CHAPTER In cases of bankruptcy and insolvency. To whom. Vict. c. 97, s. 14, which statute restrains the effect of the 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 (c). It has been held, that payment of a dividend under a 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 (d). But that is doubtful, for it has since been more correctly held that payment of a dividend by the assignees of an insolvent will not take a note out of the statute as against his co-makers, for there is no acknowledgment of more being due (e). Fourthly, as to the person to whom the acknowledgment, promise or payment must be. 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 (ƒ). 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 (g); and from the cases above cited, it should seem it would, before the 9 Geo. 4, c. 14, 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 (h). So an acknowledgment to a prior holder of a bill or note, enures to the benefit of a subsequent holder (i). So a payment to an administrator, under void (c) 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; Thompson v. Waithman, 26 L. J., Chan. 134; Jackson v. Woolley, 27 L. J., Q. B. 181. (d) Davies v. Edwards, 21 L. J., Exch. 4. (e) Jackson v. Fairbank, 2 H. Bl. 340, recognized in Perham v. Raynal, 2 Bing. 306; 9 Moore, letters of administration, will take a note out of the statute in an action by an administrator under valid letters (k). CHAPTER is required of Lastly, as to the evidence by which a promise, acknow- What evidence ledgment, or payment must be proved, in order to its taking the acknowledg a debt out of the statute. Where the same debt is secured by different instruments payment of interest on one will take the others out of the statute (1). ment. party charge The statute 9 Geo. 4, c. 14, requires that an acknowledg- Signature of ment or promise by words only should be in writing, signed able. by the party chargeable (m). admission. It was formerly held, that a promise or payment could Effect of verbal not be proved by a verbal or unsigned written acknowledgment (n). But it was also held, that the appropriation of the payment to a particular debt might (o). Payment may, however, now be proved like any other fact (p). This part of the statute is retrospective, and therefore an Statute retrooral acknowledgment or promise, though made before 1st spective. January, 1829, when the statute came into operation, is inadmissible in evidence (9). bill. Entries on the bill, of payment of interest or principal, in Entries on the 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 paymenť 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 (k) Clark v. Hooper, 10 Bing. 480; 4 Moore & S. 353, S. C. (1) Dowling v. Ford, 11 M. & W. 329. (m) See ante, p. 346. (n) Willis v. Newham, 3 Y. & J. 518; Baildon v. Walton, 1 Exch. 632; Waters v. Tompkins, 2 C., M. & R. 723; 1 Tyr. & Gr. 137, S. C.; Bayley v. Ashton, 4 P. & D. 204; Maghee v. O'Neil, 7 M. & W. 531; see, however, Eastwood v. Saville, 9 M. & W. (0) Waters v. Tompkins, supra; (p) Cleave v. Jones, in error, 6 Exch. 573. (4) Towler v. Chatterton, 6 Bing. 258; 3 M. & P. 619, S. C.; Hilliard v. Lenard, Moo. & M. 297. CHAPTER HOW THE TO BE TAKEN OF. Form of plea. 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. Indorsements of the payment of interest are presumed to have been written at the time they bear date (r). 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 (s). Eighthly, as to the mode in which the statute is to be taken advantage of. A public act need not in general, before the recent alterations of the law (t), have been pleaded. But to this rule (except in an action of ejectment) the Statute of Limitations, 21 Jac. 1, c. 16, was an exception. It was once held, that the statute need not be pleaded where it appeared on the face of the declaration that the plaintiff was too late (u). But it was afterwards settled that it must, even in that case, be pleaded; for peradventure the plaintiff may be within one of the saving clauses (x). It must now be pleaded in all cases. There are two modes of pleading the Statute of Limitations: "That the defendant did not undertake within six years; "—"that the action did not accrue within six years" (y). (r) Smith v. Battens, 1 M. & (8) Bradley v. James, 22 L. J., (u) Brown v. Hancock, Cro. (x) Hawkings v. Billhead, Cro. Car. 464; Puckle v. Moor, 1 Vent. 191; Lee v. Rogers, 1 Lev. 110; Gould v. Johnson, 2 Ld. Raym. 838. (y) Before the Uniformity of Process Act, the plaintiff might (except in actions by original) at his election, have treated either the writ or the bill as the commencement of the suit, and there Wherever the contract is executory, the former plea is bad (z). The latter form is the safest and best plea in all actions, whether on contracts or for wrongs (a). CHAPTER To a plea of set-off, the Statute of Limitations must be Replication to a replied specially (b). plea of set-off. statute admits. A replication of the statute admits all the facts alleged in What a replicathe plea, and only raises the question whether the cause of tion of the set-off accrued to the defendant within six years (c). Thus, where the defendant pleaded that the plaintiff had given his promissory note to C., that C. was dead, and that P. was C.'s administrator, who had before the action indorsed the note to the defendant, and the plaintiff replied that the cause of set-off had not accrued to the defendant within six years, it was held that all the facts stated in the plea were admitted (d). statute. A replication in assumpsit to a plea of the statute must be Replication to a consistent with the promises laid in the declaration. For plea of the example, if the original promise were absolute, the promise laid in the replication must not be conditional (e). The plaintiff may reply to a plea of the statute, that he is within the saving clause, or rather such parts as are unrepealed. Replication of clauses. the saving Lastly, independently of the statute, if a note be twenty WHEN INDEyears old (ƒ), it will be presumed to have been paid, in the PENDENTLY fore might have pleaded that the action did not accrue within six years before the exhibiting of the bill, or before the commencement of the suit, and the latter is the proper mode of pleading now. C. L. P. Act, 1852, Sched. (B.) A writ should not be replied specially, but given in evidence. Dickenson v. Teague, 1 C., M. & R. 241. (z) Gould v. Johnson, 2 Salk. 422; 2 Ld. Raym. 838, S. C. (a) 1 Saund. 33, f. A plea stating that a debt accrued more than six years ago, without stating that it did not accrue within the six years, is bad. Bush v. Martin, (b) Chapple v. Durston, 1 C. & (c) Gale v. Capern, 1 Ad. & (e) Tanner v. Smart, 6 B. & C. (f) 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. CHAPTER OF THE STA- OF TIME IS A absence of circumstances tending to repel the presumption (g). The lapse of thirteen years has been held sufficient to raise a presumption of the repayment of a loan not secured by a note (h). (g) Duffield v. Creed, 5 Esp. (h) Cooper v. Turner, 2 Stark. 52. 497. |