allowance of the account being signed by one of the overseers) was sufficient to take the case out of the statute as against all the overseers; for as one of them had signed the accounts, it was a recognition of the parish as his agent to pay the interest; and payment by one was payment by all." SECTION X. WHAT AMOUNTS TO PAYMENT. It is not necessary that the payment should be in money in order to take a case out of the statute. Where goods were supplied by the defendant to the plaintiff, in pursuance of an agreement that they should be taken in part payment of a previous debt; it was held sufficient. If interest be allowed in the settlement of an account between the parties, it is equivalent to payment. A. and B. gave a promissory note for 6007. to C.; in an action by C. against A. and B., an account in which B. as between himself and C. gave credit for interest upon the note, was held sufficient to avoid the statute. where the interest was one of the items in an account of which the party paid the balance; it was held, equivalent to actual payment.d So *1271 SECTION XI. BY AND TO WHOM THE PROMISE MUST BE MADE. THE 9 Geo. IV, c. 14, requires that the acknowledgment or By whom promise, to be made available, must be in writing, and signed the proby the party chargeable thereby. It is clear, therefore, that mise must an acknowledgment or promise made by any other person than be made. Row v. Pettet, 1 Ad. & Ell. 196. (28 Eng. C. L. 66.) 3 N. & M. 456, nom. Crew v. Pettit. Hart v. Nash, 1 Gale, 171. 2 C. M. & R. 337. Hooper v. Stevens, 1 H. & W. 480. 5 N. & M. 635. 7 C. & P. 260. "I do not say a payment must be in money; there may be a contract to furnish labor or supply goods; but a contract or understanding must be shown, that would lessen the demand of the other party, without using the statute of set-off." Per Parke, B., in Williams v. Griffith, ante, 1251. “It is quite clear that there must be a payment of principal or interest either in cash or something equivalent." Per Alderson, B., Id. • Manderston v. Robertson, 4 M. & R. 440. Chippendale v. Thruston, M. & M. 441. See Whippy v. Hillary, 3 B. & Ad. 399. 4 C. & P. 98. (19 Eng. C. L. 293.) (23 Eng. C. L. 103.) Ante, 1263. To whom the promise must be made. the debtor himself is insufficient. (1) Where the debtor's wife wrote a letter to the creditor, proposing to pay the debt by instalments, in her husband's name and at his request; it was held, not sufficient to take the case out of the statute; "for," said Tindal, C. J., "if the legislature intended that a signing by an agent should be sufficient, they would have so expressed it; as in the 3d and 17th sections of the statute of frauds. And though the effect of payments is excluded from the operation of the statute, it has been held, that payments made by a stranger, or by any person not acting under the authority of the debtor, will not avoid it." Formerly an acknowledgment made even to a stranger was deemed sufficient to take the case out of the statute. But now as the acknowledgment must imply a promise to pay, and as such new promise is the ground of the action, it will not be sufficient unless made to the creditor, or to some person repre*1272 senting him or acting on his behalf. An acknowledgment by the acceptor of a bill of exchange, that he was liable thereon to the payee but not to the drawer, there being no consideration for the acceptance, was held insufficient to take the case out of the statute in an action by the drawer; for the defendant denied his claim. An acknowledgment to an executor or administrator will not support a count laying the promises to the testator or intestate. Promise istrator. Payment of interest upon a promissory note by the makers, to admin- to the administrator of the payee, has been held sufficient to avoid the statute, though the administrator had neglected to take out letters of administration in the diocese in which the note was bonum notabile. a Where the trustees of certain legatees lent part of the trustmoney to the defendants on their joint promissory note, in which the trustees were described as such; it was held, that payment of interest and of part of the principal, to one of the legatees, was sufficient to take the case out of the statute in an Hyde v. Johnson, 2 Bing. N. C. 776. (29 Eng. C. L. 488.) 2 Hodges, 94. Gibson v. Bagshott, 5 C. & P. 211. (24 Eng. C. L. 284.) But if the party cannot write, it seems that his mark would be sufficient; for it was so decided under the 5th sec. of the statute of frauds, which requires a witness to subscribe the will. Addy v. Grex, 8 Ves. 185. b Linley v. Bonsor, 2 Bing. N. C. 241. (29 Eng. C. L. 319.) 1 Hodges, 305. Ante, 1259. Peters v. Brown, 4 Esp. 46. Halliday v. Ward, 3 Camp. 32. Mountstephen v. Brooke, 2 B. & A. 224. And see Clark v. Hougham, 2 B. & C. 149, (9 Eng. C. L. 47,) post, 1274. Easterly v. Pullen, 3 Stark, 186. (14 Eng. C. L. 176.) Sarell v. Wine, 3 East, 409. 2 Saund 63, g. See Atkins v. Tredgold, 2 B. & C. 29, (11 Eng. C. L. 12,) ante, 1269. Pittam v. Foster, id. 'Clarke v. Hooper, 10 Bing. 480. (25 Eng. C. L. 207.) 4 M. & Scott, 353. (1) (A promise by husband and wife during coverture to pay the debt of the wife contracted dum sola, and which was barred by the statute of limitations, will not revive the debt so as to give a right of action against the wife after the death of the husband. Kline v. Guthart, 2 Penna. 490.) action by the trustees on the note; for payment to the legatee was nothing more than payment to the agent of the trustees, the legatee being a party interested in the note." SECTION XII. THE PLEADINGS. Ir has been already stated, that there must be a count in the declaration conformable to the acknowledgment or new promise. Where the debt is revived by an absolute promise, it is sufficient to declare upon the original promise, for in such case both promises are the same. Or there may be a count on an account stated with the party entitled to the debt at the time of the new promise. But when the promise is on a contingency or a condition, as that the defendant would pay when *1273 able, or on the happening of a certain event, it may be advisable to introduce a special count, stating the existing debt to be the consideration of the promise, and averring the contingency to have happened, or the condition to have been performed; though, in Tanner v. Smart, Lord Tenterden seems to have considered that the happening of the contingency, or the performance of the condition, converted the conditional promise into an absolute one.b must be pleaded. The statute of limitations, independently of the new rules, How the must be specially pleaded; it cannot be taken advantage of in statute evidence under the general issue.(1) There are two modes of pleading it; 1st, That the plaintiff did not undertake within six years. 2dly, That the action did not accrue within six years. The former is applicable in cases of assumpsit only where the consideration is executed, as in contracts for goods sold and delivered, money lent, &c. The latter is the safest and best way of pleading the statute in all actions, whether on contracts or on torts.d Where in an action for deceitfully delivering goods to the plaintiff as the proper goods of the defendant, whereby the plaintiff was damaged; a plea of not guilty within six years, was held to be bad on special demurrer; Abbott, C. J., observing, that the invariable form of pleading the statute to an action a Megginson v. Harper, 2 C. & M. 322. b See Marten on Lord Tenterden's Act, page, 39. There are various reasons assigned for this, which are discussed at considerable length in 2 Saund. 63, to which the reader is referred. 1 Saund. 33, n. 2. 283, n. 2. 2 Saund. 63, c. (1) (It seems that under the plea of nil debet, the defendant may give the statute of limitations in evidence. Davis v. Shoemaker, 1 Rawle, 135.) upon the case for a wrong has been, to allege that the cause of action did not accrue, &c. The import of "not guilty," was doubtful. If it meant the same as "the cause of action did not accrue," there was no reason for a departure from the usual form. If the import was different, it was a plea not warranted by the statute, and certainly it was not a good plea at common law.a So to a declaration in trover by an administrator for a conversion after the death of the intestate, a plea of not guilty of the premises within six years, has been held bad on special *1274 *demurrer, it not being equivalent to an allegation that the cause of action did not accrue within six years.b Replication. In assumpsit, on several promises in different counts, if the defendant plead the statute of limitations to the whole, and it is a bad plea as to one of the counts, it will also be insufficient as to the residue. The replication is in general a mere traverse of the plea. In assumpsit it must be consistent with the promises laid in the declaration. If the promise declared upon be absolute, the promise laid in the replication must not be conditional.d If the plaintiff relies on any of the exceptions in the statute; as that he, or the defendant, was beyond seas at the time when the action accrued, or that he was an infant, or non compos, &c., it should be replied specially. It seems doubtful whether fraud, practised by the defendant, can be replied as an answer to the statute.f The statute must be replied to a set-off; it cannot be taken advantage of otherwise. A plea of set-off stated, that the plaintiff made his promissory note payable to A. C., which was duly indorsed and delivered to the defendant at A. C.'s death, by A. C.'s administrator, and was unpaid. Replication that the supposed cause of set-off on the said note did not accrue to defendant within six years, in manner and form, &c.; held, that this replication admitted not only the making of the note, but the indorsement of it to the defendant by A. C.'s administrator, and that the defendant might, therefore, avail himself of memorandums of the payment of interest, written on the note by A. C. (before Lord Tenterden's act) to bar the statute of limitations.h * Dyster v. Battie, 3 B. & A. 448. (5 Eng. C. L. 344.) Pratt v. Swaine, 8 B. & C. 285. Webb v. Martin, 1 Lev. 48. (15 Eng. C. L. 219.) ■ Tanner v. Smart, 6 B. & C. 606._ (13 Eng. C. L. 273.) See Plummer v. Woodburne, 4 B. & C. 625. (10 Eng. C. L. 424.) 2 Saund. 124. 127, b. 'Clark v. Hougham, 2 B. & C. 149. (9 Eng. C. L. 47.) Chappel v. Durston, 1 C. & J. 1. Gale v. Capern, or Capron, 1 Adol. & Ellis, 102. (25 Eng. C. L. 46.) 3 Nev. & M. 863. *SECTION XIII. EVIDENCE. We have seen that where payment is given in evidence in answer to the statute it must be proved by some person who witnessed it, or by the defendant's admission in writing; proof of his verbal acknowledgment of payment will not be sufficient. But if payment be proved as a fact, the appropriation of it to a particular account may be proved by oral evidence, or the admissions of the defendant. Where a written instrument, containing a promise to pay a debt barred by the statute is lost, its contents may be proved by oral evidence. In assumpsit for goods sold and delivered, the general issue and a plea of the statute of limitations were pleaded; the plaintiff's replication traversed the latter plea; his evidence consisted of such an admission by the defendant as would have been evidence to go to a jury, on the general issue, that a debt was owing from him to the plaintiff, but he did not prove when the debt was contracted; no evidence was given for the defendant in support of his plea; held, that it was incumbent on the plaintiff to support the affirmative terms of his replication, by showing that the debt was contracted within six years, or that the acknowledgment or promise was made in some writing signed by the defendant, so as to take the case out of the statute.d SECTION XIV. LIMITATION OF ACTIONS IN RESPECT OF REALTIES. FORMERLY the period of limitation in actions of ejectment was regulated by 21 Jac. I, c. 16, but now, the limitation of all actions and suits relating to real property, is governed by the 3 & 4 W. IV, c. 27.e *Sec. 1, is an interpretation clause, and enacts, that the word *1276 "land," shall extend to manors, messuages, and all other corporeal hereditaments whatsoever, and also to tithes, (other than * Willis v. Newham, 3 Y. & J. 518, ante, 1265. Waters v. Tompkins, 2 C. M. & R. 723, ante, 1265. Haydon v. Williams, 7 Bing. 163, (20 Eng. C. L. 86,) ante, 1258. • A writ of intrusion falls within the 32 Hen. VIII, c. 2, and may be sued out after the determination of an estate per autre vie; the period of limitation is fifty years. Piercy v. Gardner, 3 Hodges, 103. 3 Bing. N. C. 748. (32 Eng. C. L.) VOL. II.-30 |