If the acknowledgment be contained in a letter written "without prejudice," no unconditional promise to pay can be inferred (1). PART 1. CH. IV. Letter written Admission Questions have arisen as to how far admissions of debts "without by a bankrupt in the course of bankruptcy proceedings prejudice." are sufficient to take the debts out of the statute. It in bankmay be said that such admissions can in no case whatever ruptcy. operate as acknowledgments, for two reasons:-First, because they are not made to the creditor, but to third parties; and secondly, because not being voluntary, but exacted from the debtor in the course of the proceedings, they cannot imply a promise to pay. As to the first of these arguments, it might be contended that the admission, if not made to the creditor, is made to the Court, or the trustee, or the official receiver on the creditor's behalf; as to the second, although it seems to have considerable weight, yet at all events in the case of a petition by the debtor for his own bankruptcy it may be contended that, as the whole proceedings are set on foot by the debtor, any acknowledgment made in carrying them out ought to be considered voluntary. But it seems that such an admission cannot amount to more than a promise to pay under the provisions of the Bankruptcy Acts; and for this reason, if for no other, the admission must be insufficient as an acknowledgment in an action (2). And the same principle holds good with regard to an admission of a debt in the schedule to a composition or inspectorship deed, though verified by the affidavit of the debtor (3). There was a decision at Nisi Prius to the contrary effect (4), but this was distinctly overruled in Everett v. Robertson (5), the judgments in (1) Cory v. Bretton, 4 C. & P. 462. In re River Steamer Co. Mitchell's Claim, L. R. 6 Ch. 822. (2) Courtenay v. Williams, 3 Hare, 550; Everett v. Robertson, 28 L. J. Q. B. 23. (3) Ex parte Topping, 34 L. J. Bk. 44; 4 De G. J. & S. 551. (4) Eicke v. Nokes, 1 M. & R. 359. (5) 28 L. J. Q. B. 23. PART I. Acknowledgment by an infant. 9 G. IV. Unstamped promissory note. which, though given as to a schedule filed under the repealed Act 7 and 8 Vict. c. 70, are yet clearly applicable to every case of bankruptcy. But as the statute may be set up in bankruptcy against debts barred at the time of adjudication (1), the question might be raised whether it is competent for the creditor to use admissions made in the course of bankruptcy proceedings as acknowledgments to prevent the statute being set up in these proceedings themselves. It seems clear, however, that such admissions cannot be so made use of (2). An acknowledgment by a person on the eve of a bankruptcy, if fraudulently made in order that a debt which has been treated by creditor and debtor as extinguished may be revived, so that the creditor may get a dividend in the bankruptcy, would probably be inoperative to revive the debt, at all events for the purposes of the bankruptcy (3). As an infant is capable of contracting a debt for necessaries, he is also capable of acknowledging the debt, and so taking it out of the statute (4). By the 8th section of Lord Tenterden's Act, 9 Geo. IV. c. 14, it is enacted as follows: "No memorandum or other writing made necessary by this Act shall be deemed to be an agreement within the meaning of any statute relating to the duties of stamps " (5). This exception refers only to the stamping of instruments as agreements, and therefore does not remove the necessity for any stamp, other than an agreement stamp, which a document put forward as an acknowledgment is (1) See ante, p. 19. (2) Smallcombe v. Bruges, McCleland, 45; Pott v. Clegg, 16 M. & W. 321; In re Clendinning, 9 Ir. Ch. R. 284. See Ex parte Revell. In re Tollemache, 13 Q. B. D. 720. (3) See In re Lane. Ex parte Gaze, 23 Q. B. D. 74. Willins v. Smith, 4 E. & B. 180; S. C. sub nom. Williams v. Smith, 24 L. J. Q. B. 62. (5) See Morris v. Dixon, 4 A. & E. 845; 6 N. & M. 438; Taylor v. Steele, 16 M. & W. 665. CH. IV. from its form required to bear. Therefore, a bill of PART I. exchange or promissory note not properly stamped cannot be put in evidence as an acknowledgment or as forming part of an acknowledgment in conjunction with another writing referring to it (1). There is some difficulty in the question whether an instrument in the form of a receipt without a stamp can be put in evidence as an acknowledgment. But the law on the subject may be thus briefly stated; such an instrument cannot be put in evidence to prove the payment of the money mentioned therein as received, or any fact to be inferred from such payment. But it may be used to prove any other fact which is supported by the document, and which is independent of the question whether the payment was made or not (2). An advertisement to creditors to bring in their claims Public has no operation as an acknowledgment (3). adver tisement. The latter part of the 1st section of 9 Geo. IV. c. 14, is 9 G. IV. as follows: : "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 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 against two or more such joint contractors or executors or administrators, if it shall appear (1) Jones v. Ryder, 4 M. & W. 32; Foster v. Dawber, 6 Exch. 839; Parmiter v. Parmiter, 1 J. & H. 135; 3 De G. F. & J. 461; Evans v. Prothero, 2 Mc. & G. 319, and 1 De G. M. & G. 572; Holmes v. Mackrell, 3 C. B. N. S. 789. (2) Matheson v. Ross, 2 H. L. 286. (3) Scott v. Jones, 4 C. & F. 382, overruling Andrews v. Brown, Prec. Ch. 385. In re Stephens. Warburton v. Stephens, 43 Ch. D. 39. c. 14, s. 1. Acknowledgment joint con by one tractor. PART I. By partner. Statement of accounts. at the trial or otherwise that the plaintiff though barred by either of the said recited Acts or this Act as to one or more of such joint contractors or executors or administrators shall nevertheless be entitled to 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." As an acknowledgment by an agent binds the principal, and as one of several partners may fairly be considered the agent of the others, so as to be able to bind the firm by acknowledging a partnership debt (1), acknowledgments made by a partner must be distinguished from acknowledgments made by one of several ordinary joint contractors. It seems to have been considered in Smith v. Forty (2) that when a debtor and creditor went through an account together and settled the amount, although the items were on one side only, and the amount as settled was not signed so as to constitute a valid acknowledgment, yet an action would lie for the amount so settled on an account stated. Parke, B., in Jones v. Ryder (3), seems to have thought this view untenable, except on the ground that in the case in question there was an agreement that interest should run from the date of the settlement. And Alderson, B., in Ashby v. James (4), disapproves altogether of Smith v. Forty. In Clark v. Alexander (5), it was laid down by Tindal, C.J., that a statement of accounts, if inoperative as an acknowledgment, will not be allowed to support an action on an (1) Braithwaite v. Britain, 1 Keen, 221; and see next chapter. (2) 4 C. & P. 126; and see Ashby v. Ashby, 3 M. & P. 186; Catling v. Skoulding, 6 T. R. 189. (3) 4 M. & W. 32. (4) 11 M. & W. 542. See Brenan v. Crawley, 16 W. R. 754. account stated, as, if it were, it evasion of Lord Tenterden's Act. would be an obvious PART I. CH. IV. ledgment of liability other than debt. tion of these cases, it is submitted, is to overrule Smith v. Forty. Where there are items on both sides and a balance is struck, the case is different and resolves itself into one of part payment and will be discussed below (1). In conclusion, although from the acknowledgment of a Acknowstatute-barred debt the law implies a new promise to pay, and thus the remedy is revived, no such effect can be given where the cause of action arises from the doing or omitting to do some act in breach of contract (2) or some act which gives rise to an action of tort (3). Where upon such a breach of contract there is no need to assess the damages, but a definite sum can be recovered as liquidated damages by virtue of stipulation between the parties, the following distinction seems to arise:-that a mere acknowledgment of the breach can have no effect, but an acknowledgment of the stipulated sum being due takes the case out of the statute. Where, before the Judicature Act, 1873, a plaintiff filed a bill in equity for an account in circumstances in which he might have proceeded at law by an action either of assumpsit or trover and alleged in his bill that an account had been rendered by the defendant, which account was sufficient to take the debt out of the statute, if the plaintiff had sued in assumpsit, but could have no such effect, if the plaintiff had sued in trover, Leach, V.-C., overruled a plea of the statute, the rendering of the account not being denied, and treated the bill as analogous to an action of assumpsit (4). As an acknowledgment or part payment operates to take a debt out of the statute by renewing the promise to (1) See post, Ch. V. (2) Per Lord Ellenborough, Boydell v. Drummond, 2 Campb. 160. See Whitehead v. Howard, 2 B. & B. 372. (3) Hurst v. Parker, 1 B. & Ald. 92; Short v. McCarthy, 3 B. & Ald. 626; Gibbons v. McCasland, 1 B. & Ald. 690. (4) Hony v. Hony, 1 S. & St. 568. Effect of at the time disability of making an acknowledgment. |