PARDOE v. O'CONNOR. H. T. 1848. "into consideration; for if there be a dispensation or waiver, it Exch.of Pleas. "would, as it appears to me, be necessary for the declaration to "state that waiver as an excuse for non-presentment; and so far as that I would go, notwithstanding several dicta on the subject.” I cannot refrain from saying that that is my opinion, although this case does not call for the expression of that opinion, for there was in this case an express promise, or what amounts to an express promise, to pay this demand, and the effect of it is, that it amounts to an admission on the part of the defendant that all that is necessary has been done. And I would take it that such a promise is evidence of the presentment of the bill to the acceptor, and also of notice to the defendant of its dishonour; because if proof of these things fail, the plaintiff has no right to succeed. I have said that this was the case of an express promise being made by the agent of the defendant. It was a promise to pay the debt, an admission on his part of his liability; and his reason for not giving a plea of confession was, not that the debt was not justly due, not that he was not liable to pay it, but that the plaintiff's attorney's charge for costs was a greater amount than he was answerable for. I do not conceive that to be a conditional promise, but an absolute and express promise to pay the debt; and the arrangement going off on another ground does not, in my mind. lessen the effect of that promise. I would say that the case of Campbell v. Webster (a), referred to by Mr. Macdonogh, puts the case on just grounds, and I adopt the reasons of the Chief Justice, and other Judges in that case referring to Patterson v. Beecher (b). Now it is exactly, I think, put in that case upon the proper grounds by Richardson, J. He does not put the case on the grounds that the promise to pay is a waiver, but that as the defendant could not be made liable unless the previous steps had been taken, it is an admission that those steps had been taken; an admission after the bill became due that the necessary steps had been taken, and that distinguishes it from the case where a party says, you need not send to me any notice." That would not amount, nor could it be considered to amount, to an admission that a thing had been done, the time for doing which had not arrived; and therefore a declaration averring that the thing had been done, H. T. 1848. could not under such circumstances be maintained, though, as the Exch.of Pleas. Court said, perhaps on another form of declaration the action might have been maintained. But then it is said, that the promise to pay the debt must be an absolute and unconditional promise to pay a debt to which the party is liable; but this case of Campbell v. Webster shows the distinction, that if the promise to pay the debt be distinct in itself, the agreement for paying it being on another ground distinct from the party's liability to pay it does not make it the less absolute. That case shows the grounds upon which the decision of the present ought to be rested. It is said on the part of the defendant that, to make the promise effectual, it ought to have been shown that the exact state of things was known to the defendant. Now, if that were the rule, what would it come to? that at the same time it is held that the promise of the defendant is evidence that a demand of the bill was made and notice of dishonour given, though in point of fact no demand was made or no notice of dishonour given; because the promise can only be material where there has been a failure in those respects: it would seem to me to do away with the advantage to the plaintiff of this rule, that a promise by the defendant to pay is an admission that all things have been done rightly which ought to have been done. We have been referred to a case argued before Joy, C. B. Now, what was that case? It was proved that the demand of the bill upon the acceptor was not made for a month after the bill had become due; so that effect which Tindal, C. J., and the Court of Common Pleas had given to a promise could not be given to it, because it was negatived by direct evidence; and I think it is not a necessary ingredient in the case to prove that the defendant knew of every thing taking place which ought to have been done to create his liability. The promise in that case was made after he knew that there was laches to that great amount, but by the Court it was held not to amount to an absolute promise; and that case appears to us not to control our judgments in this case. From the view I take of this case, the admission or promise by the defendant is evidence to go to the jury that every thing was rightly done. PARDOE V. O'CONNOR. H. T. 1848. PARDOE V. The defendant's Counsel called for a nonsuit; my Brother LEFROY would not nonsuit. Defendant's Counsel then said he would not address the jury; the Judge said, "do as you please." "No," said O'CONNOR. he, "I have pressed for a nonsuit, and will not take the opinion of the jury upon the weight of the evidence;" and we must assume that if he had, the jury would have found that this transaction, which was deposed to, had been an admission that every thing was rightly done which was necessary to constitute the plaintiff's right of action; an opinion which I think would have been warranted; therefore I think this application ought to be refused. LEFROY, B. After the very full consideration which my Brother PENNEFATHER has given to this case, I shall not occupy time further than to observe that Campbell v. Webster is not the first case upon the subject, but merely a following up of previous decisions; that an admission of liability is prima facie evidence of what is necessary having been done. I do not say that it is not open to the party to show he was misled, or to rebut that evidence by other evidence ; but the question is, is there not here an admission of liability uncontradicted by any other evidence? Is it not an admission of the facts which would otherwise be necessary to constitute liability? What is the admission? Not a hasty admission, but the negotiation of his own attorney. He says he advised his client to give a plea of confession; he, the attorney, who must be supposed to have considered the matter; it is not the client drawn hastily into the matter: here the amount is settled, the time settled; but when the defendant saw the bill of costs he objected not to the time, not to the amount of the debt, but to some two or three items in the bill of costs. Here is a deliberate act of the defendant, admitting by his own attorney his liability: surely if any act can constitute a liability, the admission here, by his own attorney, is as deliberate an admission as can be. We have it perfectly established that an admission of liability is an admission of the existence of those facts necessary to constitute liability. The defendant has submitted to a verdict, subject to the point saved, and I see no ground for disturbing the verdict. H. T. 1848. Lessee JOHN JOHNS v. GEARY. In this case, Joy moved that the lessor of the plaintiff be restrained from proceeding in ejectment for the recovery of certain lands, for recovery of which he had brought an ejectment in the Queen's Bench. The cause in that Court went down for trial last Assizes, but was not tried; it was sworn that the lessor of the plaintiff was a pauper. M'Mehan, contra. Jan. 29. Where the plaintiff, who was sworn to be a pauper, brought an the Queen's ejectment in Bench, and brought the record down to the Assizes, but the case was not tried, and then commenced a fresh They have no right, as they do, to call on the lessor of the plain- ejectment in tiff to elect or discontinue. PENNEFATHER, B.* We must remit the lessor of the plaintiff to his former proceedings, or else he must pay all the costs in the Queen's Bench. It is a very clear case that the defendant cannot in the Queen's Bench have judgment as in case of a nonsuit (the cause having once gone down to trial) according to the practice of that Court; therefore we shall stay the proceedings in this case, unless the plaintiff discontinues the proceedings in the Queen's Bench. If he does not, let the proceedings in this Court be stayed, and let the defendant have the costs of this motion. this Court for the same premises, the Court ordered the proceedings in this Court to be stayed until the proceedings in the Queen's Bench were discontinued. The plaintiff having elected to discontinue the proceedings in the Queen's Bench PENNEFATHER, B. Then let there be no rule on this motion. *Solus. H. T. 1848. Jan. 29. GALBRAITH v. PILKINGTON. Where a de- LEECH, with whom was R. Armstrong, moved on behalf of Joseph fendant seeks sequestrator with having to charge the Pilkington, administrator of the defendant, that the Lord Bishop of Derry be directed to bring in the sum of £170, certified to be due to the defendant, and that he return the levari facias, and state what he had done. received money due to him, the proper course is, not to move for an order that the Bishop bring in the The Bishop in this case is the officer of the Court; the usual security has been taken by the Bishop, and the bond has been seen money, where in his office.-[PENNEFATHER, B. Your application ought to be, he is not ac cused of mal- that this bond be handed over, but not to make the Bishop pay the practices, but that the se- money.]-Waldron v. Garrett (a). In Darley v. Lestrange (b) questrator's bond be handed it was held that proceeding against the sequestrator was not the over to the defendant. strictly correct course, although the practice has sprung to up hold him liable where he has received the money. [PENNEFATHER, B. Have you any case where an order was made against the Bishop to bring in the amount where no account has been taken against the sequestrator? Is there any thing in the affidavit to show a personal interference by the Bishop, or accusing him of any malpractices?]— No; we don't accuse him of any thing of the kind. Brewster and Smyly, contra. PENNEFATHER, B.* Refuse this application with costs, without prejudice to any application which the Bishop may be advised to make. (a) 1 Ir. Law Rep. 118. (b) Bat. Rep. 472. * Solus. |