Insufficient Acknowledgments-continued. Held, insufficient, did not amount to a promise to pay. (1890.) In re Wolmershausen. Wolmershausen v. Wolmershausen, 62 L. T. 541. The cases of Dabbs v. Humphries (1), Dodson v. Mackey (2), and Bird v. Gammon (3), and also Briggs v. Wilson (4), as decided by Knight Bruce, L.J., seem hardly consistent with principle, for it is submitted that in each of those cases the expressions used were such as to prevent the implication of a promise to pay. The same remark applies to Cornforth v. Smithard (5), which, although acquiesced in by so many learned judges, can scarcely, considering the whole of the terms of the acknowledgment, be consistent with principle, and is not easily to be reconciled with Fearn v. Lewis (6), Hodgens v. Graham (7), and Rackham v. Marriott (8). And it is submitted that at all events proof should have been given in Cornforth v. Smithard, that the contingency mentioned had happened, namely, that a turn of trade had taken place. PART I. CH. IV. made before ledgments and after from the accrual of six years In the case of an ordinary acknowledgment, as the Acknowdebt is not extinguished by the operation of the statute, there would seem to be no reason why the acknowledgment should not have the same effect, whether made before or after the expiration of six years from the accrual of the cause of action, provided it was made within six years of action brought, and it has been so decided (9). (1) 10 Bingh, 446; ante, p. 70. (2) 8 A. & E. 225, n; ante, p. 70. (3) 3 Kingh. N. C. 883; 5 Scott, 213; ante, p. 70. (4) 5 De G. M. & G. 12; ante, p. 74. (5) 5 H. & N. 13; 29 L. J. Exch. 228; 8 W. R. 8; ante, p. 75. (6) 6 Bingh. 349; ante, p. 82. (7) Alc. & Nap. 49; ante, p. 82. 1 H. & N. 234; affirmed in Exch. Ch. 2 H. & N. 196; 26 L. J. Exch. 315; ante, p. 86. (9) Williams v. Gunn, Fortescue, 180; Spickernell v. Hotham, Kay, 669; Willins v. Smith, 4 E. & B., at p. 185, per Coleridge, J. the cause of action. PART I. Acknowledgment by an executor. In the case of Cornforth v. Smithard (1), above referred to, a distinction was made by Pollock, C.B., and (according to the Weekly Reporter) by Bramwell, B., between the nature of the acknowledgment required before and after the expiration of the six years. Pollock, C.B., as reported in Hurlston and Norman, says, "There is a great difference between the construction to be put on a letter written a short time after the debt has been contracted and one written after the debt is already barred. In the latter case effect would properly be given to anything which savours of a condition; but where a person, being then a debtor, who has no right to time, writes a letter asking for time, the reasonable construction is, that it is no condition, and that the writer has no intention of imposing a condition." The words are somewhat differently given in the Weekly Reporter. The learned judge could hardly have meant that effect should not be given to an express condition or qualification in all cases alike, but what he seems to have meant was that stronger expressions were necessary to annex a condition or qualification made within, than to one made after the six years. This view, however, seems hardly reconcileable with the decisions and reasons of Best, C.J., in Scales v. Jacob (2), and of Tindal, C.J., in Haydon v. Williams (3). It has been said, but erroneously, as is submitted for the reasons to be mentioned presently, that an acknowledgment by an executor merely of the existence of a debt, is not sufficient to take the debt out of the statute, and that there must be an express promise to pay the debt (4). This was first laid down by Lord Tenterden, then Abbott, C.J., in a case at Nisi Prius (5), and in another case (6) Bayley, J., said the language there (1) 5 H. & N. 13; 29 L. J. Exch. 228; 8 W. R. 8; ante, p. 75. (2) 3 Bingh. 638. (3) 7 Bingh. 163, 168. (4) Williams on Executors, 7th edition, p. 1946; 8th edition, 1957. (5) Tullock v. Dunn, Ry. & Mood. 416. (6) McCulloch v. Dawes, 9 D. & R. 43. relied on could not properly be construed into a promise PART I. to pay a debt by any one, " much less by an executor." The judgment of Parke, B., in Scholey v. Walton (1) seems to have been thought to support this doctrine. But the observations of Parke, B., in that case are, in fact, confined to that part of the decision in Tullock v. Dunn (2), which lays down that even the express promise of one of several executors will not bind the others. The effect of an acknowledgment by one of several executors will be subsequently considered; but apart from this question, it is difficult to see why a promise may not be implied from an acknowledgment made by an executor in words which, if used by his testator, would imply a promise. No distinction seems ever to have been taken between the effect of payment of interest or part payment of principal by executors and that of payment by the original debtor, and such payment, as will be seen hereafter (3), and, as Turner, V.-C., expressly laid down in the case of an executor (4), takes a debt out of the statute only because it implies a promise. There seems, therefore, no reason why a promise should not be implied from an acknowledgment by an executor, though not containing an express promise, just as much as from a payment made by him. And in Briggs v. Wilson (5), where the acknowledgment by the executors was nearly in the same words as in McCulloch v. Dawes, Turner, L.J., in deciding that it was insufficient, did not suggest that the effect of an acknowledgment by an executor was to be governed by a different principle than the effect of an acknowledgment by the debtor himself, while Knight Bruce, L.J., held that the acknowledgment was sufficient, though in so holding he seems to have carried the implication by law of a (1) 12 M. & W. 510. (2) Tullock v. Dunn, Ry. & Mood. 416. (3) See Chapter V. (4) Fordham v. Wallis, 10 Hare, 217; 22 L. J. Ch. 548.; CH. IV. PART I. promise from words not amounting to an express promise further than the cases would warrant under CH. IV. Promise not to plead the statute. Reply of such a promise. stances (1). any circum It is doubtful whether a promise not to plead the statute will operate as an acknowledgment of the debtso as to prevent the person who so promised from afterwards setting up the statute. It would appear from the judgments of Denman, C.J., and Patteson, J., in Gardner v. M Mahon (2), that such a promise would have that effect. In that case, however, the promise was: "I am ready to put it out of my power to take advantage of that Act (i.e. the statute), and will immediately give you my note for whatever amount is due," and was accompanied by other expressions which Wightman, J., seems to have thought of themselves a sufficient acknowledgment. But a promise not to plead the statute made in terms consistent with an intention to dispute the claim on other grounds cannot, it is apprehended, be sufficient, as it is not an unqualified acknowledgment from which a promise to pay ought to be implied. This view is supported by a dictum of Lord Campbell's (3), that an agreement not to take advantage of the statute in consideration of an inquiry into the merits of a disputed claim, would not prevent the statute being set up against the original claim. It is not, however, clear that Lord Campbell was there referring to a written promise not to plead the statute. There can be no doubt that if there is any consideration to support a promise not to plead the statute an action will lie, as suggested by Lord Campbell, for the breach of it. A promise not to plead the statute, if made for good consideration, might now by virtue of the Judicature (1) See ante, pp. 74 & 86. (2) 3 Q. B. 561; and see per Romilly, M.R. Fuller v. Redman Act, 1873, s. 24, be pleaded as a good reply to a defence of the statute (1). PART I. CH. IV. When it was held that an acknowledgment operated Acknowledgment merely to rebut the presumption of payment, it followed after almost as a necessary consequence, that an acknowledg- action. ment after action took a debt out of the statute (2). But now an acknowledgment after action brought has no effect whatever (3). So it was formerly consistent with principle, that an Acknow ledgment acknowledgment to a stranger should be held suffi- to a cient (4), and even since the doctrine of presumption has stranger. been overruled, there has been a decision to the same effect (5), which is supported by a dictum of Wigram, V.-C. (6). But now it is settled law that an acknowledgment to a stranger is inoperative (7). The case of Clark v. Hougham (8) would probably even now be decided as it was, but on the ground that the acknowledgment was made to a third person on behalf of himself and the plaintiff, and that the plaintiff afterwards adopted and ratified the agency, and there is no reason why an acknowledgment to an agent should not have the same effect as an acknowledgment to the principal (9). (1) See Trill v. Lade, 6 Jur. 272, and chapter on Pleading, Part VIII. Ch. I. (2) Yea v. Fouraker, 2 Burr. 1099; Thornton v. Illingworth, 2 B. & C. 824; Rucker v. Hannay, 4 East, 604, n.; Lloyd v. Maund, 2 T. R. 760. (3) Bateman v. Pinder, 3 Q. B. 574. (4) Richardson v. Fen, Lofft 86; Mountstephen v. Brooke, 3 B. & Ald. 141; Halliday v. Ward, 3 Campb. 32; Clark v. Hougham, 2 B. & C. 149. (5) Smith v. Poole, 12 Sim. 17. See Spollan v. Magan, 1 Ir. C. L. R. 691; In re Littles, 10 Ir. Eq. R. 275. (6) Courtenay v. Williams, 3 Hare, 549. (7) Grenfell v. Girdlestone, 2 Y. & C. Exch. 676; Moodie v. Bannister, 4 Drew. 439; 28 L. J. Ch. 883; Godwin v. Culley, 4 H. & N. 373; Fuller v. Redman, 26 Beav. 614; Howcutt v. Bonser, 3 Exch. 500; Stamford, &c., Co. v. Smith, L. R. (1892) 1 Q. B. 765; Rogers v. Quinn, 26 L. R. Ir. 136. (8) 2 B. & C. 149. (9) See Bewley v. Power, Hayes & Jones, 368; Edmonds v. Goater, 15 Beav. 415; 21 L. J. Ch. 290. |