said enactments, or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them :-provided always, that nothing herein contained shall alter, or take away, or lessen the effect of any payment (r) of any principal or interest made by any person whatsoever —provided also, that in actions to be commenced against two or more such joint contractors, or executors, or administrators, if it shall appear at the trial or otherwise that the plaintiff, though barred by either of the said recited acts, or this act, as to one or more of such joint contractors, or executors, or administrators, shall nevertheless be entitled to recover against any other or others of the defendants by virtue of a new acknowledgment, or promise, or otherwise, judgment may be given, and costs allowed for the plaintiff, as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff." Section 2. "If any defendant or defendants in any action on any simple contract shall plead any matter in abatement, to the effect that any other person or persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the trial that the action could not by reason of the said recited acts, or this act, or of either of them, be maintained against the other person or persons named in such plea, or any of them, the issue joined on such plea shall be found against the party pleading the same." Section 3. "No indorsement or memorandum of any payment written or made after the time appointed for this act to take effect upon any promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of either of the said statutes." Section 4. "The said recited acts and this act shall be deemed and taken to apply to the case of any debt on simple contract, alleged by way of set-off on the part of any defendant either by plea, notice, or otherwise." And by section 8, the memorandum of acknowledgment is exempted from the operation of the stamp acts, provided such memorandum is produced merely to defeat the operation of the (r) See post, 830, 831, as to part payment, and by whom made. Statute of Limitations, the debt being proved aliunde (s). And this section only exempts from the stamp duty such instruments as would but for such exemption have to be stamped as agreements; and therefore a promissory note on a wrong stamp is not admissible in evidence to defeat the operation of the Statute of Limitations (t). 2. Of the form and nature of the fresh acknowledgment or promise. The modern cases upon this subject have satisfactorily settled the principles upon which an admission of the debt, after the lapse of six years, is allowed to revive the remedy and obviate the operation of the Statute of Limitations, 21 Jac. 1, which does not, it will be remembered, contain any provision upon the subject of such new acknowledgments (u). Although the Statute of Limitations bars the remedy after six years, the debt is not extinguished (v): it still exists, and the debtor is under a moral obligation to discharge it. He may, therefore, by a new promise to pay the debt revive his original liability. There must, however, be either an express promise to pay, or an acknowledgment of the debt in terms so distinct and unqualified that a promise to pay can reasonably be inferred. An acknowledgment revives the remedy only in those cases in which it affords per se evidence of a new promise. It then constitutes a new cause of action, or rather supports and establishes the promises laid in the declaration to pay the original debt. From a general acknowledgment, where nothing is said to prevent it, a general promise to pay may and ought to be implied (x); but where the party guards his acknowledgment, an implication will not arise. Although there be the most distinct admission of the debt, yet if it be accompanied by a refusal to pay, the statute is not obviated, for such refusal prevents the implication of a promise arising from the acknowledgment. So if there be an acknowledgment, accompanied by a conditional promise to pay when able, no absolute promise can be implied from the acknowledgment; and the conditional promise confers only a limited (s) Morris v. Dixon, 4 Ad. &. E. 845; 6 Nev. & Man. 438; ante, 123, 132. (t) Jones v. Ryder, 4 M. & W. 34. (u) But the statute limiting actions on specialties expressly provides that written acknowledgments and part payments shall revive the claim; see ante, 813. (v) Ante, 806. (a) Per Patteson, J. Routledge v. Ramsey, 8 Ad. & E. 224; 3 Nev. & P. 319, S.C.; per Tenterden, C.J., Tanner v. Smart,6 B. & C. 603; and see Scales v. Jacob, 3 Bing.638; 11 Moore, 553, S. C.; Ayton v. Bolt, 4 Bing. 105; 12 Moore, 305, S. C. observations respecting it. Of that sum 687. 3s. 8d. is made up of items for business and materials stated to have been done and furnished between 1817 and 1824, a period during which I was concerned in two successive partnerships, to one or other of whom the accounts Mr. B. was entitled to recover ought to have been charged. Having at different times wound up both these concerns, and quitted Carmarthen as long back as the year 1824, I was surprised to receive Mr. B.'s bill in 1829, five years afterwards; and it is certainly not a little strange that he should then send in a charge of so old a date, when, if any account was due, it could hardly be expected that the means would remain of ascertaining its correctness. I cannot therefore allow that I am liable to pay any part of the account previous to the year 1825; but as I anticipate being in Carmarthen shortly, I will communicate with Mr. B. personally respecting it. The remainder of the account is for repairs ordered by an agent under the late firm of Robert Smith & Co. to be done at the works at Carmarthen in 1827, together with a few items for glazing in the year 1825, making together 20l. 17s. 5d., which I believe to be correctly charged, and for which I enclose a check, and will thank you to acknowledge the receipt of it.” Bayley, B., after adverting to the principles before advanced, said, "Now in the present case there is a letter acknowledging that the plaintiff makes a demand, but not acknowledging the propriety of the demand, and denying all liability on his part to make the payment. I think where there is such a denial, I cannot make the implication of a promise to pay (g)." (g) The principles upon this subject are thus settled with some degree of certainty; but difficulties will frequently arise in applying them to particular cases. The following decisions and dicta, in which it was considered that there were sufficient acknowledgments to defeat the statute, seem to be opposed to the rule now established, and cannot therefore be deemed law at the present day; at least very few of them can be considered free from great doubt: Where defendant denied that he had at any time bought any such goods of the plaintiff's testator, and said further, that if the plaintiff could prove it, he would pay it; Holt, C. J. reported in the King's Bench, that he had put this case to all the judges in England, and that they were all of opinion, that a general indebitatus assumpsit might be well maintained, because the defendant had waived the benefit of the statute; Heyling v. Hastings, 1 Ld. Raym. 389, 421; 5 Mod. 425; Com. 54; 1 Salk. 29, S. C., cited by Lord Tenterden, C. J. in Tanner v. Smart, 6 B. & C. 606; 9 Dowl. & R. 553, S. C. to explain the general principle. In Trueman v. Fenton, Cowp. 548, Lord Mansfield, C. J. observed, "The slightest acknowledgment has been held sufficient; as saying, 'prove your debt and I will pay you.'I am In Routledge v. Ramsey the defendant, on application for payment of a debt, handed over to the plaintiff certain book debts due ready to account, but nothing is due to you,' and much slighter acknowledgments than these will take a debt out of the statute." In Lawrence v. Worrall, Peake, 93, defendant said, "What an extravagant bill you have delivered me;" and Lord Kenyon, held this a sufficient acknowledgment of some money being due to take it out of the statute. In Lloyd v. Maund, 2 T. R. 760, where the terms of the defendant's acknowledgment supposed to be contained in a letter were ambiguous, Ashurst, J. observed, "that because the letter perhaps contained an insinuation that something was due, it should have been left to the jury to infer an acknowledgment of the debt." [But this case may be considered as expressly overruled by Morrell v. Frith, 3 M. & W. 406, and Bucket v. Church, 9 C. & P. 209, where it was held, that a doubtful admission is for the consideration of the Court, and not of the jury; and see Bird v. Gammon, 5 Scott, 213; post, 826, 827.] In Bailie v. Lord Inchiquin, 1 Esp. 435, (decided before the passing of Lord Tenterden's Act,) the defendant, having assigned his estate for payment of his debts, wrote, "I beg leave to refer you to my trustee, Mr. H. W., on this complicated business; I should be glad to be informed how you have settled it with Lord Cork;" the action being upon a bill of which Lord Cork and the defendant were joint acceptors; and Lord Kenyon ruled that it should lie on the defendant to explain the promise, and show that it applied to another demand; and suffered the plaintiff, without any proof of the trust upon the above letter alone, to defeat a plea of the statute. Where the defendant said that "the plaintiff had paid money for him twelve or thirteen years ago, but that he had since become a bankrupt, by which he was discharged, as well as by law from the length of time since the debt had accrued;" Lord Kenyon held it to be sufficient, and said "it had been decided that any acklowledgment of the debt was sufficient to take the case out of the statute;" Clarke v. Brudshaw, 3 Esp. 155. In Lowth v. Fothergill, 4 Camp. 185, a demand being made by a seaman on the owner of a ship for wages which had accrued during an embargo, he said "if others paid, he should do the same," which Lord Ellenborough held to be a sufficient acknowledgment on which to imply an (semble) absolute promise. Where the drawer of a bill barred by the statute said, "If you had presented the protest the same as the rest, it would have been paid, I had then funds in the acceptor's hands; it having been discovered that no protest in that case was necessary, Lord Ellenborough, C.J. was of opinion, that the drawer had admitted his liability, and that the statute was defeated; De La Torre v. Barclay, 1 Stark. R. 7. In Thompson v. Osborne, 2 Stark. R. 98, Lord Ellenborough held at Nisi Prius, that a promise to pay by instalments, if time were given, was sufficient evidence to support a declaration, laying a general and absolute promise within the six years. "I do not consider myself as owing Mr. B. a farthing, it being more than six years since I contracted; I have had the wheat, I acknowledge, and I have paid some part of it, and 261. remain due;" held sufficient to obviate the statute; Bryan v. Horseman, 4 East, 599. Upon payment being demanded of the acceptor of a bill, he admitted his acceptance, and said that "he had been liable, but was not liable then, because the bill was out of date, that he would not pay it; it was out of his power to pay it;" and the Court held that the statute was defeated; Leaper v. Tatton, 16 East, 420. There was a similar decision where to a demand for seamen's wages, defendant answered that "he would not pay; there were none paid, and he did not mean to pay unless obliged;" Douthwaite v. Tibbut, 5 M. & Sel. 75. In Frost v. Bengough, 8 Moore, 180; 1 Bing. 266, S. C. the to himself, with the following acknowledgment in writing:-" I give the above accounts to you, so you must collect them, and you and me will be clear;" it was held that this was no bar to the Statute of Limitations, for though there was an admission of the debt, no general promise to pay could be inferred from it, but merely a promise to pay in one particular manner, namely, by means of the book debts (h). But in Dodson v. Mackey (i) the following passages in letters from the defendant, in answer to a letter of the plaintiff's, not produced, were held to be sufficient, and not conditional:"I can never be happy until I have not only paid you every thing, but all to whom I owe money. It is impossible to state to you what will be done in my affairs at present; it is difficult to know what will be best, but immediately it is settled you shall be informed."-"Your account is quite correct, and oh! that I were going to inclose the amount of it, if she (another creditor) will only have patience, I will in time pay every farthing, as also Miss D. (the plaintiff)." The Court held, however, that the plaintiff was only entitled to nominal damages, no other evidence having been given of the amount of the debt. In Bird v. Gammon the following letter was held sufficient to take the case out of the statute :-" I wish I could comply with your request, for I am very wretched on account of your not being paid; there is a prospect of an abundant harvest, which must turn into a goodly sum, and considerably reduce your following letter was held sufficient evidence of a promise within the six years, to go to a jury to say whether it applied to the transaction in dispute, no evidence having been offered of other dealings between the parties :-"Business calls me to Liverpool; should I be fortunate in my adventure, you may depend on seeing me in Bristol in less than three weeks; otherwise I must arrange matters with you as circumstances will permit.' In Gibbons v. M'Casland, 1 B. & Al. 690, defendant's saying "he remembered it perfectly well, and that when he was able it should be arranged," was held such a recognition of a subsisting liability as was sufficient to take the case out of the statute without proof of the condition. In Colledge v. Horn, 3 Bing. 119, where the defendant in reference (h) Routledge v. Ramsey, 3 N. & P. (i) Dodson v. Mackey, 4 Nev. & Man. 327; 8 Ad. & El. 225, S. C. in note. |