of the testator, and to limit the right of action to six years (Townsend v. Deacon, 3 Exch. R. 706). A person gave his creditor a bill, and, before the bill arrived at maturity, went to India, whence he never returned. As soon as circumstances would permit after his death in India, his will was proved in England. A creditor's bill filed within six years after his death was held not barred (Story v. Fry, 1 Y. & Coll. C. C. 603; see Williams v. Jones, 13 East, 439; and Flood v. Patterson, 29 Beav. 295).

21 Jac. 1,

c. 16, s. 7.

EXPRESS ACKNOWLEDGMENTS.

THE STATUTE OF FRAUDS AMENDMENT ACT, 1828, ss. 1, 3, 4.

9 GEO. 4, c. 14.

An Act for rendering a Written Memorandum necessary to the
Validity of certain Promises and Engagements.

[19th May, 1828.]

§ 1. No Acknowledgment sufficient unless in Writing or by Pay

ment...233.

§ 3. Indorsements by Payee not sufficient...243.

§ 4. Limitation Act, 1623, applied to Set-off ..244.

no acknow.

deemed suffi

The stat. 9 Geo. 4, c. 14, recites the stat. 21 Jac. 1, c. 16, 9 Geo. 4, s. 3, and the Irish stat. 10 Car. 1, sess. 2, c. 6, and that various c. 14. questions had arisen in actions founded on simple contracts, as to the proof and effect of acknowledgments and promises offered in evidence, for the purpose of taking cases out of the operation of the said enactments; and that it was expedient to prevent such questions, and to make provision for giving effect to the said enactments, and to the intention thereof; and enacts (sect. 1), That in actions of debt or upon the In actions case grounded upon any simple contract, no acknowledgment of debt or or promise, by words only, shall be deemed sufficient evidence upon the case of a new or continuing contract, whereby to take any case out ledgment of the operation of the said enactments, or either of them, or to shall be deprive any party of the benefit thereof, unless such acknow- cient, unless ledgment or promise shall be made or contained by or in some it be in writ writing to be signed by the party chargeable thereby; and ing or by part that, where there shall be two or more joint contractors, or executors or administrators of any contractor, no such joint contractor, executor or administrator, shall lose the benefit of the said enactments, or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them: provided always, that nothing herein contained shall alter or Proviso for take away or lessen the effect of any payment of any principal case of joint or interest made by any person whatsoever: provided also, that in actions to be commenced against two or more such joint con

payment.

contractors.

9 Geo. 4,

c. 14, s. 1.

Old law.

(1)

ACKNOWLEDG

MENTS IN
WRITING.

Acknowledgments by

agent.

By one of several

executors.

tractors, 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, or 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.

See as to Ireland, 16 & 17 Vict. c. 113, ss. 24, 25, and 26.

From an early period, although the time limited by the Lim. Act, 1623, had elapsed, the plaintiff was permitted to prove an acknowledgment of, or promise to pay, the debt within six years, which was sufficient to entitle him to recover (3 Y. & Jerv. 522). To provide a remedy against the vague and loose verbal promises which had been allowed to take cases out of the last-mentioned Act, the Statute of Frauds Amdt. Act, 1828, was passed (6 Bing. 264).

(1) Acknowledgments in Writing...234.

(2) Acknowledgments by Payment...240.

The intention of the stat. 9 Geo. 4, c. 14, was not to make any alteration in the legal construction to be put upon acknowledgments or promises made by debtors, but merely to require a different mode of proof, substituting the certain evidence of writing, signed by the party chargeable, instead of the insecure and precarious testimony to be derived from the memory of witnesses. The inquiry, therefore, in a given case whether the written document amounts to an acknowledgment or a promise, is no other than whether the same words, if proved before the statute to have been spoken by the defendant, would have had a similar effect (Haydon v. Williams, 7 Bing. 163; see Courtenay v. Williams, 3 Ha. 549; and Moodie v. Bannister, 4 Drew. 440). Since the statute a verbal order by the trustees of a turnpike act to pay a debt was held insufficient (Emery v. Day, 1 C. M. & R. 245).

Previously to the Merc. Law Amendment Act, 1856, it was held, under 9 Geo. 4, c. 14, that an acknowledgment signed by an agent of the debtor would not revive a debt barred by the Lim. Act, 1623, but that it must have been signed by the debtor himself (Hyde v. Johnson, 2 Bing. N. C. 776; Clark v. Alexander, 8 Scott, N. R. 165; see Swift v. Winterbotham, L. R. 8 Q. B. 249; and Williams v. Mason, 21 W. R. 386). An acknowledgment signed by an agent is now sufficient (see Merc. Law Amendment Act, 1856, s. 13, post, p. 246). Thus an acknowledgment by a solicitor bound his client (Curwen v. Milburn, 42 Ch. D. 432). And an acknowledgment by one partner would probably be regarded as an acknowledgment by the firm (Lindley, Partnership, 263, 5th ed.). Compare the case of payments by one partner (Watson v. Woodman, 20 Eq. 730; Re Tucker, Tucker v. Tucker, 1894, 3 Ch. 429). Where a debt due from a company to L. was barred, and the board of directors, of whom L. was one, passed a resolution in reference to the debt, it was said, that even if the resolution had been a sufficient acknowledgment, it would not have bound the company (Lowndes v. The Garnett, &c. Co., 33 L. J. Ch. 418; 12 W. R. 573).

Since 9 Geo. 4, c. 14, one of several executors can bind the estate by an acknowledgment or promise (Re Macdonald, Dick v. Fraser, 1897, 2 Ch. 187), and after the death of the promisor payment of the debt may be ordered out of assets in hands of the surviving executors (Ib.). See before 9 Geo. 4, c. 14, Tulloch v. Dunn, 1 Ry. & M. 416; Scholey v. Walton, 12 M. & W. 514.

A written acknowledgment of a debt is an answer to a plea of the statute, though made by an infant, if the debt was for necessaries supplied to him (Willins v. Smith, 4 Ell. & Bl. 180). With regard to acknowledgments of debts and contracts of infants generally, it is provided by Infants Relief Act, 1874, s. 2, that no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age.

9 Geo. 4,

c. 14.

By infants.

An acknowledgment made to a third party will not take the case out Acknowledgof the statute (Moodie v. Bannister, 4 Drew. 439; Fuller v. Rodman, 26 ment to a Beav. 619; Grenfell v. Girdlestone, 2 Y. & Coll. Exch. 676; Tanner v. third party: Smart, 6 B. & C. 603; Stamford Banking Co. v. Smith, 1892, 1 Q. B. 765).

But an acknowledgment to the agent of the creditor will be sufficient to an agent. (Edmonds v. Goater, 15 Beav. 415).

made.

An acknowledgment made within six years before action brought is When acsufficient, although it be made more than six years after the original cause knowledgof action (Spickernell v. Hotham, Kay, 669; see Re Lane, 23 Q. B. D. 74). ment must be Compare the rule on this point as to land, ante, p. 179, and as to money charged on land, ante, p. 200. An acknowledgment made after action brought cannot be used to take a case out of the statute (Buteman v. Pinder, 3 Q. B. 574).

The legal effect of an acknowledgment of a debt, barred by the Statute Effect of an of Limitations, is that of a promise to pay the old debt, and for this acknowledgpurpose the old debt may be said to be revived. It is revived as a con- ment. sideration for a new promise. But the new promise, and not the old debt, is the measure of the creditor's right. If a debtor simply acknowledges an old debt, the law implies from that simple acknowledgment a promise to pay it, for which promise the old debt is a sufficient consideration. But if the debtor promises to pay the whole debt when he is able, or by instalments, or in two years, or out of a particular fund, the creditor can claim nothing more than the promise gives him (Philips v. Philips, 3 Hare, 299; since adopted, Buckmaster v. Russell, 10 C. B. N. S. 749; Chasemore v. Turner, L. R. 10 Q. B. 505). On this principle a mere acknowledgment of a debt, accompanied with a proposal to pay part, which has not been acceded to, is not sufficient to take the case out of this statute (Francis v. Hawkesley, 1 Ell. & Ell. 1052; 28 L. J. Q. B. 370).

The construction of an acknowledgment is a question for the court, not Construction the jury, except where the document is connected with other evidence of an acknowaffecting the construction (Morrell v. Frith, 3 M. & W. 402; Bird v. ledgment. Gammon, 3 Bing. N. C. 883; Power v. Barham, 4 Ad. & Ell. 473). The later cases have decided that the effect of a document set up as an acknowledgment is entirely a question for the court, unless extrinsic evidence is necessary to qualify or explain it (Smith v. Thorne, 18 Q. B. 140).

To prevent the right to have an account from being barred by the Acknowledgstatute, it is not necessary to have an acknowledgment that a debt is ment of pendactually due, but it is sufficient that there should be an acknowledgment ing account. that the account is pending, and a promise to pay the balance if it should be found to be against the accounting party (Prance v. Sympson, Kay,

678).

If, since the stat. 9 Geo. 4, c. 14, a defendant, by letter, admits a Amount need bulance to be due, without stating the amount, this will take the case out not be stated. of the statute, but the damages will be nominal unless the amount be proved at the trial (Dickenson v. Hatfield, 5 C. & P. 46; Bird v. Gammon, 3 Bing. N. C. 833; Archer v. Leonard, 15 Ir. Ch. Rep. 67, a promise to pay a solicitor an amount to be ascertained by taxation; Cheslyn v. Dalby, 4 Y. & C. 238, where the recitals of a deed amounted to a promise to pay an amount to be ascertained as mentioned in the deed; Dodson v. Mackey, 8 Ad. & El. 225, n.; Dabbs v. Humphries, 10 Bing. 446; Lechmere v. Fletcher, 1 C. & M. 623; Waller v. Lacy, 1 Scott, N. R. 186).

An admission by a bankrupt in his balance-sheet will not, as between Bankrupt's the creditor and the bankrupt's assignees, take a debt out of the statute balance sheet.

9 Geo. 4, c. 14.

Advertisement.

Deposition. Parol evidence.

Acknowledgment ex

empted from stamp duty. 9 Geo. 4,

c. 14, s. 8.

What a suffi

cient acknowledgment.

There must be-(a) acknowledgment, or (b) uncondi

tional promise, or (c) conditional promise and evidence of condition performed.

Instances of sufficient acknowledgments.

(Pott v. Clegg, 16 M. & W. 321); where it was also held that an admission in an unsigned letter, written and sent by direction of the assignees of a bankrupt, by an accountant employed by them to wind up the affairs of the bankrupt estate, would not take a debt of the bankrupt out of the statute (see Everett v. Robertson, 1 Ell. & Ell. 16, and Ex p. Topping, 34 L. J. Bk. 44).

An advertisement under Law of Prop. Amendment Act, 1859, s. 29, to creditors to bring in their claims will not take a debt out of the statute (Re Stephens, Warburton v. Stephens, 43 Ch. D. 43). So in the case of advertisements before that act (Scott v. Jones, 4 Cl. & Fin. 382).

An admission in cross-examination, and appearing in a signed deposition, may amount to an acknowledgment (Re Beynon, 1873, W. N. 186). Where a written promise to pay a debt barred by the statute has been lost, parol evidence of the contents of the writing is admissible (Haydon v. Williams, 7 Bing. 163) But it is doubtful whether the date of the written acknowledgment can be supplied by oral evidence (Edmunds v. Downes, 2 C. & M. 459).

No memorandum or other writing made necessary by 9 Geo. 4, c. 14, shall be deemed to be an agreement within the meaning of any statute relating to the duties of stamps (9 Geo. 4, c. 14, s. 8; 16 & 17 Vict. c. 113, s. 27, Ir.). Under this section the following memorandum :"I acknowledge to owe to M. 361., which I agree to pay him as soon as circumstances will permit," is exempt from stamp duty, as a writing made necessary by that statute, provided it be put in for the mere purpose of barring the statute, the debt itself being proved by other evidence (Morris v. Dixon, 4 Ad. & Ell. 845). When the parties mean to make an instrument solely to prevent the operation of 9 Geo. 4, c. 14, they must take care not to import into it terms which will make it liable to stamp duty as a promissory note. A promissory note, improperly stamped, is not admissible as a memorandum to take a case out of the statute under the 9 Geo. 4, c. 14, s. 8; that section applies only to instruments which might be stamped with an agreement stamp (Jones v. Ryder, 4 M. & W. 32; see also Parmiter v. Parmiter, 3 D. F. & J. 461).

A mere acknowledgment is not sufficient to take a case out of the statute, unless there be a promise to pay; 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, an implication will not arise (Tanner v. Smart, 6 B. & C. 602). A statement of inability to pay does not per se exclude the implication of a promise (Firth v. Slingsby, 58 L. T. 485). In Smith v. Thorne (18 Q. B. 134, 139), Parke, B., said, "the acknowledgment must be consistent with an intention to pay, either on request, or else (which practically comes to the same thing) at the end of a particular period which has elapsed, or on some condition which has been fulfilled" (cited by Hill, J., Everett v. Robertson, 1 Ell. & Ell. 20). "There must be, in order to take the case out of the statute, one of the three following things: either there must be an acknowledgment of the debt from which a promise to pay it must be implied or secondly, there must be an unconditional promise to pay the debt or thirdly, there must be a conditional promise to pay the debt in writing, and evidence that that condition has been performed" (Mitchell's Claim, 6 Ch. 828).

The following letters written by debtors have been held to be sufficient acknowledgments of debts from which a promise to pay must be implied:"In regard to your statement of account received, I am ashamed the account has stood so long, I must beg to trespass on your kindness a short time longer" (Cornforth v. Smithard, 1 H. & N. 13). "I have received your bill, it does not, I think, specify sufficiently to which cottages the work is done. I shall feel obliged if you will more particularly explain, and take your agreements to Mrs. H. (the defendant's agent). It is my wish to settle your account immediately, but being at a distance I wish everything very explicit and correct. I have asked Mrs. H. to mark the agreements, and send them to me, and I will return

them by first post, with instructions to pay, if correct" (Sidwell v. Muson, 2 H. & N. 306). "When the policy is paid on the 29th October, I hope that you will have whole of your account ready for me as I hope to be with you on that day": followed by a second letter, "Oct. 25, Mr. V., when here on Saturday, stated that the amount due against me was about 2801.; of course this includes the 1007. and interest that I had some years since, and the 40l. promissory note that I jointly signed with the late Mr. B." (Godwin v. Culley, 4 H. & N. 373). "I am sure that I am anxious to get out of your debt. I will endeavour to send you a little next week" (Lee v. Wilmot, L. R. 1 Ex. 364). "I shall be obliged to you to send in your account made up to Christmas last. I shall have much work to be done this spring, but cannot give further orders till this be done": followed by another letter, "I again beg of you to send in your account" (Quincey v. Sharpe, 1 Ex. D. 72). A request for the delivery of " any unsettled bill" (Curwen v. Milburn, 42 Ch. D. 424). The usual submission, in a petition for taxation, to pay what shall be found due (Re Margetts, 1896, 2 Ch. 263). An indorsement by the maker of a promissory note, with his name, together with the date, upon the note (Bourdin v. Greenwood, 13 Eq. 281). So where a first mortgagee who had sold the property, wrote to the second mortgagee enclosing account showing balance after payment of first mortgage, and offered explanation (Banner v. Berridge, 18 Ch. D. 254, see 274).

S. borrowed of J. 2007. upon promissory notes, and a year afterwards remitted to J. 107. on account of the interest due, and sent him a bill of 177. for goods. J., by note, acknowledged the 107. and the bill and stated that he placed both sums to the credit of S., and requested S. to receipt the bill and return. In an action for the 177., it was held, that the above letter took the case out of the statute (Evans v. Simon, 9 Exch. 282).

9 Geo. 4,

c. 14.

The following were held to be unconditional promises to pay:-"I hope Unconditional to be in H. very soon, when I trust everything will be arranged with promises. Mrs. W. agreeable to her wishes" (Edmonds v. Goater, 15 Beav. 415; see Fuller v. Redman, 26 Beav. 620). "I shall repeat my assurance to you of the certainty of your being repaid your generous loan. Let matters remain as they are a short time and all will be right" (Collis v. Stack, 1 H. & N. 605, in which case it was said that the question in these cases is, whether the statement as to the time of payment is merely an excuse, or the condition on which payment is to be made). Show this letter to Mrs. W., and tell her the claim has not been forgotten by me, and shall be liquidated at the earliest opportunity" (Wilby v. Elgee, L. R. 10 C. P. 497). "The old account between us, which has been standing over so long, has not escaped our memory, and as soon as we can get our affairs arranged, we will see you are paid" (Chasemore v. Turner, L. R. 10 Q. B. 500). "If you send me the particulars of your account with vouchers, I shall have it examined, and cheque sent you for the amount due, but you must be under some great mistake in supposing that the amount due to you is anything like the sum you now claim" (Skeet v. Lindsay, 2 Ex. D. 314).

In 1834, A. gave B. a promissory note payable on demand. Demand having been made, but neither principal nor interest having been paid, in 1848 A. wrote to B. a letter referring to a promissory note for a debt which he acknowledged and promised thereby to pay. It was held, that in the absence of proof of the existence of any other promissory note to which it could relate, the letter of 1848 must be taken to refer to the promissory note, and thus to take it out of the statute (Spickernell v. Hotham, Kay, 699).

The following is an instance of a conditional promise to pay, the condi- Conditional tion having been performed. A debtor wrote to his creditor, "I will pay promises. you as soon as I get it in my power: before I cannot." Held, that time Condition commenced to run when the debtor became of ability to pay, and not performed. before (Hammond v. Smith, 33 Beav. 452; see Waters v. Thanet, 2 Q. B. 757, ante, p. 228; Buccleugh v. Eden, 61 L. T. 360).

See also Archer v. Leonard (15 Ir. Ch. R. 267); Leland v. Murphy (16