forfeiture by non-performance of the first act in the series; yet a new cause of action arises on each new default, and the statute runs from that (e). Defences (Statutes of Limitation). Effect of fraud. Gibbs v. It was clear before the Judicature Acts that fraud could not be set up in reply to a plea of the statute (f); but in equity it was otherwise (g); and the effect of the Judicature Acts is that concealed fraud and the absence of reasonable means of discovery Guild. thereof may be pleaded in reply to a defence of the statute. So it was held by the Court of Appeal in Gibbs v. Guild, in which the action was for damages for fraudulent misrepresentation by a promoter of a company, whereby the plaintiff was induced to take shares in the company (h); and the principle of this case would, it is submitted, apply to an action upon any contract itself to recover damages for the breach of it. (c) Revival of Remedy by Acknowledgment. den's Act. We have already said (see p. 688, ante), that although the Lord TenterStatute of Limitations bars the remedy, the debt itself is not extinguished thereby, and that the debtor may, by a new promise to pay, revive his liability. Before the Statute of Frauds Amendment Act, 1828, 9 Geo. 4, c. 14, commonly called Lord Tenterden's Act, an oral admission of the debt, within six years, was held to be sufficient for this purpose. But by sect. 1 of that Act, it is Sect. 1. enacted, after a recital of part of the statute of James, and of the Acknowledg corresponding Irish Act, 10 Car. 1, sess. 2, c. 6, and that "various by signed questions had arisen as to the proof and effect of acknowledgments writing. and promises offered in evidence for the purpose of taking cases out of the operation of the said enactments," that: ment "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 contract, whereby to take any case out of the operation of the said enactments, or either of them (1), 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 where there shall be two or more joint contractors, or executors, or administrators of any contractor, no such joint contractor, executor, or administrator, 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 herein contained shall alter, or take Payment. away, or lessen the effect of any payment of any principal or interest made by any person whatsoever;-provided also, that in actions to be commenced (e) Amott v. Holden (1852), 18 Q. B. 593, 603; Sanders v. Coward (1846), 15 M. & W. 48; Blair v. Ormond (1851), 17 Q. B. 423. (f) See the cases cited in Gibbs v. Guild, infra (h). (g) See Ecclesiastical Commissioners v. N. E. Rail. Co. (1877), 4 Ch. D. 845. (h) Gibbs v. Guild (1882), 9 Q. B. D. 59, C. A., and see Armstrong v. Milburn (1886), 54 L. T. 723, C. A. (i) 21 Jac. 1, c. 16. CH. XXIII. against two or more such joint contractors, or executors, or administrators, 8. 8. if it shall appear at the trial or otherwise that the plaintiff, though barred by Defences either of the said recited Acts, or this Act, as to one or more of such joint (Limitation contractors, or executors, or administrators, shall nevertheless be entitled to -Revival by Acknowledg 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." ment). Joint contractors. Memorandum of payment. Set-off. Intention of What a suffi cient acknowledgment. Sect. 3 enacts, that no indorsement or memorandum of any payment 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; and sect. 4, that the said recited Acts and this Act shall apply to any debt on simple contract, alleged by way of set-off on the part of any defendant, either by plea, notice, or otherwise. This statute (which is styled "the Statute of Frauds Amendment Act, 1828," by the Short Titles Act, 1896) "did not intend to make any alteration in the legal construction to be put upon 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, for the insecure and precarious testimony to be derived from the memory of witnesses. To inquire, therefore, whether, in a given case, the written document amounts to an acknowledgment or promise, is no other inquiry than whether the same words if proved, before the statute, to have been spoken by the defendant, would have had a similar operation and effect" (k). The main principles of the cases on the Act, to govern all of which no general rule can be laid down (1), are these:: In order to take a case out of the statute, there must be either an express promise to pay; or an acknowledgment or admission of the debt, in terms so distinct and unqualified that a promise to pay on request may be reasonably inferred (m); and such a promise to pay will be inferred from an absolute admission of the debt, although such admission be accompanied with a request for indulgence (n), or though the parties may differ as to the amount (o). (k) Per Tindal, C.J., Haydon v. Williams (1820), 7 Bing. 163, 166. (1) See Green v. Humphreys (1884), 26 Ch. D. 474, C. A., reversing Pollock, B.; Gardner v. M'Mahon (1842), 3 Q. B., at p. 368, per Williams, J. (m) Smith v. Thorne (1852), 18 Q. B. 134, Ex. Ch. ; and see Skeet v. Lindsay (1877), 2 Ex. D. 314; Mitchell's claim (1871), L. R., 6 Ch. 822; Green v. Humphreys (1884), 26 Ch. D. 474, (0) Colledge v. Horn (1826), 3 Bing. 119; Gardner v. M'Mahon (1842), 3 Q. B. 561, 568. s. 8. Defences An absolute admission of some debt being due is sufficient; for CH. XXIII. such admission may be coupled with evidence to prove the amount (p), and so is a general promise to pay, not specifying (Limitation). any amount, but which can be made certain as to the amount by Admissions. extrinsic evidence (q), and the making out, on request, an account in which the debt is treated as a liability (r). acknow But although, where there is an unequivocal acknowledgment, Qualified and nothing more, a promise to pay may and ought to be implied; ledgment. yet where the party guards his acknowledgment, this implication will not arise (s). Thus, although there be the most distinct admission of the debt, yet if it be accompanied by a refusal to pay, the statute will not be barred; for such refusal prevents the implication of a promise arising from the acknowledgment (t). And so, if there be a qualified acknowledgment, or an acknowledgment accompanied by a conditional promise to pay, an absolute promise cannot be implied therefrom (u). of bill. The giving of a bill or note, in renewal of a former bill or note Renewal given as a security for money lent, is not sufficient, of itself, as to the original demand (x). And so, where there is an acknowledgment which primâ facie satisfies the statute, but other evidence is given which shows that the document was drawn up for a different purpose, a promise to pay will not be implied therefrom (y). A letter by debtor to creditor asking the latter to make out his account, and then writing "I will send you some coin as soon as I can," is not sufficient acknowledgment (2); and in Spong v. Wright (a), an admission in the following terms:-"I have to request you will be pleased to send me in any bill, or what demand you have to make on me, and, if just, I shall not give you the trouble of going to law,"-was held not to be sufficient to take the case out of the statute. So, where the defendant wrote to the clerk of the plaintiff as follows:-"I will not fail to meet the plaintiff on fair terms, and have now a hope that, before perhaps a week from this date, I shall have it in my power to pay him, at (p) See Sidwell v. Mason (1857), H. & N. 306. (2) Per Alderson, B., Spong v. Wright (1842), 9 M. & W. 629, 633; Cheslyn v. Dalby (1840), 4 Y. & C. 238; Williams v. Griffith (1849), 3 Exch. 335; Lechmere v. Fletcher (1833), 1 C. & M. 623; Edmonds v. Goater (1852), 21 L. J., Ch. 290. (r) Holmes v. Mackrell (1858), 3 C. B., N. S. 789. (s) See Buckmaster v. Russell (1861), 10 C. B., N. S. 745. (4) Per Tindal, C.J., Linley v. Bonsor (1835), 2 Scott, 399, 403. (u) Per Tindal, C.J., Linley v: Bonsor (1835), 2 Scott, 399, 403; and see Evans v. Simon (1853), 9 Exch. 282; Kennett v. Milbank (1831), 8 Bing. 38. (x) Foster v. Dawber (1851), 6 Exch. 839; 20 L. J., Ex. 385. (y) Cripps v. Davies (1843), 12 M. & W. (z) In re Bethell (1887), 34 Ch. D. 561. 629. Request by debtor for account. CH. XXIII. Green v. Direction in will to pay debts. all events a portion of the debt, when we shall settle about the liquidation of the balance; "-this was held not to be sufficient to take the case out of the statute (b); and in Green v. Humphreys (c), a letter in October to the effect that "I thank you for your very kind intention to give up the rent next Christmas, but I am happy to say that by that time both principal and interest will have been paid in full," was held insufficient. The mere expression by the debtor, of a wish or promise not to avail himself of the statute, is not sufficient (d). A direction in a will for the payment of debts will not prevent the operation of the statute, or revive a debt on which the statute Scott v. Jones, had attached either before the death of the testator (e), or after it (f); and an executor's advertisement to creditors for claims is no acknowledgment of them within the statute (g). Admission of claim with denial of liability at time of admission. In like manner,-on the principle that an admission, to take a debt out of the Statute of Limitations, must be of such a nature that a promise can be implied therefrom,-those cases in which it has been held insufficient for debtors to have admitted the original claim, but to have denied that a liability existed at the time of the admission, because the debt had been paid (h); or because there was a set-off against it (i); or because the six years had expired (k), or where the admission is in a letter "without prejudice " (1), are clearly good law. And upon the same principle, an admission will not be effectual when it is qualified by an objection which would at any time have exempted the party from payment (m); or is accompanied by a claim to be discharged from the debt, even upon some ground which may be shown not to be sufficient for that purpose (n). So if a cause of action, arising from the breach of a contract to do an act at a specified time, be once barred by the Statute of Limitations, a subsequent acknowledgment by the party that he broke the contract, will not take the case out of the statute (o). (b) Hart v. Prendergast (1845), 14 M. & W. 741. (c) Green v. Humphreys (1884), 26 Ch. D. 474, C. A., reversing Pollock, B. (d) Rackham v. Marriott (1856), 1 H. & N. 234. (e) Evans v. Tweedy (1838), 1 Beav. 55; Burke v. Jones (1813), 2 V. & B. 275. (f) Scott v. Jones (1838), 4 Cl. & F. 382, (g) Scott v. Jones, supra. 184. v. Guy (1802), 4 Esp. (i) Swann v. Sowell (1819), 2 B. & Al. 759; and see Francis v. Hawkesley (1859), 1 E. & E. 1052. (k) Coltman v. Marsh (1811), 3 Taunt. 380; Rowcroft v. Lomas (1816), 4 M.& S. 457. (4) Cory v. Brelton (1830), 4 C. & P. 462. (m) De la Torre v. Barclay (1814), 1 Stark. 7. (n) See Owen v. Woolley (1751), Bul., N. P. 148; Goate v. Goate (1856), 1 H. & N. 29. (0) Boydell v. Drummond (1808), 2 Camp. 157; 10 R. R. 450; and see Short v. M'Carthy (1820), 3 B. & Al. 626; 22 R. R. 503. Nor will an acknowledgment of the debt bar the statute, if it be not made before action brought, such acknowledgment being equivalent to a new promise (p). CH. XXIII. ment must be tional, there must be proof of perform ance. Tanner v. Where the defendant's promise is conditional, or where it is a promise to pay on the arrival of a specified time, the performance Acknowledg of the condition, or the arrival of that time, must be proved by before action. the plaintiff (q). E.g.,-in an action on a promissory note, to Where acknowledg. which the Statute of Limitations was pleaded,-the defendant ment condiwas proved to have said, "I cannot pay the debt at present, but I will pay it as soon as I can ; and it was held that, as no proof was given of the defendant's ability to pay, the statute was a bar (). But where A.,-who had signed, as surety for B., a Smart. joint and several promissory note made by A. and B.,-being called upon, after the death of B., for payment of the money due thereon, requested the holder to apply to B.'s executrix, and stated in writing, that "what she should be short, he would assist to make up ;" and the executrix was applied to, but did not pay anything it was held, that A.'s conditional promise thereby became absolute, and rendered him liable in an action brought against him on the note more than six years after its date, and after a reasonable time had elapsed for payment by the executrix (s). ment condi The question as to whether a written acknowledgment, which Whether acknowledg is offered in evidence to take a case out of the statute, is conditional or unconditional, is a question for the Court, and not for tional, is a the jury, except where the document is connected with other the Court. evidence, which affects its construction (t). If a written acknowledgment, produced for the purpose of taking a case out of the statute, contain no date, parol evidence may be given of the time at which it was written (u). question for And if the writing which contains the acknowledgment has been Parol evilost, parol evidence may be given of its contents (x). Before the Statute of Frauds Amendment Act, 1828, the admission of the debt by the authorised agent of the debtor (y); or by a third party, to whom he referred the creditor for information respecting his demand (z); or by the wife of a debtor who was accustomed (p) Bateman v. Pinder (1842), 3 Q. B. 574; overruling on this point, Yea v. Fouraker (1760), 2 Burr. 1099; Thornton v. Illingworth (1824), 2 B. & C. 824. (g) Hart v. Prendergast (1845), 14 M. & W. 741,745; Haydon v. Williams (1830), 7 Bing. 163. And see Meyerhoff v. Froehlich (1878), 4 C. P. D. 63, C. A. (r) Tanner v. Smart (1827), 6 B. & C. 602; and see In re Bethell (1887), 34 Ch. D. 561. (8) Humphreys v. Jones (1845), 14 M. & W. 1. (t) Routledge v. Ramsay (1838), 8 A. & E. 221; Morrell v. Frith (1838), 3 M. & W. 402. (u) Edmunds v. Downes (1834), 2 C. & M. 459, 463. (x) Haydon v. Williams (1830), 7 Bing. 163. (y) Burt v. Palmer (1804), 5 Esp. 145. (2) Williams v. Innes (1808), 1 Camp. 364; 10 R. R. 702. dence of date or contents. By whom the acknowledg. ment may be made. |