66 “plea, and it shall appear at the trial that the action could not, by reason of the said recited acts, or this act, or of either of them, "be maintained against the other person or persons named in such 66 plea, or any of them, the issue joined on such plea shall be "found against the party pleading the same.” CHAP. I. payment on promissory notes, &c. when not ad 'missible in evi dence. In order to prove the payment of interest, or a part of the Indorsement of principal, an indorsement made by the obligee upon the bond within twenty years, was formerly allowed to be evidence ; but an indorsement made after the presumption had taken place, was not ådmissible b: And now, by the statute 9 Geo. IV. c. 14. no indorsement or memorandum of any payment, written or made "after the time appointed for that act to take effect, upon any "promissory note, bill of exchange, or other writing, by or on the "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 either of the said statutes." And, by another clause of the same statute, the said recited acts, and "that act, shall be deemed and taken to apply to the case of any "debt on simple contract, alleged by way of set off, on the part of "any defendant, either by plea, notice, or otherwise." 66 This statute was limited to commence and take effect on the first day of January 1829 : And it was holden, that the first section of the statute had a retrospective operation, and applied to parol acknowledgements made before its provisions came into effect, although such acknowledgments were made, and the action brought thereon, before the commencement of the act 1. Simple contract debts, alleged by way of set off. Commencement and operation of act. Since the making of this statute, it was determined, in a case Decisions where the defendant, by letter, had admitted a balance to be due, Moody & M. 299, 300. in notis. Wilk. thereon. CHAP. I. without stating the amount, that this would take the case out of the statute of limitations, so as to entitle the plaintiff to nominal damages. But where letters had been written by the defendant to a friend of the plaintiff, stating that the plaintiff's claim, with that of others, should receive that attention which, as an honourable man, the defendant considered them to deserve, and that it was his intention to pay them, but he must be allowed time to arrange his affairs, and if he were proceeded against, any exertion of his would be rendered abortive; this was holden not to be an unqualified acknowledgment, from which the court could imply a sufficient promise to pay, to take the case out of the statute b. So where a defendant, by a deed, reciting that he was indebted to the plaintiff and others, assigned his property to the plaintiff, in trust to pay all such creditors as should sign the schedule of debts annexed, provided that if all did not sign, the deed should be void, but the plaintiff never signed, nor was the amount of his debt stated; the court held, that this was not a sufficient acknowledgment, to take the plaintiff's debt out of the statute of limitations, although it was admitted orally, that he had but one debt": And a verbal acknowledgment of the payment of part of a debt, within six years, is not sufficient for that purposed: But where a written promise to pay a debt, barred by the statute of limitations, has been lost, oral evidence of the contents of the writing may be given. And where an administratrix sued for a debt due to the intestate, and it appeared that the debt accrued more than six years before the commencement of the action, but that, within six years, the defendant and the agent of the administratrix went through the account together, and struck a balance, which the defendant promised to pay, as soon as he could; it was holden, that, though the promise was not in writing, the administratrix was entitled to recover, on an account stated with her, and that the statute of limitations was no bar f The payment, within six years, of interest due upon a note beyond In action on that period, where the note remains in the hands of the payee, is promissory note. sufficient to take the case out of the statute of limitations a; and an acknowledgment, or payment of interest, by one of several drawers of a joint and several promissory note, will take the case out of the statute, as against any of the other drawers, in a separate action on the note against him b: And the statute 9 Geo. IV. c. 14, § 1, has not altered the law in this respect. So, in a joint action against several drawers of a promissory note, it was formerly holden, that an acknowledgment within six years, by one of them, would revive the debt against another, although the latter had made no acknowledgment, and only signed the note as a surety a. And where A. and B. had given a joint promissory note for £600 to C.; an account, in which B., as between himself and C., gave credit for interest upon a sum of £600, was deemed evidence, in an action by C. against A. and B., to take the case out of the statute of limitations e. When there are several items in an account, some of which accrued within the last six years, and others beyond that period, the statute of limitations will be a bar to the recovery of the latter items; and the former will not take the case out of the statute of limitations, unless the account is mutual, or the items are so connected together, as necessarily to form the subject of one action: Therefore, where the plaintiff, a proctor, sued the defendant for the amount of his bill, which was principally for work done in prosecuting an appeal to judgment, more than six years before the commencement of the action; but after the judgment, a communication had been made by the adverse party to the plaintiff, as Bealey v. ▷ Whitcomb v. Whiting, Doug. 652, 3. Burleigh v. Stott, 8 Barn. & C. 36. 2 Man. & R. 93. S. C. Chippendale v. Thurston, 4 Car. & P. 98. 1 Moody & M. 411. S. C. per Parke, J. Pease v. Hirst, 10 Barn. & C. 122. 5 Man. & R. 88. S. C. Wyatt v. Hodson, 8 Bing. 309. and see Fenton v. White, 1 Leg. Obs. 333. per Garrow, B. P. 98. 1 Moody & M. 411. S. C. per d Tidd Prac. 9 Ed. 23.; but the law in e Manderston v. Robertson, 4 Man. & R. 440. and see id. 447. (a.) When there are mutual ac counts. E CHAP. I. Means of commencing actions, formerly neces sary, to take case out of the statute. Abolished by stat. 2 W. IV. c. 39. proctor, and attended to by him, respecting the costs, within six years, and an item, in respect of this transaction, was added to the plaintiff's bill; the court held, that the latter item did not take the case out of the statute of limitations a. But if there be a mutual account of any sort between the plaintiff and defendant, for any item of which credit has been given within six years, that is evidence of an acknowledgment of there being such an open account between the parties, and of a promise to pay the balance, as to take the case out of the statute b. In order to shew that an action was commenced in due time, so as to take the case out of the statute of limitations, it was formerly necessary to sue out an original writ, in the King's Bench or Common Pleas, which was the only mode of proceeding against peers of the realm, corporations, or hundredors; or to sue out a bill of Middlesex or latitat, in the King's Bench, or capias quare clausum fregit in the Common Pleas, which was as effectual for this purpose as an original writ d: and suing out a testatum capias ad respondendum was a good commencement of an action by original a. In the Exchequer, it was necessary to sue out a venire facias, subpoena, or quo minus capias ad respondendume. In actions against members of the House of Commons, an original writ must have been sued out at common law, or a bill filed since the statute 12 & 13 W. III. c. 3. § 2 f. In actions at the suit of attornies, it was usual to sue out an attachment of privilege, in the King's Bench, or Common Pleas h; or venire facias, or capias of privilege, in the Exchequer and a bill must have been filed against attornies, or prisoners in actual custody of the marshal'. But now, by the Uniformity of Process act m, the above means of commencing personal actions in the superior courts of law at Westminster, as well as the distinctions between proceedings by original writ and by Rothery v. Munnings, 1 Barn. & b Tidd Prac. 9 Ed. 24. And for cases Tidd Prac. 9 Ed. 102. e Id. 155. h Id. 320. i Id. 92. 321. * Id. 92. 321, 323, 325. 1 Id. 91. 353, &c. m 2 W. IV. c. 39. tuted in lieu thereof. Writs of summons and capias may be continued by alias and pluries. bill, are abolished; and writs of summons, capias, and detainer, are Writs substi substituted in lieu thereof, and declared to be the only writs for the commencement of personal actions, in any of the courts aforesaid, in the cases to which such writs are applicable. The writs of summons, and of capias, however, may be continued by alias and pluries, as the case may require, if any defendant therein named may not have been arrested thereon, or served therewith b: But it is provided, that "no first writ shall be available to prevent What must be "the operation of any statute, whereby the time for the commence"ment of the action may be limited, unless the defendant shall be tion of statute. " arrested thereon or served therewith, or proceedings to or toward 66 outlawry shall be had thereupon; or unless such writ, and every "writ, (if any,) issued in continuation of a preceding writ, shall be "returned non est inventus, and entered of record, within one "calendar month next after the expiration thereof, including the "day of such expiration; and unless every writ, issued in continu"ation of a preceding writ, shall be issued within one such calendar "month after the expiration of the preceding writ, and shall "contain a memorandum indorsed thereon, or subscribed thereto, "specifying the day of the date of the first writ; and return to be "made, in bailable process, by the sheriff, or other officer to whom "the writ shall be directed, or his successor in office; and in process not bailable, by the plaintiff or his attorney suing out "the same, as the case may be." This statute, however, does not extend to any cause removed into either of the superior courts, by writ of pone, certiorari, recordari facias loquelam, habeas corpus, or otherwisee: and therefore, if a plaint be levied in an inferior court in due time, and then it be removed into the King's Bench by habeas corpus, and the plaintiff declare there de novo, and the defendant plead the statute of limitations, the plaintiff may reply, and shew the plaint in the inferior court, and that will be sufficient to avoid the statute f done thereon, to prevent opera Statute does not extend to inferior courts. |