L. J. C. P. (0. S.) 182 : at Nisi Prius, 3 Car. & P. 244. .Referred to, Oriental Financial Corporation v. Overe-nd, 1871-74, L. R. 7 Ch. 146 (n); L. R. 1 H. L. 348.] If the executor of the acceptor of a bill of exchange, orally promise to pay the holder out of her own state, provided he forbear to sue, and the holder forbear to sue in consequence; the promise being void, the drawer of the bill is not discharged by the holders having promised to give time, and having delayed to sue under such circumstances. Action by the holder against the drawer of a bill of exchange, which had been accepted by the drawer's brother. None of the counts in the declaration stated the acceptance or notice of non-acceptance. The defence was, that time had been given by the holder to the acceptor's executrix, without the knowledge or consent of the drawer; as to which the evidence was, that the bill, which was payable six months after date, was due March 19, 1823; that the acceptor died before that day ; that the Plaintiff applied to the acceptor's brother, the son and agent of his executrix, for payment^ [718] when he said there was not sufficient personal property to pay the bill then, but that if the Plaintiff would let the matter stand over, the executrix would engage to pay the bill out of her private income. Plaintiff promised, provided the interest were paid, to give a reasonable time; and in 946 PHILPOT V. BRIANT pursuance of this agreement, interest was paid out of the private income of the executrix. It was also objected that the declaration was insufficient, in not averring au acceptance or notice of non-acceptance. Park J., before whom the cause was tried at the London sittings after Michaelmas term, overruled the latter objection ; but upon a verdict being taken for the Plaintiff, reserved to the Defendant leave to move to enter a nonsuit on the former. Taddy Serjt. having obtained a rule nisi accordingly, Wilde Serjt., who shewed cause, argued that there was no consideration for the promise made bj the executrix to pay out of her own effects; and that even if there were, it was void under the statute of frauds, as not...
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