mand against the defendant. Where a joint note was made by a man and a woman, and the woman afterwards married, and a joint action was brought against the husband and wife and the other maker, laying the promise by the other maker and the woman dum sola; held, that evidence of a promise by the other maker within six years, was not a sufficient answer to a plea of the statute of limitations b. It must distinctly appear, that the payment by one of several joint debtors was made on account of the joint debt, in order to affect the other party. It is therefore not sufficient to prove a general payment by a joint maker of a note within six years, so as to throw it upon the defendant to show that such payment was not made on account of the note; for primá facie the debt is barred by the statute, and it is for the plaintiff to shew how the statute has been avoided c. The principle upon which part payment by a joint debtor is allowed to affect the other parties is, the community of interest between them and the presumption that the party paying would not acknowledge that which was adverse to his own interest. Therefore a payment made by one of the parties, after such community of interest and joint liability has ceased to continue, will not take the debt out of the statute as to any other party. Where A. and B. made a joint and several note, and ten years after A.'s death B. paid interest on it; in an action on the note against the executors of A., it was held, that the payment by B. did not take the case out of the statute, so as to render them liable, for the joint contract had ceased to exist at the time when the payment was made, it having been determined by the death of A.; and the mere fact of the existence of a debt owing from the testator was not evidence of a promise to pay by the executors. So where after the death of one of the makers of a joint and several promissory note, his executrix paid interest on the Braudram v. Wharton, 1 B. & A. 463. b Pittam v. Foster, 1 B. & C. 248. Holme v. Green, 1 Stark. 488. Tippetts v. Heane, 1 C. M. & R. 252, ante, 1266. There must be reason VOL. II. able evidence of the identity of the 23. 00 note; it was held, that such payment did not take the case out "We of the statute, as against the surviving joint maker. think," said Lord Tenterden, "that where a joint contract is severed by the death of one of the contractors, nothing can be done by the personal representative of the other to take the debt out of the statute as against the survivor." a Where overseers borrowed money for the parish and gave promissory notes signed by them "as overseers," for the amount; it was held, that payment of interest by order of the vestry (the allowance of the account being signed by one of the overseers) was sufficient to take the case out of the statute as against all the overseers; for as one of them had signed the accounts, it was a recognition of the parish as his agent to pay the interest; and payment by one was payment by all b. SECTION X. WHAT AMOUNTS TO PAYMENT. Ir is not necessary that the payment should be in money in order to take a case out of the statute. Where goods were supplied by the defendant to the plaintiff, in pursuance of an agreement that they should be taken in part payment of a previous debt; it was held sufficient c. If interest be allowed in the settlement of an account between the parties, it is equivalent to payment. A. and B. gave a promissory note for 6007. to C.; in an action by C. against A. and B., an account in which B. as between himself and C. gave credit for interest a Slater v. Lawson, 1 B. & Ad. 396. But see Jackson v. Fairbank, ante, 1268. Row v. Pettet, 1 Ad. & Ell. 196. 3 N. & M. 456, nom Crew v. Pettit. C Hart v. Nash, 1 Gale, 171. 2 C. M. & R. 337. Hooper r. Stevens, 1 H. & W. 480. 5 N. & M. 635. 7 C. & P. 260. "I do not say a payment must be in money; there may be a contract to furnish labour or supply goods; but a contract or understanding must be shewn, that would lessen the demand of the other party, without using the statute of set-off." Per Parke, B., in Williams v. Griffith, ante, 1251. "It is quite clear that there must be a payment of principal or interest either in cash or something equivalent." Per Alderson, B., Id. upon the note, was held sufficient to avoid the statute a. So where the interest was one of the items in an account of which the party paid the balance; it was held, equivalent to actual' payment b. SECTION XI. BY AND TO WHOM THE PROMISE MUST BE MADE. the pro THE 9 Geo. IV. c. 14. requires that the acknowledgment or By whom promise, to be made available, must be in writing, and signed mismust by the party chargeable thereby. It is clear, therefore, that be made. an acknowledgment or promise made by any other person than the debtor himself is insufficient. Where the debtor's wife wrote a letter to the creditor, proposing to pay the debt by instalments, in her husband's name and at his request; it was held, not sufficient to take the case out of the statute; "for," said Tindal, C. J., "if the legislature intended that a signing by an agent should be sufficient, they would have so expressed it; as in the 3d and 17th sections of the statute of frauds a. And though the effect of payments is excluded from the operation of the statute, it has been held, that payments made by a stranger, or by any person not acting under the authority of the debtor, will not avoid it. the promise must be made. Formerly an acknowledgment made even to a stranger was To whom deemed sufficient to take the case out of the statute. But now as the acknowledgment must imply a promise to pay, and as such new promise is the ground of the action, it will not be sufficient unless made to the creditor, or to some person re a Manderston v. Robertson, 4 M. & R. 440. Chippendale r. Thruston, M. & M. 441. 4 C. & P. 98. See Whippy v. Hillary, 3 B. & Ad. 399. Ante, 1263. Hyde v. Johnson, 2 Bing. N. C. 776. 2 Hodges, 94. Gibson v. Bagshott, 5 C. & P. 211. But if the party cannot write, it seems that his mark would be sufficient; for it was so decided under the 5th sec. of the e 241. Linley v. Bonsor, 2 Bing. N. C. 1 Hodges, 305. Ante, 1259. f Peters v. Brown, 4 Esp. 46. Halliday v. Ward, 3 Camp. 32. Mountstephen v. Brooke, 2 B. & A. 224. And see Clark v. Hougham, 2 B. & C. 149, post, 1274. Promise to an admi nistrator. presenting him or acting on his behalf. An acknowledgment by the acceptor of a bill of exchange, that he was liable thereon to the payee but not to the drawer, there being no consideration for the acceptance, was held insufficient to take the case out of the statute in an action by the drawer; for the defendant denied his claim". An acknowledgment to an executor or administrator will not support a count laying the promises to the testator or intestate b. Payment of interest upon a promissory note by the makers, to the administrator of the payee, has been held sufficient to avoid the statute, though the administrator had neglected to take out letters of administration in the diocese in which the note was bonum notabile c. Where the trustees of certain legatees lent part of the trustmoney to the defendants on their joint promissory note, in which the trustees were described as such; it was held, that payment of interest and of part of the principal, to one of the legatees, was sufficient to take the case out of the statute in an action by the trustees on the note; for payment to the legatee was nothing more than payment to the agent of the trustees, the legatee being a party interested in the noted. SECTION XII. THE PLEADINGS. It has been already stated, that there must be a count in the declaration conformable to the acknowledgment or new promise. Where the debt is revived by an absolute promise, it is sufficient to declare upon the original promise, for in such case both promises are the same. Or there may be a count on an account stated with the party entitled to the debt at the time of the new promise. But when the promise is on a contin gency or a condition, as that the defendant would pay when able, or on the happening of a certain event, it may be advisable to introduce a special count, stating the existing debt to be the consideration of the promise, and averring the contingency to have happened, or the condition to have been performed; though, in Tanner v. Smart, Lord Tenterden seems to have considered that the happening of the contingency, or the performance of the condition, converted the conditional promise into an absolute one a. statute must be The statute of limitations, independently of the new rules, must How the be specially pleaded; it cannot be taken advantage of in evidence under the general issue b. There are two modes of pleaded. pleading it; 1st, That the plaintiff did not undertake within six years. 2dly, That the action did not accrue within six years. The former is applicable in cases of assumpsit only where the consideration is executed, as in contracts for goods sold and delivered, money lent, &c. The latter is the safest and best way of pleading the statute in all actions, whether on contracts or on torts C. Where in an action for deceitfully delivering goods to the plaintiff as the proper goods of the defendant, whereby the plaintiff was damaged; a plea of not guilty within six years, was held to be bad on special demurrer; Abbott, C. J., observing, that the invariable form of pleading the statute to an action upon the case for a wrong has been, to allege that the cause of action did not accrue, &c. The import of "not guilty," was doubtful. If it meant the same as "the cause of action did not accrue," there was no reason for a departure from the usual form. If the import was different, it was a plea not warranted by the statute, and certainly it was not a good plea at common law d. So to a declaration in trover by an administrator for a conversion after the death of the intestate, a plea of not guilty of the premises within six years, has been held bad on special de a See Marten on Lord Tenter- 63, to which the reader is referred. den's Act, page 39. 1 Saund. 33. n. 2. 283. n. 2. 2 Saund. 63. c. There are various reasons assigned for this, which are discussed at considerable length in 2 Saund. |