PRETTY 7. SOLLY. 1859. April 21, 27. Rolls Court, [ *615 ] consistent with this view, and with the distinction between the words "land" and "soil " as used in the Act. The chief clerk's certificate must, therefore, be confirmed. On further consideration, the bill was dismissed with costs. FULLER v. REDMAN (No. 2). (26 Beav. 614-620.) In taking the accounts in an administration suit, any creditor may object that another creditor's debt is barred by the Statute of Limitations; but, semble, that such an objection cannot be taken to the plaintiff's debt, which is the foundation of the decree (1). A mere letter of licence by a creditor to his debtor does not suspend the operation of the Statute of Limitations. An acknowledgment to take a case out of the Statute of Limitations must be made to the creditor or to his agent. THE testator, Mr. Redman, died in 1855, and in July, 1856, a decree was made for the administration of his estate. Under this decree, the executors of Mr. Turner came in and claimed a debt of 1787., as due from the testator Mr. Redman. Messrs. Atkinson, who were other creditors, objected to the admission of Turner's debt, on the ground that it was barred by the Statute of Limitations. It appeared from the testator's ledger, that a balance of 1621. was due to Turner in 1843; this was the last entry establishing the debt, but the circumstances relied on, as taking the case out of the statute, were as follows: In 1847, Mr. Redman being insolvent, his creditors gave him a letter of licence, dated the 27th of November, 1847. Such letter of licence was in the following terms: "Mr. Geo. Clavering Redman, of Lime Street, merchant, having proposed to us, the under-signed his creditors, to devote himself, for a period of three years from this date, under the direction of inspectors, to prosecute his claims upon Government and to realize his assets to the best advantage, and having also offered to apply, to the liquidation of his debts, such part of any salary or profits in business he may receive during the said period of three years, as his inspectors may think proper, we do hereby agree to grant him a letter of licence for three years, and to give the inspectors, or the majority of them, authority to release Mr. Redman from our respective debts, at any time during the last three months of the term of three years, upon his assigning to the inspectors, in trust for his creditors, any of the assets which shall not have been collected, provided the inspectors shall be satisfied that the said Geo. Clavering Redman hath, in all respects, performed the agreement on his part. (1) In re Baker, Nichols v. Baker (1890) 44 Ch. D. 262, 59 L. J. Ch. 661, 62 L. T. 817. And we further agree to execute any deed for carrying this arrangement into effect, which shall be approved of by the inspectors. And we agree to Geo. Fred. Young, Wm. Hutton and Geo. Fuller being the inspectors. Dated this 27th day of November, 1847." The letter of licence was executed by several persons and firms, about thirty in number, including Turner. The amount of his debt was not stated, but that was supplied from the debtor's ledger. Redman accordingly prosecuted his claims but without success. Afterwards, by a deed bearing date the 4th of November, 1850, but really executed after the expiration of the three years, Redman assigned all his property to the inspectors in trust to pay the creditors who had executed the letter of licence. And the inspectors thereby released him from the debts of those creditors who had signed the letter of licence. This deed was executed after the expiration of the three years and without notice to or communication with the creditors. The chief clerk allowed the debt, but Messrs. Atkinson took out a summons to vary the certificate, so far as it found that the executors of Turner were creditors for 1781. by striking the same out as disallowed. The case was adjourned into Court. Mr. R. Palmer and Mr. C. C. Barber, for Messrs. Atkinson, argued, that the letter of licence and deed were not, in form, sufficient to take the case out of the Statute of Limitations; secondly, that the acknowledgment necessary for that purpose must be made to the creditors and not to a third party; thirdly, that the deed of 1850 was invalid, but, if valid, then that it operated as a release of the debts. Mr. W. Pearson, for the executors of Turner: The debt is still existing and is not affected by the Statute jection to existing debts; they alone have a right to plead the 66 Mr. Lloyd and Mr. De Gex, for the executors. [Tanner v. Smart (1), Hart v. Prendergast (2), Sidwell v. FULLER t. REDMAN. [ 616] 30 R. R. 461 (6 B. & C. 603). (2) 69 R. R. 806 (14 M. & W. 741). #618 ] Edmonds v. Goater (4), Girdlestone (2), Cheslyn v. Dalby (3), THE MASTER OF THE ROLLS: The first point raised by Mr. Pearson is, that it is not open to any one but the executor to set up the defence of the Statute of Limitations. That appears to be contrary to what I have on all occasions considered to be the result of the authorities. I refer to two decisions on the subject. In Ex parte Dewdney:8) Lord ELDON said: "In the administration of assets under a creditor's bill, executors are not bound to plead the Statute of Limitations; and if they do not, the creditor filing the bill will have a decree on behalf of himself and all other creditors, and will be paid; but the constant course in the Master's office is to take the objection against other creditors, and to exclude from the distribution those who, if legal objections are brought forward, cannot make their claims effectual." What I take to be the meaning of that passage is this, if any person comes in and takes the benefit of a decree obtained by a 'creditor whose claim would have been barred by the Statute of Limitations, he shall not be at liberty to set up the statute against the plaintiff whose claim is the foundation of the decree; but he may as against any other person, although the executors do not bring forward that objection. The same view of the case seems to have been taken *in Briggs v. Wilson (9), by Lord Justice TURNER. He says: "If, therefore, the Statute of Limitations had been set up in this case, I should have thought that this 500l. note was barred, both as to the real and personal estate. But the defendant, who is both executor and devisee in trust, has not set up the statute; and as to the personal estate, it is not, I think, competent to the parties moving before us, who, as to that estate, are merely in the situation of residuary legatees, now to set it up against the plaintiff in this suit, whatever may be their right as against other creditors." In the case of Shewen v. Vanderhorst (10), under the common decree in an administration suit, a creditor applied to prove a debt which was barred by lapse of (1) 115 R. R. 552 (2 H. & N. 306). (3) 47 R. R. 384 (2 Y. & C. (Ex. Eq.) 238). (4) 92 R. R. 488 (15 Beav. 415). (6) 77 R. R. 632 (3 Ex. 335). 113 R. R. 406 (4 Drew. 432). (8) 15 Ves. 498. (9) 104 R. R. p. 12 (5 D. M. & G. p. 21). (10) 32 R. R. 219 (1 Russ. & My. 347). N time, and the executors refusing to interfere, the plaintiff, a residuary legatee, insisted on setting up the objection of the statute. It was held, that it was competent for the plaintiff, or any other party interested in the fund, to take advantage of the statute before the Master, notwithstanding the refusal of the executors. This case was first decided by Sir JOHN LEACH, and it was afterwards affirmed by Lord BROUGHAM. There is certainly a distinction between the case of a plaintiff who is allowed, at a considerable expense, to obtain a decree against the executor for the benefit of all the creditors where a creditor comes in under that decree and attempts to contest the propriety of the decree of which he obtains the benefit, and the case of other creditors who come in to prove their debts under that decree. I do not consider the case of Briggs v. Wilson (1) an authority against the cases I have referred to, to show that any person interested may not, as against others, enforce the Statute of Limitations; and in Moodie v. *Bannister, Vice-Chancellor KINDERSLEY was of opinion that it was competent to the other creditors, or to any person interested in the estate, to take the objection, though the executor should neglect or decline to do so. It is a different thing when judgment has been obtained against the executor, or where he has known nothing of the objection and has paid the debt. The question then really is, whether this debt is barred by statute. On this there are two points raised; first, upon the construction of the instrument of 1847, which was a letter of licence and a contract not to sue for three years, and it is said that this suspended the operation of the statute for those three years. I dissent from this. If there had been a covenant against setting up the statute for six years after the expiration of the licence, it would be so; but unless provided against, the statute runs from the time when the debt accrued. The other point which is raised to take this debt out of the operation of the statute is, that there is an acknowledgment of the debt by the deed of November, 1850. I am of opinion that this amounts to no acknowledgment at all, and that it does not restore the liability of the debtor. I dissent from the argument that equity differs from a court of law in the view it takes of these cases; it is a legal demand, and if the debt cannot be proved at law, neither can it in equity. It does not rest on equitable, but entirely on legal grounds; and, on questions of debt or no debt, the Court often allows an action to be brought to try whether it can or cannot be sustained; if it can, the (1) 104 R. R. 7 (5 D. M. & G. 12). FULLER ". REDMAN. [619] Court admits the debt as against the estate. The real question is, whether this amounts to an acknowledgment or a promise to pay the debt. I have always understood that, since Lord Tenterden's Act, the acknowledgment or promise to pay must *be made to the creditor. There might have been some question whether an acknowledgment if made to an agent of the creditor is not made to him. The recent statute (1) removes all difficulty as to promises by the agent of the debtor. However, in equity, it would be considered, that if an application were made by the solicitor of the creditor, and the debtor wrote to say that he would pay the debt, it would be the same as if he had made the promise to the creditor himself. There either must be a promise to pay, or an acknowledgment of the debt, from which the law infers a promise to pay, as if a man says, “I owe you 10l." it is not necessary to prove a promise to pay, for it is the necessary legal inference that he means to pay it. But if the acknowledgment be not plain and simple, but accompanied by something else conditional, no absolute promise to pay can be implied. In Edmonds v. Goater (2), I treated it as essential that there must be a promise to pay. But here is a case, in which the inspectors had power to release certain debts within the last three months of the three years; provided all his property was assigned to inspectors. The debtor executes a deed after that time, by which he purports to assign his property, and the inspectors release the debts of the creditors. The deed is not stamped nor acted on, nor are any proceedings taken on it. Even if it had been, I should be of opinion that it is no acknowledgment to the creditors, and that it comes within the Exchequer cases, which hold that the acknowledgment must be made to the creditors, and that a letter to a mere stranger will not do. This deed is a mere agreement with other persons. I think, therefore, that the finding is wrong, and that the debt must be expunged. GREATED v. GREATED. 66 (26 Beav. 621-629; S. C. 5 Jur. N. S. 454; 7 W. R. 367; 33 L. T. O. S. 176.) A testator devised real estate to his children and their heirs as tenants in common, with a gift over to the survivors "in the event of any of them dying before having heirs of their body or making a particular disposition" of his share: Held, that or must be read and," and that the children took in fee, but that the gift over in the event of making no disposition was repugnant and void, and that the shares of two children who died without issue in the testator's lifetime consequently lapsed (3). A testator gave one-third of the rents of his real estate to his widow for life, and he devised an estate at B., in thirtieth parts, to his children (1) 19 & 26 Vict. c. 97, s. 13. (2) 92 R. R. 488 (15 Beav. 415). (3) But it seems that the failure of an earlier gift does not generally pre |