A letter expressed to be written "without prejudice" cannot be received as an acknowledgment of a debt to bar the statute (r). Upon the principle that an admission, to take a debt out of the 435, 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 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 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 acknowledgment of the debt was sufficient to take the case out of the statute;" Clarke v. Bradshaw, 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 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 followingletter 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'Carland, I 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 to the claim made upon him said, "it is not a just one; I am ready to settle the account whenever Mr. T. C. thinks proper to meet in the business. I am not in his debt 904. nor anything like that sum; shall be happy to settle the difference by his meeting me in London, or at my house;" whereupon the judge told the jury, that the statute was out of the question; the court, on motion for a new trial upon that ground, refused the rule. (x) Cory v. Bretton, 4 C. & P. 462. Statute of Limitations, must be of such a nature that a promise can be implied therefrom, those cases in which debtors have admitted the original claims, but have denied that a liability existed at the time of the admission, because the debt had been paid (y); or because there was a set-off against it (~); or because the six years had expired (a); are clearly good law. And it appears that the same principle equally renders ineffective an admission qualified by an objection which would at any time have exempted the party from payment (b); or by an unfounded claim to be discharged by a particular instrument which he refers to, or upon some ground which he specifically adverts to (c). And it would now probably be held that in the latter cases the plaintiff cannot be allowed to take the case out of the statute, by going into evidence rebutting or negativing the ground of discharge relied upon by the defendant in making his admission. For a promise of payment can hardly be presumed to have been made by a party who disputes his liability, even on fallacious grounds. It is necessary, to give effect to a written instrument offered in evidence as an acknowledgment under the 9 Geo. 4, that it contain in substance a distinct admission of the debt sought to be recovered. If such debt be not mentioned therein, and there be no reference thereby to any written document which states it, the statute is not obviated. In Kennett v. Millbank (d), the defendant, by a deed reciting that he "was indebted to the plaintiff” and others, assigned his property to the plaintiff, in trust to pay all such creditors as should sign the schedule of debts annexed; provided that if all did not sign, the deed should be void. The plaintiff never signed, nor was the amount of his debt stated. It was decided that the debt was not taken out of the Statute of Limitations, although (y) Birk v. Guy, 4 Esp. R. 184; Swann v. Sowell, 2 B. & Al. 759; sed vide Boydell v. Drummond, 2 Camp. 161; Craig v. Cox, Holt N. P. R. 381. (z) Swann v. Sowell, 2 B. & Al. 759. (a) Coltman v. Marsh, 3 Taunt. 380; Bryan v. Horseman, 5 Esp. R. 81; Rawcroft v. Lomas, 4 M. & Sel. 457; Snook v. Mears, 5 Price, 636; Leaper v. Tatton, 16 East, 421. (b) Dela Torre v. Barclay, 1 Stark. R. 7. (c) See Owen v. Woolley, Bull N. P. 168; Partington v. Butcher, 6 Esp. R. 66; Hellings v. Shaw, 1 (d) 1 M. & Scott, 102; 8 Bing. 38, S. C.; observed upon in Lechmere v. Fletcher, 1 C. & M. 631. But according to Frost v. Bengough, 1 Bing.266, 8 Moore, 180, S. C., where a debt is admitted, if no other account between the parties appear, the onus of showing that other transactions existed to which the acknowledgments might probably refer, is thrown on the defendant: see Bailie v. Lord Inchiquin, 1 Esp. R. 435, cited ante, 645, 646, note (u). it was admitted orally that he had but one debt. The deed did not, in that case, admit the debt sued for. But in Dickenson v. Hatfield (e), Lord Tenterden, C. J., held in an action upon a bill, that a letter, in which the defendant promised to pay “the balance due from him to the plaintiff" was sufficient; observing that the 9 Geo. 4 did not require the amount of the debt to be specified; but that the plaintiff could only recover nominal damages, as he did not prove what the balance was. And in Lechmere v. Fletcher(f), it was decided that the amount of the debt need not be stated, and may be proved by and recovered upon extrinsic evidence: there the defendant's promise was to pay "his proportion" of a joint debt barred by the statute. A memorandum was taken by the plaintiff from the defendant on 30th July, 1821, as follows:-" I. O. U. 10071.-C. D. 30th July, 1821.” On the 17th August, 1821, the defendant gave, on the same paper, an acknowledgment signed under the former memorandum, as follows:-" 17th August, 17-, received 50/ C. D." It was held that the second, did not take the first, memorandum out of the statute (g). The statute 9 Geo. 4, c. 14, s. 1, provides (h), it will be remembered, “that nothing therein contained shall alter or take away, or lessen the effect of any payment of any principal or interest made by any person." A part payment takes a case out of the statute, because it is evidence of a fresh promise (i). Therefore since the act (j), as well as before (k), a part payment of a debt revives the claim as to a residue. And although the statute enacts that even an acknowledgment in writing, by one of two joint debtors, shall not bind the other, yet a part payment by one will fix the other original contractor as to the balance (1). And a payment on account of interest, where the debt consists or is composed of principal and interest, will revive the remedy (m). In Gowan v. Forster (n), the effect of giving a bill of exchange (e) 5 C. & P. 46; 1 M. & Rob. 141. 487. (h) Ante, 640. (i) Per Parke, J., Gowan v. Forster, 3 B. & Ad. 511. (j) Wyatt v. Hodson, 8 Bing. 309; 1 M. & Scott, 422, S. C.; Bealy v. Greenslade, 2 C. & J. 61; Chippindale v. Thurston, M. & Mal. 411; 4 C. & P. 98, S. C. (k) Whitcomb v. Whiting, Doug. 652; Burleigh v. Stott, 8 B. & C. 36; 2 M. & R. 93, S. C.; Pease v. Hirst, 10 B. & C. 122. (1) Wyatt v. Hodson; see further, post, 651. (m) Wyatt v. Hodson; Bealy v. Greenslade. But a payment on account of principal does not admit interest, unless the latter be shown to have composed part of the claim, and to be connected therewith; Collyer v. Willoch,4 Bing.313; 12 Moor, 557,S.C. (n) 3 B. & Ad. 507. for part of a debt was considered. 4. & B. being joint owners of a ship, and indebted to C. for repairs, B. gave two bills to C., which were dishonoured, and afterwards sold his interest, and became bankrupt. 4. proved under B's commission for 30007.; and in 1822 drew on his assignee a bill of exchange, payable to C., which the assignee accepted, and which A. then delivered to C., on account of the sum due to him for the repairs and on the bills. It was agreed that payment of this latter bill should not be demanded of the acceptor until he should have funds on account of dividends of B.'s estate. The bill was paid in March, 1827. In 1830, C. brought an action against A. for the sum remaining due on account of repairs, and A. pleaded the Statute of Limitations; it was held that the drawing of the bill (supposing it to be evidence of a fresh promise on the original demand, which the court considered was very questionable) was only evidence of a promise at the time it was drawn, and not when it was paid, and, therefore, did not take the case out of the statute. The part payment must be proved by a person who witnessed it, or by the defendant's written and signed admission thereof. Proof of his verbal acknowledgment of part payment will not suffice (o). If a sum be allowed the debtor in an account as a part payment, and he pay the balance of such account, this shall be deemed a sufficient part payment within the act (p). It will be observed, that the 9 Geo. 4, c. 14, s. 1, requires that the written acknowledgment or promise shall be "signed by the party chargeable thereby." Upon which, in Whippy v. Hillary (q) it was decided that the statute was not barred by a letter from the defendant," that family arrangements had been making to enable him to discharge the debt; that funds had been appointed for that purpose, of which A. was trustee; and that the defendant had handed the plaintiff's account to him; that some time must elapse before payment, but that the defendant was authorised by A. to refer the plaintiff to him for any further information;" for such letter does not charge the defendant. Where a written instrument containing a promise to pay a debt barred by the statute has been lost, oral evidence of the contents may be received (r). 518. (0) Willis v. Newham, 3 Y. & J. And semble, his taking credit for the money in an unsigned and unsettled account will not suffice; see ante, 630, note (y). (p) Chippendale v. Thurston, 4 C. & P. 98. (q) 3 B. & Ad. 399. (r) Haydon v. Williams, 4 M. & P. 811; 7 Bing. 163, S. C. It seems that an absolute admission even after the commencement of action would be sufficient to support it, in answer to a plea of the Statute of Limitations (s); but a conditional promise after writ issued would not suffice, because in such case the right of action does not accrue until the condition is performed (t). If a cause of action, arising from the breach of a contract to do an act at a specific time, be once barred by the Statute of Limitations, a subsequent acknowledgment by the party that he broke the contract will not, it seems, take the case out of the statute (u). 3. By whom the Acknowledgment must be made. Before the statute 9 Geo. 4, c. 14, it was held that the admission of the debt by the authorised agent of the debtor (x); or by a third party, to whom he referred the creditor for information respecting his demand (y); or by the wife of a debtor who was accustomed to conduct his business (z); or by his counsel at the trial in his hearing (a); was sufficient to revive the remedy. But the law in this respect appears to be altered by the first section of the statute, which provides that the written acknowledgment shall be signed "by the party chargeable thereby " (b). It will have been observed that the statute expressly provides that even a written acknowledgment of the debt by one of two joint debtors, or joint executors, shall not revive the remedy against the other party and if they be jointly sued, the plaintiff may recover in such action against that defendant who has acknowledged the claim; the other defendant recovering a verdict (c). (s) See Yea v. Fouraker, 2 Burr. 1099; Thornton v. Illingworth, 2 B. & C. 825; 4 D. & R. 547, S. C. As to a new promise by an adult after action to pay a debt barred by infancy, see id.; and ante, 126. (t) See Tanner v. Smart, 6 B. & C. 603; Haydon v. Williams, 7 Bing. 163; 4 M. & P. 811, S. C.; Lechmere v. Fletcher, 1 C. & M. 626, note (a); post, 651. (u) Boydell v. Drummond,2 Campb. 160; Peake Ev. 205; Hurst v. Parker, 1 B. & Al. 92; 2 Chitty R. 249, S. C.; Short v. M'Carthy, 3 B. & Al. 626; Whitehead v. Howard, 5 Moore, 105; 2 B. & B. 372, S. C. In 2 Campb. Lord Ellenborough said, "If a man acknowledge the existence of a debt barred by the statute, the law has been supposed to raise a new promise to pay it, and thus the remedy is re (z) Anderson v. Sanderson, Holt N. P. R. 91. See Gregory v. Parker, 1 Camp. 394. (a) Colledgev. Horne, 3 Bing. 119; 10 Moore 431, S. C. See now Kennett v. Milbank, 8 Bing. 40, 41; 1 Moore & Scott, 102; S. C. (b) Ante 640; see further, ante 171; and although the debtor sign the admission, he must charge himself thereby, ante, 649. (c) Ante, 640, 641. |