Account stated.

demand for which the bill was given, and the action brought, which may be very questionable, still the drawing was only evidence of a promise at the time when the bill was given, not at a subsequent time. The bill might be an authority to the agent to pay at another time, but no promise by the principal at such time." Pattison, J., thought the giving of the bill was not evidence to support the original demand a.

But where the plaintiff sold a library of books for the defendant, some of which were returned by the purchasers as imperfect; and the defendant wrote the following letter to the plaintiff. "I received the imperfect books, which together with cash overpaid, on the settlement of your account, amounts to 80l. 78., which I will pay you within two years from this date, 18th December, 1827;" held, that this letter was evidence of an account stated two years after the date thereof; and that the plaintiff might recover that sum in an action commenced within six years from December, 1829 b.

Where an administratrix sued for a debt due to her husband, and the statute of limitations was pleaded; it appeared that the cause of action arose more than six years before the commencement of the action, but that within six years the defendant and the plaintiff's agent had gone over the items of the account and struck a balance, which the defendant promised verbally to pay; held, that the plaintiff was entitled to recover upon the count on an account stated, as she did not go upon the original debt at all. "I take the statute 9 Geo. IV. c. 14. to apply," said Vaughan, B., "where you go for the original debt, and then give some evidence of an acknowledgment to rebut the presumption raised by the statute, that the debt has been satisfied." c

a Gowan v. Forster, 3 B. & Ad. 507.

Wheatley v. Williams, 1 Mees. & Wels. 533. The court said in this case, that the letter, if duly

stamped, would be a valid promissory note.

126.

Smith v. Forty, 4 C. & P.

SECTION VIII.

PART PAYMENT ON ACCOUNT.

THE 9 Geo. IV. c. 14. s. 1. provides "that nothing therein contained shall alter or take away, or lessen the effect of any payment of principal or interest made by any person whatsoever."

ment of interest or of

the principal will avoid the

Before the passing of this act, payment of the interest, or Part paypart payment of the principala, took the debt out of the statute, "because it was evidence of a fresh promise ;"b and this statute has made no alteration in that respect. Therefore payment made within six years, of interest which had become due on a note more than six years old, has been held sufficient to take the case out of the statute o.

statute.

payment.

But the payment must be proved by some person who wit- Proof of nessed it, or by the defendant's admission in writing; for proof of his verbal acknowledgment of payment or part-payment, will not be sufficient d. If, however, the payment of a sum of money is proved as a fact, and not by a mere admission, its appropriation to a particular account, whether in respect of principal or interest, may be shewn by declarations of the party making the payment, and such declarations need not have been at the time of such payment. The mere fact of the payment

a The meaning of part payment of the principal is not the naked fact of payment of a sum of money, but of payment of a smaller on account of a greater sum due from the person making the payment to him to whom it is made; which part payment implies an admission of such greater sum being then due, and a promise to pay it; and the reason why the effect of such payment is not lessened by the act is, that it is not a mere acknowledgment by words, but it is coupled with a fact. The same observation applies to interest." Per Parke, B., in Waters v. Tompkins, infra.

Per Parke, J., in Gowan v. Forster, 3 B. & Ad. 511.

Bealey v. Greenslade, 2 C. & J. 61. 2 Tyr. 121. But payment on account of principal does not admit interest, unless the latter be shewn to have composed part of the claim, and to be connected therewith. Collyer v. Willoch, 4 Bing. 313.

d Willis r. Newham, 3 Y. & J. 518. But if part payment or payment of interest is proved by any legal mode, and not by admission only, this case is not authority that such proof is not sufficient. Per Parke, B., in Waters v. Tompkins, infra.

e Waters v. Tompkins, 1 Tyr. & G. 137. 2 C. M. & R. 723. 1 Gale, 323.

The payment must

ant, or by

his author

ity.

of a sum of money by the defendant to plaintiff, is not enough to take a case out of the statute, without some evidence to satisfy a jury, first, that it was a payment of a debt, and next, that it was not the discharge of a balance due, but a payment intended to be applied to the part discharge of the particular debt. In order to take a case out of the statute, a payment of 12s. as interest money, was proved; held, that this did not justify a verdict finding a debt for 13l. 10s. b

The payment must be made by the defendant, or by some be made by person acting under his authority. The statute does not exthe defend- tend to a payment made by a mere stranger; for if it did, it would be very easy, in every instance, to deprive the defendant of the benefit of it. Therefore, where the defendant having entered into a composition with all his creditors except the plaintiff, employed one F. to tender to the plaintiff a certain sum, in satisfaction of his demand; and the plaintiff having refused to take the sum on the terms proposed, F. gave it to him in part payment of the debt, of which the defendant disapproved; held not sufficient to take the case out of the statute; for as F. was not authorized to make such payment, he acted merely as a stranger d.

Payment of money into court generally, upon a count for goods sold and delivered, does not deprive the defendant of the benefit of the statute, as to the residue of the plaintiff's demande.

SECTION IX.

Payment by one of several joint

debtors will

avoid the

PAYMENT BY ONE OF SEVERAL JOINT DEBTORS.

PREVIOUS to Lord Tenterden's act, an acknowledgment or promise made by one of several joint debtors or contractors, took the case out of the statute as to all.

But by this statute it is pro

vided, that no written acknowledgment or promise made by one or more joint contractors, shall bind any of the other joint contractors. But as the effect of payment continues to be the same as it had been before the statute came into operation, payment of interest by one of two or more joint debtors, takes the case out of the statute as against all. The leading case on this subject is Whitcomb v. Whiting a, which was an action upon a joint and several promissory note, made by the defendant and several others. The statute of limitations having been pleaded, the plaintiff, as an answer to the plea, proved at the trial, payment of interest, and part payment of the principal, by one of the other parties to the note, within six years; held, sufficient to take the case out of the statute; Lord Mansfield, C. J., observing, that payment by one was payment by all, the one acting virtually as agent for the rest; and that the payment amounted to an admission, from whence the law would raise a promise b. The propriety of this decision was questioned by the court in a subsequent case; but it was fully sustained and acted upon in the following case, and is recognized as established authority at this day. This was an action by the payee upon the joint and several promissory note of S. and B., against the administratrix of S. To meet a plea of the statute of limitations, the plaintiff proved a payment of interest, and part of the principal by B. within six years, and in the lifetime of S. the deceased; held, sufficient to take the case out of the statute. Lord Tenterden, C. J., said, that a part payment by one was an admission by both that the note was unsatisfied, and that it operated as a promise by both to pay according to the nature of the instrument, and, consequently, as a promise by the defendant's intestate to pay on his several promissory note. "I think," said Bayley, J., "that the part payment by one operates in point of legal effect as a new promise by all and each of the promisers to pay, according to the nature of the instrument." "Whitcomb v. Whiting, and Jackson v. Fairbank," said Holroyd, J., “are in

* Doug. 652.

b Whitcomb v. Whiting, Doug. 652.

23.

Atkins v. Tredgold, 2 B. & C.

d Post, 1268.

Receipt of a dividend under a commission.

point, and must govern the present case. It seems to me, that where two persons jointly and severally promise to pay one and the same sum of money, each of them makes the other his agent, for the purpose of making any payment in respect of that sum of money. That being so, B. made the payment in question, as the agent, and by the authority of S.

therefore an admission by the latter, that the sum remaining due on the note was an existing debt, and it operated as a fresh promise by him to pay the same."

Where one of two makers of a joint and several promissory note became a bankrupt, and the payee received a dividend under the commission on account of the note, within six years; it was held sufficient to preclude the other joint maker from availing himself of the statute of limitations, in an action against him for the remainder b.

The propriety of this decision, however, was doubted in a subsequent case, where one of two joint drawers of a bill of exchange became a bankrupt, and under his commission the indorsee proved a debt (beyond the amount of the bill) for goods sold, &c., (for which he held the bill as a security,) and received a dividend within six years. In an action on the bill against the other joint drawer, who pleaded the statute of limitations, it was contended, on the authority of Jackson. Fairbank, that the payment of the dividend took the case out of the statute; the court thought that Jackson o. Fairbank had gone too far, as the acknowledgment, besides being a constructive one, was made by the assignees, who never could be called upon for contribution; but they distinguished the present case from it, inasmuch as in the former case, the dividend was received on the instrument itself, whereas in the latter, the dividend was received on a distinct debt, viz., goods sold, and the instrument was only introduced incidentally. They therefore held, that the receipt of the dividend did not revive the de

122.

Burleigh v. Stott, & B. & C. 36. S. P. Pease v. Hirst, 10 B. & C. Wyatt v. Hodson, 8 Bing. 309. 1 M. & Scott, 442. Chippendale v. Thurston, M. & M. 411. 4

C. & P. 98. Perham t. Raynal, 2
Bing. 306.

b Jackson v. Fairbank, 2 H. Bl.

340.