tion of the debtor at the time of payment, but any expressions used by him either before or after that time, or any other circumstances from which it may be inferred that the payment was intended to be appropriated to any particular debt or debts, or was made on account of all the debts collectively, will be sufficient for this purpose (1). If the evidence shows that the payment is made on account of all, it will prevent any of the debts being barred by statute. In the absence of any evidence that the payment is made on account of all the debts or on account of the particular debt or debts, the jury, it seems, would not be justified in inferring that the payment was made on account either of the particular debt or debts or on account of all (2).

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CH. V.

tion that payment is

unbarred.

If at the time the payment was made some of the Presumpdebts were barred and some not, such payment can, in the absence of any other evidence, be attributed only for debts to those debts which were not barred (3). In Nash v. Hodgson the question was whether a note dated in 1841 was taken out of the statute by a payment of interest in 1846. It was shown that at that time two other notes were also due, both more than six years old. It appeared that the payment had not been appropriated by the debtor in any way, but that the creditor had, without the debtor's knowledge or subsequent sanction, appropriated the payment to the note of 1841. Wood, V.-C., when the case was before him (4), held that such an appropriation by the creditor had no effect at all with respect to the Statute of Limitations, and that the payment therefore was to be attributed as much to one note as the other, and therefore would not be held as an acknowledg

(1) Waters v. Tompkins, 2 C. M. & R. 723, 726; Walker v. Butler, 6 E. & B. 506; Bevan v. Gething, 3 Q. B. 740; Dixon v. Holdroyd,

7 E. & B. 903.

(2) Burn v. Boulton, 2 C. B. 485, per Tindal, C.J.

(3) Mills v. Fowkes, 5 Bing. N. C. 455; 7 Scott, 444; Nash v. Hodgson, on appeal, 6 De G. M. & G. 474; 25 L. J. Ch. 186. (4) Kay, 650; 23 L. J. Ch. 780.

PART 1.

CH. V.

ment of either. He seems to have considered that the case of Mills v. Fowkes (1) precluded his deciding otherwise. In that case, however, no question arose as to the later debt, which was not six years old even at the time of action brought, and the point decided was that the payment could not, without specific appropriation, be attributed to the debt that was barred. Cranworth, L.C., and Turner, L.J. (2), reversed the judgment of Wood, V.-C., on the ground that the payment could not have been specifically made on account of the debts that were barred, and must therefore have been made on account of the note of 1841, or on account of all the notes, and therefore must at all events have taken the note of 1841 out of the statute. Knight Bruce, L.J., concurred, but on the ground that the creditor, in appropriating the payment to the note of 1841, acted as the agent of the debtor. He considered the appropriation of a payment which a creditor has a right to make where none is made by a debtor, to be such an appropriation as to have an effect on the operation of the statute. This view is, however, against the weight of judicial authority, and is expressly dissented from in the very same case on grounds which would seem conclusive—namely, that the implied promise which the law raises to pay a debt barred by statute cannot be made without an intention on the part of the debtor to make it, and that such an intention ought not to be inferred from an act done by the creditor in pursuance of the power which the law gives him to appropriate a payment not appropriated by the debtor. With respect to the suggestion of Cranworth, L.C., and Turner, L.J., that the payment might be treated as on account of all the debts so as to keep all alive, this is contrary to Mills v. Fowkes, for on such a view the debt as to which the question on the statute arose in Mills v.

(1) 5 Bing. N. C. 455; 7 Scott, 444.

6 De G. M. & G. 474; 25 L. J. Ch. 186.

In an

Fowkes would have been taken out of the statute.
action upon a promissory note payable on demand with
interest brought more than six years after the date of the
note, it was proved that the plaintiff had within six years
sued and recovered judgment for interest upon the note,
and that the defendants who had defended the action paid
the amount of interest under the judgment. It was held
that the payment of interest under the judgment was
not such a payment that a promise to pay the principal
could be inferred from it (1).

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CH. V.

on one of

securities,

In Dowling v. Ford (2) the plaintiff's testator, being Payment asked to advance £300 to the principal debtor on mort- two colgage at £5 per cent. interest, refused to do so without lateral the additional security of a note for £50, to be given him by the principal debtor and the defendant as his surety; £7 10s. was regularly paid every half year by way of interest, and this was relied on as taking the note out of the statute; it was argued that the payment was on account of the mortgage debt, and not of the note; it was, however, held that the note was taken out of the statute; some of the judges held, it seems, that the whole was one transaction, others that the note was a collateral security for part of the same debt. Brandram v. Wharton (3) may seem inconsistent with this; but that case seems to have been decided on other grounds, and, in so far as it is inconsistent with the case last quoted, must be considered overruled. It is believed that there are no other cases on this point, but it is submitted that, where there is one debt, and one or more securities for it, it being once clearly shown that the subject-matter is the same, a payment of interest on the whole sum will take the debt and all the securities out of the statute.

The effect of part payment and payment of interest Payment

by agent.

PART I.
CH. V.

Where agency is inferred.

Payment
to an agent.

being unaffected by Lord Tenterden's Act, it has never been questioned that payment by an agent has the same effect as payment by the principal. It is a question for the jury whether the person making the payment was an agent for that purpose (1).

In Jones v. Hughes (2) a sum raised by the direction of a parish vestry was secured by a note signed by the four persons then churchwardens and overseers, they being described as such, with the addition of the words, "or others for the time being," and interest on the note was from time to time paid out of the parish moneys; the action was brought against two of those who had signed the note. It was held that the form of the note was evidence to go to the jury that the makers of it constituted the churchwardens and the overseers for the time being their agents for the purpose of paying the interest, although they had never expressly authorised them to make the payments relied on.

In a case where the payee of a promissory note had endorsed it over to the plaintiffs for the purpose of raising money to be paid to the defendant, the maker of the note, and interest had been paid to the plaintiffs by the payee, it seems to have been considered that the payee was not the agent of the defendant for the purpose of paying interest, so as to keep the debt alive against the defendant (3).

The payment need not be made to the plaintiff in person, but it is sufficient if it is made to his agent (4), or by agreement between the parties to any person on the plaintiff's account. Such agreement may be proved by implication or course of dealing or subsequent ratification, as well as by express and previous direction,

(1) Rew v. Pettet, 1 A. & E. 196; S. C. 3 N. & M. 456, sub nom. Crew v. Petit; Jones v. Hughes, 5 Exch. 104. See Newbould v. Smith, 29 Ch. D. 882.

and it is for the jury to say whether such agreement existed (1). But where the maker of a promissory note which was indorsed over without his knowledge by the payee to the plaintiffs continued after the note was indorsed over to make part payments of principal and payments of interest to the payee, only one of which payments was communicated to the plaintiffs, and the whole debt was thus eventually paid to the payee, it was held that, even if the plaintiffs could adopt the payee as their agent for receiving one instalment, they could not repudiate the subsequent payments by which the note was discharged, and could not select the one payment which had been communicated to them as a part payment taking the debt out of the statute (2).

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CH. V.

a husband.

Payment to a husband of interest upon a note made Payment to to his wife dum sola, although it did not operate as a reduction into possession by the husband, was before the Married Women's Property Act, 1882 (3), a good payment to take the note out of the statute, because made to the husband on behalf of and as agent for his wife (4). And the law is the same now, it seems, in spite of the Married Women's Property Act, 1882.

que trust.

A cestui que trust is considered to be the agent of the Trustee trustee for the purpose of receiving payment (5). Where and cestui trust money is lent to the person who is entitled to receive the interest on the fund, he must be treated as having paid himself, so as to prevent the time running while he is so entitled (6). Wood, V.-C., in Spickernell v.

(1) Worthington v. Grimsditch, 7 Q. B. 479; Edwards v. Janes, 1

K. & J. 534.

(2) Stamford, Spalding and Boston Banking Co. v.

(1892) 1 Q. B. at p. 770.

(3) 45 & 46 Vict. c. 75.

(4) Hart v. Stephens, 6 Q. B. 937.

Smith, L. R.

(5) Megginson v. Harper, 2 C. & M. 322. See Gleadow v. Atkin, 1 C. & M. 410.

(6) See Burrell v. Lord Egremont, 7 Beav. 205; Mills v. Borthwick, 35 L. J. Ch. 31; Topham v. Booth, 35 Ch. D. 607. In re Keays's Estate, 3 Ir. R. Eq. 659.