XXII. out of the statute against the executors of the deceased (c); CHAPTER nor would a payment by the executor of the deceased have affected the survivor (d). And it has been held, that nothing short of an express promise will take a debt out of the statute against an executor (e). And if the plaintiff rely on a payment, it must distinctly appear that the payment was made by the executor in his representative, and not in his personal, capacity (f). And it seems that payment by one executor would not of itself have taken the case out of the statute as against his co-executor (g). When one of two makers of a joint and several note made his companion his executor, and died, and the survivor afterwards paid interest on the note out of his own pocket, this being an acknowledgment in his personal, and not in his representative, capacity, was held not to revive the debt as against the executors (h). But the executors of the deceased were bound, if the payment were made by the survivor before the death of their testator (i). So, where a joint note was made by a man and a woman, and the woman afterwards married, and a joint action was brought against husband and wife and the other maker, laying the promise by the other maker and the woman dum sola, and the defendants pleaded that the action did not accrue within six years, evidence of a promise by the other maker after the marriage was held to be out of the issue (j). (c) Atkins v. Tredgold, 2 B. & C. 23; 3 D. & R. 200. (d) Slater v. Lawson, 1 B. & Ad. 396. (e) Tullock v. Dunn, 1 R. & M. 416. (f) Scholey v. Walton, 12 M. & W. 510; see, however, Griffin v. Ashby, 2 Car. & K. 139. (g) Ibid. (h) Atkins v. Tredgold, 2 B. & C. 23; 3 D. & Ry. 200. (i) Burleigh v. Stott, 8 B. & C. 36; 2 M. & Ry. 93. (j) Pittam v. Foster, 1 B. & C. 248; 2 D. & Ry. 363. Before the Married Women's Property Acts, 1870-1882, when a single woman gave a promissory note and married, and the note was more than six years old, there were great difficulties in suing, although acknowledgments and payments might have been made within the six years, but after marriage. A husband can only be sued for the debt of his wife v. Norfolk, 1 Taunt. 212. If the CHAPTER Statute The distinction, however, between the operation of payments and acknowledgments, is abolished by the 19 & 20 Vict. c. 97, s. 14, which statute restrains the effect of the 19 & 20 Vict. acknowledgment implied from payment and confines it to the party making it, as the 9 Geo. 4, c. 14, had restrained the effect of an express acknowledgment. But the statute is not retrospective (k). c. 97. In cases of and insolvency. It has been held, that payment of a dividend under a bankruptcy 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 (1). 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 no acknowledgment of more being due (m). To whom. 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 (n). 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 (o); and from the cases above cited, it should seem Dig. Baron and Feme, B. 2), it 828; and ante, CAPACITY OF PARTIES. (k) 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. Thomp son v. Waithman, 26 L. J., Chan. 134; Jackson v. Woolley, 27 L. J., Q. B. 181. (1) Davies v. Edwards, 21 L. J., Exch. 4. (m) 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. (n) Peters v. Brown, 4 Esp. 46. As to payment to an agent of the holder, see Megginson v. Harper, 2 C. & M. 322; 4 Tyr. 94. 32. (0) Halliday v. Ward, 3 Camp. 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 (p). So an acknowledgment to a prior holder of a bill or note, enures to the benefit of a subsequent holder (q). 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 (r). CHAPTER XXII. Lastly, as to the evidence by which a promise, acknow- What ledgment, or payment must be proved, in order to its taking evidence is a debt out of the statute. required of the acknowWhere the same debt is secured by different instruments, ledgment. payment of interest on one will take the others out of the statute (s). The statute 9 G30. 4, c. 14, requires that an acknowledg- Signature of ment or promise by words only should be in writing, signed party charge. by the party chargeable (t). able. admission. It was formerly held, that a promise or payment could Effect of not be proved by a verbal or unsigned written acknow- verbal ledgment (u). But it was also held, that the appropriation of the payment to a particular debt might (v). Payment may, however, now be proved like any other fact (w). This part of the statute is retrospective, and therefore an Statute oral acknowledgment or promise, though made before 1st retrospective. January, 1829, when the statute came into operation, became inadmissible in evidence (x). Entries on the bill, of payment of interest or principal, Entries on (p) Mountstephen v. Brooke, 1 B. & Ald. 224. (q) Gale v. Capern, 1 Ad. & Ell. 102; 3 N. & M. 863; see, however, Cripps v. Davis, 12 M. & W. 159. (r) Clark v. Hooper, 10 Bing. 480; 4 Moore & S. 353. (s) Dowling v. Ford, 11 M. & W. 329. (t) See ante, p. 363. (u) Willis v. Newham, 3 Y. & J. 518; Baildon v. Walton, 1 Exch. 632; Waters v. Tompkins, B.B.E. 2 C., M. & R. 723; 1 Tyr. & Gr. (v) Waters v. Tompkins, supra; (w) Cleave v. Jones, in error, 6 Exch. 573. (x) Towler v. Chatterton, 6 Bing. 258; 3 M. & P. 619; Hilliard v. Lenard, Moo. & M. 297. B B the bill. XXII. CHAPTER in the handwriting of the plaintiff, were formerly evidence 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. HOW THE TO BE TAKEN OF. Form of plea. Indorsements of the payment of interest are presumed to have been written at the time they bear date (y). 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 (z). Eighthly, as to the mode in which the statute is to be taken advantage of. It must now be pleaded, in all cases specially (a). The defendant must now plead that the claim is barred by the Statute of Limitations (b). Reply to a To a plea of set-off, the Statute of Limitations must be plea of set-off. replied specially (c). (y) Smith v. Battens, 1 M. & Rob. 341. (2) Bradley v. James, 22 L. J., C. P. 193; 13 C. B. 822. See (a) Ord. XIX. r. 18. Wakelee v. Davis, Q. B. D. 1878. In the County Court a defendant must give notice of it as a special defence, County Court Act, 1888, s. 82; County Court Rules, 1889, Ord. X. r. 10; and must specify the date from which he alleges the statute began to run, r. 14. (b) And should apparently state the Act on which he relies, which for actions on a bill or note is the 21 Jac. 1, c. 16, s. 3. See R. S. C. 1883, Forms in Appendix. (c) Chapple v. Durston, 1 C. & J. 1. See post, Chapter on Re MEDIES; Pleading. XXII. The plaintiff may reply to a plea of the statute, that he CHAPTER is within the saving clause, or rather such parts as are unrepealed. Reply of the saving clauses. WHEN INDEPENDENTLY Lastly, independently of the statute, if a note be twenty years old (d), it will be presumed to have been paid, in the absence of circumstances tending to repel the presump- OF THE tion (e). STATUTE, TIME IS A The lapse of thirteen years has been held sufficient to LAPSE OF raise a presumption of the repayment of a loan not secured by a note (f). (d) Such, for two hundred years, has been the common law as to a bond. The defence was introduced into Ireland by statute 8 Geo. 1, c. 4, and into England by the 3 & 4 Will. 4, c. 42, s. 3. (e) Duffield v. Creed, 5 Esp. 52. Brown v. Rutherford, 14 Ch. D. 687. (f) Cooper v. Turner, 2 Stark. 497. BAR. |