pay," is not now held to be sufficient, as not implying a promise to pay. See Lord Tenterden C. J. in Tanner v. Smart, 6 B. & C. 610. And it is questionable whether some of the above cases can now be relied upon as law. See Poynder v. Bluck, 5 Dowl. P. C. 570. A promise in writ ing to pay "the balance due," is sufficient without any further expression of the amount; but without some other evidence to show what the balance is, the plaintiff is only entitled to nominal damages. Dickinson v. Hatfield, 1 M. & Rob. 141. And, generally, an absolute 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. & G. 54.

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The following passages, in letters from the defendant in answer to one of the plaintiff's not produced, have been 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 enclose 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 evidence having been given of the amount of the debt. Dodson v. Mackey, 4 Nev. & M. 327. A promise to pay a proportion of a joint debt is sufficient, though no amount is specified; the plaintiff may prove the amount by other evidence. Lechmere v. Fletcher, 1 C. & M. 623., S. C. 3 Tyr. 450. Bird v. Gunmon, 3 New Ca. 883. entry in a bankrupt's examination of a certain sum being due to A. is sufficient to take the case out of the statute. Eicke v. Nokes, 1 M. & R. 359. The following acknowledgment was held to be sufficient: "I beg to say, I cannot comply with your request. The best way for you will be to send another bill, and draw another for the balance of your money, 30/.;" and it was held not to be necessary to give evidence of another bill having been drawn. Dubbs v. Humphries, 10 Bing. 406. 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 account; if it does not the concern must be broken up to meet it. My hope is that out of the present harvest you will be paid;" and it was also held that the amount might be proved by extrinsic evidence. Bird v. Gammon, 3 New Ca. 883.

An acknowledgment since action brought has been held sufficient. Yea v. Fouraker, 2 Burr. 1099. But as the implied promise is supposed to be the one mentioned in the declaration, it is doubtful whether such an admission would now be held sufficient.

Acknowledgment-what not sufficient.] Where, in answer to a letter from the plaintiff's attorney, the defendant wrote, "Sir, as soon as I am able to attend to my concerns, I shall 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. C., 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 any thing about it." Hellings v. Shaw, 1 B. Moore, 340., S. C. 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 the acknowledgment was, I cannot afford to pay my new debts, much less my old ones," and the jury negatived the acknowledgment, the court refused a new trial. Knott v. Farren, 4 D. & R. 179. So, "I will see my attorney, and tell him to do what is right." Miller v. Caldwell, 3 D. & R. 267. Where the defendant, on being arrested, said, "I know that I owe the money, but the bill I gave was on a three-penny 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. 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.

Where the expressions of the defendant are ambiguous, it was held to be a question of fact for the jury whether they amounted to an acknowledgment of the debt. Lloyd v. Maund, 2 T. R. 760.; and see Linsell v. Bonsor, 2 New Ca. 241. But this has been questioned in later cases, and it has been since held that the construction of a doubtful document, given in evidence to defeat the Statute of Limitations, is for the court and not for the jury, though, if extrinsic facts are adduced in explanation, these facts are for the consideration of the jury. Morrell v. Frith, 3 M. & W. 402.; Routledge v. Ramsay, 8 A. & E. 221.

Acknowledgment-accompanied with denial of liability.] Where the defendant acknowledges the debt, but insists at the same time that the statute bars it, such acknowledgment has been held in several cases to take the case out of the statute; Bryan v. Horseman, 4 East, 599.; Rucker v. Hannay, id. 604 (n); Leaper v. Tatton, 16 East, 420.: but these and other cases to the same effect are at variance with the principle laid down in Tanner v. Smart, 6 B. & C. 603. &c., which requires that the acknowledgment should be one which implies an unqualified promise to pay.

Where the defendant acknowledges the debt, but insists that it is paid or discharged, the whole of his admission must be taken together, and the case will not be taken out of the statute. Thus, where the defendant said, "I have paid the debt and will send you a copy of the receipt," but such a copy was never sent, Lord Ellenborough held the acknowledgment insufficient. Birk v. Guy, 4 Esp. 184, Anon. cited Holt, N. P. C. 381. Where the acknowledgment was, "You owe me

more money; I have a set-off against it," it was held (Best J., dis.) not to take the case out of the statute. Swann v. Sowell, 2 B. & A. 759. So, where on application for the amount of a bill the defendant said, "that there had been such a bill, but that the plaintiff and his deceased partner had received the money, and that there was a balance due to him (the defendant) from the executors of the deceased," the acknowledgment was held not to be sufficient, and it was doubted whether the plaintiff could go into evidence of the account between the deceased partner and the defendant, to falsify what the latter said. Beale v. Nind, 4 B. & A. 568. Where the acknowledgment was, "I acknowledge the receipt of the money, but the testatrix gave it me," it was held not sufficient to take the case out of the statute. Owen v. Wolley, B. N. P. 148.

Where the defendant, in his acknowledgment, rests his discharge upon a written instrument to which he refers with precision, evidence of that instrument has been admitted to show that it does not operate as a legal discharge. Partington v. Butcher, 6 Esp. 66. Hellings v. Shaw, 1 B. Moore, 344. S. C. 7 Taunt. 608. But the doctrine is adverted by the court with some expression of doubt in Beale v. Nind, suprà.

Acknowledgment-conditional.] When the promise relied upon is conditional, the plaintiff must show the condition performed; thus, where the defendant promised to pay the debt when he was able, Lord Kenyon ruled that the plaintiff was bound to show that the defendant was then of sufficient ability to pay, adding, that it had been so ruled before by Eyre C. J. Davies v. Smith, 4 Esp. 36. And see Besford v. Saunders, 2 H. Bl. 116. Upon the following acknowledgment, “I shall be happy to pay you both principal and interest when convenient; I shall pay no more interest till we have a fair settlement," it was held that the plaintiff was bound to show that it was convenient to pay, and also, as it seems, that a settlement had taken place. Edmunds v. Ďowns, 4 Tyr. 73. So where the promise was, "I cannot pay the debt at present, but I will pay it as soon as I can," the court of King's Bench held that it was necessary for the plaintiff to show the defendant's ability to pay. Tanner v. Smart, 6 B. & C. 603. And see Ayton v. Bolt, 4 Bing. 105.; A'Court v. Cross, 3 Bing. 329.; Haydon v. Williams, 7 Bing. 163. The only doubt is, whether the plaintiff is bound to declare specially on such qualified promise, or can show, under the common replication to the plea of Statute of Limitations, that the promise is become absolute by the performance of the condition? In practice such evidence is often received on the common traverse. Leaper v. Tatton, 16 East, 420.; Irving v. Veitch, 3 M. & W. 107. 111.; Morris v. Dixon, 4 A. & E. 845. But a special declaration is also not uncommon.

Whether the promise be qualified or not is a question of construction for the court and not for the jury, except where extrinsic evidence affects the construction. Routledge v. Ramsay, 8 A. & E. 221. See antè, p. 320.

Mutual accounts.] Accounts concerning the trade of merchandise between merchant and merchant are excepted from the operation of the statute. But this exception extends only to actions of account, or, perhaps, to actions on the case for not accounting; Inglis v. Haigh,

8 M. & W. 769.; or, at all events, only to cases where an action of account would lie. Cottam v. Partridge, 4 M. & G. 271.

Before the stat. 9 G. 4. c. 14., it was held that where there have been mutual current and unsettled accounts between the parties, and any of the items are within six years, such items are evidence, (under the replication that the defendant did promise, &c.) as an admission of there being an open account, so as to take the case out of the statute, like any other acknowledgment. Catling v. Skoulding, 6 T. R. 189., 2 Saund. 227 a. (n). But since that statute there must be part payment, or something equivalent to it, or a distinct acknowledgment, to have this effect. Williams v. Griffiths, 2 C. M. & R. 45.; Mills v. Fowkes, 5 New Ca. 455.; Cottam v. Partridge, 4 M. & G. 271.

Payment.

By the new rules of H. T. 4 W. 4. it is directed that payment should be specially pleaded; but even without a special plea evidence of payment had since the new rules been allowed in assumpsit in reduction of damages. Shirley v. Jacobs, 2 New Ca. 88. In debt such evidence was held to be inadmissible without a plea of payment. Belbin v. Butt, 2 M. & W. 422.; Cooper v. Morecraft, 3 M. & W. 500. There had also existed, since the new rules, a difference of opinion as to the necessity of pleading a payment which had been admitted by the plaintiff in his particulars of demand. See Coates v. Stevens, 2 Č. M. & R. 119.; Ernest v. Brown, 3 New Ca. 674.; Nicholl v. Williams, 2 M. & W. 758.; Kenyon v. Wakes, 2 M. & W. 764.

These questions are now set at rest by the additional new rules of T. T. 1 Vict., which direct that payment shall not, in any case, be allowed to be given in evidence in reduction of damages or debt, but shall be pleaded in bar; and that in any case in which the plaintiff, in order to avoid the expense of the plea of payment, shall have given credit in the particulars of his demand for any sum or sums of money therein admitted to have been paid to the plaintiff, it shall not be necessary for the defendant to plead payment. But the rule is not to apply to cases where the plaintiff, after stating the amount of his demand, states that he seeks to recover a certain balance, without giving credit for any particular sum or sums.

Since this rule, payment cannot be given in evidence without a plea, though only for the purpose of showing that interest is not due on the debt demanded, the debt itself being admitted by payment into court. Adams v. Palk, 3 Q. B. 2. Where the plaintiff gave the defendant credit in his particular for a bill indorsed to the plaintiff, and debited him with the amount as dishonoured, the defendant was not permitted to show, under non assumpsit, that the plaintiff had made the bill his own by laches; for the particular, in effect, gives no credit at all, and the constructive payment must therefore be pleaded. Green v. Smithies, 1 Q. B. 796. The plaintiff's particular set forth a bill amounting to 1167., and professed to go for "a balance of 271. after credit for payments on account and sets-off:" held, that this did not amount to giving credit for the exact difference, but that defendant was bound to plead payments. Morris v. Jones, Id. 397.

In one case payment was admitted in evidence on the general issue, though not noticed in the plaintiff's particular; namely, where the defendant proved that the goods were sold for ready money and paid for

on delivery; for the plaintiff was bound to prove a sale on credit; and where ready money is paid, no debt arises. Bussey v. Barnett, 9 M. § W. 312.

Where the plaintiff's particular admits a payment, he can recover only the amount by which his claims, as proved, exceed the payment. Rowland v. Blaksley, 1 Q. B. 403. The particular claimed a balance of 294 for goods sold, and gave credit for 920l. paid. The plaintiff proved a claim of 9491. for goods sold it appeared that 841. worth of the goods had been taken back. Held, that the plaintiff might turn the balance in his favour by showing that he had given credit for 84/. as part of the payment. Lamb v. Micklethwait, Id. 400.

In an action for 301. for work and labour, to which the defendant pleaded the general issue, and payment of all the monies in the declaration, on which issue was taken, the defendant proved payment of 901. Held, that the plaintiff might show work done to an amount exceeding 90%., and recover the balance; for the plea must be proved by showing payment of all that the plaintiff can prove, and no new assign ment is necessary; Freeman v. Crafts, 4 M. & W. 4.; and this decision has been recognised and confirmed by the Common Pleas in James v. Lingham, 5 New Ca. 553., and by the Queen's Bench in Alston v. Mills, 9 A. & E. 248. Declaration for work and labour, with a particular for contract work and extra work: plea nunquam indebitatus, and a plea of payment confined to contract work: the replication traversed the payment: Held, that the plaintiff could not recover for extras without a new assignment. Rogers v. Custance, 1 Q. B. 77.

A plea of payment is so far divisible, that if, to a declaration on special assumpsit, defendant pleads payment of a certain sum in satisfaction generally, and proves payment of a less sum, he is entitled to a verdict unless the plaintiff proves damages to a larger amount. Falcon v. Benn, 2 Q. B. 314. So if the defendant pleads “as to -l. parcel," &c., payment of that amount, and proves payment of a less sum, he is entitled to a verdict pro tanto, though the damages exceed that amount, provided the excess be covered by other pleas also found for the defendant. Cousins v. Paddon, 2 C. M. & R. 547. But where the plaintiff proves a larger debt than the payment covers, the issue must be found for the plaintiff, and the payment will only go in reduction of damages. Tuck v. Tuck, 5 M. & W. 109.; Kilner v. Bailey, Id. 382. And it seems that there is no distinction in this respect between assumpsit and debt in the general indebitatus form. See per cur. in Cousins v. Paddon, and Tuck v. Tuck, ubi suprà. Also antè, p. 50.

To and by whom, and how.] Payment to an authorised agent is sufficient. Goodland v. Blewith, 1 Camp. 477.; Coates v. Lewes, id. 444. ; Owen v. Barrow, 1 N. R. 101. Thus payment to an attorney, while an action is subsisting, is good; Anon. I Dowl. P. C. 173.; but not to his clerk, who shows no other authority than his master's order to receive it. Per Lord Kenyon C. J., Coore v. Callaway, 1 Esp. 115. So payment to the attorney's agent is not good. Yates v. Freckleton, 2 Doug. 623. But payment to a person found in a merchant's countinghouse, and appearing to be intrusted with the conduct of the business there, is a good payment to the merchant, though the person was, in fact, never employed by him. Barrett v. Deere, M. & M. 200.; and see Wilmott v. Smith, id. 238. In a late case, Littledale J. expressed an