513] *would be the words "as soon as Wednesday is passed," or, "as soon as the first of July is passed." They simply allude to some time as the time required before which the payment is not to take place, and they would not import a condition. It would be useless to imagine other cases than this; we are only dealing with this case: and all I can say is, that paying the best attention to the argument I could, and scanning the words as well as I can, I come to the conclusion that here the person who wrote that document did not mean to import a condition-did not mean to intimate the slightest doubt as to whether his affairs would be arranged or not. If he had, he might have used totally different language from this, such as, "if on the arrangement of our affairs I find myself able to do so," or words of that kind. But he contemplates as a certainty that the arrangement of the affairs would soon take place, which would be consistent with the payment he promises; and the subsequent words therefore are wholly unconditional, and the document contains an unconditional promise to pay.

GROVE, J.: I am of the same opinion. There has been no doubt or dispute in the argument by the learned counsel as to the principle which is to be applied to this case; nor, as far as I am aware, is there any difference of opinion in the court as to the principle to be applied. The whole question is of the application of the principle. There being, in the unanimous opinion of the court, an acknowledgment of the debt in this document, the sole question really is, whether the words, "as soon as we can get our affairs arranged," import any condition, or merely whether they refer to time and to mere convenience on behalf of the persons acknowledging the debt as to when their affairs will be arranged, not expressing any doubt as to any probability or expectation that the affairs are not capable of arrangement, nor indeed any doubt of the solvency of the parties, but merely that a certain time must be occupied in putting the affairs in order. Now as far as I can gather in all the cases that have been cited for the defendant-and I only refer to the cases here, not as laying down the principle, which is undisputed, but as showing how learned judges and courts have applied the principle-as far as I can gather, though the cases are so numerous that I am far 514] from saying that there may not be cases which do not come within the point to which I am about to refer; all the cases import either only a hope or expectation, which does not amount to a promise, or an absolute condition, or a degree of doubt or difficulty as to means of payment

which may fairly be assumed to import a condition. The case which comes the nearest to this of all the cases that have been decided, as far as my judgment goes, and which may be cited in favor of the defendant, is the case of Fearn v. Lewis ('). There the words were these: "Mr. Fearn's claim, with that of others, shall receive that attention that as an honorable man I consider them to deserve, and it has been and is my intention to pay them; I cannot conclude without saying I must be allowed time to arrange my affairs,"-words in themselves, it appears to me, not unlike the words (though capable of distinction, and what to my mind is a fair distinction) in the present case. The present case is, “as soon as we can get our affairs arranged." In Fearn v. Lewis (') the statement in writing which was relied upon goes on to say, "and if I am proceeded against any exertion of mine will be rendered abortive." It is to be observed that, first of all, what the person who writes the letter says is not as in the present letter, "we will see that you are paid," but, "it is my intention to pay them." Now an intention is something different from an actual promise; it is something in the man's mind, who may intend a thing, but may be at the same time conscious that it is extremely doubtful whether he will be able to perform it. Then there comes a "but" and an "if"-"But I must be allowed time to arrange my affairs, and if I am proceeded against any exertion of mine will be rendered abortive." That seems to imply, "It is my intention to pay, but I am unable to pay at present, because if you proceed against me my exertion will be rendered abortive.' Therefore it imports an assertion of present inability to pay, but an intention (which may be something more than hope, but which would not necessarily amount to a promise) to pay if the affairs are put right, and if, in fact, there is an ability to pay. There is a doubt, to say the least, if not an absolute assertion of present inability, and an intention of paying if time be given-a conditional *intention, and a condi- [515 tional intention depending upon the circumstances of a man who admits at least, to take it as fairly as it can be taken, that at present he is unable to pay. Now, is there any such "but" or "if" in the present case? The present case is, "as soon as we can get our affairs arranged we will see you are paid." They seem to me very strong and very positive words; not the slightest doubt expressed as to the ability to see the creditor paid--"we will see you are paid." Then are these words, "as soon as we can get our affairs ar(1) 6 Bing, 349.

ranged," to be read as if there were some doubt about our affairs that there is some question whether we have a balance, or something of that sort; or is it not, "We are occupied in arranging our affairs, and do not be under any alarm, because we will see you are paid?" It seems to me

that the assertion of the ability to pay is very strong, and that there is no condition imported in the mere question of time which is involved in a certain arrangement of the partnership affairs.

There are two other cases to which I will allude, and only two, which were decided in favor of the person relying on the promise; and they seem, or at least one of them seems, to go further than the present case. Of course, sitting here in the Court of Appeal we are not bound by those cases, and I only use them as showing the application of the principle which has been held in previous cases, either to make the promise an unconditional one, or considered by the judges a conditional one. One is the case of Lee v. Wilmot (1), in which the word "if" occurs, but occurs not as I read it in the sense of importing doubt of ability in himself, but doubt as to what the creditor will let him do. The words are these, "I will try to pay you a little at a time" (that may be said to import some degree of inability), “if you will let me. I am sure I am anxious to get out of your debt. I will endeavor to send you a little next week." That was held to be a sufficient promise, although there was the conditional word "if" in it, but there the conditional word was rather pleading with the creditor than an expression of inability on the part of the debtor; at all events there does seem to be some degree of doubt there expressed as to the ability to pay, because there is the prayer for time, and only a promise of an instalment. But in Cornforth v. 516] Smithard ()*the words seem to me to go further than this case in favor of their being conditional. The words are these: "In reply to your statement of account received, I am sorry the account has stood so long. I must beg to trespass on your kindness a short time longer, till a turn in trade takes place, as for some time things have been very flat." Now in that case, as in Lee v. Wilmot (3), the expression in the letter was held by the judges to be sufficient to take the case out of the statute; and this last case seems to me to be a little stronger in favor of the defendant than the present, because it does seem not unreasonable to import some doubt of ability to pay. "I must beg to trespass on

(1) Law Rep., 1 Ex., 364.

(2) 5' H. & N. 13; 29 L. J. (Ex.), 228.

(3) Law Rep., 1 Ex., 364.

your kindness a short time longer till a turn in trade takes place, as for some time things have been very flat," rather importing, "Things are too flat for me now to be able to pay you, but we must wait until a turn takes place in the market." I do not think it necessary to go into the cases any further, because they seem to me to show that the condition must really import either an inability to pay, or a doubt of ability to pay, or import something in the sense of a hope, or an intention, and not an absolute promise coupled with an apparent ability, both which seem to me to exist in the present case. Here it is, "as soon as we can get our affairs arranged we will see you are paid, and in the meantime" (that is, whilst our affairs are being arranged) "perhaps you will let your clerk send us the account.'" I am far from saying the case is perfectly clear; it would not be at all proper to say so; but, speaking my own opinion, I am far from saying I have arrived at the judgment I have expressed with anything like perfect certainty in my own mind that I am right; but the best opinion I can form on the subject is, that these words, "as soon as we can get our affairs arranged," do not amount to a condition; they do not amount to saying, "If we can get our affairs arranged, we will pay you; they do not amount to an admission that the disarrangement of the affairs involves doubt as to whether the settlement will enable them to pay or not, but merely that it is something which will occupy time to get arranged: and then comes the most clear and unequivocal promise that words can make-not "hope to pay you," not "if we can arrange we will pay you,' but 66 we will see you are *paid." It seems to me that on the whole there is a [517 sufficiently unequivocal and unconditional promise, and this letter does revive the debt so as to take it out of the Statute of Limitations.

CLEASBY, B.: I am of the same opinion. I think I should have said no more than that I concur in the conclusion and in the reasons already given, but as the learned Chief Justice who presides to-day is of a different opinion, I think I ought to state very briefly indeed my reasons for coming to the same conclusion as the judges who have already given judgment. Undoubtedly in this case there is an unconditional acknowledgment of the debt; what we are to consider is, whether there is coupled with that unconditional acknowledgment of the debt a conditional or limited promise, so as to negative the implication of an unconditional promise to pay which would in general arise from an unconditional acknowledgment of the debt. The question is not exactly,

or perhaps at all, the same as has been discussed in most of the cases. We have not here to consider what is the effect of an acknowledgment, so much as what is the meaning of this letter. If we can ascertain what the meaning of it is, then we can refer to the cases as guides; but here we have to deal with the preliminary question, what does this,-taking not only the language contained in the letter itself, but having reference to any other circumstances there might be, what does this mean? It is a question not of the effect, but of the construction, what is the meaning of this letter.

Now the facts are that two or three persons, the defendant being one of them, had made a joint promissory note as early as 1858. The facts are undoubtedly barely stated; but in 1867 we come to this, that one of these three seems to have been applied to, I do not know exactly under what circumstances, and to that application the answer which he gave was this-(it may be mentioned that the plaintiffs are bankers):-"The old account between us which has been standing so long has not escaped our memory, and as soon as we can get our affairs arranged" (that is something which they are to do), "we will see you are paid." I can only read this as referring to something which is sure to take place, not only ought to take place but is sure to take place. It is not a condition which means something which 518] may or may not happen, but *a limitation of time which we may assume will be at an end before long. "As soon as it can be done," that is the meaning of it, which is not liable to be interrupted in any way, but which is a matter of course, and which may be done in a very short time, or a little longer time, still it is an act which is sure to take place, "As soon as this matter is arranged; as soon as our affairs show what the position of things is, then we will see you are paid." I think what follows, as my Brother Pollock has mentioned, may be fairly taken into account in dealing with this, because he says, "And perhaps in the meantime you will let your clerk send me an account of how it stands." What does that mean? If it had gone on and said, "and you shall then have a check for the amount" (it is not going very far to read it as having that meaning, as he has said, "we will see you are paid"). "Let your clerk send it in in the meantime, so that I may be prepared and have the amount known," then I cannot help thinking we should have seen our way to the conclusion that all that was intended here was to say, "It cannot be done imme