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evidence in a separate action against any of the others. This case was recognized also in Perham v. Raynal and two others, 2 Bingh. 306. in which it was holden, that the circumstance of one of the defendants being a surety only, who had not made any acknowledgment, made no difference. So where one of two makers of a joint and several promissory note became a bankrupt P, and the payee received several dividends under the commission on account of the note, and an action having been brought (within six years after the receipt of the last dividend) against the other maker for the remainder of the money due on the note, it was adjudged, that the payment of the dividends was such an acknowledgment of the debt as took the case out of the statute. So in an action against A. on the joint and several promissory note of himself and B., it was holden that a letter written by A. to B. siring him to settle the money,” took the case out of the statute 4. But where A. and B. made a joint and several promissory note, A. died, and ten years after his death B. paid interest upon the note; in an action brought upon the note against the executors of A. it was holden", that the payment of interest by B. did not take the case out of the statute, so as to make A.'s executors liable; for at the time when such payment was made, the joint contract had been determined by the death of A. (74). So where interest had been paid by executor of deceased, Slater v. Lawson, 1 B. & Ad. 396. So where one of two joint drawers of a bill of exchange became bankrupt, and under his commission the indorsees proved a debt (beyond the amount of the bill) for goods sold, &c. and they exhibited the bill as a security they then held for their debt, and afterwards received a dividend; it was holden, in an action by the indorsees against the solvent partner, that the statute of limitations was a good defence, although a dividend had been paid within six years; inasmuch as the proof was for goods sold and delivered, and the payment of the dividend did not amount to an actual or virtual acknowledgments that there was any money due on the bill. So where in assumpsit for money due on an accountable receipt, plaintiff, in order to take the case out of statute of limitations, called a witness, who proved that he
p Jackson v. Fairbank, 2 H. Bl. 340, 9 Halliday y. Ward, 3 Campb. 32.
recognized in Burleigh v. Stott, 8 B. r Atkins v. Tredgold, 2 B. and C. 23. and C. 36.
s Brandram v. Wharton, 1 B. and A.
(74) It would have been otherwise if the payment had been made in the life-time of A. Burleigh v. Stott, 8 B. and C. 36.
called on defendant, and shewed him the receipt, and asked him if he knew any thing of it, to which defendant answered that he knew all about it; witness then asked him for the amount, to which he answered, it was not worth a penny; he should never pay it; that it was his signature, but that he never had and never would pay it, “and besides,” he added,
it is out of date, and no law shall make me pay it;” it was holdent, that this evidence was insufficient to charge the defendant with it, for there was not any acknowledgment, but the contrary, that the debt ever existed. Where the acknowledgment proved was, “ I cannot pay the debt at present, but I'll pay it as soon as I can,” it was holden, that such an acknowledgment, without proof of any ability, would not take the case out of the statute. That the cases proceed upon the principle, that, under the ordinary issue on the statute, an acknowledgment is only evidence of a promise to pay; and unless it is conformable to and maintains the promises in the declaration, though it may shew to demonstration that the debt has never been paid, and is still subsisting, it has no effect. In this case, the promises in the declaration were absolute and unconditional, to pay when thereunto afterwards requested. Here the promise proved was, “ I'll pay as soon as I can;" and there was no evidence of ability to pay, so as to raise that which in its terms was a qualified promise, into one that was absolute and unqualified. Upon a general acknowledgment, where nothing is said to prevent it, a general promise to pay may and ought to be implied; but where the party guards his acknowledgment, and accompanies it with an express declaration to prevent any such implication, why shall not the rule expressum cessare facit tacitum apply?' Tanner v. Smart, 6 B. and C. 603. Since this case, many of the older cases on this subject cannot be sustained. Tindal, C. J. 2 Bingh. N. C. 244, 5. Linsell v. Bonsor, in which it was holden, that it was properly left to the jury to consider whether the acknowledgment was one from which a promise to pay could be implied. See Acourt v. Cross, 3 Bingh. 329. and Ayton v. Bolt, 4 Bingh. 105. Haydon v. Williams, 7 Bingh. 163. recognizing 'Tanner v. Smart. The various questions as to the proof and effect of acknowledgment and promises, agitated in some of the cases, induced the legislature to interfere; and in order to prevent them, it was enacted, by stat. 9 Geo. 4. c. 14. s. 1. that 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 con
t Rowcroft v. Lomas, 4 M. and S. 457.
tract, whereby to take any case out of the operation of the statute, 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 (75); 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 statute, 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 therein contained shall alter or take away or lessen the effect of any payment (76) of any principal or interest (77) made by any person: provided also, that in actions to be commenced against two or more such joint contractors, &c. if it shall appear at the trial or otherwise, that the plaintiff, though barred by the statute of limitations 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. And by s. 2. if any defendant in any action on any simple contract shall plead any matter in abatement, to the effect that any other 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 statute of limitations, or this act, be maintained against the other
persons named in such plea, or any of them, the issue joined on such plea shall be found against the party pleading the same. And by s. 3. no indorsement or memorandum of any payment written or made after the time appointed for this act to take
(75) Signature by the agent of the debtor will not suffice. Hyde v. Johnson, 2 Bingh. N. C. 776. Where the fair import of the writing is not to render the party signing chargeable, but only refers to others by whom the debt is to be paid, it is not sufficient to bring the case within this act. Whippy v. Hillary, 3 B. & Ad. 399.
(76) Delivery of goods by agreement between debtor and creditor in reduction of demand, operates as payment within this statute. Hooper v. Stephens, 4 Ad. & Ell. 71.
(77) Payment of interest within six years by one of two joint and several contractors, takes the debt out of the statute as to both. Wyatt v. Hodson, 8 Bingh. 309. Bealy v. Greenslade, 2 Cro. & J. 61. S. P. on note dated in 1817.
effect, upon any promissory note, bill of exchange, or other writing, by or on the 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 the statutes. And by s. 4. the statute of limitations and this act shall be deemed 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. This act took effect ist January, 1829. But since this statute it has been holden, that where the written promise has been lost", oral evidence may be given of its contents. Defendant, by a deed, reciting that he was indebted to plaintiff and others, assigned his property to plaintiff and others in trust to pay all such creditors as should sign the schedule of debts annexed, with a proviso that if all the creditors whose debts amounted to a certain sum did not sign by a fixed day, the deed should be void; the plaintiff never executed the deed, nor was the amount of his debt any where stated; this was holden not* to be a sufficient acknowledgment.
Where there are mutual accounts y, (not merchants' accounts,) for any item of which credit has been given within six years, this is evidence of an acknowledgment of there being an open account between the parties, and of a promise to
pay the balance, so as to take the case out of the statute of limitations (78).
Plaintiff declared as executor on a promise to the testatora; defendant pleaded non assumpsit infra sex annos; and upon the trial it appeared that there was a new promise made within six years, but it was made to the plaintiff and not to u Haydon v. Williams, 7 Bingh. 163. y Catling v. Skoulding, 6 T. R. 189. x Kennett v. Milbank, 8 Bingh. 38. z Deane v. Crane, Salk. 28.
(78) But where all the items are on one side, as in an account between a tradesman and his customer, the last item which happens to be within six years, shall not draw after it those that are of a longer standing. Per Denison, J. in Cotes v. Harris, Bull. N. P. 149. And in this case the same learned judge held, that the clause in the statute about merchants' accounts, extended only to cases where there were mutual accounts and reciprocal demands between two persons. And in Webber v. Tivill, 2 Saund. 124. it was holden, that this clause extended only to accounts current between merchants, and not to accounts stated between them. And in Barber v. Barber, 18 Vesey, 286. Sir W. Grant, M. R. determined that the statute of limitations was a bar to merchants' accounts, where all accounts had ceased six years. See further on this clause, Welford v. Liddel, 2 Ves. 400.
the testator. Per Cur. he should have declared accordingly. And in Sarell v. Wine, 3 East's R. 409, in the case of an action brought by an administrator on promises to the intestate, where the evidence was an acknowledgment to the administrator within six years, it was holden insufficient on the authority of the preceding case. So where an action was brought by an executor on promises made to the testatora, the defendant pleaded non assumpsit infra sex annos, and the plamtiff replied a subsequent promise to himself, the replication was adjudged a departure in pleading, and therefore bad.
A party suing, and seeking to avail himself of the law of a particular country, must take the law as he finds it. Hence, where in an action of debt it was averred that, before the making the obligation thereinafter mentioned, the plaintiffs carried on business in Scotland, and that one A. B. and the defendant were resident and domiciled therein; and that by a certain obligation (set out,) the said A. B. and the defendant became bound, jointly and severally, to pay to the plaintiffs a sum of money: that, by the law of Scotland, the time for instituting any legal proceeding, upon the obligation, and the cause and right of action accruing thereon, had not yet elapsed; that is, by the said law the plaintiffs had the right of suing thereon, at any time within forty years from the making thereof. A plea, that the cause of action did not accrue within six years, was holdenb on demurrer to be a sufficient answer to the action.
Replication.—The replication must state that the cause of action, accrued within six years next before the suing forth of the writ; for where, in assumpsit, by an executor on promises to the testator, the defendant pleaded the statute, and the plaintiff replied, that the writ was sued out on such a day, and within six years before the suing out thereof, letters testamentary were granted to the plaintiff; on special demurrer, assigning for cause, that the plaintiff had not alleged positively that the cause of action accrued within six years before the suing forth of the writ, the replication was holden bad; the court observing, that the time of limitation must be computed from the time when the action first accrued to the testator, and not from the time of proving the will; that the proving the will did not give any new cause of action, and consequently the time when it was done was immaterial. So where to assumpsit brought by the assignee of a bankruptd,
a Hickman v. Walker, Willes, 27. c Hickman v. Walker, Willes, 27. b The British Linen Company v. Drum- d Gray v. Mendez, 1 str. 556. mond, 10 B. & C. 903.