Treasury to grant a warrant or to

execute a warrant wherever there was a sum filed as a charge upon the Consolidated Fund. That was Lord Campbell's view of the statute, and it was upon this view that it was said that they had jurisdiction in the Queen Dowager's case. It was not much argued, and it is not necessary to enquire whether it was mistaken or not, though it seems doubtful when we look at the words whether they were not misunderstood. However that Act is repealed, and the section which is supposed to create the duty no longer exists. Upon that Mr. Gorst argued with great ingenuity that the effect of the Audit Act, 29 & 30 Vict. c. 39, was in fact to cast a duty upon the Lords of the Treasury, but I am unable to see that the Act amounts to more than this, that Her Majesty, to whom the money is granted in law, is to administer it according to the advice of responsible counsellors, and this must be done through the hands of her servants. I have found nothing, looking at the section adverted to, to make the Lords of the Treasury (who have the money in their hands brought from the Bank of England until it is paid to the recipients) in any way more amenable to third persons than in the case I have spoken of, namely, a person whose servant has got money to pay weekly bills or other matters or power to draw upon the Bank for that purpose.

It seems to me that the obligation, such as it is, is upon Her Majesty to be discharged through her servants, so that the servants cannot be proceeded against. I think, therefore, that there ought to be no rule.

MELLOR, J.-I am of the same opinion. I think the changes to which our attention has been called in the various Acts of Parliament do not shew any change in the relation of the ministers of the Crown towards the Crown. All that has been done is to alter the machinery by which the grant is to be distributed in the public service, and I am therefore clearly of opinion that this mandamus cannot issue. I think that in the taxation of these costs the Treasury may properly require the production of vouchers, but that in reducing the amount allowed on taxation they have disregarded the operation of the NEW SERIES, 41.-Q.B,

Appropriation Act. The object of the grant is to defray the charges, and the Treasury ought not to be at liberty to allow them or not, as it thinks fit. I agree with the observations of my lord and brother Blackburn that the Treasury have no doubt acted under a mistaken view of their duty, but I cannot approve of the course they have adopted.

LUSH, J.-I am also of opinion that this rule must be discharged. I think that the applicants have failed to make out that which is essential to entitle them to a mandamus, namely, that there is a legal duty imposed upon the Lords of the Treasury, as between them and the applicants, to pay over the money in question. The only statute which can be brought in aid is the Appropriation Act, and that, as it seems to me, clearly votes the money to the Crown upon trust that they will dispense it on certain specified purposes. When the money

gets into the hands of the Commissioners of the Treasury who are responsible for it, it is in their hands as servants or agents of the Crown, but practically of the House of Commons, and in no sense are they accountable to this or any other Court of justice. There is

not, to my mind, a word in this or any other Act shewing an intention, on the part of the Legislature, to make the officers of the Crown subject to the jurisdiction of this Court with reference to the disbursement of moneys voted by the Crown for specific purposes.

Upon the second point I am also of opinion that the practice resorted to by the Treasury of retaxing costs paid by the county pursuant to the direction of the judges at the time is a practice in violation of the terms of the Appropriation Act. If this question had arisen prior to the year 1865 I should have been unable to collect from the language of the Appropriation Act what the intention. was, because up to that time the words of the Appropriation Act were general. But from the year 1865 the language has been, I cannot help supposing, intentionally altered. Before we read

the clause it is needful to bear in mind that, by several Acts of Parliament, costs are allowed or allowable in

2 B

most prosecutions, and are to be paid in the first instance by the county treasurer. An order is supposed to be made in each instance upon the county treasurer, who is bound to pay in the first instance the person to whom those costs are due. Reading, in reference to that state of things, the language of the Appropriation Acts from 1855 to the present time (and they are nearly all in the same language), I think one cannot be at a loss to ascer tain what is the meaning of the legisla ture. The words are, "for prosecutions at assizes and Courts of quarter sessions formerly paid out of the county rate, including adjudications under the Criminal Justice Act, sheriff's' expenses," and so on, such a sum of money. Up to a given period, the costs were not only paid out of the county rate, but were a charge upon it, and the county had no claim anywhere else. For several years the counties have had a claim by virtue of the statutes, more or less, upon the Treasury.

Now the words, " formerly paid out of the county rate," to my mind clearly imply that that which was before a charge upon the counties shall be so no longer, but the

Crown or the Imperial Treasury should pay, and Parliament provides the money for paying the costs of prosecutions at assizes and quarter sessions which were formerly paid out of the county rates. They are still paid primarily out of the county rates, and I think the words read with reference to the present condition of things, do clearly imply that those which the counties have to pay in the first instance shall be reimbursed to them out of the sums voted by Parliament. There

Under 5 Eliz. c. 4. s. 48, it is lawful to hold Petty Sessions, otherwise called Statute Sessions, in all shires wherein such Sessions have been used to be kept, but there cannot be a legal custom to put up stalls for refreshments at such Sessions, on the public highway. And if such stalls are put up so as to obstruct the free passage of a public highway, the persons putting them up are liable to be convicted under s. 72 of 5 & 6 Will. 4. c. 50.

The jurisdiction of justices is not ousted by a claim of right to put up such stalls.

[For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. p. 105.]

Limitations, Statute of Acknowledgment -Part Payment-Principal and InterestPromissory Note--Judgment recovered-21 Jac. 1. c. 16.

Upon a plaint brought in the County Court, within six years before this action, to recover two years' interest due upon a promissory note, made for the payment of a principal sum and interest, against the representatives of the deceased maker of the note, the defendants in the plaint, being also defendants in the present action, pleaded the Statute of Limitations in answer to which plea an acknowledgment within six years was given in evidence and judgment was given for the plaintiff, and the defendants thereupon paid into Court the amount of the judgment: Held, that to this action brought to recover the principal and further interest thereon two years after such payment into Court and more than six years after the acknowledgment proved in such plaint, such payment made under the above circumstances did not necessarily imply a promise to pay the principal, and therefore

* Coram Blackburn, J., and Hannen, J.

was no evidence of an acknowledgment to pay the debt within six years, so as to take the case out of the Statute of Limitation (21 Jac. 1. c. 16. sec. 3).

Rule to the plaintiff to shew cause why the verdict obtained in this cause before the judge of the County Court of Cardiganshire should not be set aside, and a new trial had between the parties on the ground of a misdirection of the learned judge in directing a verdict on the admitted facts, to be entered for the plaintiff on the second, fifth and seventh pleas.

The action was commenced in this Court on the 20th of August, 1870, and was against the executors of Isaac Rowlands, deceased, on a promissory note dated 14th of April, 1856, by which the deceased promised to pay the plaintiff 321., with interest thereon at the rate of 51. per cent. per annum, and the same being due and unpaid the defendants in consideration thereof, and as executors as aforesaid after the death of the said Isaac Rowlands, promised the plaintiff to pay the same but did not pay it. There was also the common count for money due on accounts stated. The defendants, amongst other pleas, pleaded secondly to the first count, that they did not promise

as alleged, and fifthly that the alleged causes of action did not accrue, nor did any of them within six years before this suit.

The plaintiff took issue on the defendants' pleas.

The seventh plea and the argument thereon are omitted, as the Court intimated an opinion that there was nothing in the point made upon that plea, and gave no judgment thereon.

The action was sent down for trial to the County Court of Cardiganshire, by Judge's order under 19 & 20 Vict. c. 108. s. 26. The cause came on to be heard by the County Court judge and a jury, when the only evidence given was the production of the promissory note, and proof of the signatures and of the proceedings hereinafter referred to. Those proceedings were a plaint in the same County Court, dated 1st of October, 1868, for 31. 4s. Od., for two years' interest on the same note, due on the 14th of April, 1868. The Statute of Limitations was pleaded in that plaint, but a payment on account of interest by the deceased was proved by the plaintiff in February, 1863, and contested by the defendants, but judgment was given for the sum claimed and costs, and that amount was paid by the defendants into Court in October, 1868. The County Court Judge in the present action, upon proof of such proceedings, was of opinion that there was nothing to go to the jury, and that the matter was a mere question of law for him, and was about to discharge the jury without their giving a verdict, but ultimately put to the jury the question whether the payment of the 31. 48. Od., made by the defendants under the circumstances, was a payment on account of the interest upon the promisssory note, to which question the jury replied in the affirmative. Thereupon

the judge discharged the jury, and after argument before him gave judgment for the plaintiff for 361. 5s. 2d.

cause--The

Lumley Smith shewed verdict was right, the jury found that the payment of the sum of three pounds four shillings made by the defendants under the circumstances was a payment on account of the interest upon the promissory That was a sufficient acknowledg

note.

ment of the debt to take the case out of the statute, and to enable the judge to give judgment for the plaintiff in this action, for the principal and interest due on the promissory note. [He was then stopped.]

Bosanquet, in support of the rule.-In order to take a case out of the Statute of Limitations, the acknowledgment of the debt must be coupled with an express promise to pay it, or must be made under such circumstances as would imply a promise to pay. Part payment of the debt is evidence of acknowledgment of the debt to the amount paid, but does not of itself imply a promise to pay the residue. It depends upon the circum

stances under which it is made whether the jury would infer such promise. The circumstances here were such that no such promise could be inferred, but at any rate that question should have been left to them-Tanner v. Smart (1), Wainman v. Kynman (2), Foster v. Dawber (3), Davies v. Edwards (4), Tippits v. Heane (5).

Lumley Smith was then called on. The distinction between this case and those cited for the defendant is that here the judgment was in respect of interest on the whole of the principal debt, and was not part payment. See Bamfield v. Tupper (6). În Davies v. Edwards (4) the payment was made through the instrumentality of the Insolvent Court by the assignee of the debtor.

[HANNEN, J.-The promise need not be an express one.]

The jury found that the interest was paid in respect of the principal debt.

BLACKBURN, J.-It is only necessary to say upon the one point, that there was no evidence of an acknowledgment of this debt within six years before the

(1) 6 B. & C. 603; s. c. 5 Law J. Rep. K.B. 218. (2) 1 Exch. Rep. 118; s. c. 16 Law J. Rep. (N.S.) Exch. 232.

(3) 6 Exch. Rep. 839; s. c. 20 Law J. Rep. (N.S.) Exch. 385.

(4) 7 Exch. Rep. 22; s. c. 21 Law J. Rep. (N.S.). Exch. 4.

(5) 1 Cr. M. & R. 252; s. c. 3 Law J. Rep. (N.s.) Exch. 281.

(6) 7 Exch. Rep. 27 ; s. c. 21 Law J. Rep. (N.s.) Exch. 4.

action so as to take it ont of the statute. Originally it was held that the Statute of Limitations did not operate to extinguish the debt, but barred the remedy in respect of it. Then an express promise to pay it made after the six years is made for a good consideration and has effect from the time of the fresh promise and revives the remedy. Before Tanner v. Smart (1) many cases were decided contrary to this, but that case restored that view of the law, and it was there held that the fresh promise must amount to a direct promise to pay the debt or a conditional one made upon a condition which has been fulfilled, but at any rate there must be a promise in fact, express or implied. In the case of In re The River Steam Company (7) Mellish, L.J., quoting from Jervis' New Rules, a passage approved of by Lord Campbell and Mr. Justice Wightman in Everett v. Robinson (8), says: "Before this statute (i. e. 9 Geo. 4. c. 14, Lord Tenterden's Act) not only a verbal promise to pay a debt more than six years old, but a bare unconditional acknowledgment of its subsistence made within six years before action brought had been held sufficient to take this case out of the Statute 21 Jac. 1. c. 16. s. 3. But now in order to revive the liability of the debtor after expiration of the six years by subsequent acknowledgment or promise, there must be a proof of some writing signed by himself, either containing an express promise to pay the debt, or being in terms from which an unconditional promise to pay it is necessarily to be implied. If therefore the writer, though he admits the existence of a debt, refuses to pay it or reserves the matter for future consideration, or refers the creditor to some third person for payment or the like, this will not prevent the operation of the Statute," and he adds, "That being the rule, there must be one of these three things to take the case out of the statute. Either there must be an acknowledgment of the debt from which a promise to pay is to be implied; or, secondly, there must be an unconditional

(7) Law Rep. 6 Chanc. Appeals, 818.

(8) 1 E. & E. 16; s. c. 28 Law J. Kep. (N.S.) Q.B. 23.

promise to pay the debt; or, thirdly, there must be a conditional promise to pay the debt and evidence that the condition has been performed." Then to apply that to the present case-here the acknowledgment of the debt is by part payment, and therefore such part payment must be made under such circumstances as shew that it amounts to a promise to pay the debt. The case of Davies v. Edwards (4), shews that Lord Wensleydale has decided that part payment must be made under such circumstances as to admit that more is due, coupled with a promise to pay the remainder. Wainman v. Kynman (2) and the other cases cited point to the same conclusion. Now here there had been a plaint in the County Court for interest within the six years, which had been resisted to the utmost, but the resistance was defeated and judgment given against the representatives of the debtor, who then paid the money because they could not help themselves. We cannot neces-sarily infer from these circumstances a promise to pay the principal debt, and therefore we think the County Court judge was wrong in leaving the question he did to the jury, and that the rule should be absolute for a new trial.

HANNEN, J.-It is unnecessary to say anything on the first point. As to the other, I concur with my brother Blackburn in thinking that no distinction can be drawn between part payment of the debt and payment of interest on the debt, and there appears to be no authority for such a distinction. The question is, can mere part payment within the six years be sufficient to take the case out of the statute? It is not, unless the circumstances are such that the jury may fairly infer a promise to pay the larger sum, or the principal, as the case may be. slight circumstances will be sufficient to warrant the jury to infer such a promise, but if there are no such circumstances but the facts tend to negative it, the jury would not be warranted in drawing such an inference. Even where the payment is accompanied by words negativing the intention to pay, the words might possibly have been uttered in jest and without the intention of refusing payment; that would be a question for the jury to determine,

Very