Murtagh v Crawford

• Jurisdiction: Ireland
• Judgment Date: 15 June 1848
• Date: 15 June 1848
• Court: Exchequer of Pleas (Ireland)

Exch.of Pleas.

MURTAGH

and

CRAWFORD.

Bayley v. AshtonENR 12 Ad. & El. 493.

Clarke v. Alexander 8 Scott's N. R. 147.

Eastwood v. SavilleENR 9 M. & W. 615.

Bevan v. Gething 3 Ad. & El. N. S. 740.

Willis v. Newham 3 Y. & Jer. 518.

Maghee v. O'NeillENR 7 M. & W. 531.

Waters v. TomkinsENR 3 Cr. M. & R. 722.

Wough v. CopeENR 6 M. & W. 824.

Ashby v. JamesENR 11 M. & W. 542.

HYde v. JohnstonENR 2 Bing. N. C. 776.

Moore v. StrongENR 1 Bing. N. C. 441.

Bewley v. Power Hay. & Jo. 368.

Bateman v. Pinder 3 Q. B. 574.

Willis v. NewhamENR 2 Y. & J. 518.

Maghee v. O'NeillENR 7 M. & W. 535.

Bayley v. AshtonENR 12 Ad. & El. 493.

Hyde v. JohnstonENR 2 Bing. N. C. 776.

Eastwood v. SavilleENR 9 M. & W. 615.

Bewley v. Power Hay. & Jo. 368.

Clarke v. AlexanderUNK 8 Scott, N. R. 147.

Pott v. CleggENR 16 M. & W. 321.

Willis v. Newham 3 Jo. & Jer. 518.

Webb v. Greenville Str. 1129.

Higham and wife v. RidgwayENR 10 East, 109.

Davies v. HumphreysENR 6 M. & W. 351.

446 CASES AT LAW. T. T. 1848. Pod.of Pleas. MURTAGH V. CRAWFORD. ASSUMPSIT, by the payee against George J. Crawford, the surviving maker of the following joint and several promissory note :- " Twelve months after date I promise to pay to William Murtagh, " jun., of Lisnagiral, the sum of £100 sterling, with interest at £6 "per cent. per annum, the same payable to the said Wm. Murtagh "so long as the principal is not called in. Value received to us in " presence of witness this 8th day of December 1838. "GEORGE CRAWFORD. " Witness--JAMES LEE. " GEORGE J. CRAWFORD. " THOMAS M4GOLDRICK." The defendant having pleaded non-assumpsit, and actin non accrevit infra sex annos, issue was joined on both pleas, and the case was tried before the Lord CHIEF BAuozs at the Nisi Prius Sittings of this Court in Hilary Term 1847. To take the case out of the Statute of Limitations, the plaintiff gave in evidence the following indorsement upon the note :- "The interest upon the within is paid up to the 8th of December "1844, and of course the within note is good for six years to come " from that date, which shall be renewed as soon as my son George "is in the country. " GEORGE CRAWFORD. " Present-JAmEs LEE." There was also evidence that the defendant, when spoken to on the subject and asked for a new note, said there was no occasion, that the note was good until 1850. It was objected by the defendant's Counsel that this evidence was, under 9 G. 4, c. 14, s. 1, inadmissible as evidence against a co-conÂtractor, and also that it was not evidence of the fact of payment of interest. His Lordship, however, left the case to the jury, reserving CASES AT LAW. 457 liberty to the defendant to move to enter a nonsuit if the Court T. T. 1848. Exch. of Pleas. above should be of opinion that the evidence had been improperly received ; and accordingly there having been a verdict for the MITETAGH v. plaintiff-. CR &WFORD. Brewster, Napier and James Robinson, now moved pursuant to the leave reserved. The question in this case is, whether the indorsement upon the note is a sufficient acknowledgment to take the case out of the statute as against George J. Crawford ; it is not, for it is not an acknowledgment signed by the party sought to be made chargeable thereby, and signature by an agent is not sufficient. Suppose a promissory note is made by two, and one of them after, twenty years, or after five years, writes and says, I admit the debt, surely that does not take the case out of the operation of the statute. Bayley v. Ashton (a) ; Clarke v. Alexander (b); Eastwood v. Saville (c); Bevan v. Gething (d). If the fact of payment is proved aliunde, an acknowledgment is admissible to show that the fact has been correctly proved ; but there must be proof of actual payment, no mere acknowledgment is sufficient. The entry in this case was not an entry against the interest of the person who made it, but in his own favour, for the debt was in full force, and it was a statement of a payment on account of that debt ; Willis v. NewÂham (e); Maghee v. O'Neill(f); Waters v. Tomkins (g); Taylor on Evidence, p. 727 ; Waugh v. Cope (h); Ashby v. James (i); Hyde v. Johnston (k); Moore v. Strong (1); Bewley v. Power (m); Bateman v. Pinder (n). Samuel Ferguson and Thomas 0' Hagan, contra. A written acknowledgment by a co-contractor, is within the Act. (a) 12 Ad. & El. 493. (c) 9 M. & W. 615. (e) 3 Y. & Jer. 518. (g) 2 Cr. M. & R. 722. (i) 11 M. & W. 542. (1) 1 Bing. N. C...