account; if it does not, the concern must be broken up to meet it. My hope is, that out of the present harvest you will be paid;" and it was also held that the amount might be proved by extrinsic evidence (k).

In Dabbs v. Humphrey (l) the following acknowledgment was held sufficient to take the case out of the statute :-"I beg to say I cannot comply with your request. The best way for you will be to send another bill, and draw another for the balance of your money, 301.," without any evidence of another bill having been drawn. So an entry in a bankrupt's examination of a certain sum being due to A., is sufficient to take the case out of the statute (m).

Where the acknowledgment is conditional, the plaintiff must show that the condition has been performed; thus where the defendant promised to pay the debt when he was able, Lord Kenyon ruled that the plaintiff was bound to show that the defendant was then of sufficient ability to pay, adding, that it had been so ruled before by Eyre, C. J. (n). Where the acknowledgment was, "I shall be happy to pay both principal and interest when convenient. I shall pay no more interest till we have a fair settlement;" it was held that the plaintiff was bound to show that it was convenient to pay, and also, it seems, that a settlement had taken place (o). So where the promise was, "I cannot pay the debt at present, but I will pay it as soon as I can;" the Court of King's Bench held that it was necessary for the plaintiff to show the defendant's ability to pay (p). But where the defendant said that if certain other persons paid, he should do the same, Lord Ellenborough held that the plaintiff was entitled to recover without proof that the other persons had paid (q). So where the defendant promised to pay the debt by instalments if time were given, Lord Ellenborough was of opinion that this was sufficient, and the plaintiff recovered without proof of time being given (r).

(k) Bird v. Gammon, 3 Bing. N. C. 883; 5 Scott, 213.

(1) Dabbs v. Humphries, 10 Bing. 406; 4 M. & Scott, 285, S. C.

(m) Eickie v. Nokes, 1 Moo, & Rob. 359.

(n) Davies v. Smith, 4 Esp. 35; and see Beresford v. Saunders, 2 H. Bl. 116.

(0) Edmunds v. Downes, 2 C. & M.

459; 4 Tyr. 73, S. C.

(p) Tanner v. Smart, 6 B. & C. 603; Ayton v. Bolt, 4 Bing. 106; A'Court v. Cross, 4 Bing. 329; 11 Moo. 198; Haydon v. Williams, 7 Bing. 163; 4 M. & P. 818, S. C.

(g) Loweth v. Fothergill, 4 Camp.

185.

98.

(r) Thompson v. Osborne, 2 Stark.

A letter expressed to be written "without prejudice" cannot be received as an acknowledgment of a debt to bar the statute (s). Upon the principle that an admission to take a debt out of the statute of limitations, must be of such a nature that a promise can be implied therefrom, those cases in which debtors have admitted the original claims, but have denied that a liability existed at the time of the admission, because the debt had been paid (t); or because there was a set-off against it (u); or because the six years had expired (x); are clearly good law. And it appears that the same principle equally renders ineffective an admission qualified by an objection which would at any time have exempted the party from payment (y), or by an unfounded claim to be discharged by a particular instrument which he refers to, or upon some ground which he specifically adverts to (z). And it would now probably be held that in the latter cases the plaintiff cannot be allowed to take the case out of the statute, by going into evidence rebutting or negativing the ground of discharge relied upon by the defendant in making his admission; for a promise of payment can hardly be presumed to have been made by a party who disputes his liability, even on fallacious grounds.

A trust, or direction for the payment of debts in a will of personal estate, will not stop the running, or take debts barred out of the operation, of the statute of limitations (a).

It should seem that there is some doubt whether it is a question for the judge or for the jury to determine, whether a letter written by the defendant be or be not a sufficient acknowledgment for the purpose of taking a debt out of the operation of the statute of limitations; it is usual for the judge to express his own opinion with regard to the document, and also leave it to the jury (b).

(z) See Owen v. Woolley, Bull. N. P. 168; Partington v. Butcher, 6 Esp. R. 66; Hellings v. Shaw, 1 Moore, 344; 7 Taunt. 608, S. C.; Beale v. Nind, 4 B. & Al. 568, 571, 572, and note (a).

(a) Freake v. Cranefeldt, 3 Myl, & Cr. 499; Evans v. Tweedy, 1 Beav. 55. See 2 Wms. Exors. 1249; 2 Chitty's Eq. Ind. 862.

(b) Bucket v. Church, 9 C. & P. 209; Morrell v. Frith, 3 M. & W. 402; sed vide Lloyd v. Maund, 2 T. R. 760.

It is necessary, to give effect to a written instrument offered in evidence as an acknowledgment under the 9 Geo. IV., that it contain in substance a distinct admission of the debt sought to be recovered. If such debt be not mentioned therein, and there be no reference thereby to any written document which states it, the statute is not obviated. In Kennett v. Millbank (c) the defendant, by a deed reciting that he "was indebted to the plaintiff” and others, assigned his property to the plaintiff, in trust to pay all such creditors as should sign the schedule of debts annexed; provided that if all did not sign, the deed should be void. The plaintiff never signed, nor was the amount of his debt stated. It was decided that the debt was not taken out of the statute of limitations, although it was admitted orally that he had but one debt. The deed did not in that case admit the debt sued for. But in Dickenson v. Hatfield (d) Lord Tenterden, C. J., held, in an action upon a bill, that a letter, in which the defendant promised to pay "the balance due from him to the plaintiff" was sufficient; observing that the 9 Geo. IV. did not require the amount of the debt to be specified; but that the plaintiff could only recover nominal damages, as he did not prove what the balance was. And in Lechmere v. Fletcher (e) it was decided that the amount of the debt need not be stated, and may be proved by and recovered upon extrinsic evidence: there the defendant's promise was to pay "his proportion" of a joint debt barred by the statute. In Waller v. Lacy (f) the cases of Dickenson v. Hatfield and Lechmere v. Fletcher were recognised: there the defendant had a claim against his attorney the plaintiff, the amount of which was not ascertained. At the foot of his bill the plaintiff acknowledged the defendant's debt thus: "By Mr. Lacy's bill

leaving a blank for the sum; and this was held a sufficient acknowledgment to take the claim out of the statute.

(c) 1 M. & Scott, 102; 8 Bing. 38, S. C.; observed upon in Lechmere v. Fletcher, 1 C. & M. 631. But accord. ing to Frost v. Bengough, 1 Bing. 266, 8 Moore, 180, S. Č., where a debt is admitted, if no other account between the parties appear, the onus of showing that other transactions existed to which the acknowledgments might probably refer, is thrown on the defendant; see Bailie v. Lord Inchiquin, 1 Esp. R. 435, cited ante, 825, note (g); and

see Evans v. Davies, 4 Ad. & E. 840; post, 831.

(d) 5 C. & P. 46; 1 M. & Rob. 141. And see Cheslyn v. Dalby, 2 You. & Col. 199.

(e) 1 C. & M. 623; post, 834.

(f) Waller v. Lacy, 1 Scott N. R. 186; 8 Dowl. 563; S. C. And see Bird v. Gammon, 5 Scott, 213; 3 Bing. N. C. 886, S. C. ante, 826; Dodson v. Mackey, 8 Ad. & E. 225, in note; ante, 826.

A memorandum was taken by the plaintiff from the defendant on 30th July, 1821, as follows:-" I. O. U. 1007. C. D. 30th July, 1821." On the 17th August, 1821, the defendant gave, on the same paper, an acknowledgment signed under the former memorandum, as follows:-" 17th August, 17—, received 50l. C. D." It was held that the second did not take the first memorandum out of the statute (g).

Indorsements on a promissory note, admitting the receipt of interest, are presumed to have been written at the time they bear date (). So the date when a letter containing a new promise was written may be supplied by parol (i).

Part payment.-The statute 9 Geo. IV. c. 14, s. 1, provides (k), it will be remembered, "that nothing therein contained shall alter or take away, or lessen the effect of any payment of any principal or interest made by any person.' A part payment takes a case out of the statute, because it is evidence of a fresh promise (1).

Therefore since the act (m), as well as before (n), a part payment of a debt revives the claim as to the residue. The part payment must be proved by a person who witnessed it (o), or by the defendant's written and signed admission thereof; proof of his verbal admission will not suffice. The mere fact of a sum of money having been paid by the defendant to the plaintiff is not enough to take a case out of the statute of limitations, without some evidence that it was a payment of a debt; and that it was not the discharge of a balance due, but a payment intended by the debtor to be applied in part discharge of a particular and larger demand(p); but the fact of the payment having been proved,

(1) Per Parke, J., Gowan v. Forster, 3 B. & Ad. 511.

(m) Wyatt v. Hodson, 8 Bing. 309; 1 M. & Scott, 422, S. C.; Bealy v. Greenslade, 2 C. & J. 61; Chippindale v. Thurston, M. & Mal. 411; 4 C. & P. 98, S. C.; Frans v. Davies, 4 Ad. & E. 340; post, 831.

(n) Whitcomb v. Whiting, Doug. 652; Burleigh v. Stott, 8 B. & C. 36;

2 M. & R. 93, S. C.; Pease v. Hirst, 10 B. & C. 122.

(0) Where a witness admitted that an account containing a memorandum of a payment on behalf of the defendant was in his handwriting, but could not recollect the fact of payment, this was held evidence to go to the jury of the fact of the payment; Trentham v. Deverill, 4 Scott, 128; 3 Bing. N. C. 397, S. C.

(p) Tippet v. Heane, 1 C., M. & R. 252; 4 Tyr. 772; Willis v. Newham, 3 Y. & J. 518. And see Evans v. Davies, 4 Ad & E. 840, post, 831. And see Leeson v. Smith, 4 Nev. & Man. 304; there, in order to take a case out

its appropriation to a particular account, whether in respect of principal or interest, may be shown by the verbal declarations of the party making the payment, and such declarations need not have been at the time of such payment (q).

A part payment must, however, in order to defeat the operation of the statute be expressly made and appropriated by the debtor on account of the debt, which would otherwise be barred by the statute; and therefore if a creditor has two separate demands against his debtor, one barred by the statute, and the other not, and the debtor make a payment without specifically appropriating it to either demand, though the creditor may in exercise of his ordinary right of appropriation apply it in part liquidation of the older demand, he cannot make it operate as a part payment under the statute to revive his remedy for the remainder of such old demand (r).

Although the statute enacts that even an acknowledgment in writing, by one of two joint debtors, shall not bind the other, yet a part payment by one will fix the other original contractor as to the balance (s). And a payment on account of interest, where the debt consists or is composed of principal and interest, will revive the remedy (t).

In an action on a promissory note bearing interest, proof that the defendant, being sent to by plaintiff for money, paid 17., and said, "this puts us straight for last year's interest, all but 18s.; some day next week I will bring that up," is a sufficient answer to a plea of the statute of limitations, no evidence being given of any other debt due from the defendant to the plaintiff (u).

Where a debtor draws a bill of exchange, to be applied in part payment of a debt, and the bill is paid when due by the drawee to the creditor, it operates as a part payment to defeat

of the statute of limitations, a payment of 12s. as interest-money was proved: this was held not to justify a verdict finding a debt of 13/. 16s. A verdict for nominal damages only could upon this evidence have been sustained.

(g) Id.; Waters v. Tompkins, 2 C., M. & R. 723; 1 Tyr. & G. 137.

(r) Mills v. Fowkes, 7 Scott, 444; 5 Bing. N. C. 455, S. C.; ante, 753; and see Waller v. Lacy, 1 Scott, N. R. 186; 1 Man. & Gr. 54; 8 Dowl. 563, S. C., ante, 758.

(s) Wyatt v. Hodson, 8 Bing. 309; Channell v. Ditchburn, 5 M. & W. 494; see further, post, 834.

(t) Wyatt v. Hodson; Bealy v. Greenslade; ante, 831, note (m). But a payment on account of principal does not admit interest, unless the latter be shown to have composed part of the claim, and to be connected therewith; Collyer v. Willoch, Bing. 313; 12 Moore, 557, S. C.

(u) Evans v. Davies, 4 Ad. & E.

840.