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 *1252 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.”

Resealing.

The writ

Where a writ of summons, tested in time to save the statute of limitations, was resealed in consequence of an alteration in the description of the defendant and the county in which he resided, and was not served until after the six years had expired; held, that the resealing did not amount to a re-issuing of the writ, and that it was not necessary for the plaintiff to show when the resealing took place.b

Under this provision it is not necessary to serve, or endeavor need not to serve a writ to avoid the effect of the statute of limitations; be served. it is sufficient to return it non est inventus, and enter it of record, but the expense of such writs as are unnecessarily issued will not be allowed to the plaintiff.

Continuances.

If continuances are regularly entered upon the roll, the court will not look at any thing in order to contradict the roll; e. g., a writ produced to show that a second writ, an alias, was tested on a day subsequent to the return day of the first. Where a plea of the statute of limitations stated, that the cause of action did not accrue within six years next before the commencement of the suit; plaintiff replied, that the cause of action did accrue within six years, &c.; held, that without specially replying process issued, the plaintiff might on the above replication prove a quo minus to have issued within the six years, and produce the roll to show the continuances regularly entered up accordingly."(1)

A bill in equity, filed by one creditor on behalf of himself and other creditors, will prevent the statute from running against any of the creditors who come in under the decree.

Where an action is commenced in an inferior court, and *1253 *removed to a superior court, the time of limitation is computed to the commencement of the action in the inferior court.

This provision applies only to cases where it is sought to prevent the operation of some statute of limitations. Nicholson v. Rowe, or Leman, 2 C. & M. 469. 2 Dowl. 296.

Braithwaite v. Montford, (Lord,) 2 C. & M. 408.

Williams v. Roberts, 1 C. M. & R. 676. 1 Gale, 56.

• Dickenson v. Teague, 1 C. M. & R. 241. 4 Tyr. 450.

• Sterndale v. Hankinson, 1 Sim. 393.

Mathews v. Phillips, 2 Salk. 424. Ld. Raym. 553. Bevin v. Chapman, 1 Sid. 228. 1 Lev. 143. Story v. Atkins, Stra. 719.

(1) (As to avoiding the bar of the act by issuing process, see Magaw v. Clark, 6 Watts, 528. See Soulden v. Van Rensellaer, 3 Wend. 472. Schermerhorn v. Schermerhorn, 5 Wend. 513. Davis v. West, 5 Wend. 63.)

SECTION V.

WHAT ACKNOWLEDGMENT WILL OBVIATE THE STATUTE.

whether

the statute

We have seen that the statute of limitations begins to run A new from the period when the right of action accrued, and that the promise, remedy is barred at the expiration of six years from that period; it is observable, however, that in actions of assumpsit, a sub- express or implied, sequent acknowledgment of the debt, or promise to pay it, to pay the whether made before or after the expiration of the six years, debt, will will give the creditor a right of suing for the debt at any time obviate within six years from such new acknowledgment or promise. But it seems that a new acknowledgment or promise has not the effect of obviating the operation of the statute in any other case than in assumpsit, on a guarantee, or on a simple contract debt, including bills of exchange and promissory notes. Formerly it was considered that any acknowledgment or admission of a debt obviated the provisions of the statute, on the grounds that the statute was founded on a presumption of payment, and that any acknowledgment which repelled that presumption was an answer to the statute, and in law amounted to a promise to pay the debt, or, in other words, operated as a waiver of the statute, even though such acknowledgment was accompanied with a refusal to pay.b

*But this doctrine has been long since overruled, and it is *1254 now clearly settled, that to take the case out of the statute there must be an express promise to pay, or an acknowledgment from which a promise to pay can reasonably be inferred;

a Per Best, C. J., in A'Court v. Cross, 3 Bing. 331. (11 Eng. C. L. 124.) Per Gaselee, J., in Scales v. Jacob, Id. 638. (13 Eng. C. L. 85.) Per Abbott, C. J., in Tanner v. Smart, 6 B. & C. 605. (13 Eng. C. L. 273.) Hurst v. Parker, 1 B. & A. 92. Gibbons v. M'Casland, 1 B. & A. 690. In Boydell v. Drummond, 2 Camp. 160, Lord Ellenborough, C. J., held, that "if a cause of action, arising from the breach of a contract in not doing an act, (other than payment of money,) at a specific time, be once barred by the statute of limitations, no new promise can have the effect of reviving it." See Martin's Treatise on Lord Tenterden's Act, where this subject is very ably considered.

The following acknowledgments were held sufficient, "Prove your debt, and I'll pay you; or, "I am ready to account, but nothing is due." "And even slighter acknowledgments than these have been held to be sufficient. Per Lord Mansfield, C. J., in Trueman v. Fenton, Cowp. 544. So where the defendant, meeting the plaintiff, said, "What an extravagant bill you have sent me;" it was held to be an acknowledgment that some money was due. Lawrence v. Worrall, Peake, 93. So where the defendant said, "I do not consider myself as owing Mr. B. a farthing, it being more than six years since I contracted. I have had the wheat, I acknowledge, and I have paid some part of it, and 267. still remain due." Bryan v. Horseman, 4 East, 599. So where the defendant said that he had been liable, but was not liable then, as the bill (for the acceptance of which he was sued) was out of date, that he would not pay it, it was out of his power to pay it. Leaper v. Tatton, 16 East, 420. Douthwaite v. Tibbutt, 5 M. & S. 75.

"There is scarcely an admission which has not in former times been held sufficient to take a case out of the statute. In one case (Douthwaite v. Tibbutt, 5 M. & S. 75)

A promise, to take the

case out of

the sta

be conformable to one of

the counts

and if any thing accompanies the acknowledgment inconsistent with such promise, no promise can be implied. The new promise, whether express or implied, does not operate by drawing down the original promise to the time when the acknowledgment is made, in accordance with the former doctrine of waiver, but by conferring a new right of action; and to render it available, the declaration must coutain a count conformable to such promise."(1)

The principal case on this subject is Tanner v. Smart, where all the previous decisions are reviewed. It was an action of assumpsit on a promissory note; to which the defendant pleaded the statute of limitations. At the trial, the plaintiff proved tute, must an acknowledgment by the defendant within six years, in these words:"I cannot pay the debt at present, but I will pay it as soon as I can;" held, not sufficient to entitle the plaintiff to recover without proof of the defendant's ability to pay. Lord in the de- Tenterden, C. J.," The question in this case is whether an acclaration. "knowledgment, which implied that the debt for which the *1255 action was brought had not been paid, was an answer to the statute of limitations." Having referred to the old authorities in support of the doctrine of waiver, his lordship proceeded: "If an acknowledgment had the effect which the cases in the plaintiff's favor attribute to it, one should have expected that the replication to a plea of the statute would have pleaded the acknowledgment in terms, and relied upon it as a bar to the statute; whereas the constant replication, ever since the statute to let in evidence of an acknowledgment, is that the cause of action accrued, or the defendant made the promises in the declaration, within six years; and the only principle upon which it can be held to be an answer to the statute is this, that an acknowledgment is evidence of a new promise, and as such, constitutes a new cause of action, and supports and establishes the promises which the declaration states; upon this principle,

it has been held sufficient where the defendant said he would not pay the debt. But the tide of authority is now turned, and the courts require something more. The words of the statute are, acknowledgment of promise,' and it means such an acknowledgment of the debt as would lead the judgment to infer that the party promised to pay it." Per Gaselee, J., in Linley v. Bonsor, 1 Hodges, 310, post, 1266.

Green v. Crane, 2 Ld. Raym. 1101. 6 Mod. 309. Salk. 28. Pitman v. Foster, 1 B. & C. 248. (8 Eng. C. I.. 67.) Bicknell v. Keppell, 1 N. R. 20. A'Court v. Cross, 3 Bing. 329. (11 Eng. C. L. 124.) Tanner v. Smart, 6 B. & C. 603. (13 Eng. C. L. 273.)

(1) (What kind of acknowledgment will take a case out of the statute. Church v. Fetcrow, 2 Penna. 300. Gallagher v. Milligan, 3 Penna. 179. Fritz v. Thomas, 1 Wharton, 66. Crist v. Garner, 2 Penna. 251. Hogan v. Bear, 5 Watts, 111. Gleim v. Rise, 6 Watts, 44. Berghaus v. Calhoun, Ibid. 219. Peck v. Botsford, 172. De Forest v. Hunt, 8 Conn. 179. Rogers v. Waters, 2 Gill & Johns. 64. Keplinger v. Griffith, Ibid. 307. Frey v. Kirk, 4 Gill & Johns. 509. Kent v. Wilkinson, 5 Ibid. 497. Moore v. The Bk. of Coluvíbia, 6 Peters, 86. Soulden v. Van Rensellaer, 9 Wend. 293. Read v. Hurd, 7 Wend. 408. Purdy v. Austin, 3 Wend. 187. Bradley v. Field, Ibid. 272. Stafford v. Bryan, Ibid. 532. Hancock v. Bliss, 7 Wend. 267. Allen v. Webster, 15 Wend. 284. Graylorá v. Van Loan, Ibid. 308. Olcott v. Scales, 3 Vermont, 173. Barlow v. Bellamy, 7 Ibid. 54.)

whenever the acknowledgment supports any of the promises in the declaration, the plaintiff succeeds; where it does not support them, though it may show clearly that the debt never has been paid, but is still a subsisting debt, the plaintiff fails." Having referred to several cases in support of this position, his lordship continues:-" All these cases proceed upon the principle that under the ordinary issue on the statute of limitations, an acknowledgment is only evidence of a promise to pay; and unless it is conformable to, and maintains the promises in the declaration, though it may show to demonstration that the debt has never been paid and is still subsisting, it has no effect. The question then comes to this, is there any promise in this case which will support the promise in the declaration? The promises in the declaration are absolute and unconditioual to pay when thereunto afterwards requested. The promise proved here, was 'I'll pay as soon as I can,' and there was no evidence of ability to pay so as to raise that, which in its terms was a qualified promise, into one that was absolute and unqualified. Had it been in terms what it is in substance, 'prove that I am able to pay, and then I will pay,' it would have been what the promise was taken to be in Haylin v. Hasting," a conditional *promise, and when the proof of ability should have been given, *1256 but not before, an absolute one. Upon a general acknowledgment, where nothing is said to prevent it, a general promise to pay may and ought to be implied; but where the party guards his acknowledgment and accompanies it with an express declaration to prevent any such implication, why should not the rule expressum facit cessare tacitum apply?"

Where two promissory notes, given by the defendant to the plaintiff in liquidation of a former debt, became due in 1826, and in 1827 an agreement was entered into, whereby the amount was to be paid by instalments, and the plaintiff was to retain the notes as a security for the performance of the agreement; the defendant having paid several of the instalments, failed in the performance of his undertaking in 1830; held, that the plaintiff was thereby remitted to his original rights, and that he might declare upon the notes at any period within six years from a breach of the contract in 1830.

Com. 54. Ld. Raym. 389–421. Salk. 29.

Tanner v. Smart, 6 B. & C. 603. (13 Eng. C. L. 273.) 9 D. & R. 549. S. P. Scales v. Jacob, 3 Bing. 638. (13 Eng. C. L. 85.) 11 Moore, 553. Ayton . Bowers, 12 Moore, 305. 4 Bing. 105. (13 Eng. C. L. 361.) Gould v. Shirley, 2 M. & P. 581. Edmunds v. Downes, 2 C. & M. 459. 4 Tyr. 173.

Irving v. Veitch, Exchequer, M. T. 1837.

VOL. II.-29

case out of

the sta

SECTION VI.

LORD TENTERDEN'S ACT.

SINCE, according to the doctrine established by Tanner v. Smart, the new promise is the foundation of the action, it follows that, any promise or acknowledgment made after the commencement of the action is no answer to the plea of the statute of limitations, though formerly it was held otherwise." Formerly, a verbal promise or acknowledgment was sufficient, but now, by 9 Geo. IV, c. 14, (Lord Tenterden's Act,) such promise must be in writing.

No proSection 1, after reciting the provisions of 21 Jac. I, c. 16, mise shall s. 3, and of 10 Car. I, c. 6, (the Irish Act,) enacts "that in actake any tions of debt or upon the case, grounded upon any simple contract, no acknowledgment or promise by words only shall be tute, un- deemed sufficient evidence of a new or continuing contract, less it be whereby to take any case out of the operation of the said enin writing, actments, or either of them, or to deprive any party of the signed by benefit thereof, unless such acknowledgment or promise shall to be be made or contained by or in some writing, to be signed by charged the party chargeable thereby; and that where there shall be thereby. two or more joint contractors, or executors, or administrators

the party

of any contractor, no such joint contractor, executor, or ad*1257 ministrator shall lose the benefit of the said enactments, or

payment.

either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and Not to les- signed by any other or others of them; provided always, that sen the ef- nothing therein contained shall alter or take away or lessen the fect of any effect of any payment of principal or interest made by any person whatever; provided also, that in actions to be commenced against two or more such joint contractors, or executors, or administrators, if it shall appear at the trial, or otherwise, that the plaintiff, though barred by either of the said recited acts, or this act, as to one or more of such joint contractors, executors or administrators, shall nevertheless be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment, or promise, or otherwise, judgment may be given, and costs allowed for the plaintiff, as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff."

Plea in a

Section 2, "That if any defendant or defendants in any acbatement. tion on any simple contract, shall plead any matter in abatement, to the effect that any other person or persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the trial that the action could not, by reason of the

See Yea v. Fouraker, 2 Burr. 1099. Thornton v. Ellingworth, 2 B. & C. 824. (9 Eng. C. L. 256.)