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533. Where a loan is made by the plaintiff to the defendant by a cheque, the statute does not begin to run till the payment of the cheque by the plaintiff's bankers. Garden v. Bruce, L. R., 3 C. P. 300. Where a bill is not accepted, and the holder gives notice thereof to the drawer, the statute begins to run against him; and he does not acquire a fresh right of action against the drawer on the non-payment when due. Whitehead v. Walker, 9 M. & W. 506. The defendant drew a bill, due in May, 1843, payable to the plaintiff, who indorsed it for the acceptor's accommodation, to C.: C. sued the plaintiff on the dishonoured bill in 1847, and received the amount from him in 1850: the plaintiff then sued the defendant on the bill it was held that the action was barred. Webster v. Kirk, 17 Q. B. 944; 21 L. J., Q. B. 159. The accommodation acceptor of a bill of exchange was sued upon it by the holder, whereupon he paid it and sued the person for whose accommodation he accepted, for money paid to his use; it was held that he might do this within six years after payment of the bill, though more than six years after the bill became due. Angrove v. Tippett, 11 L. T., N. S. 708; H. T. 1865, Q. B.

A note, payable on demand, is payable immediately, and the statute begins to run from that date. Christie v. Fonsic, 1 Selw. N. P. 13th ed. 301; Norton v. Ellam, 2 M. & W. 461. But where a note is made payable so many months after demand, the cause of action does not accrue until that number of months after demand made. Thorp v. Booth, Ry. & M. 388. So where the note is payable after sight, the statute runs only from the time of presentment. Holmes v. Kerrison, 2 Taunt. 323; and see Savage v. Aldren, 2 Stark. 232. Where the cause of action does not arise until after request made, the statute will only run from the time of such request. Gould v. Johnson, 2 Salk. 422; 2 Wms. Saund. 63 c, d (6). So where S. gave a promissory note to a bank, payable on demand, together with a written agreement stating that the note was deposited with the bank as security for any balance due to them from C., who was about to open an account with them; it was held that the note and agreement must be construed together, and that the statute did not run on the mere existence of a debt from C. to the bank, without a balance having been struck or a demand made on S. Hartland v. Jukes, 1 H. & C. 667; 32 L. J., Ex. 162. Where the plaintiff, an attorney, was to look primarily for his costs to a fund in court, and if it were insufficient C. was to pay them, the statute was held not to run till the amount of the fund was ascertained. Hunter v. Hunter, I. R., 3 C. L. 138. Where the defendant promised to pay a bill of exchange barred by the statute "when able," the statute was held to run from the time of his being able, though the plaintiff did not know when this was, and made no demand. Waters v. Thanet, El. of, 2 Q. B. 757; Hammond v. Smith, 33 Beav. 452; vide post, p. 659. See also In re Kensington Station Act, L. R., 20 Eq. 197.

Money paid to a banker on an ordinary banking account is money lent to him, and the statute runs from the payment; Pott v. Clegg, 16 M. & W. 321; see Foley v. Hill, 2 H. L. C. 28; but qy. if this is so with money deposited with a private person; see Poth. Contr. by Evans, vol. 2, p. 126; or even with a banker on a deposit account; see Atkinson v. Bradford, &c. Building Soc., 25 Q. B. D. 377, 381, per Id. Esher, M. R. Where the money is not repayable until the deposit pass-book is produced, the statute does not run until after that event. S. C., C. A. An agent who stands in a fiduciary position to his principal cannot set up the Statute of Limitations. Burdick v. Garrick, L. R., 5 Ch. 233; Flitcroft's case, 21 Ch. D. 519, C. A. A solicitor is not ordinarily in the position of trustee for his client in respect of moneys received for him; Watson v. Woodman, L. R., 20 Eq. 721; nor does a mortgagee hold the proceeds of the sale of

mortgaged property on an express trust for the mortgagor; Banner v. Berridge, 18 Ch. D. 254; unless there be a special clause to that effect in the mortgage deed. Lake v. Bell, 34 Ch. D. 462.

The contract by a solicitor to conduct a suit is entire, so that if the suit has ended within six years, the Statute of Limitations is not a bar to so much of the demand as is for business relating to the suit not actually transacted within the six years; Harris v. Osbourn, 2 Cr. & M. 629 ; Martindale v. Faulkner, 2 C. B. 706; Harris v. Quine, L. R., 4 Q. B. 653; for the solicitor cannot sue for his costs while the suit is progressing, although he may refuse to proceed for want of funds. Whitehead v. Lord, 7 Exch. 691; 21 L. J., Ex. 239. See, however, In re Hall & Barker, 9 Ch. D. 538. The principle does not extend to miscellaneous work done by a solicitor. Beck v. Pierce, 23 Q. B. D. 316, C. A.

Disabilities.] The Act 21 Jac. 1, c. 16, s. 7, provides that, if the plaintiff be an infant, covert, non compos, in prison, or beyond seas (as to which now vide infra), when the action accrues, the six years shall run from the removal of the disability, or from his return from beyond seas, as the case may be. In the case of a defendant beyond seas at the time of action accrued the action may be brought within six years after his return, by stat. 4 & 5 Anne, c. 3 (c. 16 Ruff.), s. 19. In both cases a special reply is necessary.

By 3 & 4 Will. 4, c. 42, s. 4, if a person entitled to any action mentioned in that Act (ante, p. 647) is, at the time of the accruing of the cause, under age, covert, non compos, or beyond seas (vide infra), he may bring it within six years after coming of age, &c.; and if a person against whom the action accrues shall then be beyond seas, the action may be brought within six years after his return. By sect. 7, no part of the United Kingdom, the Isle of Man, or the Channel Islands, being dominions of the Queen, shall be deemed beyond seas within the meaning of this Act, or of the stat. 21 Jac. 1, c. 16.

But now, by the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), s. 10, no person shall be entitled to any further time by reason only that such person, or one or more of such persons, was beyond seas or was in prison when the cause accrued. This section is retrospective, and bars those causes of action falling within its provisions which accrued, but on which no action was commenced, prior to the passing of the Act. Pardo v. Bingham, L. R., 4 Ch. 735, following Cornill v. Hudson, 8 E. & B. 429; 27 L. J., Q. B. 8. By sect. 11, in the case of joint debtors, the statutes will now run as to such as are not beyond seas, though some of the debtors may be beyond seas; but a judgment recovered in such cases will not per se be a bar to another action against the absent debtor after his return. It would appear from the terms of this section that the case of a judgment recovered against one of the joint debtors, who was beyond the seas at the time the cause of action accrued, is not within its remedial operation, and that such a judgment would still be a bar to a subsequent action against any other of the joint debtors. Sect. 12 enacts that no part of the United Kingdom, nor the Isle of Man, nor the Channel Islands, being dominions of the Queen, shall be deemed beyond seas within either 4 & 5 Anne, c. 3, or of this Act. This section is not retroactive. Flood v. Paterson, 29 Beav. 295; 30 L. J., Ch. 486.

The proviso in case of persons beyond seas extends as well to persons resident abroad as to the natives of England, and the word "return" in the Acts does not imply that they must have been in this country before. Lafond v. Ruddock, 13 C. B. 813; 22 L. J., C. P. 217; Pardo v. Bingham,

supra.

As to the meaning of "beyond the seas" in 21 Jac. 1, c. 16, s. 7, see Ruckmaboye v. Mottichund, 8 Moo. P. C. 4.

When the statute once begins to run, no subsequent disability will prevent its operation. See Cotterell v. Dutton, 4 Taunt. 826; and Rhodes v. Smethurst, 6 M. & W. 351.

Subsequent acknowledgment.] The effect of the Statute of Limitations may be avoided by proof of an unqualified acknowledgment of the debt within six years, which is evidence of a new promise to pay the debt, and not a mere revival of the original promise. Heyling v. Hastings, 1 Ld. Raym. 421; Hurst v. Parker, 1 B. & A. 93. An oral promise was, before Ld. Tenterden's Act, held sufficient to revive even a written guarantee, not under seal. Gibbons v. M'Casland, 1 B. & A. 690. The rule was that a subsequent promise was admissible, under a denial of the plea, to defeat the statute, when it proved, or was evidence of, the promise or other contract of the defendant as stated in the declaration. It seems, however, that if the plaintiff rely on an acknowledgment to rebut a defence of the statute, he must state it in his claim or reply, as the omission would be calculated to take the defendant by surprise. See Rules, 1883, O. xix., r. 15, ante, p. 301.

By Lord Tenterden's Act (9 Geo. 4, c. 14), s. 1, in actions of debt or upon the case, grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract whereby to take any case out of the operation of the stat. 21 Jac. 1, c. 16, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by, or in some writing to be signed by, the party chargeable thereby; and that where there shall be two or more joint contractors, or executors or administrators of any contractor, no such joint contractor, &c., shall lose the benefit of the said enactments, 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 of any principal or interest made by any person whatsoever; provided also, that in actions against two or more such joint contractors, &c., if it shall appear at the trial, or otherwise, that the plaintiff, though barred by the stat. 21 Jac. 1, c. 16, or this Act, as to one or more of such joint contractors, &c., 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.

By sect. 3, "no indorsement or memorandum of any payment, written or made after "January 1st, 1829," 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."

By sect. 4, the stat. 21 Jac. 1, c. 16, "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."

The most material change in the law made by this Act is the requiring of an acknowledgment or promise in writing signed by the party chargeable. No alteration is introduced in the language of the required acknowledgment or promise, or with regard to the party to whom it is to be

made. See Haydon v. Williams, 7 Bing. 163, 166. No particular form is specified a paper signed by the defendant, though without date, address, or amount due, may be sufficient; Hartley v. Wharton, 11 Ad. & E. 934; and although it was formerly held that it must appear on the face of the writing what debt is intended; Kennett v. Milbank, 8 Bing. 38; this principle is now disregarded. See Green v. Humphreys, 26 Ch. D. 474, C. A., and cases cited post, p. 656. But an acknowledgment, to take the case out of the statute, must still be such as implies a definite promise to pay. Brigstocke v. Smith, 1 Cr. & M. 483.

An oral statement of an account within six years, and a promise to pay the balance, takes the original debt out of the statute by giving a new cause of action on the account stated, provided there are really items of account on both sides. Smith v. Forty, 4 C. & P. 126; Ashby v. James, 5 M. & W. 542. See per Alderson, B., in Hopkins v. Logan, 11 M. & W. 248. But a mere oral statement of an antecedent debt without any new contract or consideration, made within six years, does not constitute a sufficient new cause of action to prevent the operation of the statute. Jones v. Ryder, 4 M. & W. 32.

Acknowledgment by part payment.] Part payment of the debt is an acknowledgment of its existence, and, as such, has always been held to take a case out of the statute, as evidence of a fresh promise to pay the debt; and, as Lord Tenterden's Act, ante, p. 651, leaves the effect of payment as before, the cases relating to part payment are still to be considered as authority. The payment must be such as to warrant the jury in inferring an intention to pay the rest; thus, if the defendant, on paying a part, say that "he owes the money, but will not pay it," this will not entitle the plaintiff to a verdict, unless the jury think that the latter words were spoken in jest. Wainman v. Kynman, 1 Exch. 118. It must appear that the payment was on account of the debt for which the action was brought, and that it was made as part payment of a greater debt. Tippets v. Heane, 1 C. M. & R. 252. Therefore, payment of a dividend by the assignee under the Insolvent Act did not take the debt out of the statute; Davies v. Edwards, 7 Exch. 22; 21 L. J., Ex. 4; nor does such a payment by the inspectors of the debtor's inspectorship deed; Ex pte. Topping, 34 L. J., Bky. 44; nor payment under a judgment in a defended county court action. Morgan v. Rowlands, L. R., 7 Q. B. 493. But payment of interest on a mortgage debt by a receiver of the estate appointed by order of the court has been held, under 3 & 4 Will. 4, c. 27, s. 40, to prevent that statute from operating as a bar. Chinnery v. Evans, 11 H. L. C. 115, and see Cronin v. Dennehy, I. R., 3 C. L. 289. See Action on specialty, Statutes of Limitation, post, p. 686. As to the effect of payment of interest on debts of testator, A., by devisee for life of A.'s freehold estates, see Hollingshead v. Webster, 37 Ch. D. 651, post, p. 689. It has been said that a part payment where there are two debts, without any appropriation of it, is insufficient to take either out of the statute. Burn v. Boulton, 2 C. B. 476; Mills v. Fowkes, 5 N. C. 455. But Martin, B., seems to doubt this in Collinson v. Margesson, 27 L. J., Ex. 305. And it is otherwise if the debts consist of supplies of the same nature; and even where the debts are unconnected, it may be proper to leave the payment to the jury as evidence of a payment on account of all of them. Walker v. Butler, 6 E. & B. 506; 25 L. J., Q. B. 377; and see Evans v. Davies, 4 Ad. & E. 840. An appropriation of one payment by the creditor, without the debtor's knowledge or assent, is not per se enough to take any particular debt out of the statute; and it seems that where a debtor on two separate notes pays interest on account generally, after one had been

barred by the statute, it ought to be taken prima facie as paid on account of the note not barred, and not to be applied exclusively by the creditor to the note that is barred. Per Ld. Cranworth, Nash v. Hodgson, 6 D. M. & G. 474, 482; 25 L. J., Ch. 186, 188. Payment into court as to part of a debt will not, it would seem, take the case out of the statute raised as a defence to the rest. See Long v. Greville, 3 B. & C. 10; Reid v. Dickons, 5 B. & Ad. 499. Part payment in goods taken as money will be an answer to the statute. Hart v. Nash, 2 C. M. & R. 337; Hooper v. Stevens, 4 Ad. & E. 71. Payment of interest on a note, due more than six years ago, will take the note out of the statute. Bealy v. Greenslade, 2 C. & J. 61; Purdon v. Purdon, 10 M. & W. 562. Part payment may be by bill or note, and this will rebut the statute if so made as to imply a promise to pay the rest, although the bill or note may never be in fact paid. Turney v. Dodwell, 3 E. & B. 136; 23 L. J., Q. B. 137. And the delivery of a bill in part payment operates from the delivery, and not from the falling due of the bill. Irving v. Veitch, 3 M. & W. 90. To constitute a payment of interest sufficient to take a debt out of the statute, it is not necessary that money should pass between the debtor and creditor, provided the transaction amounts to such a payment. Maber v. Maber, L. R., 2 Ex. 153; and see Amos v. Smith, 1 H. & C. 238; 31 L. J., Ex. 423.

Where a payment of part is made as and for a payment of the whole that the defendant admits to be due, such payment will not take the rest out of the statute. Waugh v. Cope, 6 M. & W. 824. A payment made to the creditor to the use of his debtor by a third party cannot be appropriated by the creditor so as to bar the statute. Waller v. Lacy, 1 M. & Gr. 54. Where the defendant authorised an agent to offer the plaintiff a part of his debt in discharge of the whole, and, on the plaintiff's refusal so to accept it, the agent exceeded his authority and paid the sum offered in part discharge, it was held that this was not a part payment to bar the statute. Linsell v. Bonsor, 2 N. C. 241. But, generally, payment by an authorised agent is payment by the principal, and the authority is a question for the jury.

Where A., B., and C., overseers, borrowed money for the parish, and gave promissory notes, signed by them as overseers, for the amount, payment of interest by the vestry or overseers for the time being was held to bar the statute in a suit on the notes against the drawers. Rew v. Pettet, 1 Ad. & E. 196; Jones v. Hughes, 5 Exch. 104. The trustees of certain legatees lent to the defendant part of the trust money upon a promissory note, describing themselves as such trustees; a payment of the principal and interest to one of the legatees within six years was held to take the case out of the statute. Megginson v. Harper, 2 Cr. & M. 322; 4 Tyr. 94. A. gave B. a promissory note in order to get an advance on it from B.'s banker; B. indorsed it to his banker, who credited him with the amount; it was held that a payment of interest by B. to his banker within six years did not keep alive the liability of A. to the banker on the note. Harding v. Edgecumbe, 28 L. J., Ex. 313. Payment on a note to an administrator, who had neglected to take out administration in the diocese in which the note was bonum notabile, was held sufficient to bar the operation of the statute as against a subsequent administrator de bonis non. Clark v. Hooper, 10 Bing. 480.

Notwithstanding several decisions, beginning with Willis v. Newham, 3 Y. & J. 518, to the contrary, it is now settled that a part payment within six years, though proved only by an oral or unsigned admission of the defendant, will take a case out of the statutes. Cleave v. Jones, 6 Exch. 573. But such admission cannot be proved by the production of a book by the plaintiff, confidentially entrusted to him as the defendant's attorney

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