9 Geo. 4, c. 14. sufficient to go to the jury; that the construction of the admission in the answer was for the court; and that the whole of it should have been left to the jury, but that they might believe the fact of the payments having been made half-yearly, but reject the residue, and infer from the other evidence that the payments were really made in respect of interest. (Baildon v. Walton, 1 Ex. 617; 17 L. J., Ex. 357.) Words used at the time of making a payment qualify it, but it is for the jury to judge of the truth of a statement accompanying the admission of a previous payment. (lb. See Trentham v. Deverill, 3 Bing. N. C. 397.) Payment of interest under compulsion of law will not take a debt out of the statute. (Morgan v. Rowlands, L. R., 7 Q. B. 493.)

Appropriation.

A. owed B. three sums on three promissory notes, dated respectively in 1839, 1840, and 1841. In 1846 B. applied for interest, and A. paid 57. on account of interest generally, and a few days afterwards B., without the knowledge or concurrence of A., made a memorandum on the note 1841, that the payment had been made on account of interest thereon. At the time of this payment two of the notes were barred by the statute: it was held, upon appeal reversing the order of the court below, that the payment of the interest generally could not be referred exclusively to the two notes which were barred, but must be referred either to the three notes or to the one not barred, and in either view the effect of the payment was to take the note of 1841 out of the statute. It seems that the appropriation by the creditor, without the knowledge or consent of the debtor, will not per se furnish sufficient ground for raising against the debtor a new promise to pay. Where a payment is made by a debtor on account generally, the court will not refer it to a debt barred by the statute if it can be attributed to any debt not so barred. (Nash v. Hodson, Kay, 650; 6 De G., M. & G. 474. See Mills v. Fowkes, 5 Bing. N. S. 455.)

The application by a trustee of the income of trust property received by him to the partial liquidation of a debt due to him from his cestui qui trust, will, if made with the authority of the latter, prevent the residue of the debt from being affected by the statute, in respect of the lapse of time preceding the last such application. (Stewart v. Connick, I. R., 5 C. L. 562.) A creditor who had more than six years before the action supplied ship's stores on seven separate occasions to the debtor amounting in the aggregate to more than 3007. within six years, asked his debtor for money. The debtor answered that he had not looked into his accounts, but supposed the balance to be between 907. and 1007., but he had not cash. Being pressed, he accepted a draft at four months for 607., which he did, taking an acknowledgment that he had given the acceptance on account. It was proved by other evidence that the amount unpaid for the ship's stores was 951., but the different accounts were never balanced or ascertained between the creditor and debtor: it was held, that the evidence of the giving of the acceptance under these circumstances was evidence to go to the jury of a payment on account of all the debts, so as to be evidence of a fresh promise to pay what was due sufficient to take the whole out of the statute. (Walker v. Butler, 6 El. & Bl. 506; 2 Jur., N. S. 687; 25 L. J., Q. B. 377.) Between Midsummer, 1845, and Lady-day, 1854, the guardians of the Wycombe Union made payments by way of relief to non-settled paupers of the Eton Union. The only authority for these payments were letters written in 1847, 1849, and 1850, in which the guardians of the Eton Union requested the guardians of the Wycombe Union to make weekly payments to certain paupers. One of these letters stated that the money would be repaid quarterly, and another stated that if they would furnish an account at the end of each quarter they would be repaid. In July, 1850, the guardians of the Wycombe Union sent to the guardians of the Eton Union an account in which they claimed a balance (after giving credit for a payment made in November, 1849) for relief on non-settled paupers of the Eton Union from Lady-day, 1845, to Lady-day, 1847, and from Lady-day, 1849, to Lady-day, 1850. No previous account had been sent in or claim made in respect thereof it was held, that the payment not being generally on account did not take the case out of the Statute of Limitations. (Wycombe Union (Guardians) v. Eton Union (Guardians), 1 H. & N. 687; 26 L. J., M. C. 97.)

Proof of payment by parol evidence.

In an action upon a promissory note, to which the Statute of Limitations 9 Geo. 4, c. 14. was pleaded, the plaintiff gave evidence that the defendant had paid 58. on account of the note. He then offered to prove that the defendant, on a subsequent occasion, admitted orally that he had made such payment on the above account. It was held that the latter evidence was not excluded by stat. 9 Geo. 4, c. 14, s. 1. (Bevan v. Gething, 3 Q. B. 740.) A witness, who said he settled all kinds of accounts for the defendant, admitted that an account containing a memorandum of a payment on the part of the defendant was in his own handwriting, but said he could not recollect the fact of payment: it was held, nevertheless, that there was sufficient evidence to go to the jury, as to the fact of payment to take the case out of the Statute of Limitations. (Trentham v. Deverill, 3 Bing. N. C. 397.)

It was once decided that a verbal acknowledgment of the payment of part of a debt within six years was not sufficient within the stat. 9 Geo. 4, c. 14, to take the case out of the Statute of Limitations; as the previous enactment must be engrafted upon the proviso as to part payment, and the whole must be taken together and the payment proved, not by a verbal acknowledgment, but by evidence of the actual payment, or by writing such as the act requires; and being so proved it will have the same effect as it had before the passing of the act. (Willis v. Newnham, 3 Y. & J. 518.) But that decision is now overruled, and part payment of principal or payment of interest on account of a debt is not affected by the 9 Geo. 4, c. 14, and therefore a parol acknowledgment of payment within six years before the action brought will take the case out of the statute. (Cleave v. Jones, 6 Exch. 573, Exch. Cham.; 15 Jur. 515; 20 L. J., Exch. 238.)

Evidence of verbal admissions in 1850 by A., since deceased, that he owed a debt of 2,3301. to B.'s estate, the interest of which he had arranged to discharge, and was discharging, by paying two annuities bequeathed by B.'s will, together with a statement in an affidavit made by B's executor in 1850, which was inserted in the draft affidavit from the dictation of A. to the effect that B.'s executor had received in August, 1850, from A. a halfyear's interest on 2,3007., and had paid the same annuities the same half-year, was held sufficient to take the debt of 2,3007, out of the statute. (Edwards v. Janes, 1 K. & J. 534.)

A letter not in itself sufficient as a written acknowledgment to bar the statute, may be left, with other evidence, to the jury upon the question whether there have been payments or deliveries of goods in part satisfaction of the debt within the six years. It will be a question for the jury whether the payments or deliveries of goods were made and received on account of the particular debt sued for. (Collinson v. Margesson, 27 L. J., Ex. 305.) In assumpsit on a promissory note bearing interest, proof that the defendant being sent to by the plaintiff for money, paid 17., and said, "this puts us straight for the last year's interest, all but 188.: some day next week I will bring that up," is sufficient answer to a plea of the Statute of Limitations no evidence being given of any other debt due from the defendant to the plaintiff. (Evans v. Davies, 4 Ad. & Ell. 840; 3 Dowl. P. C. 786; 1 Gale, 150.)

Before the passing of 9 Geo. 4, c. 14, indorsements of the payment of By indorsements interest made upon bills or notes before the statute had run by the holder, on bills and notes. were received in evidence, upon the principle that they operated against the interest of the party by whom they were made; but where it appeared that such an indorsement had been made after the statute had run, it was not received as evidence to exclude the operation of the statute. (Briggs v. Wilson, 5 D., M. & G. 12; 1 Taylor on Ev. 614, 5th ed.) But now it is enacted by 9 Geo. 4, c. 14, s. 3, that no indorsement or memorandum of 9 Geo. 4, c. 14, s. 3. any payment written or made after the 1st Jan. 1829, upon any promissory note, bill of exchange, or other writing, by or on 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 the statute. In an action by an executor of the payee of a promissory note against the maker upon a promissory note more than six years overdue, the plaintiff, in order to take the case out of the Statute of Limitations, produced a book in which he had in 1844 and 1847 respectively, at the request of the testatrix, entered

9 Geo. 4, c. 14. two payments as for interest due upon the note, which she told him she had received from the defendant: the evidence was held not to be excluded by this section, which applies where there is nothing but an indorsement. (Bradley v. James, 13 C. B. 822.)

Modes in which payment can be made.

Not essential that money should

pass.

Payment by delivery of goods.

Since 9 Geo. 4, c. 14, there must be part payment in cash, or what is equivalent to it, to take a case out of the Statute of Limitations. A. occupied a house and land under B. at the rent of 167. a year, and A., at B.'s request, entered into his employment as a farming bailiff, and to perform other services, in the place of another person, who had been employed by B. and had been paid 12s. a week. A. continued in B.'s service for more than twelve years, but there was no payment of rent on the one hand, or of wages on the other. In an action brought by A. to recover wages for twelve years, deducting the rent: it was held, that this was not such an open account as would take the case out of the Statute of Limitations since the 9 Geo. 4, c. 14, but that there must be a part payment in cash, or what is equivalent to it, to have that effect. (Williams v. Griffiths, 2 Cr., M. & R. 45.)

A. gave B., then being a feme sole, a promissory note; B. died, having married C., who thereupon arranged with A. that the interest on the note should go towards the maintenance of B.'s child, then under the care of A. In 1839, A. and C. settled their accounts; and A. indorsed a memorandum on the note, that all the interest up to that date was paid, but no money passed. In 1848, the child died, no payments on either side having been made in the meantime. In 1853, C. took out letters of administration to B., and brought an action against A. to recover the amount of the note, alleging a promise to himself as administrator after the death of B. It was held (dubitante Parke, B.) that the agreement between the plaintiff and the defendant, and the continued acting thereon up to the time of the child's death, constituted a payment of interest within this section. (Bodger v. Arch, 10 Exch. 333; 24 L. J., Exch. 19.)

It has been held, that to constitute a payment of interest sufficient to take a debt out of the statute it is not essential that money should pass between the parties. Where a debt due to the plaintiff from his son was barred, an interview between the plaintiff, his son and his son's wife took place, at which the interest due was calculated, and the son offered to pay. The plaintiff stopped him, and writing a receipt for the interest gave it to the son's wife, saying that he would make her a present of the money: no money passed. Held, that this was a sufficient payment to take the debt out of the statute. (Maber v. Maber, L. R., 2 Ex. 153.)

If an equitable mortgagee enters into the receipt of the rents of the mortgaged estate, such receipt is primâ facie a payment within the meaning of the proviso in the stat. 9 Geo. 4, c. 14, s. 1. (Brocklehurst v. Jessop, 7 Sim. 438.) Anything received upon an agreement, in reduction of a debt, is a payment within 9 Geo. 4, c. 14, s. 1, sufficient to take the debt out of the Statute of Limitations. (Hooper v. Stephens, 4 Ad. & Ell. 71; 7 C. & P. 260; Hart v. Nash, 2 Cr. M. & R. 337.) If the parties to a bill of exchange agree that goods shall be supplied in part payment, and they are supplied and taken accordingly, that is part payment so as to prevent the operation of the Statute of Limitations. (Hart v. Nash, 2 Cr. M. & R. 337.) In order to make a delivery of goods within six years operative in taking a case out of the statute, there must be some evidence of an agreement that such delivery shall be deemed equivalent to By settlement of payment. (Cottam v. Partridge, 4 Scott, N. R. 819.) The stat. 9 Geo. 4, c. 14, does not apply to the fact of an account stated, where there are items on both sides; but the going through an account with items on both sides and striking a balance converts the set-off into payments. (Ashby v. James, 11 Mees. & W. 342, recognized in Worthington v. Grimsditch, 7 Q. B. 484; Clark v. Alexander, Scott, N. R. 165; Bodger v. Arch, 10 Exch. 333; Amos v. Smith, 1 H. & Colt. 238.) See Hughes v. Paramore, 7 D., M. & G. 229, and also Scholey v. Walton, 12 M. & W. 510, where the setting-off a sum of money in an account stated and settled was held to be a payment within the statute. The going through an account where there are items on one side only does not alter the situation of the parties at all or constitute a new consideration. (Smith v. Forty, 4 Car. & P. 126;

accounts.

Jones v. Rider, 4 Mees. & W. 32; Mills v. Fowkes, 5 Bing. N. C. 455; 9 Geo. 4, c. 14. 7 Scott, 444.)

bill.

The defendant was indebted to the plaintiffs in a balance of 2,245l., for By giving note or which they held his overdue promissory note. In 1827, the plaintiffs and the defendant agreed that the defendant should pay the balance as follows: 2457. in cash, and the remainder by annual payments of 300l. a-year out of his salary as a consul abroad, and by the proceeds of certain wines consigned by him to India; and that the plaintiffs should hold his promissory note as a security for the payment of the amount. The 2457. was paid, and the 3001. was also duly paid in 1828 and 1829, but the defendant made default in payment of it in September, 1830: it was held, that the plaintiffs were entitled, at any time within six years from September, 1830, to sue the defendant on the promissory note, or for the balance remaining due, on a count upon an account stated. (Irving v. Veitch, 3 Mees. & W. 90.) Where a bill of exchange has been so delivered in payment on account of a debt as to raise an implication of a promise to pay the balance, the Statute of Limitations is answered, as from the time of such delivery, whatever afterwards becomes of the bill, the promise implied from such delivery not being within the meaning of stat. 9 Geo. 4, c. 14, s. 1, acknowledgment or promise by words only," and the word "payment" in the proviso in that section being used in the popular sense, so as to include a giving and taking of a negotiable instrument on account of a debt as well as a giving and taking of it in satisfaction of the debt. (Turney v. Dodwell, 3 Ell. & Bl. 136; 18 Jur. 187; 23 L. J., Q. B. 137.) A testator died in 1829, part of his assets consisted of a promissory note for 1007. of five persons. All interest on it was paid down to 1837, but by whom did not appear. In 1837, the executor took the note of one of the five for the 100%., and interest was paid until 1842. Subsequently nothing was done, and the debt became barred by the statute: it was held, that the second note must be treated as a new security given for payment of the old debt, and the executor was charged with the 1001. (Sparkes v. Restall, 22 Beav. 587.)

an

Payment may be made to an agent of the creditor. (Evans v. Davies, Payment to an 4 Ad. & El. 840.) The payment of interest to a cestui que trust, was held to agent. keep alive the right of the trustee to maintain an action on a promissory note. (Megginson v. Harper, 2 C. & M. 322; 4 Tyr. 94.) Payment of interest, within six years of action brought, on a promissory note given to a woman before marriage to her husband in her lifetime, was held an answer to the plea of the Statute of Limitations in an action by her administrator, such payment being considered as made to the husband in the character of agent to his wife, and not to have reduced the chose in action into possession. (Hart v. Stephens, 6 Q. B. 937.)

In an action against a husband and his wife upon a joint and several promissory note made by the wife before coverture, and one J. A., a promise was alleged to have been made by the wife dum sola. The defendant pleaded the Statute of Limitations. The declaration was amended after issue by inserting an allegation of a subsequent promise by the husband. The plaintiffs proved a payment of interest within six years made by the wife after marriage with money sent by J. A., but without the privity or subsequent ratification of the husband: it was held, that such payment raised no promise, either by the husband or the wife, so as to take the case out of the Statute of Limitations, inasmuch as the wife being incapable of making any promise in law, express or implied payment by her, or the other joint maker of the note, could create no promise on her part, and as such payment was not made by the husband, or for any consideration affecting him or with his sanction, it raised no implied promise on his part. (Neve v. Hollands, 18 Q. B. 262.) If the payment had been made by the husband, or with his sanction, the declaration, as amended, would have been bad in arrest of judgment, as the wife would then have been improperly joined in the action. (Ib., per Lord Campbell, C. J.) (See now 33 & 34 Vict. c. 93, s. 12, post.)

Payment by a

wife on a debt in

curred by her before marriage.

The words of the act, that "nothing herein contained shall alter or take Payment by an away or lessen the effect of any payment of any principal or interest made agent. by any person whatsoever," can never mean a payment made by a stranger,

9 Geo. 4, c. 14. and without authority, but payment made by the principal debtor or any one acting by his authority. (Linsell v. Bonsor, 2 Bing. N. C. 245; Homan v. Andrews, 1 Ir. Ch. R. 106.)

Payment by one of several joint contractors or one of several executors.

Payment by executor, effect as against beneficial devisees.

Where executor is

trustee.

Effect in keeping alive right to make

A parish vestry having resolved to borrow money for the purpose of building almshouses, the money was in 1830 advanced by the plaintiff upon the security of a promissory note payable to him or bearer on demand with interest, and signed by the defendant thus: "I. H., churchwarden, J. E., overseer, or others for the time being." The interest had been regularly paid by the overseer for the time being up to 1847, but the defendants had never paid the interest, or in express terms authorized the parish officers to pay it for them. The defendants having pleaded the Statute of Limitations to an action on the note: it was held, that it was a question for the jury, whether by the form of the note the defendants had not constituted the parish officers for the time being their agents for the payment of interest, so as to take the case out of the statute. (Jones v. Hughes, 5 Exch. 104. See Rew v. Pettet, 1 Ad. & E. 196.)

The effect of a payment by one of several joint contractors, or by one of several executors or administrators, now depends on 19 & 20 Vict. c. 97, s. 14, post, where see note.

It was held under 47 Geo. 3, c. 74, that a payment by the exccutrix of a trader would not take a debt out of the statute, so as to enable the creditor to claim payment out of the real estate in the hands of a devisee. (Putnam v. Bates, 3 Russ. 188; conf. Wilson v. Leonard, 3 Beav. 373, where a devisee was held not bound by the amount of a claim substantiated against the executor in an action at law to which he was not a party.) And it has since been held under 3 & 4 Will. 4, c. 104, that the payment of interest on a debt of the testator by his executors, they being also trustees of his real estate not subjected by the will to debts, did not necessarily keep the debt alive as against such real estate; for although the executors and trustees were the same persons, they filled different characters, and where the payments were made by them in the character of executors only, the real estate was not affected by it. (Fordham v. Wallis, 10 Hare, 217; 17 Jur. 228; 22 L. J., Ch. 548.) And it was also held, that the demand of a simple contract creditor as against the real estate of the testator, which would otherwise be barred by the Statute of Limitations, was not kept alive so as to preclude the operation of the statute by the effect of any right which might exist or might have existed among the parties to have the assets of the testator marshalled. (Ib. See Darb. & Bos. Stat. Lim. 87 -90.)

It was said that such a payment made by a party filling the two characbeneficial devisee. ters of beneficial devisee and executor, will be attributed to both characters and not to one only, for the moral obligation does not attach more to one Where executor is character than to the other. But it is otherwise where the characters held by the party are entirely distinct, as where he is personally liable as debtor, and is answerable also in the character of trustee of another; for he then represents two persons, and the question in such a case is by whom the promise is made and not what is its extent or effect. (Fordham v. Wallis, 10 Hare, 217.) Payments having been made to some residuary legatees by the executors, it was held that such payments whilst the debts of the testator remained unpaid were a breach of trust, and that the debts having been kept alive against the executors, the statute was no bar to the claim of the creditor as against the residuary legatees to the extent of their interest in the residue, and they must therefore refund the monies they had received on account of the estate. (lb.) See further, as to the acknowledgment of a simple contract debt by payment, Whitcomb v. Whiting, 1 Smith, L. C. 574, 6th ed., and see the cases quoted under 3 & 4 Will. 4, c. 27, s. 40 (ante, p. 244), and 3 & 4 Will. 4, c. 42, s. 5 (ante, p. 262).

legatees refund.

Principles on

which courts of equity act with reference to the

statutes of limitation in the case of specialty and simple contract debts.

The statutes which prescribe the periods of limitation for the recovery of specialty and simple contract debts, do not apply in terms to courts of equity; but those courts in the case of legal demands act in obedience to the statutes. (Foley v. Hill, 1 Phill. 399: and see the cases quoted as to the period during which an account of rents will be decreed in equity, ante, p. 255, and the cases as to partnership accounts, ante, p. 267.)