Heaton, in Easter Term, obtained a rule nisi for a new trial, on the grounds of misdirection and that the verdict was against evidence.-He submitted that it should have been left to the jury to say, not whether the letters contained an acknowledgment sufficient to warrant the inference of a promise to pay the debt, but merely whether they contained an acknowledgment of the existence of a debt at the time they were written; for that, if they found an unconditional and unqualified acknowledgment, the law would thence infer the promise; and that the whole current of authorities shewed that any acknowledgment, however slight, would suffice to take a case out of the operation of the statute.

Alexander and Hoggins shewed cause.-Formerly, it is true, any acknowledgment, however slight and equivocal, was held sufficient to take a case out of the statute: but the later cases shew that, to warrant the inference of a promise to pay, the acknowledgment of the debt must be distinct and unequivocal-Tanner v. Smart, 6 B. & C. 604, 9 D. & R. 549; Fearn v. Lewis, 6 Bing. 349, 4 M. & P. 1; Kennett v. Milbank, 8 Bing. 38, 1 M. & Scott, 102. In the present case, the letters contain nothing that can reasonably be construed to import a promise to pay otherwise than under the composition deed or through the medium of a bankruptcy. The payment relied upon as a part payment to take the case out of the statute, cannot be held to have that effect, inasmuch as it was not sanctioned by the defendant.

Wightman and Heaton, in support of the rule.—The acknowledgment being unequivocal, the law implies a promise. In Fearn v. Lewis, the letters contained nothing more than a conditional promise, to pay when of ability; and in Kennett v. Milbank there was no admission that the party was indebted. In Tanner v. Smart, Lord Ten

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terden says:
Upon a general acknowledgment, where
nothing is said to prevent it, a general promise to pay may
and ought to be implied." The only question is, whether
the acknowledgment is unequivocal, and unclogged with
condition the late statute, 9 Geo. 4, c. 14, has not in any
degree altered the effect of the acknowledgment, but only
the mode of proof-Dabbs v. Humphries, 10 Bing. 446,
4 M. & Scott, 285. The precise amount of the debt is
not stated on the face of the letters; but it sufficiently ap-
pears to have been of an amount large enough to ground a
fiat in bankruptcy against the defendant: and the amount
may be shewn aliundè-Letchmere v. Fletcher, 1 Cr. & M.
623. In assumpsit it is never necessary to prove a pro-
mise: it is enough to shew the duty out of which the con-
tract or promise to pay arises; and that form of action
was scarcely known at the time of the passing of the 21
Jac. 1, c. 14.-As to the part payment-the letter of the
7th October, 1834, contains a recognition of the act of the
trustee in making the payment on the defendant's account.
At all events it amounts to an acknowledgment of the debt
by an authorized agent of the debtor.

TINDAL, C. J.-The only question here is, whether the direction to the jury was correct or not. I am of opinion that it was substantially so. The point arises on the 9 Geo. 4, c. 14, and the question is whether the letters relied upon to take this case out of the statute contain an acknowledgment or promise sufficient to have that effect. The words of the act are: "no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing promise," &c. Now, one can very well understand what is meant by a promise. The letters contain nothing like a promise to pay. If there had been a distinct promise to satisfy the plaintiff's demand either under the composition deed or under a fiat, and in no other way, that would not have taken the case out of the

statute. Then, do the letters contain an acknowledgment
of the debt. A distinct and unequivocal acknowledgment
seems to me to have the same effect as a promise, because
the law will thence imply a promise. But, where the ac-
knowledgment is conditional only, or in direct opposition
to a promise, how can a promise be implied? Why should
the effect of an acknowledgment be greater than that of a
promise? Although many of the older cases to which
our attention has been invited have held that which in
common sense would be called a direct denial of the debt
to amount to such an acknowledgment as to warrant the
inference of a promise to pay; and in others, an acknow-
ledgment of the debt accompanied with a refusal to pay,
has been held to have the same operation; since the
case of Tanner v. Smart, those old cases are no longer
law. It seems to me that the learned baron was fully
warranted in telling the jury that the acknowledgment, to
have the operation contended for by the plaintiff, must
be such an acknowledgment as would warrant an inference
of a promise to pay. It is somewhat late now for the first
time to contend that the action of assumpsit is not within
the statute of limitations. If any doubt could ever have
been entertained on that point, the 9 Geo. 4, c. 14, s. 1,
sets it at rest. Then, as to the part payment relied on to
take the case out of the operation of the act.
The pro-
viso in the statute is, that "nothing therein contained
shall alter, or take away, or lessen the effect of any pay-
ment of any principal or interest made by any person
whatsoever." That means, a payment made by the party
or by some one acting under his authority; not a payment
by a stranger. The question upon this part of the case is,
whether the payment here was a payment made under the
authority of the defendant. The facts were these:-The
defendant had entered into a composition with his credi-
tors. Fox, the trustee under the deed, as the agent for
this purpose of the defendant, was employed to tender to

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the plaintiff the proportion payable to him under the deed: he had no authority to pay the money other than as a satisfaction of the plaintiff's entire demand. The plaintiff received the money as a part payment. But this was never acquiesced in by the defendant. On both grounds, therefore, I think this rule must be discharged.

PARK, J., was at chambers.

GASELEE, J.-I am of the same opinion. Perhaps there is no point upon which the authorities are so conflicting as upon the construction of the statute of limitations. On one occasion a positive refusal to pay was held to be a sufficient acknowledgment to take the case out of the statute (a): and many other decisions on the subject were almost equally repugnant to common sense. The tide of authorities, however, changed about the time I first came into this court (b): the courts began to require the acknowledgment to be such as to justify them in inferring a promise to pay. The acknowledgment under the late act must be the same, the act in addition requiring it to be in writing. Was the acknowledgment in the present case one capable of bearing such a construction? So far from implying a promise to pay, it in my judgment implies a distinct denial of the party's liability.—The payment that Fox was authorized to make on behalf of the defendant, was a payment in accordance with the terms of the deed-in satisfaction and discharge of the entire claim. A payment made in direct contravention of that authority clearly cannot be held to bind the defendant as a part payment so as to deprive him of the benefit of the statute. Then it is said the case was not properly left to the jury. It appears to me, however, that the way in which it was left amounts pretty much to that in which

it is contended it ought to have been left. The plaintiff can hardly except to the opinion of the judge because he did not nonsuit him. Upon the whole I see no reason

for disturbing the verdict.

Rule discharged.

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SHARP V. JOHNSTON.

THE defendant was, on the 29th of July last, arrested at the suit of the plaintiff, for 5007. due on a bill of exchange, upon an affidavit of debt headed "In the Common Pleas," and the jurat of which was as follows:-"Sworn at Athlone, in the county of Roscommon, this 21st July, 1835, before me, a commissioner for taking affidavits in said court of Common Pleas in said county, and I know the deponent. John Gaynor, Commissioner." In the course of September, application was made to Bosanquet, J., at chambers, to discharge the defendant out of custody upon filing common bail, on the ground that John Gaynor was not a person qualified to take affidavits for the court of Common Pleas at Westminster. The application was founded upon affidavits which stated (amongst other things), that, at the request of the defendant's attorney, search had been made at the chambers of the Lord Chief Justice, by one of his lordship's clerks, for the purpose of ascertaining whether John Gaynor, of Athlone, in the county of Roscommon, was duly appointed a commissioner for taking affidavits in this court; and that the clerk accordingly made such search, and informed the attorney that the name of Gaynor did not appear in the list of commissioners for taking affidavits in this court. The learned judge refused to entertain the matter, on the ground of the lateness of the application.

Hurlstone, on the first day of this term, made the like motion in court.—In addition to the affidavits used on the