Where a debtor owes his creditor some debts from a CHAPTER XXII. period longer than six years, and others from a period within six years, and pays a sum without appropriating it Appropriato any particular debt, such payment is not a payment on tion of account, to take out of the Statute of Limitations the debts payments. due longer than six years, but the creditor may at any time apply such payments to the debts due longer than six years (h). Giving a bill is sufficient as a payment or acknowledg- Payment by ment to obviate the statute (i). But drawing the bill is bill. payment or acknowledgment at the time of the drawing, and not at the time of the payment by the drawee (k). Goods treated as money are a sufficient payment (7). Payment by goods. ment. An acknowledgment required by the 9 Geo. 4, c. 14, is Stamp on by the eighth section of that Act exempted from stamp acknowledgduty, to which it would otherwise have been subject, as an agreement (m). But if it amount to a promissory note, the exempting clause does not apply, and a stamp is necessary (n). A mere parol statement of an antecedent debt, without Statement of any new contract or consideration made within six years account. before action brought, does not constitute a sufficient cause of action to prevent the operation of the Statute of Limitations (o). But where there are cross demands of which there is a mutual settlement by the statement of a balance, the case is taken out of the statute, because, as observed by Mr. Baron Alderson (p), “the truth is, that the going (h) Mills v. Fowkes, 5 Bing. N. C. 455; 7 Scott, 444; Waller v. Lacy. 9 L. J. C. P. 217; 1 Scott, 186; 1 M. & Gr. 54; Nash v. Hodgson, 1 Kay, 650; 23 L. J., Chan. 780; but see 25 L. J., Chan. 186; 6 De G., M. & G. 474, and ante, p. 304. (i) Turney v. Dodwell, 3 E. & B. 136 Irving v. Veitch, 3 M. & W. 90. (k) Gowan v. Forster, 3 B. & Ad. 507. (1) Hart v. Nash, 2 C. M. & R. 337 Hooper v. Stevens, 7 C. & P. 260; 4 Ad. & E. 71; 5 N. & M. 635; 1 Har. & W. 480; and see as to the evidence, Moore v. Strong, 1 Bing. N. C. 411; Bodyer v. Archer, 10 Exch. (m) Morris v. Diron, 4 Ad. & (n) Jones v. Ryder, 4 M. & W. 32 Holmes v. Mackrell, 3 C. B. N. S. 789; Parmiter v. Parmiter, 30 L. J., Ch. 508, per Lord Campbell. (0) Jones v. Ryder, 4 M. & W, 32, overruling Smith v. Forty, 4 C. & P. 126. (P) Ashby v. James, 11 M. & W. 542; Worthington v. Grimsditch, 7 Q. B. 479; Pott v. Clegg, 16 M. & W. 327; 16 L. J., Exch. 210. CHAPTER Payment of interest. When the acknowledgment must be made. Must be made before action brought. Payment of money into Court. By whom. through an account, with items on both sides, converts the set-off into payments" (7). Payment of interest is, in general, sufficient to take the principal out of the statute (r), but a payment of principal (except in the case of bills or notes) will not revive a claim for interest (s). Secondly, as to the time when the acknowledgment must be made. Except in the cases which have been mentioned of devises and bequests for the payment of debts, it makes no difference whether the promise, acknowledgment, or payment were made before or after the expiration of six years. An acknowledgment which prevents the running out of the statute will also revive a debt already barred. It was formerly held that the acknowledgment might be after action brought (t). But as the acknowledgment is now considered as the ground of action and the subject of the declaration, the promise, acknowledgment, or payment must clearly be before action brought (u). Payment of money into Court will not take a bill or note out of the statute, except as to the amount paid in (x). Thirdly, as to the person by whom the promise, acknowledgment, or payment may be made. It may be made by an agent (y), and therefore by a wife (g) Bodyer v. Archer, 10 Exch. 333; Amos v. Smith, 31 L. J., Exch. 423; Worthington V. Grimsditch, 7 Q. B. 479. See, however, Clark v. Alerander, 13 L. J., C. P. 133. One item only is enough. Knowles v. Mitchell, 13 East, 249; Highmore v. Primrose, 5 M. & S. 65. See Lemere v. Elliott, 6 H. & N. 656. (r) Purdon v. Purdon, 10 M. & W. 562; Bamfield v. Tupper, 7 Exch. 27: Maber v. Maber, 36 L. J., Ex. 70; L. R., 2 Ex. 153; but not necessarily so; Morgan v. Rowlands, L. R., 7 Q. B. 493; 41 L. J., 187, where payment of interest was made under pressure of legal process. (8) Collier v. Willock, 4 Bing. 313; 12 Moore, 557; Bealy v. Greenslade, 2 C. & J. 61. (t) Yea v. Fouraker, 2 Burr. 1099; Lloyd v. Maund, 2 T. R. 760; Rucker v. Hannay, 4 East, 604, n. (u) Tanner v. Smart, 6 B. & C. 603; 9 D. & R. 549; 30 R. R. 461; Rew v. Pettet, 1 Ad. & E. 196; 3 N. & M. 456; Bateman v. Pinder, 3 Q. B. 574. (r) Reid v. Dickons, 6 B. & Ad. 499 2 N. & M. 369; and see Long v. Greville, 3 B. & C. 10; 4 D. & R. 632. (y) Burt v. Palmer, 5 Esp. 145; 10 R. R. 707, n. But an acknowledgment in writing, signed by an agent, has been held insufficient. Hyde v. Johnson, 2 Bing. N. C. 776; 3 Scott, 289. Sed quære. This case, however, has been several acting as agent (), and by one partner even after dissolution of the partnership (a), if he makes a payment. But if an agent exceed his authority in making the payment it will not take the debt out of the statute (b). It may be made by an infant for necessaries (c). Payment of interest by an indorser of a promissory note does not take the note out of the statute as against the maker (d). CHAPTER XXII. The 9 Geo. 4, c. 14, introduced, as we have seen, a By joint distinction between acknowledgments and promises by contractors. words only (e), and payments. The former, in the case of joint contracts, affected only the party acknowledging; the latter retained their former effect. But this distinction was abolished by the 19 & 20 Vict. c. 97, s. 14, which Statute statute restrains the effect of the acknowledgment implied 19 & 20 Vict. from payment and confines it to the party making it, as the c.97. 9 Geo. 4, c. 14, had restrained the effect of an express acknowledgment. But the statute is not retrospective (ƒ). It has been held, that payment of a dividend under a commission of bankruptcy against one of two makers of a joint and several note would take the note out of the statute against the solvent maker (g). But that is doubtful, for it was afterwards more correctly held that payment of a dividend by the assignees of an insolvent would not take a note out of the statute as against his co-makers, for there is 10 acknowledgment of more being due (h). times recognized, and a question has even been made whether a written acknowledgment, signed by one of several partners in trade, has any other effect than an acknowledgment by one of several ordinary joint contractors. Clark v. Alexander, 13 L. J., C. P. 133. But now by 19 & 20 Vict. c. 97, s. 13, the signature of an agent suffices. (2) Evidence of admissions by an agent may be admissible without calling the agent. Palethorpe v. Furnish, 2 Esp. 511; Anderson v. Saunderson, 2 Stark. 204; Holt, N. P. C. 591; 17 R. R. 681; 19 R. R. 703 Gregory v. Parker, 1 Camp. 394; 10 R. R. 712; but see Gibson v. Baghott, 5 C. & P. 211. (a) Wood v. Braddick, 1 Taunt. 104; 9 R. R. 711. (b) Linsell v. Bonsor, 2 Bing. N. C. 241; 2 Scott, 399. (c) Willins v. Smith, 4 E. & B.B.E. B. 180. (d) Harding v. Edgcumbe, 28 L. J., Exch. 313. (e) As to the effect of an acknowledgment by an executor, see Fordham v. Wallis, 22 L. J., Chan. 548. See Emery v. Day, 1 C., M. & R. 249; 4 Tyr. 695. (f) Jackson v. Woolley, 27 L. J., Q. B. 448. This statute had been held to be retrospective, and to take away the effect of a payment by a joint contractor as against his companion, though made before the statute. Thompson v. Waithman, 26 L. J., Chan. 134; Jackson v. Woolley, 27 L. J. Q. B. 181. (g) Davies v. Edwards, 21 L. J., Exch. 4. (h) Jackson v. Fairbank, 2 H. Bl. 340, recognized in Perham v. Raynal, 2 Bing. 306; 9 Moore, 556; but see Brandram v. Wharton, 1 B. & Al. 463; 19 R. R. 354, 357. 24 In cases of bankruptcy and insol vency. Fourthly, as to the person to whom the acknowledgment, promise, or payment must be made. It has been held, that the acknowledgment or promise need not, in point of fact, be made to the plaintiff, but may be made to a stranger (). Therefore, a letter by one joint and several maker of a promissory note to another has been decided to take the note out of the statute as against the writer (k); and from the cases there cited, it should seem it would, before the 9 Geo. 4, c. 15, have had the same effect as against the other maker to whom it was addressed. So also, in an action by indorsees against acceptors of a bill, a deed between the acceptors and third persons, reciting that the bill was outstanding and unpaid, was held to take it out of the statute (7). So an acknowledgment to the holder of a bill or note, enures to the benefit of a subsequent holder (m). So a payment to an administrator, under void letters of administration, will take a note out of the statute in an action by an administrator under valid letters (n). Lastly, as to the evidence by which a promise, acknowledgment, or payment must be proved, in order to its taking a debt out of the statute. Where the same debt is secured by different instruments, payment of interest on one will take the others out of the statute (o). The statute 9 Geo. 4, c. 14, requires that an acknowledgment or promise by words only should be in writing, signed by the party chargeable (p). It was formerly held, that a promise or payment could not be proved by a verbal or unsigned written acknowledgment (q). But it was also held, that the appropriation [1892] 1 Q. B. 765; 61 L. J. 405. (n) Clark v. Hooper, 10 Bing. 480; 4 Moore & S. 353; 38 R. R. 508. (0) Dowling v. Ford, 11 M. & W. 329. (p) See ante, p. 363. (g) Willis v. Newham, 3 Y. & J. 518; Baildon v. Walton, 1 Exch. 632; Waters v. Tompkins. 2 C., M. & R. 723; 1 Tyr. & Gr. 137; Bayley v. Ashton, 4 P. & D. 204; Maghee v. O'Neil, 7 M & W. 531; see, however, Eastwood v. Saville, 9 M. & W. 615. of the payment to a particular debt might (r). Payment CHAPTER may, however, now be proved like any other fact (s). XXII. This part of the statute is retrospective, and therefore Statute an oral acknowledgment or promise, though made before retrospective. 1st January, 1829, when the statute came into operation, became inadmissible in evidence (†). Entries on the bill, of payment of interest or principal, Entries on in the handwriting of the plaintiff, were formerly evidence the bill. to take the debt out of the statute; but now the 9 Geo. 4, c. 14, s. 3, enacts that no indorsement or memorandum of any payment, written or made after the 1st January, 1829, upon any promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of the statute. It may now, therefore, be advisable that any indorsement of payment of interest, or part payment of principal, should be written by the debtor and signed by both parties; signed by the creditor, as evidence in favour of the debtor; written and signed by the debtor, to keep the security alive in favour of the creditor. Indorsements of the payment of interest are presumed to have been written at the time they bear date (u). As an entry by a person deceased against his interest is evidence in an action brought by his personal representatives, such an entry of payment of interest is admissible in an action by them on a bill or note for the purpose of proving payment. But if the entry be on the bill or note itself, payment so proved, though admissible, would not by the express words of the statute be sufficient to take the debt out of the statute. Yet if the entry were on some other paper, it seems it would not only be admissible but sufficient. For the expression "other writing" in the statute only means any other writing containing the contract (x). Eighthly, as to the mode in which the statute is to be HOW THE taken advantage of. It must now be pleaded, in all cases specially (y). STATUTE IS OF. |