and not to be applied exclusively by the credit to the note that is barred; per Ld. Cranworth, Nash v. Hodgson, 6 D. M. & G. 474, 482; 25 L. J., Ch. 186, 188. Payment into court as to part of a debt will not, it would seem, take the case out of the statute raised as a defence to the rest. See Long v. Greville, 3 B. & C. 10; Reid v. Dickons, 5 B. & Ad. 499. Part payment in goods taken as money will be an answer to the statute. Hart v. Nash, 2 C. M. & R. 337; Hooper v. Stevens, 4 Ad. & E. 71. Payment of interest on a note, due more than six years ago, will take the note out of the statute. Bealy v. Greenslade, 2 C. & J. 61; Purdon v. Purdon, 10 M. & W. 562. Part payment may be by bill or note, and this will rebut the statute if so made as to imply a promise to pay the rest, although the bill or note may never be in fact paid. Turney v. Dodwell, 3 E. & B. 136; 23 L. J., Q. B. 137. And the delivery of a bill in part payment operates from the delivery, and not from the falling due of the bill. Irving v. Veitch, 3 M. & W. 90. To constitute a payment of interest sufficient to take a debt out of the statute, it is not necessary that money should pass between the debtor and creditor, provided the transaction amounts to such a payment. Maber v. Maber, L. R., 2 Ex. 153; and see Amos v. Smith, 1 H. & C. 238; 31 L. J., Ex. 423.

Where a payment of part is made, as and for a payment of the whole that the defendant admits to be due, such payment will not take the rest out of the statute. Waugh v. Cope, 6 M. & W. 824. A payment made to the creditor to the use of his debtor by a third party, cannot be appropriated by the creditor so as to bar the statute. Valler v. Lacy, 1 M. & Gr. 54. Where the defendant authorised an agent to offer the plaintiff a part of his debt in discharge of the whole, and, on the plaintiff's refusal so to accept it, the agent exceeded his authority and paid the sum offered in part discharge, it was held that this was not a part payment to bar the statute. Linsell v. Bonsor, 2 N. C. 241. But, generally, payment by an authorised agent is payment by the principal, and the authority is a question for the jury.

Where A., B., and C., overseers, borrowed money for the parish, and gave promissory notes, signed by them as overseers, for the amount, payment of interest by the vestry or overseers for the time being, was held to bar the statute in a suit on the notes against the drawers. Rew v. Pettet, 1 Ad. & E. 196; Jones v. Hughes, 5 Exch. 104. The trustees of certain legatees lent to the defendant part of the trust money upon a promissory note, describing themselves as such trustees; a payment of the principal and interest to one of the legatees within six years was held to take the case out of the statute. Megginson v. Harper, 2 Cr. & M. 322; 4 Tyr. 94. A. gave B. a promissory note in order to get an advance on it from B.'s banker; B. indorsed it to his banker, who credited him with the amount it was held that a payment of interest by B. to his banker within six years did not keep alive the liability of A. to the banker on the note. Harding v. Edgecumbe, 28 L. J., Ex. 313. Payment on a note to an administrator, who had neglected to take out administration in the diocese in which the note was bonum notabile, was held sufficient to bar the operation of the statute as against a subsequent administrator de bonis non. Clark v. Hooper, 10 Bing. 480.

Notwithstanding several decisions, beginning with Willis v. Newham, 3 Y. & J. 518, to the contrary, it is now settled that a part payment within six years, though proved only by an oral or unsigned admission of the defendant, will take a case out of the statutes. Cleave v. Jones, 6 Exch. 573. But, such admission cannot be proved by the production of a book by the plaintiff, confidentially intrusted to him as the defendant's attorney in the course of business, in which book payment of interest by the defendant to the plaintiff within six years was entered. Cleave v. Jones, 7 Exch. 421;

Limitation, Statutes of.—Subsequent Acknowledgment.

609

20 L. J., Ex. 238, Ex. Ch. An answer to a bill in chancery against the defendant, admitting the payment of certain sums, but denying that they were paid as interest on the alleged debt due to the plaintiff, is enough to take the debt out of the statute, if the jury are satisfied by other evidence that they were in fact so paid; Baildon v. Walton, 1 Exch. 617. As to the use of admissions made in the book of a testator of the receipt of interest by him, to rebut the statute when set up against his executor, see Bradley v. James, 13 C. B. 822; 22 L. J., C. P. 193; and ante, pp. 52, 56, 57.

The 9 Geo. 4, c. 14, s. 1 (ante, p. 606), prevents an acknowledgment or promise by one of several co-contractors from taking the case out of the statutes, but part payment was unaffected by that act. Whitcomb v. Whiting, 2 Doug. 652; 1 Smith's Leading Cases. But now, by the Mercantile Law Amendment Act, 1856, s. 14, when there are several cocontractors or co-debtors bound or liable jointly only, or jointly and severally, or executors or administrators of any contractor, no such co-contractor, &c., shall lose the benefit of the Statute of Limitations, so as to be chargeable by reason only of payment of any principal, interest, or other money, by any other co-contractor, co-debtor, executor, &c. As to the effect of such payment by a co-executor, or by a surviving co-contractor, or by the executor of a deceased co-contractor before the last act, see Slater v. Lawson, 1 B. & Ad. 396; Scholey v. Walton, 12 M. & W. 510; Atkins v. Tredgold, 2 B. & C. 23. Sect. 14 of the last act is not retrospective, and payment of a co-contractor before the act still prevents the operation of the Statute of Limitations. Jackson v. Woolley, 8 E. & B. 784; 27 L. J., Q. B. 448; Ex. Ch., reversing the judgment below; and overruling Thompson v. Waithman, 3 Drew. 628; 26 L. J., Ch. 134. The statute applies even if the payment be made with the knowledge and consent of the defendant, the co-debtor; per Crompton, J., Jackson v. Woolley, 8 E. & B. 783, 784; 27 L. J., Q. B. 182. Payment by a continuing partner does not bar the statute as against one who has retired. Watson v. Woodman, L. R. 20 Eq. 721; semble, contra as to an existing partner. S. C.

Acknowledgment-by whom.] Since 9 Geo. 4, c. 14, an acknowledgment. signed by an agent in the name of the principal, and with his assent, was held insufficient in Hyde v. Johnson, 2 N. C. 776. But now, by 19 & 20 Vict. c. 97, s. 13, an acknowledgment or promise made in a writing, signed by an agent of the party chargeable thereby, duly authorized to make it, has the same effect as if signed by the party himself. An acknowledgment made by an agent since the passing of this last Act is sufficient to bar the statute in the case of a debt contracted before the Act. Leland v. Murphy, 16 Ir. Ch. Rep. 500, M. R.

Even before Ld. Tenterden's Act it was held that, as against an executor, a mere acknowledgment is not sufficient to take the case out of the statute, but there must be an express promise. Tullock v. Dunn, Ry. & M. 416; Scholey v. Walton, supra. Where an action was brought against A., B., and C., the wife of B., upon a joint promissory note made by A. and C. before the marriage of the latter, and the Statute of Limitations was pleaded, it was held that an acknowledgment of the note by A., after the inter-marriage of B. and C., was not evidence to support the issue. Pittam v. Foster, 1 B. & C. 248. An admission by a bankrupt in his balance-sheet will not take the debt out of the statute as against his trustee. Pott v. Clegg, 16 M. & W. 321; Ex pte. Topping, 34 L. J., Bky. 44. An acknowledgment, by an infant under age, of a debt for necessaries supplied to him, is an answer to adefence of the statute. Willins v. Smith, 4 E. & B. 180; 24 L. J., Q. B. 62. As to acknowledgment of debt on behalf of a joint-stock company, see Lowndes v. Garnett, &c. Gold Mining Co., 33 L. J., Ch. 418.

VOL. I.

RR

The 9 Geo. 4, c. 14, s. 1, expressly provided that, in future, a promise by one of several debtors shall not deprive the rest of the benefit of the statute. Ante, p. 606.

An agreement stamp is not necessary on instruments given in evidence as acknowledgments; 9 Geo. 4, c. 14, s. 8, and vide ante p. 221; but an unstamped promissory note cannot be used for this purpose, for the section does not exempt such an instrument from requiring a note stamp. Jones v. Ryder, 4 M. & W. 32; Parmiter v. Parmiter, 2 D. F. & J. 526; 30 L. J., Ch. 508; vide, ante, p. 230.

Acknowledgment-to whom.] Before the case of Tanner v. Smart, 6 B. & C. 603, post, p. 611, there was a good deal of confusion as to the nature of the acknowledgment which was necessary to take a case out of the Statute of Limitations. It was always considered that the acknowledgment must be made for the benefit of the person who relied upon it, and must correspond with the promise in the count; therefore, in an action by an executrix, a statement by the defendant to her, that "the testator always promised never to distress him for it," was held to be no evidence of a promise to pay made to the testator within six years. Ward v. Hunter, 6 Taunt. 210. So, an acknowledgment by the acceptor of a bill, that he was indebted on it to the payees, but that he was not indebted to the drawer, there being no consideration for the bill, was held not sufficient in an action by the drawer. Easterly v. Pullen, 3 Stark. 186.

There are, however, several older authorities to show that an admission to a third party, for the benefit of the creditor, is enough, at least under the stat. 21 Jac. 1, c. 16. Thus, an acknowledgment made to a stranger that the debt is owing to the plaintiff, has been held sufficient. Peters v. Brown, 4 Esp. 46. So, an acknowledgment in a deed, between the defendant and third persons, of the existence of a debt due to the plaintiffs, who are strangers to the deed. Mountstephen v. Brooke, 3 B. & A. 141; and see Clark v. Hougham, 2 B. & C. 149; Halliday v. Ward, 3 Camp. 32; Clark v. Hooper, 10 Bing. 481. So, since Lord Tenterden's Act, an answer and inventory in the Ecclesiastical Court made on the citation of the next of kin, stating the debts due from the estate of the deceased, and signed by the administrator, has been held to rebut a plea of the Statute of Limitations. Smith v. Poole, 12 Sim. 17.

On the other hand, it has been doubted whether a promise made by the maker of a note to the payee, while it was in his hands, will be available in a suit by an indorsee against the maker; Cripps v. Davis, 12 M. & W. 159; and, with respect to the other cases cited above, it is to be observed that they were mostly decided before the effect of an acknowledgment, as an answer to the statute, had been put on its right footing; and the better opinion is that an admission of a debt, made to a mere stranger, can only repel the statute when it can be properly left to the jury as equivalent to, or implying a promise to, the plaintiff to pay him. See Everett v. Robertson, and Ex pte. Topping, cited post, p. 614; Howcutt v. Bonser, and Forsyth v. Bristowe, post, p. 640, and Wilby v. Elgee, L. R., 10

C. P. 497.

Acknowledgment-What sufficient.] "The legal effect of an acknowledgment of a debt barred by the Statute of Limitations is that of a promise to pay the old debt, and for this purpose the old debt is a consideration in law. In that sense, and for that purpose the old debt may be said to be revived. It is revived as a consideration for a new promise. But, the new promise and not the old debt is the measure of the creditor's right. If a debtor simply acknowledges an old debt, the law implies from that simple

Limitation, Statutes of.-Subsequent Acknowledgment.

611 acknowledgment a promise to pay it; for which promise the old debt is a sufficient consideration. But, if the debtor promises to pay the old debt when he is able, or by instalments, or in two years, or out of a particular fund, the creditor can claim nothing more than the promise gives him.” Per Wigram, V.C., Philips v. Philips, 3 Hare, 281, 299, 300. This was, in effect, the law laid down in Tanner v. Smart, 6 B. & C. 603, which overruled many previous cases. Accord. Buckmaster v. Russell, 10 C. B., N. S. 745, per Williams, J.; Chasemore v. Turner, infra. See also In re River Steamer Co., L. R., 6 Ch. 822, 828.

But, the reports still show considerable difference of opinion as to the effect of the words on which the creditor relies for proof of the supposed promise. A mere admission of the debt, without any expressions as to the intention or ability to pay, may be sufficient. See the observations in Hart v. Prendergast, 14 M. & W. 741, 742, 746. But, if the admission be so qualified as to show present inability to pay, and only the hope of coming to "some satisfactory arrangement," in event of increased means, it is insufficient, though coupled with a disclaimer of any wish to rely on the statute. Rackham v. Marriott, 2 H. & N. 196; 26 L. J., Ex. 315, Ex. Ch. ; see Cassidy v. Firman, L. R., 1 C. L. 9, Ex. Such expressions in a letter as "you will certainly be repaid;" "wait a little, and all will be right;" amount to a promise, though the letter may also explain the source from which the writer expects to obtain funds. Collis v. Stack, 1 H. & N. 605; 26 L. J., Ex. 138. So, "I will try to pay you a little at a time if you will let me; I am sure I am anxious to get out of your debt. I will endeavour to send you a little next week" Lee v. Wilmot, L. R., 1 Ex. 364; and "the old account between us which has been standing over so long has not escaped our memory, and as soon as we can get our affairs arranged we will see you are paid;"Chasemore v. Turner, L. R., 10 Q. B. 500, Ex. Ch., were held to be sufficient promises. See also Godwin v. Culley, 4 H. & N. 373; Cornforth v. Smithard, 5 H. & N. 13; 29 L. J., Ex. 228, where Pollock, C.B., intimates that stronger words would be required to re-establish a debt already barred, than to keep alive a debt before it is barred. It has been held that a letter containing a request "to send in your account," is sufficient; Quincey v. Sharpe, 1 Ex. D. 72; see also Banner v. Berridge, 18 Ch. D. 254; even though coupled with a denial of the correctness of the amount. Skeet v. Lindsay, 2 Ex. D. 314; see, however, Spong v. Wright, 9 M. & W. 629, post, p. 612. And a general admission of some debt being due, coupled with evidence to prove the amount, is sufficient. Cheslyn v. Dalby, 4 Y. & C. 238; Waller v. Lacy, 1 M. & Gr. 54. But, without such evidence, damages can only be nominal. Dickinson v. Hatfield, 1 M. & Rob. 141.

There are many reported cases in which particular letters and other written communications have been held sufficient to prove a promise; but the language in each varies, and is not likely to be exactly repeated in other cases, so that a collection of them is of little use as a guide to the decision of such points when they arise at Nisi Prius; nor can any reported cases on this head be relied upon before the case of Tanner v. Smart, supra. A promise to pay a proportion of a joint debt has been held sufficient to entitle the plaintiff to such proportion, though no sum is specified; the plaintiff may prove the amount by other evidence. Lechmere v. Fletcher, 1 Cr. & M. 623; 3 Tyr. 450; Bird v. Gammon, 3 N. C. 883. Where a promissory note given to two payees, A. and B., his wife, was barred by the statute, and the maker, after the death of A., indorsed his name and the date on the note, this has been held a sufficient acknowledgment. Bourdin v. Greenwood, L. R., 13 Eq. 281.

Acknowledgment-what not sufficient.] A paper admitting the debt, and signed by the defendant on the occasion of an agreement that it should be extinguished by an existing set-off, cannot be used to show a promise to pay; for it did not, in fact, contemplate any future payment at all. Cripis v. Davis, 12 M. & W. 159. Where, in answer to a letter from the plaintiff's solicitor, the defendant wrote, "As soon as I am able to attend to my concerns, I will wait on Captain C. (the plaintiff), whom I shall be able to satisfy respecting the misunderstanding which has occurred between us," Gibbs, C.J., thought it not sufficient to take the case out of the statute. Craig v. Cox, Holt, N. P. 380. So where, in answer to a demand for charges relative to the grant of an annuity, the defendant said he thought it had been settled at the time the annuity was granted; that he had been in so much trouble since, that he could not recollect anything about it. Hellings v. Shaw, 1 B. Moore, 340; 7 Taunt. 611. So, where the defendant, having denied the existence of the debt, said, on being requested to look at documents in proof of it, "It is no use for me to look at them, for I have no money to pay it now." Snook v. Mears, 5 Price, 636. So, where the defendant referred the plaintiff to his attorney, "who was in possession of his determination and ability." Bicknell v. Keppel, 1 N. R. 20. Where A. admits a debt due to B. only on the understanding that a cross claim is to be also allowed, and the arrangement goes off, this is no admission by A. to bar the statute. Francis v. Hawkesley, 1 E. & E. 1052; 28 L. J., Q. B. 370; Goate v. Goate, 1 H. & N. 29. See also In re River Steamer Co., L. R., 6 Ch. 822.

Where the debtor stated in writing that arrangements had been making to enable him to discharge the account, that funds had been appointed of which B. was trustee, to whom he had handed the account, and that B. had authorized him to refer the plaintiff to him; this was held not sufficient to take the case out of the statute; the debtor not charging himself by the acknowledgment. Whippy v. Hillary, 3 B. & Ad. 399. So, if the debtor merely refers the creditor to certain funds in the hands of others, and tells him to " pay himself" out of them, this is no promise charging himself. Routledge v. Ramsay, 8 Ad. & E. 221.

Where the acknowledgment was, "I cannot afford to pay my new debts, much less my old ones," it was held to be insufficient. Knott v. Farren, 4 D. & Ry. 179. "So, I will see my attorney, and tell him to do what is right." Miller v. Caldwell, 3 D. & Ry. 267. So, where the defendant, on being arrested, said, "I know that I owe the money, but the bill I gave was on a 3d. receipt stamp, and I will never pay it ;" the acknowledgment was held insufficient. A Court v. Cross, 3 Bing. 329. The following letter from the defendant to plaintiff's attorney was held not sufficient: "Since the receipt of your letter (and indeed for some time previously), I have been in almost daily expectation of being enabled to give a satisfactory reply to your application respecting the demand of Messrs. M. against me. I propose being in Oxford to-morrow, when I will call upon you on the matter." Morrell v. Frith, 3 M. & W. 402. "Send me your bill, and, if just, I will not give you the trouble of going to law," is not sufficient, as it contains no admission of any debt. Spong v. Wright, 9 M. & W. 629; see however, Quincey v. Sharpe, 1 Ex. D. 72, and Skeet v. Lindsay, 2 Ex. D. 314, ante, p. 611. The writing must import an unqualified acknowledgment of a debt, from which a promise may be inferred by the court. Fearn v. Lewis, 6 Bing. 349; Williams v. Griffith, 3 Exch. 335. And mere general expressions of a hope that the debtor may be in a condition to pay at a future day are not sufficient. Hart v. Prendergast, 14 M. & W. 741; Smith v. Thorne, 18 Q. B. 134; 21 L. J., Q. B. 199, Ex. Ch.