Swann, Esq. v Sowell
| Jurisdiction | England & Wales |
| Judgment Date | 23 June 1819 |
| Date | 23 June 1819 |
| Court | Court of the King's Bench |
English Reports Citation: 106 E.R. 543
IN THE COURT OF KING'S BENCH.
2 B. &ALD. 760. SWANN V. SO WELL 543 swann, esq. v. sowell. Wednesday, June 23d, 1819. Assumpsit on a promissory note. Plea, first, general issue ; 2dly, Statute of Limitations ; but there was no plea or notice of set-off. It was proved that on the plaintiff's shewing the defendant the note within six years, the latter said, " You owe me more money : I have a set-off against it." Held by Bayley and Holroyd Justices, Best, Justice, dissentiente, that that was not a sufficient acknowledgment within six years to take the case out of the Statute of Limitations. Action against the defendant as maker of a promissory note, dated more than six years ago. Plea, first, general issue; secondly, Statute of Limitations. At [760] the trial before Best J. at the last assizes for the county of Cornwall, the plaintiff, in order to take the case out of the statute, gave in evidence that within six years the plaintiff had demanded payment of a note of hand which he took from his pocket and shewed the defendant, and said, " You know your hand-writing; " that defendant looked at the note, and said, " You owe me a great deal more money, and I have a ò et-off against it." Plaintiff said, "Furnish me with your account: I should be sorry to swear to a debt, if I owed you any thing. If you do not furnish me with your account, I shall put this into the hands of my solicitor;" that defendant then said, " You may do as you please : I shall defend it." There was contradictory evidence as to this declaration, and the case went ultimately to the jury on the credit of the different witnesses. The jury found a verdict for the plaintiff. Adam in last Easter term obtained a rule nisi for setting aside this verdict, as contrary to the learned Judge's opinion, and the weight of the evidence. On shewing cause the Court suggested, that independently of that, there was not sufficient evidence to take the case out of the statute, and directed that point also to be argued. Pell Serjt., and Selwyn, for the plaintiff, argued, that in order to take a case out of the Statute of Limitations, it was not necessary that there should be an express promise to pay; it was sufficient if the words used by the debtor amounted to an acknowledgment of an existing debt; for then the law would raise a promise to pay; and they insisted that the answer of the defendant to the application of the plaintiff clearly...
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... ... 822 ... Spencer v. Hemmerde [ 1922 ] 2 A.C. 507 , H.L.(E.) ... Swann v. Sowell ( 1819 ) 2 B. & Ald. 759 ... The following additional cases were cited in ... ...
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...(16 East, 420), Dowthwaite v. Tibbutt (5 M. & S. 75), Frost v. Bengough (1 Bing. 266), Rowcrofi v. Lomas (4 M. & S. 457), Swan v. Sowell (2 B. & A. 759), Mountstephen v. Brooke (3 B. & A.. 141). But if there are conflicting authorities upon the point, if the principles upon which the author......
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...debt made by the Defendant had taken the case out of the [330] statute of limitations. Bryan v. Horseman (4 East, 599), Swan v. Sowell (2 B. & A. 759), Mountstephen v. Brooke (3 B. & A. 141), Rowcroft v. Lomas (4 M. & S. 457), Leaper v. Tatton (16 East, 420). Spankie Serjt., who shewed caus......