WALKER V. COLLICK and Another. 1849. June 8. ASSUMPSIT by indorsee against drawer of a bill of ex- In order to save change. the Statute of Limitations, a Re Plea (amongst others), the Statute of Limitations. plication, that the cause of action accrued within six years; upon which issue was joined. on At the trial, before Pollock, C. B., at the Middlesex Sittings after last Hilary Term, it appeared that a writ of summons issued on the 17th of November, 1847, one day before the expiration of six years from the time the bill was due. This writ was not served, but was entered the roll, and an alias issued on the 15th of April, 1848, a copy of which was served on the defendants. did not contain the memorandum stating the day of the date of the first writ, and the return, as required by the Uniformity of Process Act, 2 Will. 4, c. 39, s. 10 (a). In answer to this evidence on the part of the defendants, the (a) That section enacts, "That no writ issued by authority of this Act shall be in force for more than four calendar months from the day of the date thereof, including the day of such date, but every writ of 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: Provided always, that no first writ shall be available to prevent the operation of any statute, whereby the time for the commencement of the action may be limited, unless the defendant shall be arrested thereon or served therewith, or proceedings to or toward outlawry shall be had thereupon, or unless such writ This copy and every writ (if any), issued in second or sub sequent writ of summons must, at the time a copy is served, contain the in dorsement re quired by the must have been made by the plaintiff or his attorney; and the roll is no evidence of these facts. 1849. WALKER V. COLLICK. plaintiffs put in evidence an examined copy of the roll, which contained an entry of the day of the date, and also of the return of the first writ on the 15th of April, 1848 (a), and an award of the alias on the same day. The original alias was not in evidence. It was submitted, on the part of the defendants, that they were entitled to a verdict on the plea of the Statute of Limitations, inasmuch as the requisites of the 2 Will. 4, c. 39, s. 10, had not been complied with. The learned Judge directed a verdict for the plaintiff, reserving leave for the defendants to move to enter a verdict for them on that plea. A rule nisi having been obtained accordingly, Hawkins shewed cause.-The first objection is, that the alias writ of summons did not contain a memorandum of the date and return of the first writ, as required by the 2 Will. 4, c. 39, s. 10. Since the case of Williams v. Williams (b) it cannot be denied that the statute will operate, unless that requisite is complied with. But the roll was evidence that the indorsement had been properly made, and the copy of the alias writ could not be used to contradict the roll. If the roll has been incorrectly made up, the defendants should have applied to amend it according to the fact: Pratt v. Hawkins (c), Higgs v. Mortimer (d). It is not essential that the indorsement should be on the copy served, but only on the original alias, in order to testify the fact of its having issued in continuation of the previous writ.-It was further objected, that the roll did not shew that the alias writ contained the necessary memorandum at the time it issued. But the roll states the issuing of the first writ and its return, and that, within (a) The entry on the roll was according to the precedent in Chit. Forms, 528, with the addition of the date of the return of the first writ. (b) 10 M. & W. 174. one calendar month after the expiration of that writ, the alias issued, which contained the requisite indorsement. In Pratt v. Hawkins, Parke, B., says, "I think the roll imports that everything was done at the time of issuing the original writ." Moreover, it would seem, from the cases Culverwell v. Nugee (a) and Mavor v. Spalding (b), that it is not essential that the indorsement should be made on the alias writ at the time it issues. Humfrey and Dowdeswell, in support of the rule.-The defendants could not plead the facts specially, but under the general form of plea the plaintiff must shew that all the formalities required by the 10th section of the 2 Will. 4, c. 39, have been complied with: Higgs v. Mortimer. The roll was no evidence of what the statute requires, but the plaintiff ought to have produced the alias writ, with the proper indorsement on it, and have proved that the indorsement was made at the time the writ issued. [Alderson, B.-Assuming the whole of the record to be true, it does not prove that the requisites of the statute have been complied with.] The object of the provision in the statute was for the information of the defendant, and that is not effected by the mere production of the roll at the trial. POLLOCK, C. B.-The case lies in the smallest compass. The defendants produced the copy of the writ served on them, for the purpose of shewing that the writ itself did. not contain the requisite indorsement. In order to rebut that primâ facie presumption, the plaintiff put in evidence a copy of the roll. What is there stated may be perfectly true, but still the roll does not shew that the statute is not a bar, and, the point having been taken at the trial, the objection must prevail. The plaintiff, however, may have (a) 15 M. & W. 559. (6) 1 D. & L. 878. 1849. WALKER V. COLLICK. 1849. WALKER v. COLLICK. a new trial on payment of costs and production of an affidavit that the indorsement was upon the alias writ at the time of service, otherwise the rule will be absolute. ALDERSON, B.-I am of the same opinion. Even if the writ itself had been produced, that would not have satisfied me that the debt was not barred, because the writ must contain the indorsement at the time the copy is served. The copy of the writ being produced raised the presumption that the original had no indorsement. It appears from the roll when put in, that the alias writ contains some indorsement; but the roll does not shew that the indorsement was made by the plaintiff or his attorney, and it may have been made by a stranger. In order to take a case out of the statute, the indorsement should, in my opinion, be on the writ at the time of service, and should have been made by the plaintiff or his attorney. ROLFE, B., concurred. PLATT, B.—I do not well see why the legislature has required the indorsement to be made by different parties in bailable and non-bailable process, the only object being to give notice to the defendant when served, that a former writ has been sued out. Still the statute requires an indorsement, and here it does not appear that any was made, either by the sheriff, or the plaintiff, or his attorney. Rule accordingly. 1849. MACKINTOSH and Another v. MITCHESON. ASSUMPSIT for goods sold, money lent, money paid, and on an account stated. Pleas, except as to 100%., non assumpsit; and as to that amount, payment of 100%. into court, and no damages ultra. Replication, damages ultra. At the trial, before Pollock, C. B., at the London Sittings after Trinity Term, 1848, it appeared that the action was brought by the plaintiffs to recover the sum of 1747.18s. 6d. for goods and money supplied to the captain of a vessel of which the defendant was owner. The vessel being at Trinidad, the captain presented to the plaintiffs the following letter from the defendant's brokers:-"We have to request your attention to assist Captain Williams in any way he may need, and advise him particularly as regards the delivery of goods per Goldondo. You will place the freight to credit of ship's disbursements, and take the captain's draft on owner for credit of such disbursements." The plaintiffs accordingly supplied the captain with the goods and money in question, which were alleged by the plaintiffs to have been necessary for the ship's voyage. No witnesses were called on the part of the defendant; but it appeared, from the cross-examination of one of the plaintiffs' witnesses, that the expenses, with reference to the vessel and voyage, might be expected to be less than the sum paid into court. The learned Judge told the jury that the plaintiffs were bound to prove that the goods and money supplied were necessaries; and he left it to them to say whether, upon the evidence, that was established to their satisfaction. The jury having found for the defendant, Martin, in Michaelmas Term, 1848, obtained a rule to VOL. IV. N EXCH. |