the statute of limitations only from the time of the delivery of the bill by the debtor, and not from the time of its payment (x).

If a sum be allowed the debtor in an account as a part payment, and he pay the balance of such account, this shall be deemed a sufficient part payment within the act (y). And where a creditor agrees to receive goods in reduction of his demand, the delivery of such goods operates as a payment within the statute (z).

The 9 Geo. 4, c. 14, s. 1, requires that the written acknowledgment or promise shall be "signed by the party chargeable thereby." Upon which, in Whippy v. Hillary (a), it was decided that the statute was not barred by a letter from the defendant, "that family arrangements had been making to enable him to discharge the debt; that funds had been appointed for that purpose, of which A. was trustee; and that the defendant had handed the plaintiff's account to him; that some time must elapse before payment, but that the defendant was authorised by A. to refer the plaintiff to him for any further information;" for such letter does not charge the defendant. And in Routledge v. Ramsey (b), the defendant having sums of money due to him from third persons, handed the accounts to his creditor, the plaintiff, and wrote to him thus-" I give the above accounts to you, so you must collect them and pay yourself, and you and I will then be clear;" it was held, that the defendant did not by this letter charge himself, and though it contained an acknowledgment of the plaintiff's demand, no promise to pay could be inferred, except in the way pointed out in the defendant's letter.

Where a written instrument, containing a promise to pay a debt barred by the statute has been lost, oral evidence of the contents may be received (c).

It seems that an absolute admission, even after the commencement of action, would be sufficient to support it, in answer to a plea of the statute of limitations (d); but a conditional promise

(x) Irving v. Veitch, 3 M. & W. 90; 3 M. & W. 313; Gowan v. Forster, 3 B. & Ad. 507.

(y) Chippendale v. Thurston, 4 C. & P. 98; and see Waller v. Andrews, 3 M. & W. 312; ante, 751,

(z) Cooper v. Steevens, 4 Ad. & E. 71; 5 Nev. & Man. 635; 7 C. & P. 250; 1 Harr. & W 480, S. C.; Hart v. Naish, 2 C., M. & R. 337; 1 Gale, 171, S. C.

(a) Whippy v. Hillary, 3 B. & Ad. 399, recognized in Routledge v. Ramsey, 8 Ad. & E. 221; 3 Nev. & P. 391, S. C.; and see ante, 819.

(b) Routledge v. Ramsey, 3 N. & P. 391; 8 Ad. & E. 221, S. C.

(c) Haydon v. Williams, 4 M. & P. 811; 7 Bing. 16S, S. C.

(d) See Yea v. Fouraker, 2 Burr. 1099; Thornton v. Illingworth, 2 B. & C. 825; 4 D. & R. 547, S. C. As

after writ issued would not suffice, because in such case the right of action does not accrue until the condition is performed (e).

If a cause of action, arising from the breach of a contract to do an act at a specific time, be once barred by the statute of limitations, a subsequent acknowledgment by the party that he broke the contract, will not, it seems, take the case out of the statute (f).

3. By whom the Acknowledgment must be made.

Before the statute 9 Geo. 4, c. 14, it was held that the admission of the debt by the authorized agent of the debtor (g), or by a third party, to whom he referred the creditor for information respecting his demand (h), or by the wife of a debtor who was accustomed to conduct his business (2), or by his counsel at the trial in his hearing (k), was sufficient to revive the remedy. But the law in this respect is altered by the first section of the statute, which provides that the written acknowledgment shall be signed "by the party chargeable thereby (7);" and therefore the signature of the debtor's agent will not suffice (m).

It will have been observed that the statute expressly provides that even a written acknowledgment of the debt by one of two joint debtors or joint executors shall not revive the remedy against the other party; and if they be jointly sued, the plaintiff may recover in such action against that defendant who has acknowledged the claim; the other defendant recovering a ver

to a new promise by an adult after action to pay a debt barred by infancy, see id.; and ante, 154.

(e) See Tanner v. Smart, 6 B. & C. 603; Haydon v. Williams, 7 Bing. 163; 4 M & P. 811, S. C.; Lechmere v. Fletcher, 1 C. & M. 626, note (a) ; post, 834.

(f) Boydell v. Drummond, 2 Camp. 160; Peake, Ev. 205; Hurst v. Parker, 1 B. & Al. 92; 2 Chitty, R. 249, S. C.; Short v. M'Carthy, 3 B. & Al. 626; Whitehead v. Howard, 5 Moore, 105; 2 B. & B. 372, S. C. In 2 Campb., Lord Ellenborough said, "If a man acknowledge the existence of a debt barred by the statute, the law has been supposed to raise a new promise to pay it, and thus the remedy is revived; but no such effect can be given to an acknowledgment, where the cause

(i) Anderson v. Sanderson, Holt, N. P. R. 91. See Gregory v. Parker, 1 Campb. 394.

(k) Colledge v. Horne, 3 Bing. 119; 10 Moore, 431, S. C.; see now Kennett v. Milbank, 8 Bing. 40, 41; 1 Moore & Scott, 102, S. C.

(l) Ante, 819; and although the debtor sign the admission, he must charge himself thereby, ante, 832; Routledge v. Ramsey, 3 Nev. & P. 391.

(m) Hyde v. Johnson, 3 Scott, 230.

dict (n). Where, however, in a joint action against two, it appeared that one had in writing promised to pay "his proportion of the debt when applied to," the court held that in such joint action on the original debt, and joint cause of action, the plaintiff could not, in reference to the terms of the promise, recover even against the party who made it (o). An action was subsequently brought against that party, and he was declared against specially on his conditional promise to pay his share of the debt when applied to; and it was decided that such written promise was binding, and that the action was well brought, although the written memorandum did not mention the defendant's proportion of the debt; and although in the former action he recovered a verdict and judgment on the pleas of the general issue and statute of limitations, and the plaintiff had a verdict and judgment against the other defendant upon the general issue (p).

But a part payment by one of several original joint debtors or contractors, either of principal or interest comprising the original debt, revives the remedy against the other parties, although they were sureties only (q), and although the payment was not made until after the statute of limitations had actually barred the original debt (r). And this rule applies, although the parties were bound severally as well as jointly to pay the debt, and the action is brought separately against one of them who did not make the part payment (s).

So the payment of interest from time to time by the vestry of a parish on a note given by churchwardens on the parish account, takes the case out of the statute of limitations, as against the makers, more especially where one of such makers has audited the parish accounts, in which payments of interest on the note are entered (t).

But a part payment must not be without the consent, express

(n) Ante, 819, 820.

(0) Lechmerev. Fletcher and another, in King's Bench, 1 C. & M. 636, note (a).

(p) Lechmere v. Fletcher, in the Exchequer, 1 C. & M. 623; but see per Lord Denman, Hooper v. Stephens, 7 Car. & P. 261; Bird v. Gammon, 5 Scott, 213; 3 Bing. N. C. 883. (9) Ante, 820.

(r) Channell v. Ditchburn, 5 M. & W. 494, 496, and cases there cited;

Ex parte Woodman, re Turner, 3 Mont. & Ayr. 609; sed vide id. 615.

(s) Whitcombe v. Whiting, Doug. 652; Burleigh v. Stott, 8 B. & C. 36; Pease v. Hirst, 10 B. & C. 122; Perham v. Raynal, 2 Bing. 306; 9 Moore, 566, S. C.; Channell v. Ditchburn, 5 M. & W. 494, and cases there cited.

(t) Crew v. Pettit, S Nev. & Man. 456; S. C., nom. Rew v. Pellet, 1Ad. & E. 196.

or implied, of the debtor: and, therefore, if it be made by his agent contrary to his instructions, or by a stranger without his authority, it will not avail (u).

A payment by one of several joint debtors must have clear reference to their debt, or it will not bind or affect the other party; and it has therefore been considered, that in order to take a case out of the statute, in an action on a promissory note, it is not sufficient to show a general payment by a joint maker of the note to the payee within six years, so as to throw it upon the defendant to show that the payment was not made on account of the note (r).

The principle upon which part payment (which is the most powerful admission of a debt and a strong evidence of a promise to pay the remainder) is allowed to affect other parties jointly indebted with the payer, is the community of interest between them, and the presumption that the party paying would not thus acknowledge that which was adverse to his own interest (y), or be collusively induced to make the sacrifice of a part payment, for the purpose of fixing his co-contractor.

Where the original community of interest and liability ceases, the part payment by one affects himself only. Therefore, after the death of one or two joint or joint and several contractors, his executors cannot be prejudiced or made liable by a part payment, after the lapse of six years, by the surviving debtor (z). Nor in such case will the latter be affected by a payment on account by the executors (a).

It was determined in Jackson v. Fairbank (b) that a payment within six years, of a dividend on a joint and several note, under a commission of bankrupt against one of the makers, precludes: the other from availing himself of the statute of limitations. But this decision appears to have been doubted in Brandram v. Wharton (c) on the ground that the acknowledgment, besides being a constructive one, was made by parties (the assignees) who

(u) Linsell v. Bonsor, 2 Bing. N. C. 241; Scott, 399.

(x) Holme v. Green, 1 Stark. R. 488, per Lord Ellenborough, observed upon by Parke, B., in Waters v. Tompkins, 2 C., M. & R. 727; 1 Gale, 323, S. C.; Brandram v. Wharton, 1 B. & Al. 468.

(y) See 2 Stark. Ev. 44, 483, 2d ed.

(z) Atkins v. Tredgold, 2 B. & C. 23; 3 D. & R. 200, S. C. But see this case observed upon per Parke, B., Channell v. Ditchburn, 5 M. & W. 497, 498.

(a) Slater v. Lawson, 1 Barn. & Ad. 396.

(b) 2 H. Bla. 340.
(c) 1 B. & Al. 463.

never could be called upon for contribution. In that case, one of two joint drawers of a bill of exchange became a bankrupt, and under his commission the indorsee proved a debt (beyond the amount of the bill) for goods sold, &c., and exhibited the bill incidentally (that is, as a security he then held for his debt), and afterwards received a dividend; it was held, in an action by the indorsee against the solvent drawer, that the payment of the dividend within six years did not revive the demand against him. The court, however, distinguished the case from Jackson v Fairbank, for there the claim was made and the dividend received upon the instrument itself; whereas in Brandram v. Wharton the dividend was on a distinct debt, and the instrument was introduced but incidentally, and the introduction or omission of it neither increased or diminished the claim upon the dividends; and Bayley, J., observed that there was, in fact, no acknowledgment by any one.

4. To whom the Acknowledgment must be made.

It should seem that since the passing of Lord Tenterden's Act, 9 Geo. 4, c. 14, an acknowledgment of a debt made to a stranger will not have the effect of taking such debt out of the operation of the statute of limitations; it must be made to the creditor or his agent (d). Before the passing of that act there were however several decisions to the contrary.

Thus in a case before Lord Kenyon at Nisi Prius (e), to prove an acknowledgment by the defendant of the debt within six years, in answer to a plea of the statute of limitations, the plaintiff called a witness to whom the defendant was also indebted, and who having called on him for money, the defendant stated, "I suppose you want money, but I cannot pay you: I must pay Mr. Peters (the plaintiff) first, and then I'll pay you :" and his lordship held that this acknowledgment took the case out of the statute. So, where A., by means of misrepresentation, received of B., and several other persons, his, A.'s, tenants, various sums of money, to which he was not entitled; and on B. remonstrating that he and the other tenants had paid more than was due, A. stated to B., that if there was any mistake it should be rectified; it was held that this obviated the statute as to the payments made

(d) See Grenfell v. Girdlestone, 2 You. & Col. 662.

(e) Peters v. Brown, 4 Esp. R. 46.