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runs from the breach, though there has been a subsequent request for delivery and a refusal. (East India Co. v. Paul, 7 Moo. P. C. 85.) Where money is deposited with a banker the statute runs from the deposit, and

not from demand for payment. (Pott v. Clegg, 16 M. & W. 321.) Quere From when money has been deposited with a private person. Where the what time drawee of a bill refuses to accept and the holder gives notice thereof statutes to the drawer, the statute runs from such notice, and not from nonbegin to payment when due. (Whitehead v. Walker, 9 M. & W. 506.) Where run. an accommodation acceptor is sued on a bill and pays the amount, he

has six years from such payment in which to sue the accommodation drawer, i.e., the statute runs from payment and not from the date of maturity of the bill. (Angrove v. Tippett, 11 L. T. N. S. 708.) Where a bill is deposited with a memorandum that it is to be a security for a balance due, the statute runs only from ascertainment of balance and demand for payment of such balance, and not from the mere creation of a debt to the holder. (Hartland v. Jukes, 32 L. J. Ex. 162.) See the tabular view, ante, pp. 413—417, for statement of time at which

statutes begin to run in the case of bills and other causes of action. When

In the case of torts the date of the cause of action for the purpose of statutes

limitation is in general the committing of the injurious act, and not the begin to occurrence of the damage resulting therefrom. (Nicklin v. Williams, run in case

10 Ex. 259 ; Violett v. Sympson, 27 L. J. Q. B. 138 ; 8 E. & B. 344.) If of torts.

the act is not in itself injurious, but only becomes so by reason of future consequences which cannot be foreseen, as in the case of excavation of land adjoining that of the plaintiff, which after a time causes a subsidence of the latter's land, the right of action dates from the actual damage. (Bonomi v. Backhouse, 9 H. L. C. 503 ; 34 L. J. Q. B. 181.) Where, however, the injurious act is continuing, and causes continued damage, the right of action is also continuing. (Whitehouse v. Fellowes, 30 L.J. C. P.

305 ; 10 C. B. N. S. 765.) When When currency of statutes suspended.]—The 7th section of 21 Jac. 1, currency c. 16, conjointly with section 4 of 3 & 4 Wm. 4, c. 42, provides in effect that of statutes if the person entitled to bring an action within those statutes is, at the suspended. time the cause of action accrues, under twenty.one years of age, a married

woman, insane, beyond the seas, or (in cases coming under the first of these statutes) in prison, the time is not to begin to run until the disability shall have ceased.

By 4 Anne, c. 16, s. 19, if the person against whom the cause of action accrues is at the time beyond seas, the action may be brought within the periods limited by the 21 Jac. 1, counting from the date of his return from beyond seas. And there is a provision to the same effect, by 3 & 4 Wm. 4, c. 42, s. 4, as to specialty debts where the defendants are beyond

the seas. Where By s. 11 of 19 & 20 Vict. c. 97, in the case of joint debtors, the statutes one joint of limitation now run as to such as are not beyond the seas, though some of debtor them may be beyond the seas; but a judgment recovered in such cases beyond will not per se be a bar to another action against the absent debtors after seas,

their return, but semble such a judgment would be a bar to a subsequent suspended action against any joint creditor not beyond the seas at the time of the only as to commencement of the action. him. By s. 7 of 3 & 4 Wm. 4, c. 43, no part of the United Kingdom, the Isle

of Man, or the Channel Islands, being dominions of the Queen, shall be Meaning of

deemed to be “beyond the seas," within the meaning of 21 Jac. 1, c. 16, “ beyond

or this Act. And by s. 12 of 19 & 20 Vict. c. 97, there is a similar proviso seas."

as to cases within 4 & 5 Anne, c. 16, or this Act (19 & 20 Vict.). This section has been held not to be retrospective. (Flood v. Paterson, 30 L. J. Ch. 486.)

The proviso of 19 & 20 Vict. c. 97, as to persons beyond the seas has been held to extend as well to persons resident abroad as to natives of the United Kingdom, and the word “return" in the Acts relating to limitation does not imply that they have been in this country before. (Lafond v. Ruddock, 13 C. B. 813 ; 22 L. J. C. B. 217.)

When a statute of limitations once begins to run no subsequent disability will prevent its operation. (Cottrell v. Dutton, 4 Taunt. 826 ; Rhodes v. Smethurst, 6 M. & W. 351.)

Rerival by subsequent part payment.]-Part payment of the debt is an Revival by acknowledgment of the debt, and takes it out of the operation of the subsequent statutes of limitations; such payment being held to be evidence of a fresh payment. promise to pay the balance. The payment must be on account of the debt claimed to be barred, and it must be made as part-payment of a greater debt. (Tippets v. Heane, 1 C. M. & R. 252.) Therefore when a pay. ment is made as and for the whole, which the defendant admits to be due, this will not be sufficient to take the case out of the statute. (Waugh v. Cope, 6 M. & W. 824.) Where there are two debts, one barred and the Where other not, and a payment of interest on account generally is made, it is two debts to be taken primâ facie as paid on account of the debt not barred. (Per and one Lord Cranworth, Nash v. Hodgson, 6 D. M. & G. 474, 482 ; 25 L. J. Ch. barred, 186, 188.) Part payment in goods is equivalent to part payment in effect of a money. (Hooper v. Stevens, 4 Ad. & E. 71.) So part payment by bill or payment note if so made as to imply a promise to pay the remainder, even though made the bill or note may not be eventually paid. (Turney v. Dodwell, 3 generally. E. & B. 136 ; 23 L. J. Q. B. 137.) In such case the part payment operates from the delivery of the bill or note, and not from the date when it falls due. (Irving v. Vitch, 3 M. & W. 90.)

Payment by an authorised agent is generally payment by the principal; Payment and the authority is a question for the jury. But where the defendant by agent authorised an agent to offer a payment of a lesser sum in discharge of sufficient the whole debt, but the creditor declined, and the agent in excess of his unless authority paid the sum in part discharge, this was held insufficient to authority revive the claim. (Linsell v. Bonsor, 2 N. C. 241.)

exceeded. By and to whom payment must be made.]-The payment need not be Payment made by the debtor or person who incurred the debt, if clearly made on need not account of the debt, and on behalf of the person or persons liable for it. be made Thus payment of interest by the vestry or overseers for the time being of by debtor. a parish on bills given by former overseers to secure an advance to the parish is sufficient. (Rew v. Pettet, 1 A. & E. 196.)

Where, however, a payment is made to the creditor to the use of the debtor by a third person, it cannot be appropriated by the creditor so as to bar the statute. (Waller v. Lacy, 1 M. & G. 54.) And where A. gave B. a promissory note in order to get an advance on it from B.'s banker, and B. indorsed it to his banker, who credited him with the amount, a payment of interest by B. within the six years did not keep alive the banker's claim against A. on the bill. (Harding v. Edgecumbe, 28 L. J. Ex. 313.)

By the Mercantile Law Amendment Act, 1856, where there are several Payment co-contractors or co-debtors bound or liable jointly only or jointly and by one severally, or executors or administrators of any contractor, no such co

co-debtor contractor, co-debtor, executor, or administrator shall lose the benefit of does not the Statute of Limitations by reason of any payment by any other co

revive contractor, &c. It has been held that this provision applies even where statute sach payment has been made, with the knowledge and consent of the against defendant co-contractor, &c. (Per Crompton J.,

in Jackson v. Wooley, others. 8 E. & B. 783—4; 27 L. J. Q. B. 182.)

On the other hand the payment need not be made to the creditor. Payment Thus a payment made to one of several legatees on account of principal need not and interest due on a promissory note given to the trustees of such be made to legatees to secure trust money lent to the defendant, was held sufficient creditor. to revive the debt. (Megginson v. Harper, 2 Cr. & M. 322.) So, payment on a note to an administrator who had not taken out administration in the diocese where the note was a bonum notabile, was sufficient to revive

E E

the debt in favour of a subsequent administrator de bonis non. (Clark v.

IIooper, 10 Bing. 480.) Evidence of Ecidence of payment.]—It is not within the scope of this work to enter payment. into the evidence necessary to sustain any allegation in the pleadings,

and the practitioner is therefore referred to works bearing on this subject. It may, however, be as well pointed out that the 9 Geo. 4, c. 14, which required acknowledgments or promises by words only to be by writing signed by the defendant in order to keep alive or revive or create a claim which would be otherwise barred, did not, by its very terme, include acknowledgments by payments, and the third section of the Act expressly excluded the effect of payments from its operation, and the 3rd section of that Act provides that a memorandum or indorsement of any payment on a bill, note, or other writing by the person to whom such payment was made should not be sufficient evidence of a payment so as to recover a debt barred by statute. Such payments may, however, be proved by an oral admission of the defendant. (Cleare v. Jones, 6 Ex.

573.) Revival by Reviral by acknowledgment or promise.]– It is as well at once to point acknow- out a distinction which does not seem to be indicated with sufficient ledgment clearness by writers on practice, though enunciated with much distinctor promise. ness and emphasis by some of the judges, between the effect of promises

to pay and acknowledgments of the debt. The effect of the latter is strictly to revive the barred debt, and give it new life from the time of the acknowledgment; the effect of a promise to pay is to create a new debt, but not to revive the old one, which has no connection with the new debt created, except as supplying the consideration which makes the promise binding in law; and this is believed to be the only instance in which

a merely moral consideration is sufficient to support an express promise. Distinction This important consequence flows from the distinction here pointed ont between

that in the case of acknowledgments the old liability is revived withont effect of any modification as to its amount or character ; whereas in the case of promise

promises the new obligation will depend on the terms of the promise. and that of Thus the promise may be to pay it in futuro, or by instalments, or on acknow- the happening of a condition; which could not be the case if it were a ledgment.

revival of the old debt. The statute does not begin to run in such cases until the time has elapsed or the condition happened.

Where a person promises to pay a barred debt when he is able, the statute begins to run from the time he so becomes able. (Waters v. Earl of Thanet, 2 Q. B. 757 ; Hammond v. Smith, 33 Beav. 452.) See an admirable exposition of the distinction here referred to, per Wigram, V.-C., Phillips v. Philips, 3 Hare, 281, 299. And see Tanner v. Smart, 6 B. & C. 603 ; and Buckmaster v. Russell, 10 C. B. N. S. 745, where Williams, J., expresses his full

concurrence with the views of Wigram, V.-C. Evidence of Evidence of promise or acknowledgment.]—By the 9 Geo. 4, c. 14 (Lord promise or Tenterden's Act), s. 1, " In actions of debt or upon the case grounded acknow.

on any simple contract, no acknowledgment or promise by words only ledgment.

shall be deemed sufficient evidence of a new or continuing contract whereby to take any case out of the operation of 21 Jac. 1, c. 16, unless such acknowledgment or promise shall be made or contained in some writing to be signed by the party chargeable thereby.” By s. 8, such acknowledgments or promises need not be stamped. However, an unstamped promissory note cannot be used to show an acknowledg. ment, as it has been held that the section does not exempt such an

instrument from its appropriate stamps. (Jones v. Ryder, 4 M. & Acknow- W. 32; Parmiter v. Parmiter, 30 L. J. Ch. 508.) The 19 & 20 Vict. ledgment, c. 97, s. 13, provides that written acknowledgments and promises &c., by

signed by agents duly authorised, shall be binding within the foregoing agent provision. sufficient. The above section of 9 Geo. 4, c. 14, expressly provided that a promise

or acknowledgment made pursuant thereto by one of several joint debtors,

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&c., should not deprive the other or others of the benefit of any statute of Effect of limitations.

promise, By and to whom promise or acknowledgment must be made.]—Assuming &c., by that the provisions of Lord Tenterden's Act are complied with, the question one joint may often arise whether the promise or acknowledgment has been made debtor. by and to the proper person. An admission by a debtor in his balance sheet will not take a debt out of the statute as against his trustees. (Ex parte Topping, 34 L. J. Bkcy. 44.) A mere acknowledgment by an exe- What cutor is not sufficient, but it seems it would be otherwise if he expressly acknow. promised to pay. (Tullock v. Dunn, Ry. & M. 416;, Scholey v. ledgment Walton, 12 M. & W. 510.) As to the effect of an acknowledgment by necessary. one joint maker of a promissory note, see Pittam v. Foster, 1 B. & Č. 248.

There appears to be some uncertainty on the law as to whether and in When to what cases the promise or acknowledgment may be made to another third party person than the creditor. Both before and since the passing of Lord semble Tenterden's Act, acknowledgments to third persons were held to put must cases out of the statutes of limitations. However, in the only case simply since the 9 Geo. 4, c. 14, the admission was made in an inventory in the promise Ecclesiastical Court, setting forth the debts of deceased. It seems to be to pay at present the prevailing opinion that an admission made to a stranger the debt. can only affect the operation of the Statute of Limitations, when it can be properly left to the jury as equivalent to or implying a promise to the plaintiff to pay the debt. (See Everett v. Robertson, 28 L. J. Q. B. 23 ; Ex parte Topping, 34 L. J. Bkcy. 44.)

As to the sufficiency of the acknowledgment, Pollock, C. B., intimated Stronger in Cornforth v. Smithard (5 H. & N. 13; 29 L. J. Ex. 228), that stronger evidence words would be necessary to revive a debt already barred than to required to keep alive a debt against which the statute was running. For instances revive debt in which the sufficiency of the promise has been discussed, see Rackham barred than v. Varriot, 26 L. J. Ex. 315 (Ex. Ch.); Cassidy v. Firman, Ir. Rep. 1 to suspend C. L. 9, Ex.; Lee v. Wilmot, L. R. 1 Ex. 364 ; In re River Steamor Co., statute. L. R. 6 Ch. 822; Chasemore v. Turner, 45 L. J. 66 (Ex. Ch.).

Where a document is put in evidence in support of the reply of ac- Court to knowledgment, it is for the Court to determine whether it amounts to a determine sufficient acknowledgment. So the question whether a promise is condi- whether a tional or not is for the Court ; but in those cases any evidence of extrinsic document circumstances which may affect the construction is for the consideration amounts to of the jury. (Routlege v. Ramsay, 8 Ad. & E. 221.) The admission of acknowa balance due and promise of payment, though denying the amount ledgment ; claimed, is sufficient to interrupt the statute as to the amount claimed. so whether (Skeat v. Lindsay, 46 L. J. C. L. 249.)

promise An acknowledgment after action brought is insufficient. (Bateman v. condiPinder, 3 Q. B. 574.)

tional. The provision requiring acknowledgments to be in writing signed applies to cases of debt on simple contract alleged by way of set-off, and to which the Statute of Limitations (21 Jac. 1, c. 16) has been pleaded. (Sect. 4 of 9 Geo. 4, c. 14.)

The revival of liability by promise or acknowledgment is confined to Revival by cases of debt, and no similar effect is given to acknowledgments of lia- acknowbility for other breaches of contract not resulting in debt. (Boydell v.

ledgment Drummond, 2 Camp. 157, 160.) Lord Tenterden's Act does not affect this

applies doctrine. The doctrine is also inapplicable to actions for wrongs inde- only to pendent of contract. (Hurst v. Parker, 1 B. & Ald. 92 ; Tanner v. Smart, debts and 6 B. & C. 603, 605.)

not to An infant may by acknowledgment renew a debt for necessaries breaches of barred by the Statute of Limitations. (Willins v. Smith, 4 E. & B.

contract. 180.)

With regard to specialty debts, the 5th section of 3 & 4 Wm. 4, c. 42,

C. 42.

sary to

Revival of provides that if any acknowledgment shall have been made, either specialty by writing signed by the party liable by virtue of such specialty or his debts, agent, or by part payment or part satisfaction on account of any prin. 3 & 4 cipal or interest, it shall be lawful for the person entitled to bring his Wm. 4,

action for the money remaining unpaid and so acknowledged to be due within twenty years after such acknowledgment. This section only applies to money remaining unpaid and acknowledged to be due, and not to other claims for acts or omissions in breach of covenants. (Blair v. Ormond, 17 Q. B. 423.)

The acknowledgment under this statute need not necessarily import a promise to pay, and therefore, even if made to a stranger and not to the creditor, it seems it will be sufficient. (Howcutt v. Bonser, 3 Ex. 491,

500.) How dis- In replying to a plea of a statute of limitations, if the plaintiff relies ability

on any of the disabilities before mentioned at the commencement of the pleaded

action, he should distinctly state what the disability was, and when it in reply to ceased, so as to show that there was not sufficient time for the statutory defence

bar to arise before the commencement of the action. Under the former of statute. system of pleading, a plaintiff was required to reply specially in such

circumstances. (Chandler v. Villett, 2 Wms. Saund. 118.) Now neces.

When the debt by simple contract was revived by an absolute promise

or acknowledgment it was formerly unnecessary to reply specially, as reply spe

under an issue taken on the plea of the Statute of Limitations, it was open cially to a plaintiff to show that the cause of action was renewed within six where debt years. The ground of this was that a new cause of action was in strict. revived by ness created by the promise or acknowledgment, and therefore a replicapromise. tion taking issue on the plea of the Statute of Limitations asserted in

substance that the cause of action did accrue within the prescribed period. (Tanner v. Smart, 6 B. & C. 603, 606.) Under the present rules of pleading, such matter must be specifically stated in the reply. (See form,

pp. 164, 207.) Revival of The 3 & 4 Wm. 4, c. 42, s. 5, which provides for the revival of specialty specialty debts by acknowledgment, directed that the plaintiff might by way of debt to be replication state such acknowledgments

, and that the action was brought specially

within twenty years from such acknowledgment. It was held that the replied.

acknowledgment should be replied specially, and could not be given in evidence under a joinder of issue or replication that the cause of action accrued with twenty years before suit. (Moodie v. Bannister, 28 L. J. Ch. 881.) It was also held that the mode of making the acknowledgment, whether by writing, part payment, or part satisfaction should be specifically stated in the replication. (Forsyth v. Bristore, 8 Ex. 347.) A reply in accordance with these requirements would under the present rules of pleading be sufficient.

In the statement of claim in an action on such a debt, it is the specialty rerived by acknowledgment, which should be set out as the foundation

of the action, and not the writing or act by which it was revived. Reply that A reply to a defence setting out that the debt was barred by a statute cause of of limitations that the plaintiff did not know of the cause of action until action after the period of limitation had elapsed would be demurrable. So fraudu- would a reply alleging that the cause of action was fraudulently conlently con. cealed by the defendant. (Hunter v. Gibbons, 26 L. J. Ex. 1 ; Imperial cealed is Gas Co. v. London Gas Co., 10 Ex. 39.) demur. Foreign statutes of limitation which bar the remedy and not the right rable. have no application here. (Harris v. Quine, L. R. 4 Q. B. 653.)

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