s. 8. Defences (Statutes of LimitationRevival of Debt by Acknowledg ment). CH. XXIII. to conduct his business (a); or by his counsel at the trial, in his hearing (b); was sufficient to revive the remedy; but under that statute, it was held that the written acknowledgment which is required to take a case out of the Statute of Limitations, must bear the actual signature of the party chargeable thereby (c). Now, however, by the Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c. 97, s. 13, an acknowledgment under 9 Geo. 4, c. 14, ss. 1, 3, will be sufficient, if it be in writing signed by a duly authorised agent of the party chargeable thereby. Hyde v. Law Am. Act. contractors. Infant. To whom acknowledgment made. When acknowledgment revives the original cause of action. And where the whole document is in the handwriting of the defendant, his name written at the top will be a sufficient signature to bind him (d). The statute expressly provides, that even a written acknowledgment of the debt by one of two joint contractors or executors, shall not revive the remedy as against the other: and that, if they be sued jointly, the plaintiff may recover in such action, against the defendant who has acknowledged the claim; and that the other defendant shall have a verdict (e). But where one of two joint debtors promised, in writing, to pay "his proportion of the debt when applied to;" it was held, in an action against him on this promise, that the case, as against him, had been taken out of the statute, although the writing did not state the amount of his proportion of the debt (ƒ). As to acknowledgment by infant, see ante, Ch. VII. s. 4, p. 154. The acknowledgment must be made to the creditor himself or to his agent, to some one who was entitled to receive payment of the debt, and to whom a promise to pay could be presumed (g). Where the debt is revived by an absolute acknowledgment within six years, it is sufficient to sue upon the original promise (h); for in such a case the subsequent promise and the original promise agree together. So if the promise were, to pay if another party who was liable did not pay when applied to; such a promise would be held to become absolute, on non-payment by the other party within a reasonable time after being applied to, so as to entitle the creditor to sue on the original contract (i). And the same rule holds, generally, in cases of promises to pay "when able;" (f) Lechmere v. Fletcher (1833), 1 C. & M. 623. (g) See Stamford, Spalding and Boston Banking Co. v. Smith, [1892] 1 Q. B. at p. 769, and the cases there cited by Lord Herschell. (h) Leaper v. Tatton (1812), 16 East, 420; Irving v. Veitch (1837), 3 M. & W. 90, 107, 111; Upton v. Else (1827), 12 Moore, 303. (i) Humphreys v. Jones (1845), 14 M. & W. 1. the original contract of the debtor being revived, by proof of his ability to pay before action brought (k). But there are cases in which it is proper for the plaintiff to sue, specially, upon the defendant's subsequent promise or acknowledgment—as where the defendant promises to pay the money at a certain time after demand (1). So, if it be anticipated that the statute will be pleaded to an action at the suit of an executor, or the trustee of a bankrupt, for a debt due to the testator or bankrupt; and there be a probability of answering this defence, by proving a subsequent promise or acknowledgment to the plaintiff in his representative character, the claim should state, that a promise was made to the plaintiff in that character: for an acknowledgment to the executor or trustee, will not support a claim which alleges a cause of action in the testator, or bankrupt (m). And so, in an action against a husband and wife, and A., on a promise "by her and A. before marriage;" an acknowledgment by A., after the marriage, is not evidence to support that promise (n). Where A. has an account against B., some of the items of which are more than six years old; and B. had a cross account against A., and they meet and go through both accounts, and a balance is struck in favour of A.; this amounts to an agreement to set off B.'s claim against the earlier items of A.'s; and, out of this agreement, a new consideration arises for the payment of the balance, which takes the case out of the statute (o). CH. XXIII. s. 8. Defences (Statutes of Limitation). When plaintiff must claim on the new promise. Effect of stating ac count and promise to pay balance. But the mere statement of an account, and promise to pay the Statement of balance will not have this effect. And, therefore, where the items account. Ashby v. of an account are beyond six years, and there are not mutual or James. (d) Revival of Debt by Part Payment. Part payment of a debt prevented the statute of James from running; and as we have seen (ante, p. 679), the 1st section of Lord Tenterden's Act, 9 Geo. 4, c. 14, provides that nothing therein contained shall alter the effect of any payment. Therefore, since Lord Tenterden's Act, as well as before, part payment (k) Ib.; and see per Cur., Earle v. Oliver (1848), 2 Exch. 71, 90; Higgins v. Hopkins (1848), 3 Exch. 163. (1) Waters v. Earl of Thanet (1842), 2 Q. B. 757. (m) See Sarell v. Wine (1803), 3 East, 409; Ward v. Hunter (1815), 6 Taunt. 210. (n) Pittam v. Foster (1823), 1 B. & C. (p) Per Alderson, B., Ashby v. James CH. XXIII. of a debt revives the claim as to the residue; and the reason is, that such part payment is evidence of a fresh promise (q). s. 8. Defences (Statutes of LimitationPart Payment). By agent, To agent. Stamford, &c., Bank V. Smith. Must be of debt in ques tion. Rules where debts. The payment must be either by the person liable or by his agent or his privy in estate, or by one who is the agent of both as a receiver (7), and so payment by a mere stranger, as for instance a tenant at rent of the mortgaged property, or a person who had no interest in it, is not available to bar the statute (s), but payment by a principal keeps alive the debt as against the surety (t). The payment must also be made to the creditor or his agent,to some one entitled to receive payment of the debt, and to whom a promise to pay the debt could be presumed. Therefore, where the indorsees sued the maker of a note, and it appeared that after the indorsement the defendant partly paid the payee, who had no authority to receive the money on behalf of the indorsees, it was held that such payment was not a sufficient acknowledgment to take the case out of the statute of James (u), though it is clear law that part payment to an agent will take the debt out of the statute as against the principal (x). But in order that a payment may have this effect, it must appear, either by declaration or acts of the party making it, or by the appropriation of the party in whose favour it is made, to have been made in part payment of the debt. And if it stands ambiguous whether it be a part payment of an existing debt, or a payment generally, without the admission of any greater debt being due to the party, then it is not sufficient to bar the statute (y). So, where there are two clear undisputed debts, and there is there are two evidence of a part payment, within six years, not specifically undisputed appropriated to the one debt or the other; it is a question of fact, whether such payment was not applicable to both debts (z); and if part payment be proved, the appropriation thereof to any particular debt for the purpose of taking it out of the statute, may be shown by any medium of proof,-e.g., by proof that the debtor afterwards admitted, orally, that he had made the payment on (q) Per Parke, J., Gowan v. Forster (1832), 3 B. & Ad. 507, 511. (r) 3 & 4 Will. 4, c. 27, s. 40, see Bolding v. Lane (1863), 1 De G., J. & S. 122, App.; Chinnery v. Evans (1864), 11 H. L. C. 115; Lewin v. Wilson (1886), 11 App. Cas. 639, J. C.; and see In re Hobbs (1887), 36 Ch. D. 553; Sanders v. Sanders (1881), 19 Ch. D. 373, C. A. (s) Harlock v. Ashberry (1882), 19 (t) Re Frisby (1889), 34 S. J. 45, C. A. Banking Co. v. Smith, [1892] 1 Q. B. 765. (x) See Megginson v. Harper (1834), 2 C. & M. 322; and as to agent receiving for principal, and subsequent ratification by principal, see Lyell v. Kennedy (1889), 14 App. Cas. 437. (y) Per Cur., Waugh v. Cope (1840), 6 M. & W. 824, 829; Tippetts v. Heane (1834), 1 Cr., M. & R. 252; and see per Cur., Burkitt v. Blanshard (1848), 3 Ex. 89, 91. (z) Walker v. Butler (1856), 6 E. & B. 506. s. 8. Defences (Statutes of Limitation). account of such debt (a). So, if part payment by the defendant, CH. XXIII. be proved by an admission in writing signed by him, and there be evidence of a subsequent declaration by the defendant as to the account on which such payment was made; it is a further question of fact on what account such payment really was made (b). But if there be evidence that the payment was accompanied by such declaration, it will be qualified thereby (b). any Where, however, there are two debts, one of which is disputed and the other undisputed, and a part payment is made by the defendant to the plaintiff; the jury will, in the absence of proof of its having been made specifically on account of either debt, be warranted in inferring that it was made on account of that one which was undisputed (c). So, where there are two debts, one of which is barred by the statute; a general payment is held, primâ facie, to have been made on account of the debt not barred (d). And the creditor cannot, by merely appropriating such payment, in reduction of a larger debt which is barred by the statute, take that debt out of the operation of the statute (e). But where, in an action on a promissory note bearing interest, proof was given that the defendant, on being sent to by the plaintiff for money, paid 11. and said :-"This puts us straight for last year's interest, all but 188.; some day next week I will bring that up;" this was held to be sufficient, there being no evidence that there was any other debt due from the defendant to the plaintiff (ƒ). So, it is held, that part payment of a debt will not take the case out of the statute, unless the payment be made under circumstances which will warrant a jury in inferring therefrom a promise to pay the residue (g). Accordingly, where the facts showed that, at the time the defendant made the payment, he clearly intended to pay the whole debt, in full; it was held that this did not take the case out of the statute (h). And so where a party, on being applied to for payment, paid a sovereign, but said that, although he owed the money, he would not pay it: it was held to be a question for the jury, whether he intended thereby to refuse payment, or merely spoke in jest (i). Rule where debts is dis one of two puted. Part payment must be con sistent with promise to pay residue. Subject to these rules, however, even a payment of interest, quà Payment of interest (k), where the debt is composed of principal and interest, (a) Bevan v. Gething (1842), 3 Q. B. 740; Waters v. Tompkins (1835), 2 Cr., M. & R. 723. (b) Baildon v. Walton (1847), 1 Exch. 617, 633, Ex. Ch. (c) Burn v. Boulton (1846), 2 C. B. 476. (d) Per Lord Cranworth, C., Nash v. Hodgson (1856), 25 L. J., Ch. 186, 188. (e) Ib. (f) Evans v. Davies (1836), 4 A. & E. 840. (g) Morgan v. Rowlands (1872), L. R., 7 Q. B. 493; Davies v. Edwards (1852), 7 Exch. 22, 25. (h) Foster v. Dawber (1851), 6 Exch. 839, 853; 20 L. J., Exch. 385. (i) Wainman v. Kynman (1847), 1 Ex. 118. (k) Per Parke, B., Sims v. Brutton (1850), 5 Exch. 802, 809. interest. CH. XXIII. will take the case out of the statute (1); although such payment s. 8. Statutes of Limitation Part Payment. Payment on promissory note. Payment in goods. Balancing accounts. be made by an agent (m). Thus, payment of interest due on a promissory note which remains in the hands of the payee, will take the note out of the statute (n); and so will payment of interest on a note payable on demand, before demand made (o). And where a feme sole payee of a promissory note, payable with interest, married, and her husband survived her: it was held that payments of interest thereon to the husband, in the lifetime of the wife, within six years before action, must be considered as having been made to him in the character of agent to the wife; and that such payments were an answer to the statute (p). So, payment of interest on a promissory note, to an administrator, who had omitted to take out administration in the diocese in which the note was bonum notabile, was held to be sufficient to take the case out of the statute; because in the mind of the party paying, such a payment must have been a direct admission of the debt (q); but where in an action by indorsees against maker, it appeared that after indorsement and within six years of action the defendant made a payment on account of the note to the payee who had no authority to receive the money on behalf of the plaintiff, it was held that such payment was not sufficient (r). And it may be stated, generally, that any facts which would have been sufficient to support a plea of payment, if an action had been brought for the interest, will constitute a payment of interest, to take the case out of the statute (s). So, if parties agree that goods shall be supplied in part payment of a debt, and goods are supplied and received accordingly; this will amount to a part payment, so as to take the debt out of the statute (t). So, where there are accounts with items on both sides, the going through them and striking a balance, converts the set-off into a payment, so as to take the case out of the statute (u). (1) Worthington v. Grimsditch (1845), 7 Q. B. 479; Scholey v. Walton (1844), 12 M. & W. 510, 513. But a payment on account of principal, does not, per se, take a claim for interest out of the statute. See Collyer v. Willock (1827), 4 Bing. 313. (m) Jones v. Hughes (1850), 5 Ex. 104; Rew v. Pettet (1834), 1 A. & E. 196. (n) Bealy v. Greenslade (1831), 2 C. & J. (0) Bamfield v. Tupper (1851), 7 Ex. 27. 937. (q) Clark v. Hooper (1834), 10 Bing. 480, 481. (r) Stamford, Spalding and Boston Banking Co. v. Smith, [1892] 1 Q. B. 765, C. A., considering and distinguishing Clark v. Hooper, ubi sup. (s) See Amos v. Smith (1862), 1 H.& C. 238; Maber v. Maber (1867), L. R., 2 Ex. 153. (1) Cottam v. Partridge (1842), 4 M. & G. 271; Hooper v. Stephens (1835), 4 A. & E. 71; Hart v. Nash (1835), 2 Cr., M. & R. 337; and see Blair v. Ormond (1851), 17 Q. B. 423, 435; Bodger v. Arch (1854), 10 Exch. 333. (u) Per Cur., Worthington v. Grimsditch (1845), 7 Q. B. 479, 484; per |