Limitation, Statutes of.-Subsequent Acknowledgment.

613

Where the defendant acknowledges the debt, but insists that it is paid or discharged, the whole of his admission must be taken together, and the case will not be taken out of the statute. Thus, where the defendant said, "I have paid the debt, and will send you a copy of the receipt," but such a copy was never sent, Lord Ellenborough held the acknowledgment insufficient. Birk v. Guy, 4 Esp. 184; Anon., cited Holt, N. P. 381. Where the acknowledgment was, "You owe me more money; I have a set-off against it," it was held not sufficient. Swann v. Sowell, 2 B. & A. 759. "I acknowledge the receipt of the money, but the testatrix gave it me," was also held not sufficient. Owen v. Wolley, B. N. P. 148.

Where the defendant, in his acknowledgment, rests his discharge upon a written instrument to which he refers with precision, evidence of that instrument has been admitted to show that it does not operate as a legal discharge. Partington v. Butcher, 6 Esp. 66; Hellings v. Shaw, 1 B. Moore, 344;7 Taunt. 608. But, the doctrine is adverted to by the court with expressions of doubt in Beale v. Nind, 4 B. & A. 568, and can only be supported on the assumption that such an acknowledgment amounts to a conditional promise.

The following acknowledgment, "I have sent you a note for the money due to you, which your mother left for you," sent with a promissory note, on a receipt stamp, was held insufficient without the promissory note, and that not being properly stamped, could not be looked at. Parmiter v. Parmiter, 2 D. F. & J. 526; 30 L. J., Ch. 508.

Where the expressions of the defendant are ambiguous, it was formerly held to be a question of fact for the jury whether they amounted to an acknowledgment of the debt. Lloyd v. Maund, 2 T. R. 760; and see Linsell v. Bonsor, 2 N. C. 241. But, this has been questioned in later cases, and it has been since decided that the construction of a doubtful document, given in evidence to defeat the statute, is for the court and not for the jury; though, if intrinsic facts are adduced in explanation, these facts are for the consideration of the jury. Morrell v. Frith, 3 M. & W. 402; Routledge v. Ramsay, 8 Ad. & E. 221; Smith v. Thorne, 18 Q. B. 134; 21 L. J., Q. B. 199, Ex. Ch.

An acknowledgment since action brought is not sufficient. Bateman v. Pinder, 3 Q. B. 574, overruling Yea v. Fouraker, 2 Burr. 1099.

A. and B. were joint and several makers of a promissory note, and A., having made an assignment for the benefit of his creditors, B. gave to the payee of the note the following memorandum :-"I hereby consent to your receiving the dividend under A.'s assignment, and do agree that your doing so shall not prejudice your claim on me for the same debt." It was held that this was insufficient as against B. Cockrill v. Sparkes, 1 H. & C. 699 ; 32 L. J., Ex. 118. Where there were disputed accounts, and the parties agreed to refer them to an arbitrator "to ascertain the amount due," the amount to be paid "at such times and in such proportions as the arbitrator may appoint;" it was held to be insufficient. Hales v. Stevenson, 11 W. R. 33, M. T. 1862, Q. B.; Ex. Ch., 11 W. R. 952, T. T. 1863. In Bush v. Martin, 2 H. & C. 311; 33 L. J., Ex. 17, the claim was for work and labour as an attorney against commissioners under a local improvement act. The commissioners appointed a committee to inquire into the state of their finances, and the committee delivered a signed report, in which the sum claimed was shown to be due to the plaintiff. The commissioners adopted the report, and ordered a rate to be levied in accordance with the recommendation of the committee to defray the sums therein found to be due. This was held not to be sufficient; Pollock, C. B., relying on Emery v. Day, 1 C. M. & R. 245, where a somewhat similar acknowledgment was attempted to be set up; but no decision was there

given as to whether or no the acknowledgment was sufficient, because the plaintiff failed to produce it.

Where the defendant had presented a petition for arrangement with his creditors under the 7 & 8 Vict. c. 70, and had inserted in his accounts the debt on which the action was brought, and thereby proposed to assign all his property to trustees "for the future payment or compromise of such debts and engagements," this was held to be insufficient. Everett v. Robertson, 1 E. & E. 16; 28 L. J., Q. B. 23. So, the insertion of a debt in the schedule to a deed of inspectorship for administering the estate of the debtor will not take the debt out of the statute, though the schedule be verified by the debtor's oath. Ex pte. Topping, 34 L. J., Eky. 44. This case overrules Eicke v. Nokes, 1 M. & Rob. 359.

A letter written "without prejudice," cannot be relied on when the terms it proposes have not been accepted. In re River Steamer Co., L. R., 6 Ch. 822; and vide ante, p. 60.

Acknowledgment-conditional.] When the promise relied upon is conditional, the plaintiff must show the condition performed; In re River Steamer Co., supra, thus, where the defendant promised to pay the debt when he was able, it was ruled that the plaintiff was bound to show that the defendant was then of sufficient ability to pay. Davies v. Smith, 4 Esp. 36; Besford v. Saunders, 2 H. Bl. 116. So, where the promise was, "I cannot pay the debt at present; but I will pay it as soon as I can,” it was held necessary for the plaintiff to show the defendant's ability to pay. Tanner v. Smart, 6 B. & C. 603. If the debtor promises to pay the old debt "when he is able," or "by instalments," or "in two years," or out of a certain fund, the creditor can claim nothing more than the new promise gives him. Per Wigram, V.C., in Philips v. Philips, 3 Hare, 281, 299, ante, pp. 610,611, cited in Smith v. Thorne, 18 Q. B. 139; 21 L.J., Q. B. 199, Ex. Ch. See also Chasemore v. Turner, L. R., 10 Q. B. 500, Ex. Ch., and Meyerhoff v. Froehlich, 3 C. P. D. 333; 4 C. P. D. 63, C. A. And the statute runs from the time of becoming able to pay, though the plaintiff had no notice of the ability, and made no demand. Waters v. Thanet, El. of, 2 Q. B. 757; Hammond v. Smith, 33 Beav. 452.

A doubt has existed whether the plaintiff is bound to claim specially on such qualified promise, or can show, under the reply taking issue on the defence of the statute, that the promise has become absolute by the performance of the condition; but it seems to be now settled that the conditional promise may, after performance of the condition, be shown under issue taken on a defence of the statute; per Parke, B., in Hart v. Prendergast, M. & W. 743, 745; Smith v. Thorne, 18 Q. B. 134, 143; 21 L. J., Q. B. 199, 14 Ex. Ch.; and such is the practice, though cases may occur of a promise so qualified as to require a special claim, as to pay in a particular

manner.

Whether the promise be qualified or not, is a question of construction for the court and not for the jury, except where extrinsic evidence affects the construction. Routledge v. Ramsay, 8 Ad. & E. 221.

Mutual accounts, &c.] Before the 9 Geo. 4, c. 14, it was held that, where there had been mutual current and unsettled accounts between the parties, and any of the items are within six years, such items were evidence (under the replication that the defendant did promise, &c.) as an admission of an open account so as to take the case out of the statute, like any other acknowledgment. Catling v. Skoulding, 6 T. R. 189; 2 Wms. Saund. 127 (6). But since that statute, there must be part-payment, or something equivalent to it, or a distinct written acknowledgment, to have this effect. Williams v

Griffiths, 2 C. M. & R. 45; Mills v. Fowkes, 5 N. C. 455; Cottam v. Partridge, 4 M. & Gr. 271. See also as to merchants' accounts, ante, p. 602.

Limitation of actions in special cases.] There are certain cases in which the limitation of actions is governed by special acts. The following are some of these. Thus, the stat. 35 Geo. 3, c. 125, ss. 7, 8, 9, prescribes the formalities required before a debt becomes recoverable from an heir-apparent to the crown, who has a separate establishment, and limits the period for its

recovery.

The Highway Act (5 & 6 Will. 4, c. 50), s. 109, provides that no action shall be commenced against any person for anything done in pursuance of, or under the authority of the act, after three calendar months, next after the fact committed, for which such action shall be brought. This section applies to the recovery of money bona fide received by the defendants from the plaintiffs as surveyors of highways, but under an illegal rate. See Selmes v. Judge, L. R., 6 Q. B. 724. So the Public Health Act, 1875, s. 264, which is somewhat similar in terms, and limits the period of action to 6 months, applies to an action for money paid to a local board, under a mistake of fact. Midland Ry. Co. v. Withington Local Board, 11 Q. B. D. 788, C.A. See further post, Part III., Actions against constables, officers, &c.

The stat. 22 & 23 Vict. c. 49, s. 1, imposes a limitation in the case of actions for debts contracted by Poor Law Boards. See R. v. Stepney Union, Guardians of, L. R., 9 Q. B. 383.

Merger.

Where a debtor gives his creditor a higher security for the debt due, and co-extensive with it, the debt is merged by operation of law, irrespectively of the intention of the parties. Price v. Moulton, 10 C. B. 561; 20 L. J., C. P. 102. But, if the security so given is not co-extensive with the debt, the latter will exist as a collateral security, and there will be no merger. Holmes v. Bell, 3 M. & Gr. 213; Bell v. Banks, Id. 258; Norfolk Ry. Co. v. M'Namara, 3 Exch. 628; Ansell v. Baker, 15 Q. B. 20; Boaler v. Mayor, 19 C. B., N. S. 76; 34 L. J., C. P. 230.

If a bond be given for rent due, even on a parol demise, this does not operate as a merger, for rent is a debt of equal degree with a debt by specialty. Newport v. Godfrey, 2 Vent. 184; 3 Lev. 267; 4 Mod. 44; Gage v. Acton, 1 Salk. 325; Davis v. Gyde, 2 Ad. & E. 623; 1 Roll. Abr. Dett, (Extinguishment), A. pl. 2, p. 605, 1. 1.

See further as to merger, ante, pp. 535, 536.

Payment.

Payment must be specially pleaded. Rules, 1883, O. xix., r. 15, ante, p. 283; and without a defence of payment, it cannot be given in evidence, though only for the purpose of showing that interest is not due on the debt demanded, the debt itself being admitted by payment into court. Adams v. Palk, 3 Q. B. 2.

Payment cannot be shown under a set-off; Linley v. Polden, 3 Dowl. 780; and see Lewis v. Samuel, 8 Q. B. 685. It is, however, sometimes difficult to say whether a receipt or retainer of money by a creditor amounts to a payment or a set-off; see Thomas v. Cross, 7 Exch. 728; 21 L. J. Ex. 251. But, probably, if the effect of the transaction were wrongly stated, a judge would amend in such a case. In an action against one of two joint and several guarantors, the reduction of the defendant's liability by the

payment by the other guarantor of part of the amount, cannot be set up without a defence of payment pleaded. Laurie v. Scholefield, L. R., 4 C. P. 622. In this case the court allowed the plea to be added upon terms.

It is difficult to understand the reasoning upon which the decision in one case, and an alleged dictum in another is founded that, where goods are sold for ready money, and the delivery in exchange for money takes place immediately, no debt arises, and that consequently, in an action for goods sold and delivered, in such a case it was not necessary to plead payment, but that the nature of the transaction might be shown under the plea of never indebted. Of course, if this view be taken of the transaction, there is, strictly speaking, no payment, for when there is no debt there can be no payment. But it is scarcely possible to suppose a case of exchange of goods for money, which is not preceded by a prior offer and acceptance, and it is upon the contract thus made, and which the defence of payment confesses and avoids, that the action is brought. The ruling in Bussey v. Barnett, 9 M. & W. 312, which is usually relied on for the doctrine under discussion, seems to be contrary to the opinion of Parke, B., in Goodchild v. Pledge, 1 M. & W. 363. It was also disputed in Littlechild v. Banks, 7 Q. B. 739; and in Smith v. Winter, 12 C. B. 487 ; 21 L. J., C. P. 158, was said to have gone to "the very verge of the law." In Timmins v. Gibbins, 18 Q. B. 726; 21 L. J., Q. B. 403, Ld. Campbell said, that "where money is paid over the counter at the time of sale, there must be a moment of time when the purchaser is indebted to the vendor." It is said, however, that a similar opinion was again expressed by the court in Wood v. Bletcher, 4 W. R. 566, E. T. 1856, Ex. In Smith v. Winter, supra, in debt for work and labour, it was held that where work was to be done by a debtor for his creditor, as a set-off against the debt, that in an action for work and labour this might be shown under the general issue. But, this is obviously an entirely different case.

An account stated between plaintiff and defendant, and payment of the balance, is evidence under a defence of payment, though it may be specially pleaded according to the facts. Callander v. Howard, 10 C. B. 290; 19 L. J., C. P. 312.

Where, in answer to a claim for 10l. 13s. 4d., the defendant sent a bank bill for 10, which the plaintiff said he should not accept in discharge of his claim, but nevertheless retained, it was held that there was evidence of payment. Caine v. Coulton, 1 H. & C. 764; 32 L. J. Ex. 97.

Where the plaintiff's particulars admit a payment, he can recover only the amount by which his claims, as proved, exceed the payment as alleged. Rowland v. Blaksley, 1 Q. B. 403; see also Price v. Rees, 11 M. & W. 576. And if it gives credit thus, "Cr.,--by bills of exchange, 1,500l.," this will be taken to be a payment by the defendant, and the plaintiff cannot show that it was a payment by another person, for which the defendant is not entitled to credit. Smethurst v. Taylor, 12 M. & W. 545. But, the plaintiff may explain that the payment, for which the particulars give credit, was not made on account of the balance he claims. Mercy v. Galot, 3 Exch. 851. In this case the plaintiff seems to have included in the particulars items which he could not have recovered, but which had been paid by the defendant. In another case, the particulars claimed a balance of 291. for goods sold, and gave credit for 920l. paid; the plaintiff proved a claim of 9491. for goods sold; it appeared that 841. worth of the goods had been taken back, and defendant insisted at the trial that this sum, added to the sum credited, left nothing for the plaintiff to recover held, that the plaintiff might turn the balance in his favour by showing that he had given credit for 841. as part of the payment. Lamb v. Micklethwait, 1 Q. B. 400. Where credit is given for a sum paid, whether before or after action, a

defence of payment applies only to the balance, and proof of payment of that amount is sufficient. Eastwick v. Harman, 6 M. & W. 13. Where the plaintiff proceeded in his particulars for a "balance" of 371., and the particulars stated sales to the amount of 100%., and gave no credit for specific payments, and the defendant pleaded and proved a set-off of 5l., with other pleas, it was held that the defendant was not necessarily entitled to deduct the set-off from 371.; but the jury might find that sum to be the "balance" after deducting the 5l. Townson v. Jackson, 13 M. & W. 375.

Where a creditor directs his debtor to transmit money or a bill in payment by the post, and it is lost (without default of the debtor), the creditor must bear the loss; Warwicke v. Noakes, 1 Peake, 98; and where no directions are given about the mode of remittance, yet if this be done in the usual way of business between the parties, it seems that the debtor is discharged. Id., per Ld. Kenyon, C. J.; vide post, pp. 621, et seq.

As to payment of bills or notes, see ante, pp. 367, et seq.

A usual way of proving payment is by the production of a receipt signed by the plaintiff or his agent. Vide Admissions; Receipts; ante, p. 63; and Stamps, ante, p. 251.

As to proof of payment of legacies, see Stamps, ante, p. 252.

Payment to agent.] Payment to an authorized agent is sufficient. Goodland v. Blewith, 1 Camp. 477; Coates v. Lewes, Id. 444; Owen v. Barrow, 1 N. R. 101. Thus, payment to the solicitor, while an action is subsisting, is good; Anon., 1 Dowl. 173; but not to his clerk, who shows no other authority than his master's order to receive it; per Ld. Kenyon, C. J., Coore v. Callaway, 1 Esp. 115. The solicitor's authority to receive seems to continue as long as the retainer; and this is presumed to continue after judgment until payment, voluntarily, or under execution. Bevins v. Hulme, 15 M. & W. 88, 96. Payment to the solicitor's agent in the country is not good. Yates v. Freckleton, 2 Doug. 623. But payment to a person found in a merchant's counting-house, and appearing to be entrusted with the conduct of the business there, is a good payment to the merchant, though the person was, in fact, not employed by him; Barrett v. Deere, M. & M. 200; and see Wilmott v. Smith, Id. 238. But, this is on the assumption that the payment relates to the merchant's business; for if it be payment in respect of a private debt due to him, as a mortgage debt, or a legacy, it will not be sufficient. Sanderson v. Bell, 2 Cr. & M. 304, 313. So, if a shopman, authorized to receive cash over the counter, obtains payment elsewhere in another way, and does not pay over the amount to his principal, this is not a discharge. Kaye v. Brett, 5 Exch. 269. An agent employed to sell land has no authority, as such, to receive payment. Mynn v. Joliffe, 1 M. & Rob. 326. So, an auctioneer, though he is authorized to receive the deposit, has no general authority to receive the purchase money; Sykes v. Giles, 5 M. & W. 645; and, generally, an agent for taking a bond, or for negotiating, or concluding a contract, has no implied authority to receive money due under it. Story on Agency, s. 98. Even the possession of the instrument, as the possession by the agent, of a conveyance to secure a loan of money negotiated by the agent, is no authority to receive the principal, although the creditor may have sometimes permitted the agent to receive interest. Wilkinson v. Candlish, 5 Exch. 91. So, possession of an executed conveyance, with a receipt indorsed by vendor or mortgagor, was no sufficient authority to the solicitor of vendor or mortgagor to receive the purchasemoney or loan. Viney v. Chaplin, 2 De G. & J. 468; 27 L. J., Ch. 434; Ex parte Swinbanks, 11 Ch. D. 525, C. A. This is now otherwise under the Conveyancing and Law of Property Act, 1881, 44 & 45 Vict. c. 41, s. 56. The effect of this section is however only to dispense with the necessity for