CHAPTER HOW THE OPERATION OF THE ISSUING A WRIT. THE SAVING Infants. Imprison ment. Defendant's absence beyond seas. in interest, or such other parties as the Court or a judge think fit, may be joined (s). Fifthly, as to the mode in which the operation of the statute may be obviated by issuing a writ and continuing it down. The practice is now regulated by Ord. VIII. r. 1, a writ being in force for twelve months, and a renewed writ for six months from date of renewal. Prior to 1852 a bill in equity, filed by one creditor on behalf of himself and the other creditors, would prevent the Statute of Limitations from running against any of the creditors who come in under the decree (†). Sixthly, as to the saving clause in favour of infants, married women, lunatics, persons imprisoned or beyond seas. An infant would have been bound had he not been expressly excepted (u). For infants may, during the six years, sue by their next friends (x). An infant cestui que trust is bound by the laches of his trustee, even in equity (y). The plaintiff's imprisonment or absence beyond seas now no longer postpones the running of the statute (z). The defendant's absence beyond seas was not a case within the 24 Jac. 1, c. 16 (a), though one in which the saving was much more necessary than when the plaintiff himself was absent, as an absent plaintiff might sue a defendant in England, but a defendant beyond seas could not formerly have been sued in England at all. To remedy this hardship, the statute 4 & 5 Anne, c. 16, s. 19, enacts, that if at the accruing of the action the defendant be beyond the seas, the plaintiff may bring his action within six years after the defendant's return. A mere setting foot on English ground is not a return within the statutes (b). If one of several co-defendants, in an action ex contractu, were abroad, the Statute of Limitations did not begin to run (*) Ord. XVII. rr. 1—4. 31. (u) Prideaux v. Webber, 1 Lev. (x) Chandler v. Vilett, 2 Saund. 121, a. (y) Wych v. East India Company, 3 P. Wms. 309. (z) 19 & 20 Vict. c. 97, s. 10. (a) Hull v. Wyborn, 1 Show. 98; Swayn v. Stephens, Cro. Car. 333. (b) Gregory v. Hurrill, 1 Bing. 24; 8 Moore, 189. XXII. against any of them (c). But the Statute 19 & 20 Vict. CHAPTER c. 97, s. 11, preserves the protection of the statute to such of the defendants as were within seas at the time of action accrued. When a disability is removed, and the statute once begins Successive to run, no supervening disability will stop it (d). disabilities. Seventhly, as to the promises, acknowledgments, or WHAT payments, which take a bill or note out of the statute. ACKNOW- WILL TAKE A DEBT OUT It was at first held, that nothing short of an express promise would take a debt out of the statute (e); then that a mere acknowledgment would, as evidence of a promise; OF THE and that a part payment of principal or interest amounted STATUTE. to an acknowledgment (f). The effect of these decisions was nearly to repeal the statute. Their consequences were somewhat restrained by the case of Tanner v. Smart (g), in which it was decided that a new promise or acknowledgment did not operate by drawing down the original promise to a subsequent date, but by giving a new cause of action; and that the promise stated in the replication is to be considered as the promise laid in the declaration, and must be consistent with it. At length, further to restrain the mischief, a very eminent Lord Chief Justice of the King's Bench introduced the Act 9 Geo. 4, by which it is enacted (), that no acknowledgment or promise by words only shall take a case out of the statute, unless in writing, and signed by the party chargeable. That where there are several joint contractors or executors one shall not lose the benefit of the statute through a written acknowledgment signed by the other, but the plaintiff shall recover against the acknowledging party only. That the effect of payment of principal or interest, by any person, shall remain as before the statute (i). (c) Fannin v. Anderson, 7Q. B. 811; Towns v. Mead, 16 C. B. 123; Forbes v. Smith, 24 L. J., Exch. 299; 10 Exch. 717; and see Forbes v. Smith, 11 Exch. 161. As to what is evidence for the jury of a person not having been in England, see Koch v. Shepherd, 18 C. B. 191. (d) Doe d. Duroure v. Jones, 4 T. R. 310; 2 R. R. 390; Smith v. Lord Tenterden's Act. CHAPTER Division of the subject. Of what sort. In considering the operation of this and other parts of the Act 9 Geo. 4, c. 14, on the 21 Jac. 1, c. 16, in respect of acknowledgments, promises, or payments as to bills or notes otherwise barred by the Statute of James, we shall inquire first, what sort of an acknowledgment, promise, or payment it must be to take a debt out of the statute; secondly, at what time it must be made; thirdly, by whom; fourthly, to whom; and, lastly, by what evidence it must be proved. First as to the sort of acknowledgment, promise, or payment which will save the statute. An acknowledgment, before the 9 Geo. 4, c. 14, must have been such an acknowledgment as implies a promise to pay, and must be so still. "That statute," says Tindal, C.J., "did not intend, as it appeared to us, to make any alteration in the legal construction to be put upon acknowledgments or promises made by defendants, but merely to require a different mode of proof, substituting the certain evidence of a writing signed by the party chargeable instead of the insecure and precarious testimony to be derived from the memory of witnesses "(k). Therefore, the acknowledgment must not be accompanied with expressions repelling the inference of a promise to pay (); accordingly a letter written without prejudice will not suffice (m); and if a payment be made, accompanied by expressions which render the intention of the payment doubtful, then the meaning of any such expressions is a question of fact for a jury (n). If the promise be conditional, the condition must be shown to have been performed (o). "There must," says Rolfe, B., "be a promise to pay; but from a simple acknowledgment the law implies a promise" (p). (k) Haydon v. Williams, 7 Bing. 166; 4 M. & P. 811; 33 R. R. 415. (1) Fearn v. Lewis, 6 Bing. 349; 4 M. & P. 1; 31 R. R. 434; Scales v. Jacob, 3 Bing. 638; 11 Moore, 553; Ayton v. Bolt, 4 Bing. 105; 12 Moore, 305; Kennett v. Milbank, 8 Bing. 38; 1 M. & Scott, 102; Brigstock v. Smith, 1 C. & M. 483; 38 R. R. 676; Spong v. Wright, 9 M. & W. 629; Cawley v. Turnell, 12 C. B. 291; Smith v. Thorne, 18 Q. B. 134; Rackham v. Marriott, 25 L. J., Exch. 324; 1 H. & N. 234; Goate v. Goate, 1 H. & N. 29; Cornforth v. Smithard, 5 H. & N. 13; 29 It is sufficient if the L. J., Exch. 228; Everett v. Robertson, 1 E. & E. 16; Collinson v. Margesson, 27 L. J., Exch. 305; Godwin v. Culley, 4 H. & N. 373. (m) Er parte Mitchell, L. R., 6 Chan. Ap. 823. (n) Wainman v. Kynman, 1 Exch. 118. (0) Tanner v. Smart, 6 B. & C. 603; 9 D. & R. 549; 30 R. R. 461; Chasemore v. Turner, L. R., 10 Q. B. 500. (p) Hart v. Prendergast, 14 M. & W. 741; Williams v. Griffith, 18 L. J., Exch. 210; 3 Exch. 335; Phillips v. Phillips, 3 Hare, 299; Buckmaster v. Russell, 4 L. T. (N. S.) 552 ; Lee v. Wilmot, acknowledgment or promise ascertain, either expressly or by reference, the amount due (q), or if it leave the amount to be supplied by parol evidence. Where, in an action against the acceptor of a bill of exchange, to take the case out of the statute, a letter by the defendant, promising “to pay the balance," was produced, but the letter did not specify its amount, the plaintiff was held entitled to recover nominal damages (). CHAPTER XXII. The date of a letter acknowledging a debt may be Evidence of supplied by parol evidence (s). date. The construction of an ambiguous written document Construction. given in evidence, to save the statute, is for the Court, and not for the jury (†). Where there was a mutual and running account between the plaintiff and the defendant, any item on either side within six years would formerly have taken the whole account out of the statute, but an item in an account not mutual would not (u). But since Lord Tenterden's Act there must be either payment by the defendant, or a signed acknowledgment (r). An account once stated is within the statute (y). 35 L. J., Ex. 175; L. R., 1 Ex. 364. But the acknowledgment must be made for the purpose of recognizing the debt. An acknowledgment made in other affairs and alio intuitu is not sufficient. Cockerill v. Sparke, 1 H. & Colt. 699; Everett v. Robertson, 1 E. & E. 16; Rowe v. Hopwood, 38 L. J., Q. B. 1; L. R., 4 Q. B. 1. The debt is the consideration; but other good considerations, as forbearance to sue, will support the promise. Wilbye v. Elgee, L. R., 10 C. P. 497. As to sufficient acknowledgment, see the recent case of Green v. Humphreys, 53 L. J., Ch. 625; 26 Ch. D. 474, in C. A. (1) Lechmere v. Fletcher, 1 C. & M. 623; 38 R. R. 688. The amount may be ascertained by extrinsic evidence. Bird v. Gammon, 3 Bing. N. C. 883; 5 Scott, 213 Waller v. Lacy, 1 M. & Gr. 54. A letter from the debtor asking for an account bars the statute. Quincey v. Sharp, 1 Ex. D. 72; Skeet v. Lindsay, 2 Ex. D. 314. (r) Dickinson v. Hatfield, 1 M. & Rob. 141; 5 C. & P. 46; see Kennett v. Milbank, 8 Bing. 38; 1 M. & Scott, 102. (s) Edmunds v. Downes, 2 C. & M. 459; 39 R. R. 813. (t) Morrell v. Frith, 3 M. & W. 402. But it is a general rule, that parol evidence is admissible to explain technical terms in mercantile instruments, though the construction of the instrument is for the Court; ibid. Bowman v. Horsey, 2 M. & Rob. 85; see, too, Bourdin v. Greenwood, L. R., 13 Eq. 281; 41 L. J. 73. (u) Rothery v. Munnings, 1 B. & Ad. 15; Cotes v. Hurris, Bulls N. P. 149; Cranch v. Kirkman, 1 Peake, 164; Catling v. Shoulding, 6 T. R. 193. (4) Williams v. Griffiths, 2 C., M. & R. 45. The exception of merchants' accounts applied only to an action of account, or to an action on the case for not accounting. Inglis v. Haigh, 8 M. & W. 769. 19 & 20 Vict. c. 97, s. 9. (y) Farrington v. Lee, 1 Mod. Mutual run ning account. CHAPTER Devise. Acknowledg ment by executors. Notice in newspapers. Part payment. A devise, in trust, to pay a particular creditor, will take a debt out of the statute in equity. But a devise for the payment of debts in general will not revive a debt if the statute has run out (2), but will, in equity, prevent the statute from running out (a). And Lord Brougham held, reversing a contrary decision of Sir John Leach, M.R., that a bequest of personal estate for the payment of debts will have the same effect (b). As a debt due from a testator's estate may exist, and yet the executor not be liable to pay, a mere acknowledgment of a debt by an executor is not sufficient to take a debt out of the statute; there must be an express promise (c). And it seems that a part payment by one executor will not take the case out of the statute as against his co-executor (d). It seems that a notice in a newspaper, by a personal representative, that he will pay all debts justly due from his testator, will prevent a debt from being barred by the Statute of Limitations (e). A part payment must appear to be the payment of a debt, of the debt for which the action is brought, and a part payment of a larger sum (f). "The principle," says Parke, B., "upon which part payment takes a debt out of the statute is that it admits a greater debt to be due at the time of the part payment. Unless it amounts to the admission that more is due, it cannot operate as an admission of any still existing debt " (g). 268; Renew v. Axton, Carth. 3; (2) Burke v. Jones, 2 Ves. (a) Hughes v. Wynn, 1 Turn. & R. 307; Hargreaves v. Mitchell, 6 Madd. 326; 23 R. R. 231'; Moore v. Petchell, 22 Beav. 172; Jacquet v. Jacquet, 27 Beav. 332. (b) Jones v. Scott, 1 Russ. & M. 255; 32 R. R. 210. But see Spong v. Wright, 9 M. & W. 629. (c) Tullock v. Dunn, R. & Moo. 416; 27 R. R. 765; and see Atkins v. Tredgold, 2 B. & C. 23; 3 D. & Ry. 200; 26 R. R. 254; Fordham v. Wallis, 22 L. J., Chan, 548. (d) Scholey v. Walton, 12 M. & W. 510. (e) Jones v. Scott, 1 Russ. & M. 253: 32 R. R. 210. (f) Tippetts v. Heane, 1 C., M. & R. 252; 4 Tyr. 772. But the sum need not then be ascertained. Walker v. Butler, 25 L. J., Q. B. 377; 6 E. & B. 506. In Burn v. Boulton, 15 L. J., C. P. 97; 2 C. B. 476, it was held that there was a difference between a debt on a promissory note, and a debt on a quantum meruit. That, therefore, if a payment is made, less than the amount of the note, it need not be proved by any expressions at the time of payment to be a part payment; and see Worthington v. Grimsditch, 7 Q. B. 479. (g) Worthington V. Grimsditch, 7 Q. B. 479. See Gowan v. Forster, 3 B. & Ad. 510. |