A promise, to take the case out of must be conform But this doctrine has been long since overruled, and it is now clearly settled, that to take the case out of the statute there must be an express promise to pay, or an acknowledg ment from which a promise to pay can reasonably be inferred; and if anything accompanies the acknowledgment inconsistent with such promise, no promise can be implied. The new promise, whether express or implied, does not operate by drawing down the original promise to the time when the acknowledg ment is made, in accordance with the former doctrine of waiver, but by conferring a new right of action; and to render it available, the declaration must contain a count conformable to such promise b. The principal case on this subject is Tanner v. Smart, where all the previous decisions are reviewed. It was an action of the statute, assumpsit on a promissory note; to which the defendant pleaded the statute of limitations. At the trial, the plaintiff proved an able to one acknowledgment by the defendant within six years, in these words :-"I cannot pay the debt at present, but I will pay it as soon as I can ;" held, not sufficient to entitle the plaintiff to Lord recover without proof of the defendant's ability to pay. Tenterden, C. J., "The question in this case is whether an ac of the counts in the declaration. Fenton, Cowp. 544. So where the "There is scarcely an admission which has not in former times been held sufficient to take a case out of the statute. In one case (Douth waite r. Tibbutt, 5 M. & S. 75) it has been held sufficient where the defendant said he would not pay the debt. But the tide of authority is now turned, and the courts require The words of the something more. statute are, acknowledgment or promise,' and it means such an acknowledgment of the debt as would lead the judgment to infer that the party promised to pay it." Per Gaselee, J., in Linley v. Bonsor, 1 Hodges, 310, post, 1266. Green v. Crane, 2 Ld. Raym. 1101. 6 Mod. 309. Salk. 28. Pittam v. Foster, 1 B. & C. 248. Bicknell v. Keppell, 1 N. R. 20. A'Court v. Cross, Bing. 329. Tanner E. Smart, 6 B. & C. 603. knowledgment, which implied that the debt for which the action was brought had not been paid, was an answer to the statute of limitations." Having referred to the old authorities in support of the doctrine of waiver, his Lordship proceeded: "If an acknowledgment had the effect which the cases in the plaintiff's favour attribute to it, one should have expected that the replication to a plea of the statute would have pleaded the acknowledgment in terms, and relied upon it as a bar to the statute; whereas the constant replication, ever since the statute to let in evidence of an acknowledgment, is that the cause of action accrued, or the defendant made the promises in the declaration, within six years; and the only principle upon which it can be held to be an answer to the statute is this, that an acknowledgment is evidence of a new promise, and as such, constitutes a new cause of action, and supports and establishes the promises which the declaration states; upon this principle, whenever the acknowledgment supports any of the promises in the declararation, the plaintiff succeeds; where it does not support them, though it may shew clearly that the debt never has been paid, but is still a subsisting debt, the plaintiff fails." Having referred to several cases in support of this position, his lordship continues: All these cases proceed upon the principle that under the ordinary issue on the statute of limitations, 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. The question then comes to this, is there any promise in this case which will support the promise in the declaration? The promises in the declaration are absolute and unconditional to pay when thereunto afterwards requested. The promise proved here, 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. Had it been in terms what it is in substance, prove that I am able to pay and then I will pay,' it would have been what the promise was taken to be in Haylin v. Hasting a, a conditional * Com. 54. Ld. Raym. 389–421. Salk. 29. promise, and when the proof of ability should have been given, but not before, an absolute one. 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 should not the rule expressum facit cessare tacitum apply?” a No promise shall take any case out of the statute, un writing, signed by the party to be charged thereby. SECTION VI. LORD TENTERDEN'S ACT. SINCE, according to the doctrine established by Tanner v. Smart, the new promise is the foundation of the action, it follows that, any promise or acknowledgment made after the commencement of the action is no answer to the plea of the statute of limitations, though formerly it was held otherwise b. Formerly, a verbal promise or acknowledgment was sufficient, but now, by 9 Geo. IV. c. 14, (Lord Tenterden's Act,) such promise must be in writing. Section 1., after reciting the provisions of 21 Jac. I. c. 16. s. 3, and of 10 Car. I. c. 6, (the Irish Act,) enacts "that in actions of debt or upon the case, grounded upon any simple less it be in 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 said enactments, or either of them, 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, executor, or administrator a Tanner v. Smart, 6 B. & C. v. Jacob, 3 Bing. 638. 11 Moore, 12 Moore, Gould v. Shir. Edmunds v. Downes, 2 C. & M. 459. 4 Tyr. 173. b See Yea v. Fouraker, 2 Burr. 1099. Thornton v. Illingworth, 2 B. & C. 824. shall lose the benefit of the said enactments, or either of them, 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 of principal or interest made by any person whatever; provided also, that in actions to be commenced against two or more such joint contractors, or executors, or administrators, if it shall appear at the trial, or otherwise, that the plaintiff, though barred by either of the said recited acts, or this act, as to one or more of such joint contractors, executors or administrators, 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." Not to les fect of any payment. sen the ef abatement. Section 2, "That if any defendant or defendants in any action Plea in on any simple contract, shall plead any matter in abatement, to the effect that any other person or 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 acts, or this act, or of either of them, be maintained against the other person or persons named in such plea, or any of them, the issue joined on such plea shall be found against the party pleading the same." Section 3, "That no indorsement or memorandum of any payment, written or made after the time appointed for this act to take 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 either of the said statutes." Memoran dum of pay ment on a bill or note. Section 4, "That the said recited acts, and this act shall be Set-off. deemed and taken to apply to the case of any debt or simple contract alleged by way of set-off on the part of any defendant, either by plea, notice, or otherwise." The only effect of Lord Tenterden's Act is to require that the new pro mise should be in writing. Conditional promise. SECTION VII. WHAT PROMISE WILL AVOID THE 9 GEO. iv. c. 14. THIS statute did not intend to make any alterations in the legal construction to be put on the acknowledgments or promises made by defendants, but merely to require a different mode of proof, substituting the certain evidence of a writing signed by the party chargeable instead of the insecure and precarious testimony to be derived from the memory of witnesses. To enquire, therefore, whether in a given case the written document amounts to an acknowledgment or promise, is no other enquiry than whether the same words, if proved, before the statute, to have been spoken by the defendant, would have a similar operation and effect". "The object of the statute," said Lord Tenterden, "was to procure that in writing for which words. were previously sufficient." b The former decisions, therefore, are still applicable, and the written acknowledgment must contain an unqualified admission of the debt from which a promise to pay may be inferred, or if qualified or conditional, the event on which payment was to be made must be shewn to have happened. As where in an action on a promissory note payable with interest, the words in the letter acknowledging the debt were as follows :- ." I shall be most happy to pay you both interest and principal as convenient:" held, that this was a conditional promise, and that the plaintiff was bound to give some evidence to shew that the defendant was able to pay, or that it was convenient for him to do so. In a letter written to the plaintiff within six years, the defendant says, "I can never be happy until I have not only paid you every thing, but all to whom I owe money;" and "your account is quite correct; and oh! that I were now going to enclose you the amount of it:" held, that this was evidence to a Per Tindal, C. J., in Haydon v. Williams, 7 Bing. 166. 4 M. & P. 818. In Dickinson v. Hatfield, 5 C. & P. 46. 1 M. & Rob. 141. • Edmunds v. Downes, 2 C. & M. 459. |