&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 acknowpromised to pay. (Tullock v. Dunn, Ry. & M. 416; Scholey v. ledgment Walton, 12 M. & W. 510.) As to the effect of an acknowledgment by one joint maker of a promissory note, see Pittam v. Foster, 1 B. & C.

248.

necessary.

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.)

required to revive debt barred than to suspend statute.

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 keep alive a debt against which the statute was running. For instances in which the sufficiency of the promise has been discussed, see Rackham v. Marriot, 26 L. J. Ex. 315 (Ex. Ch.); Cassidy v. Firman, Ir. Rep. 1 C. L. 9, Ex.; Lee v. Wilmot, L. R. 1 Ex. 364; In re River Steamer Co., 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 acknowledgment, it is for the Court to determine whether it amounts to a sufficient acknowledgment. So the question whether a promise is conditional or not is for the Court; but in those cases any evidence of extrinsic circumstances which may affect the construction is for the consideration 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. (Skeat v. Lindsay, 46 L. J. C. L. 249.)

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

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 cases of debt, and no similar effect is given to acknowledgments of liability for other breaches of contract not resulting in debt. (Boydell v. Drummond, 2 Camp. 157, 160.) Lord Tenterden's Act does not affect this doctrine. The doctrine is also inapplicable to actions for wrongs independent of contract. (Hurst v. Parker, 1 B. & Ald. 92; Tanner v. Smart, 6 B. & C. 603, 605.)

An infant may by acknowledgment renew a debt for necessaries barred by the Statute of Limitations. (Willins v. Smith, 4 E. & B. 180.)

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

Court to determine whether a document amounts to

so whether promise conditional.

Revival by acknowledgment

applies

only to debts and

not to

breaches of

contract.

Revival of

specialty

debts,

3 & 4 Wm. 4, c. 42.

How dis-
ability
pleaded
in reply to

defence
of statute.

Now neces-
sary to
reply spe-
cially
where debt
revived by
promise.

Revival of specialty debt to be specially replied.

Reply that cause of

action fraudu

lently con

cealed is demur

rable.

provides that if any acknowledgment shall have been made, either by writing signed by the party liable by virtue of such specialty or his agent, or by part payment or part satisfaction on account of any principal or interest, it shall be lawful for the person entitled to bring his 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.)

In replying to a plea of a statute of limitations, if the plaintiff relies on any of the disabilities before mentioned at the commencement of the action, he should distinctly state what the disability was, and when it ceased, so as to show that there was not sufficient time for the statutory

bar to arise before the commencement of the action. Under the former system of pleading, a plaintiff was required to reply specially in such circumstances. (Chandler v. Villett, 2 Wms. Saund. 118.)

When the debt by simple contract was revived by an absolute promise or acknowledgment it was formerly unnecessary to reply specially, as under an issue taken on the plea of the Statute of Limitations, it was open to a plaintiff to show that the cause of action was renewed within six years. The ground of this was that a new cause of action was in strictness created by the promise or acknowledgment, and therefore a replication 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.)

The 3 & 4 Wm. 4, c. 42, s. 5, which provides for the revival of specialty debts by acknowledgment, directed that the plaintiff might by way of replication state such acknowledgments, and that the action was brought within twenty years from such acknowledgment. It was held that the 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. Bristowe, 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 revived by acknowledgment, which should be set out as the foundation of the action, and not the writing or act by which it was revived.

A reply to a defence setting out that the debt was barred by a statute of limitations that the plaintiff did not know of the cause of action until after the period of limitation had elapsed would be demurrable. So would a reply alleging that the cause of action was fraudulently concealed by the defendant. (Hunter v. Gibbons, 26 L. J. Ex. 1 ; Imperial Gas Co. v. London Gas Co., 10 Ex. 39.)

Foreign statutes of limitation which bar the remedy and not the right have no application here. (Harris v. Quine, L. R. 4 Q. B. 653.)

Malicious Arrest (a).

Action for maliciously procuring the Plaintiff to be Arrested in Action for

a Civil Suit.

1. In August, 1877, the defendant H. C., as the holder of two bills of exchange for £100 and £75, which had been indorsed to him by the defendant F. G., brought an action on the said bills in the Queen's Bench Division of the High Court of Justice, against the plaintiff as drawer thereof. The plaintiff was not liable on the said bills, and on an affidavit, stating the grounds on which he was not liable, he obtained leave to appear and defend.

malicious

arrest.

When a

person still liable to imprisonment for non-payment of

(a) This action was once pretty frequent, but since the 32 & 33 Vict. c. 62, s. 6, which abolished imprisonment for debt, it is of rare occurrence. Since that Act, however, a person may still, during the course of civil proceedings, be arrested in several cases; and in all these cases it is sub mitted that a person is liable in an action for a malicious arrest if he, acting maliciously and without reasonable and probable cause, sets the law in motion and procures the arrest of another. By s. 4 of the 32 & 33 Vict. c. 62, a person may be arrested-(1) who being a trustee money. fails to pay over trust moneys ordered by the Court to be paid over; (2) who being a solicitor fails to pay any costs which he has been directed personally to pay; (3) who, being a bankrupt has failed to pay any instalments of income to the trustee in his bankruptcy which by the order of the Court he has been directed to pay.

By sect. 5, any person who fails to pay any debt due from him in pursuance of any order or judgment, may be committed to prison for six weeks on proof that he has the means of payment.

By section 6 it is enacted--(a) if a plaintiff shall at any time before Cases final judgment prove, by evidence on oath, to the satisfaction of a judge, where that he has a cause of action against the defendant to the amount of arrest on £50 or upwards, and that there is probable cause for believing that the mesne defendant is about to quit England, and that the absence of the de- process fendant will materially prejudice the plaintiff in the prosecution of his legal. action, then it shall be lawful for the judge to order the defendant to be arrested and imprisoned for a period not exceeding six months, unless he give security that he will not leave England without the leave of the Court; (b) where the plaintiff sues for a penalty other than a penalty in respect of any contract, it shall not be necessary for him to prove that the absence of the defendant will materially prejudice him in the prosecution of his action.

The foundation of the action for malicious arrest in one or other of The founthese cases must be that the party obtaining the order for the arrest, and dation of who is the defendant, has imposed on the judge by some false state- the action ment; and this false statement and the surrounding circumstances for malimust be such as clearly to demonstrate that the defendant had no rea- cious sonable or probable cause for the step he took. It must also be averred arrest. and proved that the order of arrest has been rescinded, and that the proceedings have terminated in the plaintiff's favour; but this fact is not by any means conclusive to prove an absence of reasonable cause on the part of the defendant.

Action for malicious arrest.

Counter

claim for a malicious arrest.

2. After the plaintiff had appeared in the said action, the defendants, for the purpose of causing the plaintiff to be arrested and imprisoned, falsely and maliciously made affidavits that the plaintiff was indebted to the defendant H. C. in the said sums of £100 and £75, that the plaintiff intended to proceed abroad, and to leave England for the purpose of avoiding payment of the said debt, and that the plaintiff would be a material and necessary witness on the part of the defendant H. C., on the trial of the said action; and upon such affidavits, and upon the false and malicious statements therein contained, the defendants maliciously and without reasonable or probable cause procured from a judge an order to arrest and hold the plaintiff to bail, and under such order and writ caused the plaintiff to be arrested and imprisoned, and the plaintiff was kept in prison for some time, until he could apply for an order to set aside the said order and writ.

3. Subsequently, upon the plaintiff's application to the judge who had made the said order, the said order and writ were rescinded and set aside, and the plaintiff was released.

4. By the said arrest and imprisonment the plaintiff was prevented from attending to his business, and was injured in his credit, and sustained losses and incurred expenses in and about giving bail under the said order and writ, and in setting the same aside and in obtaining his release from the said imprisonment.

The plaintiff claims £1000.

Counter-claim (Statement of Claim and Defence not being given) for Malicious Arrest.

And by way of counter-claim the defendant says as follows:

1. After the commencement of this action the plaintiff maliciously and without reasonable or probable cause, on the 10th of, 1876, procured from Mr. Baron H., being a judge of the Exchequer Division of the High Court of Justice, a special order of the said judge directing the defendant to be arrested and imprisoned for six months from the date of his arrest, unless and until the defendant should sooner deposit in Court the sum of £4000 by way of security, or give to the plaintiff a bond executed by the defendant and two sufficient

Counter

sureties in the penalty of £8000 or some other security satisfactory to the plaintiff that the defendant would not leave claim for a England without leave of the Court or a judge.

2. The plaintiff procured the said order by falsely and maliciously representing to the said judge, by a false affidavit sworn on or about the 10th 1876, in effect that he the plaintiff had a cause of action against the defendant to the amount of £4400, that the defendant was about to leave England for the purpose of delaying the said action, and that the defendant was a material witness for the establishing of the plaintiff's claims. The defendant refers to the said affidavit aforesaid for the exact tenor of the said allegations.

3. Thereupon, in pursuance of the said order, the plaintiff had the defendant arrested, and detained and imprisoned the defendant in the debtors' prison at H.

4. On the facts of the case being brought by affidavit by the defendant before Mr. Baron H., the learned judge, by further order dated the 17th day of 1876, ordered the immediate discharge of the defendant.

5. By reason of the premises the defendant was put to great annoyance, expense, and inconvenience.

The defendant claims £1000 damages for the said malicious arrest.

malicious arrest.

Malicious Prosecution (a).

Action for Malicious Prosecution on a Charge of Embezzlement

and for False Imprisonment.

Statement

of claim for malicious prose

1. The plaintiff is a manufacturer of household machinery, cution and resides at

(a) An action for malicious prosecution is given where a person acting maliciously and without reasonable or probable cause has preferred against another in a criminal Court or before a judicial officer, a charge, which in the event has been decided to be false, but which during its pendency has inflicted some injury to the property, person, or reputation of the plaintiff. The essential conditions to this action are then five :1st. A criminal charge must have been preferred before a judicial officer.

and false imprison

ment.

When an action for malicious

prosecu

tion lies,