1834.

COPPIN

υ.

POTTER.

would not be supported by producing an affidavit filed in the office of the filacer for Sussex. In Ex parte Camp bell (a), Lord Eldon refused to receive under one commission of bankruptcy, a deposition made under another; and the principle of that decision is applicable here. At least, an office copy of the affidavit should have been filed in the office of the filacer for Cornwall.

In Boyd v. Durand, the party had paid for an office copy, and therefore was not allowed to suffer for the default of the officer of the court.

Anderson v. Hayman (b) is in point for the Defendant. The affidavit may suffice for a second county if sworn before the same filacer for another county, but not if sworn before the same deputy.

Then as to its form, the affidavit should have stated the legal operation of the debt, and a debt due to a wife in her capacity of administratrix is not, in law, a debt to husband and wife. The husband has no legal in terest in a debt due to his wife in autre droit. Wentw. Offic. Ex. 380. 1 Roll. Abr. Exec. pl. 3. Beamond v. Long. (c)

Cur, adv. vult

TINDAL C. J. The chief objection on which it is sought to discharge the Defendant from arrest is, that after a writ had been issued against him into Sussex, upon an affidavit sworn before the deputy filacer for: Sussex, who is also the deputy filacer for Cornwall, an alias writ ought not to have been issued into Cornwall without a new affidavit, or an office copy of that which has been sworn. But the answer to this objection is," that by the rule of Court founded on the recent statute, the alias writ takes the place of the testatum, and when issued into another county, there can be no other. The rule 6 & 7 Trin. 3 W. 4. is, "That any alias or pluries (b) 2 B. M. 192. (c) Cro. Car. 208. 227.

(a) 2 Rose, 51.

writ of summons may, if the Plaintiff shall think it de-
sirable, be issued into another county; and any alias or
pluries writ of capias may be directed to the sheriff of
any other county, the Plaintiff in such case, upon the
alias or pluries writ of summons describing the Defend-
ant as late of the place of which he was described in the
first writ of summons, and upon the alias or pluries
writ of capias referring to the preceding writ or writs,
as directed to the sheriff, to whom they were, in fact,
directed;" and the statute 2 W 4. c. 39. s. 10. enacts,
"That no writ shall be in force for more than four
calendar months from the day of the date thereof; but
every writ upon summons and capias may be continued
by alias and pluries, as the case may require, if any
Defendant therein named may not have been arrested
thereon, or served therewith." The only question is,
whether we are satisfied that this was an alias writ,
meant to continue the former. And the first observa-
tion is, that the Defendant has a copy of the writ by
s. 4. of the same act; and yet he has not produced it,
to satisfy us that the present writ was not meant to
continue it. But the office copy of the præcipe shows
that this is an alias; and it must be an alias by con-
tinuance, for the statute does not contemplate any other.
The statute does not authorise several writs running at
the same time with a clause of alias. This case, there-
fore, is governed by Boyd v. Durant, where the same
person filled the office of deputy filacer for Middlesex
and Surry; and an affidavit against the defendant having
been lodged with the filacer for Middlesex, a second
affidavit, or an office copy of the first, was held unne-
cessary, upon issuing a second writ against the defendant
into Surry. The alias capias is virtually and substan-
tially what an old testatum capias was, and in such
case all has been done that the statute of 12 G. 1.
requires.
VOL. X.

G g

As

1834.

COPPIN

V.

POTTER.

1834.

COPPIN

V. POTTER.

As to the second objection, we think the affidavit shows sufficiently the nature of the debt, and is in the form which has been of late used in affidavits on similar occasions.

Rule discharged.

Jan. 31.

DABBS v. HUMPHRIES.

"I beg to say I cannot comply with your request. The best way for you would be to send me The Defendant pleaded the statute of limitations, and the bill you at the trial, before Alderson J., last Winchester assizes, hold, and draw another attempted to show that a former action on the same bill for the balance was still pending. The only evidence, however, adduced in support of that ground of defence was a declaration, in 1829, by the Plaintiff and one Satterthwaite, as assignees of Cull, a bankrupt, upon a bill for the same amount, of the same date, and between the same parties.

THE Plaintiff declared against the Defendant as acceptor of a bill of exchange for 150%, drawn by the Plaintiff July 14, 1826, and payable two months after date.

of your

money,

301. gs. 9d.:"

Held, a suffi

cient acknow

ledgment that 301. 95. 9d. was due, to take the case out of the statute of limitations.

In answer to the defence on the statute of limitations, the Plaintiff gave in evidence the following letter from the Defendant. "Chichester, Sept. 30th, 1827. Dear Sir,I received yours. I beg to say that I cannot comply with your request yet; I told you that I should not be able to send you any money until after our fairs. I think 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 307. 9s. 9d. The interest of your 3001, and the interest of my money, we can settle when I am in London, which will be shortly. Draw

the

the bill at two months, and I will make it payable at Knotts. I remain," &c.

Upon which a verdict was taken for the Plaintiff for 30l. 9s. 9d., which

Bompas Serjt. obtained a rule nisi to set aside, on the ground that the Defendant's letter was not a sufficient acknowledgment of debt, and promise to pay, to make the Defendant liable: That, at all events, it contained a condition, the performance of which had not been shewn, namely, the giving another bill, without which the acknowledgment was unavailing: Fearn v. Lewis (a), Kennett v. Milbank (b): And that the evidence of a former action threw such suspicion upon the Plaintiff's case, as to cast upon him to give evidence that he now held the bill on a bonâ fide consideration.

Merewether Serjt. shewed cause. The acknowledgment and promise contained in the letter are sufficient to take the case out of the statute of limitations. It admits 30l. 9s. 9d. to be due as the balance of a bill of exchange; and it was not shewn that any other bill was ever accepted by the Defendant. The surrendering the old bill was not the condition of the Defendant promising to pay the amount due, but the condition of giving a new bill for that amount, which new bill the Plaintiff never required. In Fearn v. Lewis, and Kennett v. Milbank, the promise to pay was conditional. But in Dickinson v. Hatfield (c), Lord Tenterden held that the words contained in a letter from the defendant to the plaintiff, in which he promised to pay "the balance," were a sufficient acknowledgment to shew that something was due; and in Letchmore v. Fletcher (d), a promise

(a) 6 Bingh. 349.
(b) 8 Bingh. 38.
(c) 2 M. & R. 141.

(d) 1 Cr. Mea. 633. S. C. 3 Tyrw. 450.

Gg 2

in

1834.

DABBS

V.

HUMPHRIES.

.1884.

DABBS

in writing, signed by the party chargeable thereby, to pay his proportion of a joint debt more than six years old, was held sufficient to take the case out of the HUMPHRIES. operation of the statute.

V.

And the Plaintiff being at once the drawer and holder of this bill, the mere declaration in the joint names of himself and Cull, did not throw any suspicion on his title. If that declaration had produced any result, the Defendant might have shewn it.

Bompas. The Defendant's letter contains no promise to pay, nor even any admission of an amount actually due, but only of what will be due at some future time, if the Plaintiff performs the condition of giving up the old bill. There ought to have been an express promise to pay, and an unconditional acknowledgment of the debt by the party chargeable. Tanner v. Smart (a), Haydon v. Williams (b), Whippy v. Hillary. (c) Here there was no promise to pay except by acceptance of a bill at two months. At all events, performance should have been shewn of the condition to de liver up the old bill. And the proof of the declaration delivered in the name of the Plaintiff and Cull, threw a sufficient doubt on the Plaintiff's title to cast it on him to shew how the bill came again into his hands. There should at least have been an indorsement from Cull's assignees to the Plaintiff. In Machell v. Kinnear (d), where a bill of exchange was, by the direction of the payee, indorsed in blank, and delivered to A. B. and Co., who were bankers, on the account of the estate of an insolvent, which was vested in trustees, for the benefit of his creditors; it was held, that A. and B., two of the members of the firm, and also trustees, could not conjointly with a third trustee, who was not a

(a) 6 B. & C. 603.
(b) Bingh. 163.

7

(c) 3 B. & Adol. 399.
(d) 1 Stark. 499.

member