1

an indebtedness, without questioning it, is not sufficient; nor is a mere request for delay, without stipulating any time for indulgence;" nor is the fact that one co-debtor has suffered a judgment by default upon the joint debt to be entered against him, such an acknowledgment as will remove the statute bar against his co-debtor."

SEC. 89. Instances of Sufficient Acknowledgments. The following acknowledgments, on the other hand, importing a promise to pay the debt or satisfy the claim, have been held sufficient acknowledgments within the statutes: "I am wretched on account of your not being paid: there is a prospect of an abundant harvest, which must reduce your account; if it does not, the concern must be broken up to meet it."4 "The demand is not a just one, but I am ready to settle the account . . . I am not in his debt £90; shall be happy to settle the difference." 5 "I am ready to put it out of my power to take advantage of the limitation act, and will immediately give you my note for whatever is due to you." "Your account is quite correct, and O! that I were now going to enclose you the amount of it." If, in an account rendered, there are two perfectly distinct items, not in any way connected together, and forming no part of one continuous transaction, a signed acknowledgment as to one of them will not take the other out of the operation of the statute. Where a written acknowledgment of the debt, signed by the debtor, had been lost, oral evidence of the contents of the writing and of the making of the acknowledgment was permitted to be given, so as to take the case out of the operation of the statute."

SEC. 90. Direction in a Will, to pay Debts. A general direction by a testator in his will, that all his just debts shall be paid, is treated as applicable only to those liabilities that are enforceable by legal proceedings, consequently it is not regarded as sufficient to operate as a waiver of the defence of the statute of limitations.10 But specific directions to pay certain claims upon which the statute had run, or upon which it was running when the will was executed, would operate as a waiver of the statutory bar, which would be binding upon the executor and all others interested in the distribution of the estate to the extent and subject to the restrictions, if any, put thereon by the testator."

SEC. 91. Debts due from Corporations. -Where a debt is contracted by an officer of a corporation, as such, or a note or other obli

1 Hanson v. Towle, 19 Kan. 273. 2 Cook v. Cook, 10 Heisk. (Tenn.) 664. But see Bloom v. Kern, 30 La. An. Part II. 1207, where a letter of that kind was held sufficient, not only to take the note out of the statute as to the principal, but also as to the surety.

3 Lane v. Richardson, 79 N. C. 159. Bird v. Gammon, 3 Bing. N. C. 883.

Б Colledge v. Horne, 3 Bing. 119.

gation is executed by him as such, a payment or new promise made by his successors in that office will have the effect to keep the debt on foot and save it from the operation of the statute;1 and, if the note is so executed as to render the individuals signing it personally liable therefor, the question as to whether a payment made thereon by their successors in office was not authorized by them is for the jury. Thus, in the case last cited it appeared that the parish vestry having resolved to borrow money to build almshouses, the plaintiff's testator advanced some of the money upon the security of a promissory note executed by the defendants and others, who were parish officers, as follows:

LLANRHOS, 1st May, 1830.

£185. We promise to pay to David Jones or bearer, on demand, the sum of one hundred and eighty-five pounds, with interest thereon from the first day of May, 1830, at the rate of £5 per centum per annum, for value received, to build twelve almshouses at Towyn.

Interest on this note had been regularly paid by the overseers for the time being up to 1847, and by them debited to the parish. The defendants had never paid any interest on the note, nor in express terms ever authorized the parish officers to pay it for them. Upon the trial before WIGHTMAN, J., at the assizes, the judge instructed the jury that the defendants were entitled to a verdict if the payment was made without their knowledge or authority. But upon a rule to set aside the verdict on the ground of misdirection, the verdict was set aside, the court holding that it was a question for the jury whether or not the defendants had not constituted the churchwardens and overseers of the parish for the time being their agents, for the purpose of paying the interest.❜

SEC. 92. Entry of Debt in Schedule, Deed, &c. Under these statutes, the entry of a debt in an inventory or schedule of the debtor's debts, to be filed in insolvency or in any proceeding, when the act is voluntary, is held sufficient to take the debt out of the statute, if the schedule or inventory is signed by the debtor, but not otherwise, unless it is made a part of another instrument which is signed. Such an entry would not be sufficient, even though sworn to, unless signed by

1 Jones v. Hughes, 5 Exch. 104.
2 Rew v. Pettet, 1 Ad. & El. 196.

Woodbridge v. Allen, 12 Met. (Mass.) 470. In Smith v. Poole, 12 Sim. 17, an action was brought on a note upon which no payment had been made since 1823. The action was brought in 1835, and to

save the note from the operation of the statute, it was proved that in 1832 the administrator of the maker returned, under citation, an inventory and account of the debtor's assets and liabilities, in which this note was included, and it was held suffi cient.

the debtor. The recital in a mortgage that it is made subject to a prior mortgage, if made before the statute has run thereon, does not suspend the operation of the statute and start it afresh from the date of such recital; 1 but such a recital in a mortgage, made after the statute has run upon a previous mortgage, renews the prior mortgage and gives it a new period of life from the date of the mortgage in which such recital is contained. In order to operate as a renewal of a debt upon which the statute has run, the writing in which the acknowledgment or new promise is contained must either have been delivered to the creditor or to some person acting for him, or deposited in some public office, where it can be said to have been deposited with the intent and purpose that the creditor should rely upon it to keep his debt on foot. The mere fact that the debtor made a written acknowledgment of the debt, or promise to pay it even, which he retained, and which was never delivered to the creditor, will not operate to repeal the statute as to such debt.*

SEC. 93. Sufficiency of, for the Court, except. The question whether a written acknowledgment is sufficient to amount to an absolute promise to pay is a question for the court, and should not be submitted to the jury. Where, however, a document of doubtful construction is put in evidence to avoid the effect of the defendant's plea, and has to be explained by extrinsic facts, the question is for the jury.Ĝ

SEC. 94. Must be signed by the Debtor. - It is necessary, under the statutes in those States where the acknowledgment is required to be" in writing and signed by the party chargeable thereby," that the instrument relied upon as an acknowledgment should bear the actual signature of the person to be charged, and the circumstance that it is in his handwriting does not give it validity." In one case it was held

803.

1 Palmer v. Butler, 36 Iowa, 576.
Day v. Baldwin, 34 Iowa, 380.
8 Duguid v. Scholfield, 32 Gratt. (Va.)

Smith v. Eastman, 3 Cush. (Mass.) 355; Hughes v. Paramore, 35 Eng. L. & Eq. 195.

Routledge v. Routledge, 8 Ad. & El. 221; Hancock v. Bliss, 7 Wend. (N. Y.) 267; Oliver v. Gray, 1 H. & G. (Md.) 204; Clarke v. Dutcher, 9 Cow. (N. Y.) 674. Where the defendant said that it was impossible for him to pay then, but that he would call on the plaintiff in the course of two or three weeks and give him all the satisfaction he could desire, it was held that the construction and effect of this was for the court, and that there was nothing to go to the jury. Magee v. Ma

gee, 10 Watts (Penn.), 172; Berghaus v. Calhoun, 6 id. 219.

6 Morrell v. Frith, 3 M. & W. 402; Snook v. Mears, 5 Price, 636.

Bayley v. Ashton, 12 Ad. & El. 493. In Hyde v. Johnson, 2 Bing. N. C. 776, the debtor's wife wrote a letter to the plaintiff in her husband's name and at his request, proposing to pay the debt by instalments; and the court held that, as the letter was signed by an agent and not by the party chargeable, it was not sufficient. "It appears," said TINDAL, C. J., “that the legislature well knew how to express the distinction between a signature by the party and a signature by his agent, and, as the act expressly mentions the signature of the party only, we think it a safer construction to adhere to the precise words of

66

that where the debtor wrote the entire instrument, including his name, at the top, as I, A. B.," &c., it was a sufficient signature; 1 but it is not believed that this would be regarded as sufficient under our statutes. But the omission of a date is not material, as it may be supplied by parol; neither is it indispensable that the name of the creditor should appear in the instrument, as that, as well as the identity of the debt, may be supplied by parol.*

2

8

SEC. 95. Promise must bind the Debtor personally. Conditions, Effect of. The words, " unless such acknowledgment or promise are made or contained by or in some writing signed by the person chargeable thereby," are held to be restricted to the personal liability of the debtor, and if he promises to pay out of a particular fund, or if he says that certain persons are owing him, and that the creditor may get the amount to apply on his debt if he can, he does not thereby charge himself, or remove the statute bar so as to enable the creditor to recover the debt of him. In the case last referred to, the debtor wrote the plaintiff as follows:

6

GENTLEMEN, I have hitherto deferred writing to you regarding your demand upon me, in consequence of some family arrangements, through which I should be enabled to discharge your account, and which were in progress, not having been completed.

I have now the satisfaction to inform you that an appointment of sufficient funds for this purpose has been signed, of which Henry Young, Esq., 12 Essex Street, Strand, is one of the trustees, to whom I have given in a statement of your account, amounting to £98 8s. 6d. It will, however, be unavoidable that some time must elapse before the trustees can be in cash to make these payments; but I have Mr. Young's authority to refer you to him for any further information you may deem requisite on this subject. I remain, Gentlemen, your obedient servant, A. W. HILLARY.

LITTLEDALE, J., said: "I think this is not sufficient to take the case out of the statute of limitations; and I think that the plaintiffs ought to have gone to Mr. Young for the money."

the statute, and that we should be legislating and not interpreting, if we extended its operation to writings signed, not by the party chargeable thereby, but by his agent." See also Clarke v. Alexander, 8

Scott N. C. 147.

1 Holmes v. Mackrell, 3 C. B. N. s. 789.

2 Kincaid v. Archibald, 73 N. Y. 183; Edmonds v. Downes, 2 Cr. & M. 459; Hartley v. Wharton, 11 Ad. & El. 934; Lechmere v. Fletcher, 1 C. M. & R. 623. 3 Hartley v. Wharton, ante; Mahon v. Cooley, 36 Iowa, 479.

4 In Shortredge v. Check, 1 Ad. & El. 57,

the defendant had written, "I will pay the promissory note," and it was held that the onus of proving the existence of more than one promissory note, to which the writing might refer, was upon the person disputing the debt. And under the rule that the identity of the debt may be shown by parol, it was held that a promissory note, though unstamped, and for that reason void, is admissible to show what was intended by the acknowledgment. Spickernell v. Hotham, Kay, 669.

221.

5 Routledge v. Routledge, 8 Ad. & El

• Whippy v. Hillary, 5 C. & P. 207.

For the defence, Mr. Young was called. He stated that he was not in funds till about three months after the bringing of the present action; and that as soon as he was so, he sent to the plaintiffs to offer them the sum mentioned in the letter.

After the evidence was closed, LITTLEDALE, J., said: "I am of opinion that this letter is not sufficient to take the case out of the statute. If the acknowledgment be accompanied by a condition, you must take the whole together. In this letter, the defendant refers to Mr. Young. At most it is only a promise to pay when Mr. Young is in funds."