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![handle is hein.slavery/ssactsengr0311 and id is 1 raw text is: WETHERELL V. LANGSTON
On the other hand, it was contended by Mr. Peacock for the defendant in error,
that the jury could not reject any part of the statement in the answer, for that the
statute 9 Geo. 4, c. 14, says that no acknowledgment by words only shall be deemed
sufficient evidence of a new or continuing contract, unless such acknowledgment or
promise shall be made or contained by or in some writing, to be signed by the party
chargeable thereby, and which words apply as well to an acknowledgment of a pay-
ment as to an acknowledgment of a debt, and therefore, as the acknowledgment [632]
must be in writing, nothing could be added to it by parol, and the Court must construe
it altogether, as written by the defendant, and if so construed, the answer did not
admit a payment in discharge of interest on a debt, but expressly denied it.
In the course of the argument, many observations were made on the one side and
the other upon the case of Willis v. Newham (3 Y. & J. 518), in which it was held
that a verbal acknowledgment of part payment of a debt within six years would not,
after 9 Geo. 4, c. 14, be an answer to a plea of the Statute of Limitations; but it
seems to us quite unnecessary to express any opinion on that point : in reality there
is no question here upon the 9 Geo. 4, c. 14. The defendant has made no admission
by words only, not contained in a writing signed by him; whatever admission he
has made was made in writing, signed and sworn to by him, and the true question
is, what did he admit by that writing. For the purpose of this argument, it may
be assumed, that the acknowledgment of a payment, as well as any other acknowledg-
ment, must be in writing, signed by the party; and we agree with Mr. Peacock, that
the written admission by the defendant must be construed by the Court; and we
think that the plain meaning of it is, that the defendant admits having paid 81. 10s.,
half-yearly, to Elizabeth Craven down to December, 1842, but asserts that such
payment was made by way of annuity, and not as interest on a debt. We also agree
with Mr. Peacock, that the whole admission must be laid before the jury as one entire
writing,-but we are also of opinion that the jury were not bound to believe the whole
of it; they might believe the fact of 81. 10s. being paid half-yearly, but reject the
residue, and infer from the other evidence in the case that the payments were made
for interest upon a debt. If the admission had been merely that the defendant had
paid the sum of 81. 10s. half-yearly, without adding that it was appropriated to any
particular ac-[633]-count, there can be no doubt that the jury might have inferred
from the evidence that a debt existed, and that interest was paid down to a certain
period, that the subsequent payments admitted to have been made were also for
interest. In Waters v. Tompkins (2 Cr. M. & R. 723), it was held, that where the
fact of payment of a sum of money is proved, the appropriation of it may be shewn
by other evidence, even by a verbal statement. Here the fact of payment was proved
by an admission in writing, and of the appropriation there was sufficient evidence to
be left to the jury. The only question is, whether the assertion of the defendant
respecting the 'appropriation was conclusive. If the payments had been accompanied
by that assertion, they would have been qualified by it, and could not have been treated
as payments of interest on a debt; but here there is an admission of a by-gone act,
viz. payment, and an assertion respecting it, which may or may not be true. It is
no part of the act, but only what the defendant chooses to say respecting it. We
think, therefore, that although that assertion must be admitted as evidence, the jury
ought to have been allowed to contrast it with the other evidence in the case, and
to decide whether the payments admitted were for interest or not; and inasmuch as
that other evidence was withdrawn from their consideration, and they were directed
to find for the defendant, there must be a venire de novo.
Venire de novo.
[6341 WETHERELL, Clerk, v. LANGSTON. Dec. 2, 1847.-If A. covenant with B. & C.,
their executors, administrators, and assigns, although C. do not execute the deed
or assent to the covenant, and afterwards disclaim it by deed, to which A. is no
party, B. cannot alone (living C.) sue A. upon the covenant.
[S. C. 17 L. J. Ex. 338.]
Covenant. The declaration set forth an indenture, dated 30th December, 1842,
made between John Mynde Cooke, and Eliza his wife, of the first part; the plaintiff
in error (the defendant below), of the second part; and the defendant in error (the
I EX. 632.](ViewImageLocal?handle=hein.slavery/ssactsengr0311&div=1&collection=&method=preview&ext=.png&size=3)