UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 A 
 
 TREATISE 
 
 ON THE 
 
 LIMITATION OF ACTIONS, 
 
 AS AFFECTING 
 
 ifcttrcauttte an& otljtr ©ontrartg, 
 
 WITH 
 
 THE IMPORTANT CHANGES THEREIN 
 
 OCCASIONED 
 
 BY SEVERAL LATE DECISIONS, 
 
 AND BY 
 
 LORD TENTERDEN'S ACT, 9 GEO. IV. C. 14. 
 
 with 
 
 ^rartual ©ftjStrbattong 
 
 ON THAT AND OTHER RECENT STATUTES REQUIRING 
 WRITTEN ENGAGEMENTS, 
 
 A N D 
 
 RESPECTING VARIANCES. 
 By JAMES JOHN WILKINSON, Esq. 
 
 OF GRAY'S INN. 
 
 LONDON: 
 
 S. S\\ KIT, ::, (II WCF.RY LANK; A. MAXWELL, :\1, BELL YARD; AND 
 STEVENS LND SONS, 39, BELL YARD; 
 
 tlato Uoofesrllrrs antr UJublisTins : 
 
 AND R. MILLIKEN WD SON. DUBLIN. 
 
 1829.
 
 T y 
 h . 1 5 
 
 mi 
 
 London : Prime.) bv C. Roworlh, 
 BMI Yard, Temple Har.
 
 TO 
 
 THE RIGHT HONOURABLE 
 
 CHARLES LORD TENTERDEN, 
 
 LORD CHIEF JUSTICE OF ENGLAND, 
 SfC. Sfc. Sfc. 
 
 THIS TREATISE 
 is 
 
 (by his lordship's permission) 
 most respectfully dedicated 
 by his obliged and obedient servant, 
 
 THE AUTHOR. 
 
 -7?31 U U
 
 PREFACE 
 
 1 HE late decisions on the Statute of Limitations, 
 21 Jac. I. c. 16, and the provisions of the new 
 Statute, 9 Geo. IV. c. 14, (founded on a bill 
 brought into Parliament by Lord Tenterden, the 
 present Lord Chief Justice of England,) having 
 worked great and important changes (more or 
 less obvious) in the Law respecting the Limita- 
 tion of Actions in mercantile and other contracts, 
 (a branch of the law affecting almost every person 
 in England and Ireland), the Author was induced, 
 in the course of his professional duties, to make 
 this the subject of his particular consideration, 
 and the result of his labours is now offered to his 
 profession and the public. 
 
 The Common Law respecting actions for debts 
 and demands of long standing is first treated of, 
 and then the reason of the non-existence of a 
 Statute of Limitations of personal Actions till 
 1623, in the reign of King James I. which does 
 not appear to have been before fairly accounted 
 for. — The Statute, 21 Jac. I. c. 16, has been com- 
 mented upon and the Actions included in it (1). 
 
 (1) Chap. I. 
 
 a 2
 
 VI PREFACE. 
 
 The new Statute, 9 Geo. IV. c. 14, generally 
 speaking, requires the promise or acknowledg- 
 ment, to take a case out of the Statute of Limita- 
 tions, to be in writing. ; without such promise or 
 acknowledgment the Statute, 21 Jac. I. c. 16, 
 would be a bar to any action unless the case be 
 brought within some of the exceptions in that 
 Statute, or in the new Statute, many of the ex- 
 ceptions (by the operation of the new Statute) 
 therefore become of considerable importance; and 
 eases are now likely frequently to arise upon them. 
 
 The exceptions are — 1st. That relating to Spe- 
 cialties (1), &c. 2d. The important and very diffi- 
 cult exception relating to Merchants' Accounts (2) ; 
 which is considered much in detail ; it was in- 
 tended, and may now be so construed as to afford 
 considerable protection to the commercial interests 
 of the country (3). 3d. The exception in favour 
 of Infants and persons under disability (4) ; and 
 4th. The exception allowing a new action after 
 error, &c. (5). 
 
 The times limited for bringing actions are next 
 considered, and when they begin and when they 
 end, and the various constructions given from 
 time to time to the Statute of Limitations in 
 favour of just debts, by permitting the Plaintiff 
 
 (1) Chap. I. privilege was allowed to mcr- 
 
 (:'.) Chap. II. chants by the old French law. 
 
 ! am informed a similar (I) Chap. III. 
 
 'hap. III.
 
 PREFACE. VII 
 
 (notwithstanding the strong words and intention 
 of the Statute of Limitations, 21 Jac. I. e. 1(>, § 3,) 
 to recover, if lie could bring forward the proof 
 of a promise, or even the most trifling acknow- 
 ledgment within six years, to evade the Statute 
 or take the case out of its provisions (1). 
 
 The late highly important decisions on promises 
 and acknowledgments, overruling many prior cases 
 and showing the inclination of the Courts at pre- 
 sent " to bring back the construction so as to 
 give effect to the Statute and the (real) intention 
 thereof," are also fully stated and considered (2). 
 
 Our more prudent ancestors, both before and 
 after the Statute of Limitations, 21 Jac. I. c. 16, 
 appear to have generally obtained from their 
 debtors securities for their debts ; these, it is evi- 
 dent, would not have been given till after accounts 
 had been fairly examined and the balance agreed 
 to by both parties ; but when it was held that 
 acknowledgments even of the most trifling nature 
 were sufficient to take the case out of the Statute, 
 then a more formal security was considered unne- 
 cessary by both creditors and debtors, and the 
 interests of both frequently suffered by the defects 
 and uncertainty of the parol evidence of trans- 
 actions of long standing, and particularly respect- 
 ing the amount of the sum due and the promise 
 or acknowlegment ; and, no doubt, "great reason 
 
 (1) Chap. IV. (2) Chap. V.
 
 fill PREFACT.. 
 
 given for perjury," a crime which, even so early 
 as the reign of Queen Elizabeth, was considered 
 to have been frequently committed (1); and was, 
 no doubt, (and it is a melancholy reflection,) one 
 principal reason of the new Statute, 9 Geo. IV. 
 c. 14, with the Statute of Frauds, 29 Car. II. 
 c. 3, and other important Statutes, requiring en- 
 gagements to be in writing, " which cannot err." 
 The new Statute requiring (as observed before) 
 the promise or acknowledgment to take the case 
 out of the Statute of Limitations to be in writing, 
 it will have a highly beneficial effect, if it should 
 lead to the good old practice of taking securities 
 with all its concomitant advantages. 
 
 After some observations on securities (2), the 
 new Statute is considered much in detail in two 
 Chapters (3) ; and then the mode of taking advan- 
 tage of the Statute of Limitations by plea, &c. (4). 
 
 The remainder of this Book is dedicated to 
 practical Observations on several recent Statutes im- 
 portant to the Common Lawyer, including the rest 
 of the Statute, 9 Geo. IV. c. 14, § 5, of Promises 
 in case of Infancy (5) ; § 6, of Fraudulent Repre- 
 sentations of Character and Credit (6) ; § 7, of 
 the extension of the Statute of Frauds, 29 Car. II. 
 
 (1) See the resolution of the (3) Chap. VI. and VII. 
 Judges of England, Sladcs case, (4) Chap. VIII. 
 
 •1 Rep. 95, post, xvi. 5. (5) Chap. IX. 
 
 (2) Chap. VI. (6) Chap. X.
 
 PREFACE. IX 
 
 c. 3, § 17.(1), to certain Executory Contracts. 
 The other Sections follow — § 8, (concerning 
 Stamps) ; § 9, (Scotland) ; and § 10, fixing the 
 time when the new Statute, 9 Geo. IV. c. 14, was 
 to commence and take effect, which has given rise 
 to questions seriously affecting the interest of cre- 
 ditors and debtors, how far the Statute be re- 
 trospective, not only as to the remedy, but, in 
 some respects, as to the contract and prior vested 
 right of the creditor (2) ; the Law respecting new 
 promises by Bankrupts and Insolvent Debtors, 
 including some recent Statutes little known to 
 the profession. Lastly, the important Statute, 
 9 Geo. IV. c. 15, (another of Lord Tenterderis Acts,) 
 to prevent a failure of justice by variances (3). 
 The method generally adopted has been, like the 
 ancient readings, to treat of the Common Law, or 
 Law before each of these Statutes, and the change 
 made by the Legislature, with a Commentary. 
 
 No pains have been spared to render the Book 
 useful, and every effort has been made to put the 
 profession in possession of all the recent cases 
 that could be obtained from the printed books, 
 and many from MS. notes, upon the important 
 subjects treated of in these pages. 
 
 1, Pump Court, Temple, 1st November, 1829. 
 
 (1) Chap. XI. (3) Chap. XIV. 
 
 (2) Chap. XII.
 
 CONTENTS. 
 
 CHAPTER. I. 
 
 Of the Common Law before the Statute of Limitation, 21 Jac. I. 
 c. 16, and of that statute, § 3 Page 1 
 
 CHAPTER II. 
 
 Of the Exceptions as to Merchants' Accounts in the above 
 Statute 17 
 
 CHAPTER III. 
 
 Of the Remaining Exceptions in the Statute 37 
 
 CHAPTER IV. 
 
 Of the Limitations of Actions, and of the Acknowledgments 
 and Promises to take the case out of the Statute of Limita- 
 tions 44 
 
 CHAPTER V. 
 
 Of Acknowledgments and Promises, continued . ... 63 
 
 CHAPTER VI. 
 
 Of the New Statute, 9 Geo. IV. c. 14, § 1, 2, 3, 4 . . . 7(> 
 
 CHAPTER VII. 
 
 Of the Statute 9 Geo. IV. c. 14, § 1, 2, 3, 4, continued . 90 
 
 CHAPTER VIII. 
 
 Of the Modes of taking advantage of the Statute of Limita- 
 tions 10 1
 
 Xll CONTENTS. 
 
 CHAPTER IX. 
 
 Of the Statute 9 Geo. IV. c. 14, § 5, as to Promises in Writing 
 after Full Age to pay Debts contracted during Infancy 116 
 
 CHAPTER X. 
 
 Of the Statute 9 Geo. IV. c. 14, § 6, respecting Representations 
 in writing of Character and Credit 121 
 
 CHAPTER XI. 
 
 Of Executory Contracts under the Statute of Frauds, and of 
 the Statute 9 Geo. IV. c. 14, § 7 128 
 
 CHAPTER XII. 
 
 Of the Statute 9 Geo. IV. c. 14, § 8, 9, and 10 . . . .133 
 
 CHAPTER XIII. 
 
 Of New Promises by Insolvent Debtors and Bankrupts . 148 
 
 CHAPTER XIV. 
 
 Of the Statute 9 Geo. IV. c. 15, respecting Variances . . 157 
 
 Appendix 163
 
 NAMES 
 
 CASES REFERRED TO. 
 
 A. 
 
 PAGE. 
 
 A'Court r. Cross 67, 74, 89 
 
 Alexander v. Comber 130 
 
 Ames and another v. Milward .. 124 
 
 Anmer v. Cattle 143 
 
 Anderson v. Sanderson 62 
 
 Anon. 8, 15, 53, 60, 137, 145, 147, 
 
 149, 159. 
 
 Ansell v. Ansel] 145 
 
 Arnold v. Webb 20 
 
 Asblin v. White 124 
 
 Astrey's case 23 
 
 Atkins and others v. Trcadgold 
 
 and others 93, 96 
 
 Attorney-General v. Panter .... 131 
 Ayton p. Bolt 61, 67, 152 
 
 B. 
 
 Baillie v. Lord Incbiquin 55 
 
 Baker v. Sydee 153 
 
 Baldwin's Executors v, Clarke .. 87 
 
 Ball r. Hesketh 116 
 
 Barber ». Barber 30, 31, 33,35 
 
 Baring and others r. Corri and 
 
 another 31 
 
 Barnardiston v. Coupland 150 
 
 Battv and another r. Faulkner . . 46 
 
 PAGE. 
 
 Beal v. Nind 60 
 
 Belloix (Dii) i'. Lord Water- 
 park 107, 108 
 
 Benson v. King 112 
 
 Benyon v. Evelyn 11, 12, 51, 53 
 
 Best v. Barker 151, 153 
 
 Bicknell v. Keppell 59, 73 
 
 Bigg v. Roberts and another. ... 9 
 
 Birch v. Sbarland 151 
 
 Blackettt'.Wall 9 
 
 Blackmore v. Tidderley 2 
 
 Bland v. Haselrig and others . . 53, 
 90, 92, 93, 94, 111 
 Bosworth and another v. Cotcbett 
 
 88, 98, 99 
 
 Bradsbaw v. Cogblan 69 
 
 Brandrani v. AVbarton 92, 93, 95 
 
 Bree v. Holbecb 115 
 
 Bridges v. Mitchell 23 
 
 Brix v. Braham 151, 152 
 
 Bromwich v. Lloyd 78 
 
 Brook v. Davies 58 
 
 Brown v. Hancock 106 
 
 v. Harraden 79 
 
 — v. Howard 48, 1 15 
 
 Bryan v. Horseman 59, 69 
 
 Bulleru. Cripps 78,79 
 
 Burley r. Stott 88,94
 
 XIV 
 
 NAMES OF CASES REFERRED TO. 
 
 C. 
 
 PAGE. 
 
 Carpenter v. White 151, 153 
 
 Carr ex parte 1 23 
 
 Carj' and wife v. Stephenson. ... 49 
 
 Castles v. Merchant Ill 
 
 Catling v. Skoulding 34, 57 
 
 Caton's case 39 
 
 Chandler t>. Villet 1 1 , 39, 40, 1 1 3 
 
 Cheveley v. Bond 40 
 
 Christie v. Fonseck 46, 81 
 
 Christopher t;. Spark 9 
 
 Churchill i'. Crease 141 
 
 Clarke v. Bradshaw 60 
 
 v. Hougham 56, 115 
 
 Clayton v. Andrews 130, 131 
 
 . v. Gosling 80 
 
 Cochran v. Spillar 137, 139, 146 
 
 Cockram, Executor, v, Welby . . 16 
 
 Cohen v. Armstrong 120 
 
 Coles v. Emerson 9 
 
 Colls v. Lovell 151, 152 
 
 Colledge v. Horn 56 
 
 Collins v. Bennings 45 
 
 Collyerv. Willock 117 
 
 Coltman v. Marsh 60 
 
 Constable v. Somerset 8 
 
 Cooper v. Elston 129 
 
 ». Turner, Dame 9, 107 
 
 Cotes v. Harris and another, i>5, 34, 35 
 
 CotterelU'. Dutton 51 
 
 Cottons, Sir Thomas's, case .... 42 
 Couch, qui tarn, v. Jefferies .... 139 
 
 Coweth ». Fothergill 57 
 
 Coxr.Rolt 112 
 
 Craig v. Cox 59 
 
 C ranch, Executrix, v. Kirk man, 26, 57 
 
 Crawford v. Liddell 33 
 
 Crosby v. Wadsworth 14 
 
 Crosier v. Toralinson 11 
 
 D. 
 
 Davies v. Smith 61 
 
 De la Torre v. Barclay 124 
 
 Dick and vnft i . Gourney 46 
 
 Dickson i . Thompson 53 
 
 rAcr. 
 
 Doe d. Duroure v. Jones 51 
 
 Doe d. Griggs and another v. 
 
 Shane 51 
 
 Doe v. Jesson 51 
 
 Douglass and another v. Forrest, 
 
 Executor 50 
 
 Dowthwaite V. Tibbutt 57, 69 
 
 Draper v. Glassop 106 
 
 Drinkwater r. Claridge 112 
 
 Duff v. East India Company . .33, 35 
 
 Duffield v. Creed 9, 107,108 
 
 Dyson v. Wood 3 
 
 E. 
 
 Easterby v. Pullen 60 
 
 East India Company v. Prince. . 128 
 
 Edgcomb v. Dee 5, 6, 9 
 
 Elmore v. Kingscote 156 
 
 v. Shuter 137, &c. 
 
 Erskiue i. Murray 78 
 
 Evans i. Verity 59, 122 
 
 Eyre v, Dunsford 121, 122, 124 
 
 F. 
 
 Fairclaim v. Little 50 
 
 Farrington v. Lee . . 1 2, 18, 32, 34, 1 14 
 
 Finch t\ Lamb 43 
 
 Fincham v. Hobbs 19 
 
 Fladong r. Winter 9, 107 
 
 Flemming r. Hayne 15'J 
 
 Forster v. Hodgson 28, 35 
 
 Freeman v. Stacey 16 
 
 Frost v. Bengough 57, 69, 132 
 
 Froysell v. Lewellyn 128 
 
 G. 
 
 Gage v. Bulkely 10 
 
 Garbutt v. Watson 129, 130, 131 
 
 Geofry v. Thorn 9 
 
 Gilmore v. Shuter .... 137, &c. 146 
 
 Gihnour 0. Shuter 137, &c. 
 
 Gillmour o. Executor of Shooter. . 1.37, 
 &c.
 
 \ \Mi s oi ( \sr;s REFERRED I O. 
 
 W 
 
 PAOB. 
 
 Glynn v. Bank of England 99 
 
 Goden v. Ferris 45, 47 
 
 Godfrey c. Saunders 114 
 
 Gould v. Johnson 45, 110 
 
 Granger v. George 49 
 
 Green v. Crane 72 
 
 ». Parker 117 
 
 t>. Rivett 12 
 
 Gregory v. Parker 128 
 
 v. Ilurrill 28,41 
 
 Groves t . Buck 130 
 
 II. 
 
 Hall i. Wyburn 40 
 
 Halliday r. Warde 94 
 
 Hallinger r. Shaw 60 
 
 I lam v. Raynell 82 
 
 I lamer v. Alexander 125 
 
 Ilarwood i'. Lome 12 
 
 Harmeri. Killing 117,118 
 
 Hawkins v. Billhead 106 
 
 Haycroft v. Creasy 121, 122, 125 
 
 Henmiings r. Robinson . . 91,92, 191 
 
 Hillings v. Shaw 126 
 
 Hodsden v. Harridge. .13, 16, 43, 46, 
 101,104, 105, 113,139 
 
 Holnie v. Green 96 
 
 Holmes i . Kerrison 81, 82 
 
 < . Wright 147 
 
 Honey r. Honey 21 
 
 Horton v. Moggridge 153 
 
 Howell v. Young 49 
 
 Hubert v. Moreau 89, 156 
 
 Hurst v. Parker 69 
 
 Hutchinson v. Bell 126 
 
 Hutt v. Verdier 151 
 
 Hyleing u. Hastings. . 54, 70, 73, 90, 
 152 
 
 I.J. 
 
 Jackson v. Davison 153 
 
 v. Fairbank 95 
 
 JolitFe v. Pitt 49 
 
 Jones b. Pengree 33, 36 
 
 v. Pope 15 
 
 K. 
 
 PAOJt. 
 
 Keel'e v. Arclideken 7k 
 
 The King v. Morrall. . 10, 13, 11, I .. 
 
 II I 
 
 v. Sparrow 140" 
 
 King v. Walker 12, 41 
 
 ('.Williams 3 
 
 Kinsey v. Hay ward 43 
 
 Kirkhaugh v. Herbert 145 
 
 Knott v. Farren 58, 121 
 
 L. 
 
 Lambert v. Taylor 14, 1 1 1 
 
 Lara v. Bird 117 
 
 Latless, executrix, and another, v. 
 
 Holmes 134, 13;, 
 
 Lawrence v. Worrall 56 
 
 Leaper v. Tatton o i J 
 
 Lee v. Clarke 104 
 
 Leigh and wife v. Thornton .... 15 
 
 Lethbridge v. Chapman 43 
 
 Lewis v. Chace 150 
 
 Linbuy v. Weightman 152 
 
 Lloyd v. Maund 55, 65, 69 
 
 London, (City 0/',) v. Wood .... 3 
 
 — , (Mayor of,) v. Wilks . . 22 
 
 Long v. Greville 61, 117 
 
 Lonsdale, (Earl,) v. Littledale .. 166 
 Loweth v. Fothergill 120 
 
 M. 
 
 Macdonald v. Mncdonald 115 
 
 Macfadzen v. Oliphant 114 
 
 Maddocks 0. Holmes 112 
 
 Magrave >-. Gilbourne I.> 
 
 Manton 11. Sculthorpe 72 
 
 Marston v. Cleypole and another 23 
 Marten v. Bridges and Elmore. . 95 
 
 Martin v. Delboe 32 
 
 Mathew v. Phillips 43 
 
 Mavor v. Pyne 39 
 
 Middleton, (Lord,) v. Forbes and 
 
 wife 13
 
 XVI 
 
 NAMES OF CASES REFERRED TO. 
 
 PAGE. 
 
 Miller v. Caldwell 59 
 
 Morgan v. Lewis 31 
 
 Mountstephen v. Brook . . 13, 69, 89 
 Murray v. East India Cornp.. 50, 52 
 
 N. 
 
 Nightingale v. Adams 41 
 
 0. 
 
 Ord v. Ruspini 114 
 
 Oswald v. Legh 8 
 
 P. 
 
 Palethorp o. Furnish 128 
 
 Pasley v. Freeman.. 121, 122, 123, 
 
 124 
 
 Pearson v. Garrett 78 
 
 Penn v. Bennett 152 
 
 Perham v. Raynall 94 
 
 Perry -and others v. Jackson, (Bart.) 
 
 38, 41 
 
 Petrie v. White 105 
 
 Pinkney v. Hall 78 
 
 Pittam v. Forster 72, 96 
 
 Powel v. Peirce 110 
 
 Pratt v. Swaine 109 
 
 Prideaux v. Webber 38, 51 
 
 Puckle v. Moore 109 
 
 Q. 
 
 Quantock i . England 55, 105 
 
 R. 
 
 Reeves v. Lambert 153 
 
 Remington v. Stevens 113 
 
 Renew v. Axton 19 
 
 Richardson v. Fenn 55 
 
 Rider v. Malbon 160 
 
 Robarts v. Robarts 57 
 
 Roberts v. Morgan 151 
 
 PAGE. 
 
 Rogers v. Kingston 153 
 
 Rondeau v. Wyatt 130, 131 
 
 Rose v. Bryant 99 
 
 Rowcroftv. Lomas. . 59, 69, 124, 153 
 Rucker v. Hannay 56, 112 
 
 S. 
 
 Sandys v. Blodwell 32 
 
 Sareli-. Wine 72 
 
 Sarsfield v. Witherley 78 
 
 Scales v. Jacob 26 
 
 Scott v. M'Intosh 20 
 
 Scudamore v. White 32, 33 
 
 Sendall's case 136 
 
 Serle v. Lord Barrington 98 
 
 Shillitoe v. Horsfall 8 
 
 Sherman v. Sherman 24, 32 
 
 Sherwin v. Cartwright 12, 106 
 
 Short v. M'Carty 47 
 
 Skime v. Meyricke 19 
 
 Slade's case* 5, 6 
 
 Smith v. Bromley 150 
 
 Snode v. Ward 51 
 
 Snook v. Mears 130 
 
 Somner v. Brady 150 
 
 Southerton v. Wbitlock. . . . 116, 150 
 
 Speake v. Richards 20 
 
 Stadholm v. Hodgson 112 
 
 Staflbrd v. Rowntree 112 
 
 Stanford's case 49 
 
 Slethorst v. Gramme 41 
 
 Steward v. Budger 15 
 
 Sturt v. Mellish 24 
 
 Style v. Finch 100 
 
 Sutton v. Toomer 79 
 
 Swan v. Sowell 60, 69 
 
 Swayn v. Stephens . . 11, 40, 44, 49 
 
 T. 
 
 Talory v. Jackson 16 
 
 Tanner v. Smart .... 61, 68, 74, 152 
 
 Tapp v. Lee 1 26 
 
 Taylor v. Buchanan 153 
 
 4 Rep. 95. 1 MS. Rep. temp. Eliz. 130. S.C. (this MS. is in my possession.)
 
 NAMES OF CASES REFERRED TO. 
 
 XVU 
 
 PAGE. 
 
 Tcrrington v. Hargreavcs Ml 
 
 Thompson v. Bond 122, 125 
 
 Thompson v. Osborn 61 
 
 Thornton v. Illingworth 117 
 
 Thorp v. Combe 46, 80 
 
 Thorpe and others v. Booth .... 81 
 
 Thrapp v. Fielder 119 
 
 Tickets v. Short 34 
 
 Tomkins v. Ashby 58 
 
 Tophani V. Braddick 31 
 
 Towers v. Osborne. . . . 129, 130, 131 
 
 Towler v. Cliatterton 120, 146 
 
 Trankersley v. Robinson 106 
 
 Triggs v. Newnham 55, 57 
 
 Trueman v. Fenton .... 55, 150, 152 
 
 Turner v. Crisp 99 
 
 Turner v. Sliomberg 149 
 
 Twiss v. Massey 149 
 
 W. 
 
 VVace v. Wyburne 25 
 
 Walker n. Witter 6 
 
 l'AOE. 
 
 Walmsley v. Child 46 
 
 Ward v. Hunter 72 
 
 Warren v. Consett 16 
 
 Webb r. Hill and another 159 
 
 v. Martin 1 irj 
 
 Webber v. Tivell 17,114 
 
 Webster v. Webster 50 
 
 Welford i'. Lid dell 33 
 
 Whitcomb v. Whiting. .. 90, 99, 9 !. 
 94, 95 
 
 White i'. Lady Lincoln 3l 
 
 Wilchkin v. Gahan 45, 47 
 
 Wilcocks r. Huggins 43 
 
 Willett r. Atterton Ill 
 
 Williams v. Dyke and others. . . . 152 
 
 v. Jones 2, 7, 14, 27 
 
 Willis v. Newham 86 
 
 Wilson and anotlter v. Kemp .... 153 
 Wych v. East India Company .. 39 
 Wynne v. Waring 9 
 
 Y. 
 
 Yea t;. Fouraker. . . . 55,69, 117,215
 
 TREATISE 
 
 LIMITATION OF ACTIONS. 
 
 CHAPTER I. 
 
 OF THE COMMON LAW, BEFORE THE STATUTE 21 JAC. 1, 
 C. 16, AND OF THAT STATUTE. 
 
 i\T Common Law there was not any limitation to actions 
 on contracts, though with respect to wrongs the maxim 
 actio personalis moritur cum persona (1), confined the 
 action to the life of the parties : for it is a principle of the 
 common law, that if an injury were done either to the 
 person or property of another, for which damages only 
 could he recovered in satisfaction, the action died with 
 the person by whom and to whom the wrong was done. 
 
 Lord Holt and Lord Ellenborough say expressly, that 
 at common law a man might bring his action at any 
 
 (1) See the late Mr. Serjeant maxim. Wheatly v. Lane, 1 Saund. 
 Williams's excellent note on this R. 21G.
 
 2 OF THE COMMON LAW 
 
 time (1); and the latter adds, the suitor had an unlimited 
 right of suit till restrained by the Statute of Limitations ; 
 it was a maxim, that " a right never dies;" and it was 
 urged against the Statute of Limitations, that it had taken 
 away the common law. 
 
 It appears, both from the testimony of Lord Coke (2) 
 and from a review of the cases in the old books, that an- 
 ciently personal actions were seldom brought, and indeed 
 demands to the amount of forty shillings, (which would 
 include most of the demands not secured by the prudence 
 of our ancestors by single bill, bond, or statute,) were 
 required to be brought in the county and other inferior 
 courts, so that in times when little credit was given there 
 would be very few actions on simple contracts in the superior 
 courts, and it is probable, that persons living in the same 
 neighbourhood, in which there was little change, from the 
 difficulty of travelling from place to place, and still more 
 of removing families, would frequently meet, and demands 
 would be more regularly settled or secured than they are 
 at present. 
 
 In cases of simple contract, the ordinary action formerly 
 was the action of debt ; and though there were no limita- 
 tions of time at common law, yet our ancestors had 
 adopted an expedient by which the action was kept 
 within due bounds, so that no statute of limitations was 
 considered to be necessary (3) so long as the subject re- 
 
 (1) Blackmore v. Tidderley, 2 found it necessary, as Merlon, 20 
 Ld. Raym. 1100. 2 Salk. 423. Hen. III. c. 8. West. 1st, 3 Edw. 
 Williams v. Jones, 13 East It. 449. I. c. 39. Winlon, 13 Edw. I. st. 2. 
 But see Brae. lib. 2, f. 428, contra, c. 1. 13 Edw. I. st. 2. c. 6. 
 
 (2) 2 Inst. 95. 1 Rich. II. c. 12. 4 Hen. VII. c. 
 
 (3) Our ancestors had, before the 24. 7 Hen. VIII. c. 3. 32 Hen. 
 21 Jac. I, frequently resorted to MIL c. 2. 27 Eliz. c. 13. 31 
 statutes of limitation, where they Eliz. c. 5.
 
 AND STAT. 21 JAC I. C. 16. S 
 
 sorted to that action only: this was by the wager of law, 
 by which the defendant was allowed to plead, thai he did 
 not owe the debt, and rely upon what was termed his law, 
 and (for proof under the plea) was allowed to take an^ 
 oath that he owed not the debt nor any penny thereof, 
 but, in addition, he was required in confirmation of his 
 oath to bring with him eleven persons (1) of his neigh- 
 bours, to avow upon their oaths, that in their consciences 
 he said truth. 
 
 Wager of law did not lie where there was a specialty or 
 deed to charge the defendant, but when it grew by word, 
 so as he may have paid or satisfied the party in secret, 
 whereof the defendant had no testimony of witnesses (2) ; 
 or as Sir William Blackstone says (3): " For our ancestors 
 considered that there were many cases, where an innocent 
 man of good credit might be overborne by a multitude of 
 false witnesses, and therefore established this species of 
 trial by the oath of the defendant himself; for if he will 
 absolutely swear himself not chargeable, and appears to 
 be a person of reputation, he shall go free and for ever 
 acquitted of the debt or other cause of action." 
 
 This was the only mode of trial originally in courts- 
 baron, and no doubt prevailed much in the county as well 
 as in the superior courts (4). 
 
 There are several reasons given for the wager of law ; 
 in a celebrated case (5) Hat sell, Baron, says " it lies not 
 where there is a specialty or deed to charge the defend- 
 ant; but only where the cause of action is a bare parol 
 transaction, which, as it may create a duty, yet it is such 
 
 (X) Sed qucere the number; see (4) 2 Inst. 142. I'er Littledale, 
 
 King v. Williams, 4 Dowl. & Ryl. J. Dyson v. Wood, 3 Barn. Sc 
 
 3. ('. 453. 5 Dowl & R. 295. S. C. 
 
 (2) Co. Litt. 295 (a). (5) City of Loudon v. Wood, 12 
 
 (3) 3 Bl. Com. 341. Moil. 609.
 
 4 OF THE COMMON LAW 
 
 a duty as may be discharged in the same manner it is 
 contracted ; the presumption of law is, that no one for 
 worldly consideration will forswear himself. It is an ar- 
 gument, that the matter is of no great value, that the 
 plaintiff did not take care to have better security for his 
 debt than the slippery memory of man and the uncer- 
 tainly of a verbal contract, so that since the lien or tie is 
 so light, it is no wonder the law should lightly discharge 
 it. Another reason for the wager of law is 'in .'2d Inst. 
 45 (b) : " That the defendant might have witnesses of his 
 discharge who might be dead, as none can keep his wit- 
 nesses alive." 
 
 Lord Chief Baron Gilbert says, "pleas were tried by 
 the law-wager on debts upon simple contract, for they 
 thought if the plaintiff trusted to the honesty of the 
 defendant in lending his money without specialty, he 
 ought to trust his conscience in the discharge" (1). 
 
 I have been thus particular in explaining the reasons of 
 law upon which the wager of law was founded, because it 
 does appear to me to account for the non-existence of a 
 general statute of limitation in personal actions till the 
 reign of James I. ; and the books attest what a fear there 
 was in all cases where the wager of law (called in the 
 old cases the birthright of the subject,) was allowed, that 
 the defendant would wage his law: it is by no means 
 improbable that two effects might follow from this ; 1st. 
 That creditors might obtain a single bill or other spe- 
 cialty or statute for their debts ; and 2dly. That stale 
 demands would be thus kept out of courts of justice ; and 
 this accounts for the small number of cases reported in 
 the old books, where suits were brought for old debts. 
 
 (1) Gilb. Com. Pleas, Introduction.
 
 an I) STAT. 21 J u • I. Ci 16. 5 
 
 To the allowance of the wager of law there were many 
 exceptions; amongst others, it did not apply to the Court 
 of Exchequer, though the privilege was considered of ><> 
 much consequence that an application was made by the 
 
 Commons in the reign of King Edward the Third, that 
 a man might have his wager of law in that court, but it 
 was not granted (1). Secondly, the wager of law was not 
 allowed in an action on the case; and though the law pre- 
 sumed, that no man would forswear himself for any 
 worldly thing, "yet men's consciences," Lord Coke says (2), 
 " did grow so large, especially in this case passing with 
 impunity, (for no indictment for perjury lies in wager of 
 law,) that suitors choose rather to bring an action on the 
 case upon the promise, than an action of debt;" the deci- 
 sion of Slade's case in the 44 Eliz. in which it was held 
 by the twelve judges, after repeated arguments and great 
 consideration, that the plaintiff had his election to bring 
 either assumpsit, or debt upon simple contract (S), had 
 a very important effect. 
 
 Lord Coke observes (4), " it was (thus) in the election 
 of the party either to charge the defendant by witnesses, 
 if he will, and to oust him of his law; or to refer it to the 
 defendant's oath." " It ivas considered good (the judges 
 say in one of their resolutions in Slade's case,) in those 
 days (44 Eliz.) in as many cases as may he done in lite 
 law, to oust the defendant of his law, and try the same by 
 the country, for it otherwise would hare been a great rea- 
 son of perjury -." 
 
 At a time when the whole of the County Courts in 
 England are intended to be turned into Courts of summary 
 
 (1) Manning's Exchequer Pr. (3) Slade's case, 1 Co. Rep. 91. 
 530, (n). Vide Etigecomb v. Dee, Yaugh. 101, 
 
 (2) Co. Liu. 295. Slade's case, contra. 
 
 4 Rep. 95. (4) Slade's case, 4 Rep. 0J.
 
 6 OF THE COMMON LAW 
 
 jurisdiction, and the trials are to be by the always ques- 
 tionable testimony of the parties, it may be worth while to 
 remember this resolution of the judges of England in 
 Queen Elizabeth's time, when there was great complaints 
 of perj ury ; and no more certain mode can be adopted of 
 still more increasing perjury, than trying causes by the 
 testimony of parties, which testimony has been justly re- 
 jected by our superior courts (1). 
 
 The decision in Slade's case, though made by the twelve 
 judges, did not meet with universal approbation. In the 
 22 Charles II. Lord Chief Justice Vaughan (2) speaks of 
 it, " as that illegal resolution in Slade's case, founded 
 upon reasons not fit for a declamation, much less for a 
 decision at law, by which the natural and genuine action 
 of debt upon a simple contract be turned into an action 
 on the case, wherein a man is deprived of waging his law." 
 
 Among the abuses of the law in 1601 was stated to be 
 the taking away the wager of law upon contracts (3). 
 
 Slade's case was one of great favour to plaintiffs, after 
 which the action of assumpsit became, and is, very gene- 
 ral (4), and ultimately the Statute of Limitations became 
 necessary. " The reason of the Statute of Limitations, 
 21 Jac. I. c. 16, is," says Lord Chief Baron Gilbert, 
 
 (1) See the excellent observations the plaintiff for an expeditious ter- 
 
 of the present Attorney-general, Sir mination, it was necessary to afford 
 
 James Scarlett, on the testimony of to the honest defendant some time 
 
 parties. 13 Hans. Pari. Debates, for reasonable preparation, deli- 
 
 The wishes of litigant parties are berate discussion, and security from 
 
 well described by him; the creditor oppression, and it may be added 
 
 looks for expedition in the process, particularly in a court without ap- 
 
 certainty in the law, despatch in the peal. 
 
 decision, facility in the execution; (2) Edgccuwh v. Dee, Yaugh. 
 
 the debtor, on the other hand, na- 101. 
 
 turally seeks for caution, discussion, (o) Jenk. Rep. ix. 1 ed. 1661. 
 
 delay; it was impossible to satisfy (4) Per Puller, J. Walker v - 
 
 both. In consulting the eagerness of Witter, Dougl. 6.
 
 AND STAT. 21 .1 \C I. G. H>. 7 
 
 " because the debt must be supposed to be paid if the 
 action be not brought within six years, for witnesses may 
 die, or change their abode, so that it may be a very hard 
 tiling to prove the payment of the debt; and since the 
 law-wager is avoided by giving the assumpsit, it is conve- 
 nient to limit a time, in which if the debt was not demanded 
 payment should be supposed" (1). 
 
 I am happy in being supported by the opinion of Lord 
 Chief Baron Gilbert, that the wager of law prevented the 
 passing of the Statute of Limitations till after the decision 
 in Slade's case, in the 44 Eliz. 
 
 In the present age, when the wager of law is esteemed 
 so lightly, it is only doing justice to this ancient mode of 
 trial, to consider it as for many hundred years preventing 
 unjust demands, and inducing persons to urge a settlement 
 of accounts, and to obtain proper securities. 
 
 In cases where stale demands were proceeded for, and 
 the wager of law was not allowed, questions must always 
 have arisen, (as it appears to me,) how far such demands, 
 under the peculiar circumstances, might have been pre- 
 viously satisfied, and rules, somewhat similar to those esta- 
 blished as to the presumption of payment in actions of 
 debt on bonds, must have always been (as it appears to 
 me) acted upon, at least in flagrant cases of stale de- 
 mands (2), only it would be left to the opinion of the judge 
 in each particular case to say, how far the demand might 
 be intended or presumed to have been satisfied, and much 
 litigation would no doubt arise from the want of some 
 uniform rule. Lord Bacon complains of the multiplicity 
 of suits in his time (3). 
 «« ■■ — 
 
 (1) Gilb. Evid. 158. 542. Proposition to King James 
 
 (2) Sec Williams v. Jones, 13 the First, by Sir Francis Bacon, 
 East It. 439, the question there was then attorney- general and one of 
 a question of law on a demurrer. the privy council. 
 
 (3) 2 Lord Bacon's Works, 4to.
 
 OF THE COMMON LAW 
 
 It is said by a very eminent judge, (the late Mr. Justice 
 Butter,) "that it is manifest the doctrine of twenty years 
 presumption was first taken up by Lord Hale (1), who 
 only thought it a circumstance from which a jury might 
 presume payment;" in which he was followed by Lord 
 Holt, C. J., and by Lord Raymond, C. J. in the case of 
 Constable v. Somerset (2), in which that learned judge 
 says, " the presumption of money being paid, which was 
 due on bond, if it were put in suit after twenty years 
 standing, was not an old but a new doctrine, which had 
 been introduced in Lord Hale's time." 
 
 I have met with an early case in which it was ruled, not 
 only that a bond should be intended after thirty-five 
 years to have been paid, but it was said the usage was so 
 in such cases ; the case (which may have escaped notice) 
 was ruled in 8 Car. I. by Whitfield (o), Serjeant, at York, 
 (ten years after the statute 21 Jac. I. c. 16;) it was an 
 action of debt upon bond for .£440 against the defendant, 
 as executor of one Cooper; the bond was dated thirty- 
 five years since, and no suit commenced or interest paid 
 during all this time, and for these reasons it was held by 
 good construction, that this bond shall be intended to be 
 paid, and the judge said, the usage was so in such cases, 
 and the jury found accordingly (4). 
 
 In the case ruled by Lord Holt, C. J. (5), he said, 
 
 (1) Per Buller, J. Oswald v. serjeant to King Charles the First, 
 Ixgh, 1 Durnf. & E. 271. Lord and was of Tenterden in the county 
 Hale was made a judge in 1653, of Kent; — he was knighted at 
 Woolrych, Series, 47. Hampton Court, 4th October, 1635. 
 
 (2) Hil. T. 1 Geo. II. at Guild- 1 Clutterbuck's Hertfordshire, 190. 
 hall, 1 Durnf. & E. 271. (4) Shellitoe v. Hor:sefall, Clayt. 
 
 (3) Sir Ralph Whitfield never Rep. 102. 
 
 was elevated to the bench, but he (5) Anonymous, 6 Mod. 22, M. 
 
 frequently took cases at the assizes 2 Ann. 
 at York; he was afterwards prime
 
 AND STAT. 21 J \( . I. C. U). i) 
 
 " that if a bond was of twenty years standing, and no de- 
 mand proved, or good cause of so long forbearance shown, 
 lie would intend it paid on solvit ad diem, and a Jo, 
 in ease of a note, if it be any considerable sum"(l). 
 
 The rule is stated thus in the Irish Statute, 8 Geo. I. 
 C. 4, " it may be reasonably presumed, that debts due 
 by the space of twenty years or more, which have not 
 been demanded, nor any suits prosecuted for the reco- 
 very thereof, or any interest or sums of money paid or 
 received on account thereof, by the space of twenty years 
 past, are satisfied and paid, though no legal discharge can 
 be proved, nor proof made of the payment;" and by 
 sect. 2, " if any person shall commence or prosecute any 
 action or suit either at law or in equity in Ireland, for the 
 recovery of any debt due by single bill, or bond under 
 hand and seal, or by judgment, ccc. where no suit hath 
 been prosecuted for the recovery thereof, nor any interest 
 of money hath been paid, or other satisfaction made on 
 account thereof, within the space of twenty years before 
 the commencement of such suit, the defendant may plead 
 payment." 
 
 (1) See also the early cases in 19 Yes. Jan. 196.) Duffield v. 
 
 Chancery. Coles v. Emerson, 1 Creed, 5 Esp. R. 52. Cooper v. 
 
 Chan. Rep. 42. Geqfry v. Thorn, Darne Turner, -2 Stark. 497. Bigg 
 
 1 Chan. Rep. 47, and Vin. Abr. v. Roberts and another, 3 Carr. ^ 
 
 tit. Length of Time, and Blackett P. 43. And see Tidd's Prac. 18. 
 
 v. Wall, in the Court of Pleas at In Wynne v. Waring, the obligor 
 
 Durham, Durham Ass. 1812. MS. on an old bond was known to have 
 
 where the plaintiff recovered in an been distressed during the latter 
 
 action on a judgment of forty- part of his life, having no property 
 
 eight years standing, the d'efen- but real estate covered with mort- 
 
 dant's great poverty being proved; gages, and the Master of the Rolls, 
 
 and Wood, Baron, who tried the after having directed au action on 
 
 cause, refused a new trial ; and an issue, the jury upon these and 
 
 see Christopher v. Sparkc, 2 J ac. & other circumstances, though fifty 
 
 W. 283, and of Wynne v. War- years had elapsed, found the pre- 
 
 ing, (cited in Fladong v. Winter, iumption of payment vt
 
 10 OF THE COMMON LAW 
 
 To impose diligence and vigilance in him that was to 
 bring the action, and by which means old suits might be 
 avoided, nam leges rigilantibus non dor mi c nil bus subve- 
 nient (1), and to relieve persons who might have paid, 
 and whose vouchers may have been lost or destroyed (2), 
 and witnesses dead, in 1623 was passed the statute 21 
 Jac. I. c. 16, intituled " An Act for the Limitation of 
 Actions, and for avoiding Suits at Law ;" and by sect. 3 
 it was enacted, " That all actions of trespass quare clau- 
 sum /regit, all actions of trespass, detinue, action sur 
 trover, and replevin for taking away of goods and cattle, 
 all actions of account and upon the case, other than such 
 accounts as concern the trade of merchandize between 
 merchant and merchant, their factors or servants, all 
 actions of debt grounded upon any lending or contract 
 without specialty, all actions of debt for arrears of rent, 
 and all actions of assault, menace, battery, wounding, 
 and imprisonment, or any of them, which shall be sued or 
 brought at any time after the end of that Session of Par- 
 liament, shall be commenced and sued within the time and 
 limitation hereafter expressed, and not after (that is to 
 say) the said actions upon the case, (other than for slan- 
 der,) and the said actions for account, and the said actions 
 for trespass, debt, detinue, and replevin, for goods or 
 cattle, and the said action of trespass quare clausum 
 fregit, within three years next after the end of that 
 Session of Parliament, or within six years next after 
 the cause of such actions or suit, and not after; and the 
 said actions of trespass, of assault, battery, wounding, 
 imprisonment, or any of them, within one year next after 
 the end of that Session of Parliament, or within four 
 
 (1) 2 Inst. 95, 9G. Bac. Abr. tit. (2) King v. Morrall, 6 Price 
 Limitations, Exch, Rep. 20.
 
 AND STAT. 2i J AC. I. C 1(). 11 
 
 years next after the cause of such actions or suit, and 
 not after; and the said actions upon the case fof words 
 within one year after the end of that Session of Parlia- 
 ment, or within two years next after the words spoken, 
 and not after." 
 
 The framers of this statute have not escaped censure. 
 Lord C. J. Bridgman, in Benyon v. Evelyn (1), says, 
 " the statute 21 Jac. I. c. 1G, has been ill framed, or much 
 abused in the print ;" and it must be acknowledged that 
 there are several inaccuracies in the statute ; the actions 
 included in the third section it clearly appears were in- 
 tended to be twice enumerated ; and the action sur trover 
 is mentioned in the first instance, but omitted in the 
 second ; it has however been held, that actions of trover 
 are implied under the general terms of actions on the 
 case (2). And in § 7, where the same actions are meant 
 to be included, actions sur trover are mentioned, but 
 actions on the case are omitted ; it has however been 
 held, that actions on the case are included under the 
 term actions of trespass; and that though there are par- 
 ticulars words in the enacting clause which relate to the 
 action on the case, yet this proviso in § 7 restrains the 
 severity of that clause, and restores the common law, 
 and so is to be taken favourably; and this action, being 
 within the same reason with other actions therein men- 
 tioned, ought also to be within the same remedy (o). It 
 is singular, that the proviso in favour of infants, &c. 
 appears to have been omitted in the original bill, and 
 
 (1) O. Bridgman Rep. 35(3. 2 Saund. 121, and Mr Serjeant 
 
 (2) Swctyu v. Stephens, Cro. Car. Williams' note, and Crosier v. 
 245. Tomlinson,2M.od..71. Anonymous, 
 
 (3) Benyon v. Evelyn, O. Bridg, Fitzgibb. 81. 
 Rep. 356. Chandler v. Villelt,
 
 12 OF THE COMMON LAW 
 
 is now annexed to the original act in a separate 
 schedule (1). 
 
 Although the Irish Statute, 10 Car. I. sess. 2, c. 6, 
 has the same clauses as the stat. 21 Jac. I. c. 12, with 
 some trifling verbal alteration, yet the evident mistakes 
 in the latter as to the action of trover was not corrected 
 in the general clause, nor the omission of the action on 
 the case in the exception relating to infants, &c. 
 
 The Statute of Limitations, 21st Jac. I. c. 16, does not 
 appear at first to have been received with universal ap- 
 probation. It was argued in one case, that the statute 
 abridged the common law, taking away from the party his 
 just and true damage, and therefore should be taken 
 strictly (2). And in another, that the statute tolled the 
 common law, and should not be extended by equity (3) ; 
 and that this statute is in the nature of a penal law, because 
 it i*estrains the liberty which the plaintiff has by the com- 
 mon law to bring his action when he will, and must there- 
 fore be construed beneficially for the plain tiff (4); but Lord 
 Holt, C. J. said, the Statute of Limitations was one of the 
 best of statutes, and the pleading thereof no disparage- 
 ment to any body. Wilmot, J. said, it was a noble bene- 
 ficial act, interest reipublicce, ut sit finis Utium(S). It has 
 also been said, that the Statute of Limitations (on which 
 the security of all men depends) is to be favoured (6). 
 Lord Kent/on was a strong advocate for the uniform con- 
 
 (1) See the late edition of the (4) Farrington v. Lee, 1 Mod. 
 statutes, 4 vol. 1223, and Benyon 269. 
 
 v. Evelyn, O. Bridg. Rep. 356; q. (5) Green v. Rivett, 7 Mod. 12. 
 
 was not the Statute of Limitations King v. Walker, 1 Sir VY. Black, 
 
 penned by Lord Bacon? Rep. 287. 
 
 (2) Harwood v. Lour, Balm. R. (6) Per curiam, Green v. Rivet/, 
 530. 2 Salk. 422 
 
 ('■'>) Sherzoin v. Carttoright, llutt. 
 109.
 
 \M) STAT. '.l\ JAC. I. C. 16. Li 
 
 struction of the Statute of Limitations, which were, he ;.i<l, 
 of the greatest importance, as they are statutes oi 
 pose (1). Although it will now and then prevent a man 
 from recovering an honest debt, yet it is his own fault 
 he postponed his action so long(:^): the statute may" 
 in one or two cases, through the laches of the party, 
 have barred a just demand, yet it has the constant effect 
 of shutting out unjust claims, founded on experiments 
 made to take advantage of carelessness or misfortune, on 
 the chance of vouchers being lost or mislaid ; great care 
 has also been taken by the courts to prevent its working 
 injury (3); in answer to what may be said to have been 
 done by the operation of the statute, infinite injustice has 
 been prevented by it (4). The object of the statute, the 
 reporter Saunders, argued (5), intended to limit those ac- 
 tions only which arise upon a bare contract without any 
 writing under seal, the prosecuting of which actions, a 
 long time after they first accrued, was often a great occa- 
 sion of perjury in witnesses, and oppressive to the de- 
 fendants. 
 
 This statute was passed to protect persons who were 
 supposed to have paid the debt, but to have lost the evi- 
 dence of payment (6). 
 
 It is not proposed to give a general treatise on the 
 Statute of Limitations, 21 Jac. I. c. 16, but only such 
 parts of it as relates to contracts. 
 
 It has been held the rights of the crown are not affected 
 by the Statute of Limitations, the king not being named 
 
 (1) Doe d. Duroure v. Jones, 4 King v. Morrall, 6 Price Excli. 
 Durnf. & E. 308. Rep. 28. 
 
 (2) 1 Saund. Rep. 64 a, n. 6, (5) Hodsdenv. Harridge,2S'd.und. 
 (Mr. Serjt. Williums). 63. 
 
 (3) Per Gurrow, Baron. The King (6) Per Lord Tenterden, C. J. 
 v. Morrall, 6 Price Exch. Rep. 51. Monntstcphcn v. Brook, 3 B. & A. 
 
 (4) Per Richards, C. B. The 142.
 
 14 OF THE COMMON LAW 
 
 in it (1). The proposition that the crown is not bound by 
 the statute is true to this extent, that it cannot be pleaded 
 in bar by the crown's immediate debtor, therefore the 
 statute may be pleaded to a scire facias issued by the 
 crown against the drawer of a bill of exchange in the hands 
 of the crown debtor, which has been seized by the sheriff 
 under an inquisition on the prerogative process (2). 
 
 The words of the statute are, that no action shall be 
 brought within the times limited ; but it was not intended 
 that after those periods the right should be extinguished 
 and taken away from the party. The statute meant to act 
 upon the remedy (3). So the Statute of Frauds, 29 Car. II. 
 c. 3, s. 4, enacts, " That no action shall be brought to 
 charge any person upon any contract or sale of lands, 
 unless the agreement upon which such action shall be 
 brought, or some memorandum or note thereof, shall be in 
 writing ;" " but the statute does not expressly and imme- 
 diately (says Lord Ellenborongh (4) ) vacate such con- 
 tracts, if made by parol, it only precludes the bringing 
 of actions to enforce them, by charging the contracting 
 party and his representatives on the ground of such con- 
 tract or of some supposed breach thereof; but although 
 the contract may not be in itself wholly void under the 
 statute, merely on account of its being by parol, so that 
 if the same had been executed, the parties could have 
 treated it as a nullity, yet being executory, and as for the 
 non-performance of it no action could have been main- 
 tained, we think such a contract might be discharged 
 before any thing was done under it, which would amount 
 to a part execution." 
 
 (1) Lambert v. Taylor, 6 Dowl. (3) Williams v. Jones, 13 East, 
 & R. 199. 450. 
 
 (2) The King v. Motrall, 6 Price (4) Crosby v. Wadsworth, G East 
 Exch. R. 24. Rep. 611.
 
 AND STAT. 2\ JAC. I. C. 16. L5 
 
 The actions of contract mentioned in this recital of the 
 stat. 2\ Jac. I. c. 16, are actions of account, on the case, 
 and actions of debt. The action of account (1) was in 
 full operation when the statute passed, but accounts have 
 been long litigated by bill in equity, though the jurisdic- 
 tion at common law has its advocates, and the action of 
 account has been lately revived. Actions on the case 
 meant by the statute, are actions on the case ex contractu 
 or assumpsit; by the stat. 3 & 4 Anne, c. 9, s. 2, all 
 actions on promissory notes (2) within that act, shall be 
 commenced, sued and brought within the times appointed 
 for commencing and suing actions on the case by the 
 statute 20 Jac. I. c. 16. 
 
 The actions of debt are actions grounded on any 
 lending or contract without specialty, all actions of debt 
 for arrearages of rent : in an action (3) by a landlord for 
 rent against one who had once been his tenant from year 
 to year, but who had not within the last six years occupied 
 the premises, paid rent, or done any other act as a tenant, 
 the Statute of Limitations was held to be a good defence 
 to the action, though the tenancy had not been deter- 
 mined by a notice to quit. 
 
 The Statute of Limitations mentions " actions of debt 
 grounded upon any lending or contract without specially, 
 and all actions of arrearages for rent :" it is held that not 
 only actions of debt on bonds and deeds are out of the 
 Statute of Limitations, but also actions of debt on judg- 
 ments, and grounded on statutes, being of a higher degree 
 than specialties, as for an escape of a debtor in execution 
 under the statute 1 Rich. II. c. \2 (4) ; and on the statute 
 
 (1) Paley on Prin. and Agent, 1 Barn. & A. 625. See Steward v. 
 45, &c. Buclgcr, 2 Vcrn. 516. 
 
 (2) 2 Anne, Anon. 2 Mod. 22. (4) Jones v. Pope, 1 Saund. 37. 
 
 (3) Leigh and Wife v. Thornton, 1 Sid. 305-6. 2 Keb. 93. 1 Lev. 
 
 191. S. C.
 
 1G OF THE COMMON LAW 
 
 3 Edw. VI. c. 13, for not setting out tithes (1) ; 
 though now by the statute 53 Geo. III. c. 127, s. 5, no 
 action shall be brought for the recovery of any penalty for 
 the not setting out tithes, nor any suit instituted in any 
 court of equity or in any ecclesiastical court to recover the 
 value of any tithes, unless the action be brought or suit 
 commenced within six years from the time when such 
 tithes became due. It is probable it will be attempted to 
 bring within this exception actions for canal and road calls, 
 and other causes of action now of frequent occurrence 
 grounded on statutes. It has been held that a special 
 action of debt against a sheriff for money levied under a 
 fieri facias is not within the statute, because, it is said, 
 the action was brought against the defendant as an officer 
 who acted under an execution, in which case the law did 
 create no contract (2) ; and it has been held that debt on 
 an award under the hands and seals of the arbitrators is 
 not within the Statute of Limitations, on account of the 
 notoriety of the thing being in writing under hand (o) : 
 debt for rent reserved on a parol lease is limited by the 
 statute, but the rent reserved on a lease by indenture is 
 within the exception (4). So that in this case the excep- 
 tion " without specialty" is carried forward and applied 
 to actions for rent ; the Statute of Limitations, 32 Hen. 
 VIII. c. 2. applies to avowries for rents by parol, but an 
 avowry for rent created or reserved by deed is out of the 
 statute (5). 
 
 fl) Talory v. Jackson, Cro. Car. ('■)) Hodsdenv. Harridge, 2 S&xmd. 
 
 513. Warren v. Cornell, 2 Ld. 64. Watson on Awards, p. 209. 
 Jiaym. 1502. (-1) Fin man v. Stacey, Ilutt. 109. 
 
 (2) Cochram, Executor, v. Welly, (5) Co. IAtt. 115, (a). Hodsden 
 
 I. 212. 1 Mod. 245. 2 Show. v. Harridge, 2 Saund. Co, (a), Mr. 
 
 7'.'. 1 Freem. 236. S. ( . Serj. Williams' note.
 
 ( H 
 
 CHAPTER IT. 
 
 OF THE EXCEPTION OF MERCHANTS' ACCOUNTS IN THE 
 STATUTE 2\ JAC. I. C. 16, §3. 
 
 JLlIE third section of the statute 21 Jac. I. c. 16, excepts 
 " such accounts as concern the trade of merchandize 
 between merchant and merchant, their factors and ser- 
 vants" (I). Upon this exception, which may now deeply 
 
 affect the mercantile interests, much discussion has arisen, 
 and may now arise, for the statvite 9 Geo. IV. c. 14, ap- 
 plies to new or continuing contracts only; and no new or 
 continuing contract is presumed to be necessary where 
 the case comes, and so long as it continues, within this 
 exception. 
 
 This exception seems to have been introduced in favour 
 chiefly of merchants trading to and from foreign parts, 
 (indeed there was little inland commerce in the reign of 
 King James I.) a merchant here might have had a mer- 
 chant with whom he dealt at Venice, or a factor there; their 
 accounts had been unsettled for several years, and many 
 of their transactions with others unsettled, and yet new 
 business still going on, the merchant waiting for an op- 
 portunity, when the parties might meet to state the ac- 
 count honestly. It was considered hard to confine them 
 within six years, as the distance and the state of the 
 
 (!) The exception in the Irish Statute, 10 Car. I. scs«. 2, c. G, i* in 
 the same terms.
 
 18 OF THE EXCEPTION 
 
 accounts might prevent a settlement, and until the ba- 
 lance was struck, the creditor could not ask for payment 
 or a security; but this was to be confined to merchants, 
 factors, and servants, and to accounts concerning the trade 
 of merchandize (1). 
 
 The meaning of this exception has never (although 
 200 years have elapsed since the making of the statute 
 21 Jac. I. c. 16,) been settled; this has partly arisen from 
 merchants' accounts having been for many years carried to 
 Courts of Equity, and chiefly from its having been de- 
 cided that the most trifling promises and acknowledgments 
 would revive debts, and from the last items being consi- 
 dered to revive the whole account; so that there was no 
 occasion to resort to the exception of merchants' accounts : 
 now, however, when promises and acknowledgments must 
 be in writing, and amount to an express or implied 
 promise, the exception in the statute 21 Jac. I. c. 16, may 
 come to be relied on, as taking the case out of the statute 
 in times of greatly increased commerce, where questions 
 for accounts are likely frequently to arise. 
 
 This exception may, therefore, deserve grave considera- 
 tion. 
 
 Notwithstanding the words of the statute 21 Jac. I. 
 c. 16, § 3, are " all actions of account and upon the case, 
 (other than such as concern the trade of merchandize,") 
 yet it was for some time supposed that the exception was 
 confined to actions of account, which were common 
 actions at the time when the statute was made for un- 
 settled accounts, and continued so for a long time after- 
 
 (1) This exception of accounts fit; because the law-makers in mak- 
 
 between merchants and their fac- ing such an exception had an eye 
 
 tors, it was argued in an old case, to the encouragement of trade and 
 
 Farrington v. Lee, 1 Mod. 269,) commerce, 
 must be expounded for their bene-
 
 OF MI'.KCII \\ T8 ACCOI NTS. I J 
 
 wards, till it was supposed unsettled accounts were Intl. i 
 decided in a Court of Equity. 
 
 In the ease of Farringt&n \. Lee, it was held that the 
 exception of the statute goes only to actions of account; 
 
 and not to other actions; but it was law at that time, that 
 till the account was stated an action of account lies, and 
 not an action on the case; but when the account is once 
 stated, an action on the case did lie, and not an action of 
 account; for after the account is stated, the certainty of 
 tin; debt appears, and all the intricacy of account is out of 
 doors; the action must then be brought within six years 
 after the account stated. It was likewise argued in the 
 ease of Webber v. Tivell (1), that actions of account on 
 accounts between merchants are only excepted, and there- 
 fore a bare action on the case was not excepted at all; 
 and Morton, J. said, that no action but an action of ac- 
 count was excepted by the statute. 
 
 In a case (2) on a bill of exchange, the defendant, pro- 
 testing that the bill of exchange did not concern merchan- 
 dize between merchants, their factors or servants, pleaded 
 non assumpsit infra sex annos — the plaintiff demurred to 
 this plea (3), supposing the bill of exchange to be a spe- 
 cialty, and not within the statute, but this was determined 
 against him. In a subsequent case (4), the defendant 
 pleaded the Statute of Limitations, and the plaintiff 
 replied (inter alia), that he and the defendant were mer- 
 chants, and that the bill was upon an account between 
 them concerning merchandize; but it was held that bills 
 of exchange were not intended by the exception in the 
 
 (1) 2 Saund. Rep. 125. 1 Lev. (4) Chexeleij v. Bond, Carth. 226. 
 287. 2 Keb. 624. 634, S.C. 4 Mod. 105. 1 Show. 341, Holt, 
 
 (2) Renew v. Axton, Carth. 3. 427. S.C. Skirme v. Meyricke 
 
 (3) 30 Car. II. Fincham v. Hobbs, and others, Com. Repj 70'.\ 10, 
 Finch, 370,
 
 20 OF THE EXCEPTION 
 
 statute, and that by the exception in the statute, no other 
 actions were intended but actions of account. 
 
 The doctrine above stated, that account is the only 
 action upon an open account, is not now law (1). For, as 
 was said by Dumpier, Justice, that whatever doubt might 
 have been made upon the subject a century back, the 
 action of assumpsit for the balance due on the result of 
 numerous mercantile transactions had been so long main- 
 tained, that it was now much too late to make any objec- 
 tion ; and the use of the action of account at the present 
 day, he added, is, " where the plaintiff wants an account, 
 and cannot give evidence of his right without it;" so that 
 the argument that account is the only action upon an 
 open account completely fails; and in other cases this 
 exception in the statute was held to be equally applicable 
 to an action of assumpsit, as to an action of account (2) ; 
 but I am not aware that it has ever been expressly deter- 
 mined, that it is equally applicable to an action of debt 
 upon lending or contract; the words of the statute being 
 "actions of account and actions upon the case, other than 
 such accounts as concern the trade of merchandize be- 
 tween merchant, &c. ; actions of debt upon lending or con- 
 tract without specialty." 
 
 It seems to be probable, that originally the statute was 
 drawn thus — " all actions of account other than such ac- 
 counts as concern the trade of merchandize between 
 merchant and merchant;" and even then there is nothing 
 to which the word " such" can in strictness apply ; subse- 
 
 (1) Speakev. Richards,Uob. 209. (2) Crunch, Executor, Sfc. v. 
 
 Arnold v. Webb, Taunton -Spring Kirkman and others, Peake N.P.C. 
 
 Assizes, 181 4. .5 Taunt. R . 432 (a). 1 64. Catling v. Skoulding, 6 Durnf. 
 
 And see Scott v. Mackintosh, 2 & E. 289. 
 Camp. 238.
 
 of merchants' accounts. X? 1 
 
 quently the words " and actions on the case" were intro- 
 duced immediately after "actions of account," and actions 
 of debt, having an exception of their own, were intro- 
 duced after the exception, perhaps under the idea that 
 actions of debt at that time were not likely to be adopted 
 in the cases of unsettled accounts. 
 
 It is still a question of great practical Importance, what 
 persons arc meant by the exception, " such accounts as 
 relate to the trade of merchandize between merchants, 
 their factors, and servants ;" notwithstanding an opinion 
 seems to be entertained that the cases have settled, that 
 all persons are included in that exception, provided the 
 accounts are open and current; in short, that it relates to 
 accounts in the nature of merchants' accounts, composed 
 of cross items, as well between merchants as others. 
 
 The words would in a modern statute not be con- 
 strued so liberally (1). 
 
 The term " merchant" in the time of King James 1. 
 seems to have meant a merchant trading to or from foreign 
 parts. According to an old case there are said to be four 
 kinds of merchants — merchant adventurers, merchants 
 dormant, travellers, and merchants resident (2). Lord 
 Chief Baron Comyns says, every man is a merchant who 
 traffics by way of buying, or selling, or bartering of goods 
 or any merchandize within the realm or foreign parts (3). 
 Merchants, according to Lord Holt, C. J. includes all 
 sorts of traders as well and properly as merchant adven- 
 turers (4). 
 
 (1) See the exception in the respects to have been construed 
 
 Stamp Act, in 55 Geo. III. c. 184, strictly. 
 
 Appendix. " Memorandum, letter, (2) 2 Brownl. 99. 
 
 or agreement, made for or relating (3) Com. Dig. tit. Merchant, A. 
 
 to the sale of any goods, wares, or (-1) Manor and Commonalty of 
 
 merchandize," which seems in some London v. Willis, Salk. 445.
 
 OF THE EXCEPTION 
 
 In the Bankrupt Act, 21 Jac. I. c. 19, (which was 
 passed in the same year as the Statute of Limitations,) the 
 trader is thus described, " Every person that uses the 
 trade of merchandize by way of bargaining, exchange, 
 bartering, chevizance, or otherwise, by gross or by retail, 
 or seeking his or her living by buying and selling shall be 
 liable to be a bankrupt." The description in the former 
 act, 13 Eliz. c. 7, is somewhat different, " Any merchant, 
 or other person using or exercising the trade of mer- 
 chandize by way of bargaining, exchange, re-change, bar- 
 tering, chevizance, or otherwise, in gross or by retail, or 
 seeking his or her trade by buying and selling, may be a 
 bankrupt' (1). 
 
 It seems from the whole of the clause, and particularly 
 from the word " factor," that mercantile persons only 
 were intended to be included in this exception. In the 
 case of Sir George Sandys v. Blodicell(2), both parties 
 were merchants; in Sherman v. Withers, 21 Car. (3) the 
 plaintiff was an inland merchant, and the defendant 
 was a factor, the bill was for an account of fourteen 
 years standing, and the defendant, to all but what 
 was within six years, pleaded the Statute of Limita- 
 tions ; and upon debate of the plea, the Lord Keeper 
 conceived the exception in the statute as to merchants' 
 accounts did not extend to this case, but only to mer- 
 chants trading beyond sea. Atkyns, J. thought no other 
 sort of tradesmen but merchants were within the benefit 
 of this exception, and that it did not extend to shop- 
 keepers, they not being within the same mischief (4). So 
 it is said the action of account is not saved to all dealers 
 
 (1) See tli.' last Bankrupt Act, (-3) 2 Chanc Cases, 132. 
 
 6 Geo. [V. c. lii. (4) Warrington v. Lee, l Mod 
 
 (2) VY. I,, ihs, -101. 270.
 
 or merchants' accounts. .' 3 
 
 l)iit to merchants and (heir factors, because many times 
 these factors continued long beyond sca(l). 
 
 In Bridges v. Mitchell (2) the bill stated that the plain- 
 tiff and defendant were partners as merchants, and had 
 settled an account upon which the plaintiff had a balance, 
 and then prayed a discovery, account, and satisfaction ; 
 the Statute of Limitations was pleaded, and the plea 
 was allowed by the Court that after such a length of time, 
 upwards of twenty years, without suit, it should be pre- 
 sumed the balance was satisfied. The Court seemed to 
 think this was not a merchant's account within the Statute 
 of Limitations, these persons not dealing as merchants 
 with one another, but as one merchant with others, but 
 gave no positive opinion on this head, but allowed the 
 plea on the other. 
 
 In another case (8) the bill was by a lay impropriator 
 for tithes for about twenty-four years, the defendant 
 pleaded the Statute of Limitations ; it was overruled by 
 the whole Court, for the defendant, as to the tithes, was 
 in the nature of a receiver or bailiff for the plaintiff, in 
 which case the Statute of Limitations did not operate. 
 In Sir William Jolliffe v. Pitt and Whistler (4), in Chan- 
 cery, the Statute of Limitations was pleaded to a claim on 
 a note made at Tripoli ; but it was agreed that the de- 
 mands were barred, for although the original parties were 
 merchants and the debts contracted in the way of trade, 
 yet it appeared the accounts were long since stated, and 
 only open accounts were saved by the statute. 
 
 Lord Hardwicke observed in one case (5), the plaintiff 
 
 (1) Anon. 1677. 2 Freem. 22. (3) Marstonv. Clci/pole and ana- 
 See Astrey's case, 2 Freem. 54. £Aer, Bunb. 213. 
 
 and 19 Vez. jun. 181. (4) 2 Vera. 694 : and see Sher- 
 
 (2) Bunb. 224. Gilb. 217. man v. Sherman, 2 \ era. 276. 
 
 (5)Sturt v. Mettish, 2 Atk. 61 .
 
 24 OF THE EXCEPTION 
 
 was a merchant and came within the statute, but did the 
 transaction (then before him) concern the trade of mer- 
 chandize ? It did not, these were transactions with the 
 King of Portugal and his government, and are like trans- 
 actions here with the government offices. It was not the 
 dealing of a merchant with any other person, which will 
 make that person a trader within this statute. Suppose 
 a merchant who has debts owing him gives another mer- 
 chant a letter of attorney to get in those debts, such a 
 transaction will not make such a person so deputed a 
 merchant (1) within the exception, no more than if he had 
 given the letter of attorney to a person not a merchant. 
 
 In Cotes v. Harris and another the defendants were 
 executors of the executor of W., and, in an action of 
 assumpsit, pleaded nou assuntj)sit infra sex annos ; the 
 plaintiff replied, that on the 3d of June, 28 Geo. II. he 
 sued out a bill of Middlesex against the defendants, and 
 that the testator in his life-time promised to pay the de- 
 mand within six years before the bill of Middlesex was sued 
 out ; the first item in the bill whereon this demand arose 
 was in 1746, and all the items, except the last, were above 
 six years standing before the bill of Middlesex sued out. 
 Mr. Norton insisted, for the plaintiff, that the last item 
 being within six years, and this being a current account 
 never liquidated, should draw the former items out of the 
 statute. But Denison, Justice, held, that the clause in 
 the Statute of Limitations about merchants' accounts ex- 
 tended only to cases where there were mutual accounts 
 and reciprocal demands between two persons; if there 
 were only a demand by A. against B. in the common way 
 of business, as by a tradesman on his customer, that can- 
 
 (1) But query, would it make him ;i factor ov servant within the ex- 
 '•< ption '
 
 OF MERCHANTS ACCOUNTS. ^j 
 
 not be called merchants' accounts ; and lie was very clearly 
 of opinion that in this case the statute was a bar to all 
 demands above six years standing (1). 
 
 Another Report (2) states, that Denison, J. ruled that 
 the clause in the statute about merchants' accounts ex- 
 tended only to cases where there were mutual accounts 
 and reciprocal demands between two persons, not to cases 
 between a tradesman and his customers, for those are not 
 merchants' accounts. 
 
 I have thus stated the old cases upon this important 
 subject — some other cases remain to be considered. The 
 first, Crane//, Executrix, v. Kirkman(3). It was an action 
 for goods sold and delivered by the testator, the defendant 
 pleaded the general issue and notice of set-off for goods 
 sold, (and it may be observed that this notice left the 
 plaintiff completely at large what defence he should make 
 to the set-off) ; the set-off, in fact, consisted of items for 
 goods sold from 1783 to 1T88. The plaintiff's demand 
 accrued chiefly in 1783, but there were two articles in 
 1789. It was contended on the part of the plaintiff that 
 the greatest part of the set-off was within the Statute of 
 Limitations, no promise being proved within six years. 
 Lord Kenyon thought that this was within the exception 
 in the statute as to merchants' accounts ; he agreed that 
 where the demand of one party arises long after the 
 demand of the other, this shall not revive the antecedent 
 account, but this was in the nature of a running and 
 mutual account between the parties, and was precisely 
 the case put by Mr. J. Denison in Cotes v. Harris. 
 Mr. Bear croft, for the plaintiff, then contended, that the 
 
 (1) Coles v. Harris and another, Ceo. III. K. B. Bull, N. P. 149, 
 Sittings at Guildhall, T. 29 &: 30 150. Lord Kenyon s MS. note. V*t— 3& 
 Geo. II. Wacev. Wyburn,T. 19 (2) 1 Esp. Dig. 4th edit. 181. 
 
 (3) Peake, V P.C. 164.
 
 26 OF THE EXCEPTION 
 
 exception extended to no other description of persons but 
 merchants, in which he was overruled by Lord Kenyon{\). 
 The plaintiff* had a verdict for the balance of accounts. 
 
 It does not appear what description of persons the 
 plaintiff and defendants were, but it may be inferred that 
 they were in some business, for it is a case of cross-ac- 
 count of goods for goods, nor does it appear whether Mr. 
 Beareroft insisted that merchants in the act meant mer- 
 chants generally as opposed to retail traders. It may be 
 admitted that the question came fairly before Lord Kenyon, 
 but it may be questioned whether his lordship might not 
 partly determine the case on the exception as to mer- 
 chants' accounts, and partly on the ground that the ante- 
 cedent account was revived by the latter items ; for he 
 says in a subsequent case of Catling v. Skoulding (2), here 
 are mutual items of account, and I take it to be clearly 
 settled, as long as I have any memory of the practice of 
 the courts, that every new item and credit in an account 
 given by one party to the other is an admission of there 
 being some unsettled account between them, the amount 
 of which is afterwards to be ascertained, and any act 
 which a jury may consider as an acknowledgment of its 
 being an open account, is sufficient to take the case out of 
 the statute. 
 
 The case of Catling and another, Executor of Tuthill, v. 
 Skoulding and another (3), was assumpsit for use and occu- 
 pation of premises of the testator, with the common counts. 
 The defendant, Skoulding, pleaded — 1st. Non-assumpsit. 
 2d. The Statute of Limitations. 3d. A set-off. The 
 
 (1) Mr. Justice Park, in a late not to be confined to persons of 
 
 case, Scales v. Jacob, 3 Bing. G49, that description, 
 considers that in Crunch v. Kirk- (2) 6 Durnf. & E. 193. 
 ■man, Ihe exception in the statute as (3) Ibid. 189. 
 to merchants' accounts was held
 
 OF merchants' ACCOl N I s. 
 
 replication to the second plea was, thai the defendant did 
 
 promise within six years; and to (he third plea, that the 
 testator was not indebted. The testator was an attorney 
 at Halesworth in Suffolk, and the defendants were mer- 
 chants, dealers in spirituous liquors and tallow-chandlers. 
 There were cross-accounts between the parties, and on 
 the trial of the case before Ashkurst, Justice, a verdict was 
 found for the plaintiff, with leave to the defendant to 
 move for a nonsuit if the Court should be of opinion that 
 the plaintiffs could only recover for the rent that became 
 due within the last six years; the amount of the articles 
 furnished by the defendants being more than sufficient to 
 pay the last half-year's rent. 
 
 The rule was obtained on two grounds — first, that the 
 case was not within the exception in the Statute of Limita- 
 tions, because it was not an account between merchant and 
 merchant; and, secondly, if it w r ere, it should have been 
 replied specially. On showing cause, it was urged, first, that 
 the objection to the form of the replication was not taken at 
 the trial, and could not be insisted on, as the defence was 
 of an unfavourable nature ; and, secondly, that there was 
 an open unliquidated account between the parties, which 
 was evidence of a promise, and Crunch, Executor, v. 
 Kirkman and others, was cited ; to which it was answered 
 that there was no evidence of a promise or acknowledg- 
 ment within six years ; that the exception of the statute 
 was confined to actions of account between merchant and 
 merchant ; and, thirdly, to such as concern merchandize, 
 that at any rate the replication was bad, being too general; 
 (it will be borne in mind that the replication was, that the 
 defendant did promise within six years ;) and that as to 
 Cotes v. Harris no objection was there taken to the gene- 
 rality of the replication, nor to their not being merchants' 
 accounts. Lord Kemjon, C. J. said, it will most likely
 
 28 OF THE EXCEPTION 
 
 be found, on looking into the cases which have been cited 
 on the part of the defendants, that the doctrine therein 
 laid down was applicable only to cases where six years 
 had elapsed before the bringing of the action without 
 any new transaction having taken place between the par- 
 ties, so as to form new items of account. Where there is 
 no item of account at all within six years before the action 
 brought, the plaintiff will be precluded, unless he bring his 
 case within the exception in the statute concerning mer- 
 chants' accounts, and in such a case his replication must 
 bring his case within the statute ; but it must be remem- 
 bered that there the plaintiff is not barred, though there 
 has been no transaction of any kind between the parties 
 for six years ; for by his replication he insists that his case 
 never was within the statute, for the accounts were be- 
 tween merchant and merchant (1) ; but the present case 
 steers wide of that objection ; it is not doubted but that 
 a promise or acknowledgment within six years will take 
 the case out of the statute, and the only question is, 
 whether there is not evidence of an acknowledgment in 
 the present case. Ashhurst, J. entertained some doubts 
 on the question, but afterwards Lord Ken yon, C. J. said 
 the Court had considered the matter, and were clearly of 
 opinion the plaintiffs were not barred by the Statute of 
 Limitations, and the rule was discharged. 
 
 In Foster v. Hodgson (2), the question of merchants' 
 accounts was again brought before the Court of Chan- 
 cery. The bill stating that the plaintiffs were merchants 
 was for an account against the defendant as the solvent 
 partner of bankers, but no demand or any continuation of 
 
 i See Forster v. Hodgson, 19 Hurrill, 8 Moore Rep. 189. 1 
 urn. liiG; and Gregory v. Bing. 324. 
 
 (2) lo Ves.jun. 180.
 
 OF MERCHANTS 1 \( !( 01 M i. i!U 
 
 the account was stated for twelve years; the defendant 
 demurred, and after argument upon the demurrer, the 
 Lord Chancellor, Lord Eldon, said, "This bill has no alle- 
 gation that the foundation of the suit is accounts relative to 
 merchandize between merchant and merchant, unless ii i> 
 considered as alleging, that by implication from the state- 
 ment of the character in which the plaintiffs stood, and 
 the business they carried on as merchants. Lord Kenyan 
 thought such an implication might be made, and in Scu- 
 damorev. White (1), it is stated generally, that the Sta- 
 tute of Limitations is no plea in bar to an open account; 
 but Lord Talbot held, that an open mutual account was 
 within the statute, unless there was some item of charge 
 and debt within six years before the bill over-ruling that 
 case in / ernon." 
 
 " This case, however, has two grounds on which the 
 demurrer may be supported. — First, that the plaintiff 
 states fairly upon the bill that no transaction has passed 
 since 1800; secondly, attending to Bridges v. Mitchell (2), 
 a very important case, that this Court, following the law by 
 analogy to the statute, does not adopt it in all cases. If 
 there has been that delay or forbearance that makes it 
 not illegal, but inequitable, to demand payment, this 
 Court will tell the plaintiff that the law to which he is 
 entitled is not that which is administered here, he may 
 bring his action." 
 
 There is another ground also deserving consideration. 
 The doctrine upon the question, whether the same law 
 that applies to open accounts applies to merchants' ac- 
 counts, is not to be reconciled. Lord Hardwiche, on the 
 9th July 1737, as I find by a note of a very experienced 
 practitioner in this Court, said, that the exception as to 
 
 (1) 1 Vern. 474. (2) Bunb. 224. Gilb. 217.
 
 ■ A) OF THE EXCEPTION 
 
 merchants' accounts is not to be confined to open ac- 
 counts merely ; for between common persons, as long as 
 the account is continued, the statute does not bar: the 
 exception must therefore mean something more ; and the 
 note adds, that Lord HardwicJce seemed to think, that 
 between merchants an open account would do, though there 
 had been no dealing within six years. In Catling v. Skould- 
 ing (1), Lord Kcnyon seems of the same opinion, stating, 
 that where there is no item of account within six years 
 before the action brought, the plaintiff' will be precluded, 
 unless he can bring his case within the exception in the 
 statute concerning merchants' accounts, and that he must 
 do by his replication. In Welford v. Liddel (2), how- 
 ever, Lord Hardwicke certainly appears not to have that 
 opinion, holding, that a merchant's account will be barred 
 if there is no item within six years; and the same doctrine 
 is to be found in several other cases (3)." 
 
 " I think, however," continued Lord Eldon, " that upon 
 the statement of this bill there can be no relief; whether 
 this is to be taken as an open or a merchant's account, 
 and whether the doctrine upon the statute is to be ap- 
 plied to the one only, or to both ;" — the demurrer was 
 allowed, and leave to amend was refused (4). 
 
 A factor was defined, in the case of Baring and others 
 v. Corry and another (5), to be a person to whom goods 
 are consigned for sale by a merchant residing abroad, or 
 at a distance from the place of sale, and he usually sells 
 in his own name without disclosing that of his principal ; 
 the latter, therefore, with full knowledge of these circum- 
 stances, trusts him with the actual possession of the 
 goods, and gives him authority to sell in his own name. 
 
 (1) 6 Durnf. & E. 189, see 192. (4) Ibid. 
 
 (2) 2 Yes. 400. (5) Per Abbott, C.J. 2 Barnw. 
 
 (3) Barber v. Barber, 18 Ves. & A. 137. 
 jun. 28G.
 
 OF Mi-Hill WTs" 10C01 NTS. >\ 
 
 It now remains to be considered, what accounts ar< 
 within the exception. 
 
 With respect to factors or agents, it is one of their chief 
 duties, and is implied in the contract of a factor or agent, 
 to keep a clear account (1), and communicate the results 
 of it from time to time, and, when called upon to account, 
 without suppression, concealment, or over-charge (2). It 
 has been laid down as a rule in the Court of Chancery, 
 not to be departed from but upon very special circum- 
 stances, that an agent is bound to keep regular accounts 
 of his transactions on behalf of his employer's accounts of 
 receipts (3). 
 
 The case of Sandys v. Blotlwell (4) was referred out of 
 Chancery to Jones, Croke, and Berkley, J. in 13 Car. I.; 
 an account was made between Freeman, the testator, and 
 Blodwell, both being merchants; and Blodwell acknow- 
 ledged a large sum to be in arrear, but Freeman claimed 
 more; before the entire account was finished, Freeman 
 died, and his executor filed a bill against Blodwell, who 
 pleaded the Statute of Limitations ; the judges certified 
 that the executor was not barred, for that the account was 
 not finished, and both were merchants. 
 
 The next case is Martin v. Delboe (5). This was a 
 special action on the case, in which the plaintiff declared, 
 that he and the defendant were merchants, and that the 
 latter was indebted to him in a certain sum, and promised 
 that the plaintiff should have a share in a ship then bound 
 for Barbadoes ; and upon the return of the ship would 
 
 (1) Paley on Princ.& Agent, 46. (4) Sir W. Jones It. 401. 
 
 (2) Topham v. Braddick, 1 (5) Martin v. Delboe, 1 Lev. 
 Taunt. R. 572. 298. Sid. 465. 1 Mod. 70. 1 Vent. 
 
 (3) White v. Lady Lincoln, 8 89. 2 Keb. 674. 696. 717. S. C. 
 Ves. 369. Morgan v. Lezcis, 4 Dow 
 
 Rep. 52.
 
 OK l in: EX< II' i EON 
 
 give him an account, and pay him his proportion., of the 
 profits. The Statute of Limitations was pleaded, to which 
 the plaintiff demurred; and one question was, whether 
 there appeared on the declaration to have been an ac- 
 count stated between the parties. In this case it was said, 
 that accounts may continue twenty years, or more, between 
 merchants, without any danger of the Statute of Limita- 
 tions, in respect of the exception, which was made upon 
 good reason. And it seems to have been agreed, that if 
 an action be brought for a debt upon account stated be- 
 tween merchants, the statute is pleadable; but if no ac- 
 count was stated, it is directly within the statute. It ap- 
 pears by one Report of Martin v. Delboe, that the plaintiff 
 had leave to discontinue on paying costs, " to the intent 
 to have an account,'" which, I presume, means to bring an 
 action of account, it could not, at that time, be brought 
 upon an account stated (1). 
 
 In the case of* Farrington \. Lee (2), the court took 
 a diversity between an account current and an account 
 stated : after the account stated, the certainty of the debt 
 appears, and all the intricacy of account is out of doors, 
 and the action must be brought within six years after the 
 account stated; but if after an account stated, upon the 
 balance of it. a sum appears due to either of the parties, 
 and which sum is not paid, but is afterwards thrown into 
 a u. -w account between the same parties, it is now slipped 
 out of the statute again. 
 
 In equity it has been held (3) that the Statute of Limi- 
 tations is no bar to an open account; and in another 
 case 1 1. Lord Hutching agreed that length of time was 
 
 \! -'in \. Delboe, 2 Keb. (3) Scudemore v. White, 1 Vem. 
 717. 
 
 •2 Mud. 311. (4) Sherman v. Sherman, 2 Vera. 
 
 276.
 
 OF MERCHANTS 1 ACCOUNTS. 
 
 no bar to a bill for an account, but after differences had 
 arisen, and acquiesced in to the time of the <l<'ath <>1* the 
 plaintiff's testator, the court dismissed the bill; and it was 
 added, that among merchants it is looked upon as an 
 allowance of an account current, if (he merchant who 
 receives it does not object to it in a second or third post. 
 
 In a very late case (1) it was determined, that the statute 
 was a bar in a court of equity, where all accounts had 
 ceased for six years. 
 
 On a bill for an account of the estate of plaintiff's 
 father (2), the Statute of Limitations was pleaded to part 
 of the account, Lord Hardwicke, L. C. said, " a plea 
 of the Statute of Limitations covers the discovery always. 
 It is a pretty difficult construction how to apply that ex- 
 ception in the statute relating to merchants' accounts. It 
 is not, that defendant may not plead (o) the statute in all 
 cases where the account is closed and concluded between 
 the parties, and the dealing and transaction over. It was 
 not the meaning to hinder that ; but it was to prevent 
 dividing the account between merchants where it was a 
 running account, when perhaps part might have begun 
 long before and the account never settled, and perhaps 
 there might have been dealings and transactions within 
 the time of the statute. But that is not the case here." 
 
 In Crawford v. Liddle (4), the bill prayed an account 
 of transactions under a patent for extracting oil from tar. 
 A plea of the statute was put in with an averment that 
 
 (1) Barber v. Barber, 18 Ves. Pleas, 163. Plea of Account slated, 
 jun. 286. See Forster v. Hodgson, Id. 222,3. 
 
 19 Ves. jun. 180. (4) Before Lord Rosslyu, 1796, 
 
 (2) We/jbrd v. Liddell, 2 Ves. cited 6 Ves. jun. 582 ; and see Jones 
 sen. 400. v. Pengree, 6 Ves jun. 586. J)"(f 
 
 (3) As to the plea of merchants' v. E. I. Company, 15 Ves. jun. 198. 
 accounts in equity, see Beames on 
 
 D
 
 34 OF THE EXCEPTION 
 
 these were not merchants' accounts. For the plaintiff, 
 Catling v. Skoulding (1) was cited, but Lord Rosslyn 
 was of opinion that the meaning of the exception in the 
 statute was, that if any transaction between the parties 
 took place within six years, none of the transactions shall 
 be barred, but that where all the transactions were over 
 more than six years, the statute might be pleaded as well 
 to merchants' accounts as others, and the plea was al- 
 lowed. 
 
 I have already considered the cases of Cotes v. Harris 
 and Catling v. Skoulding (2). 
 
 Upon the whole it seems that the Statute of Limitations 
 is, so far as the account is concerned, no bar to an open 
 account, but where the account has been stated the sta- 
 tute is a bar. I have already referred to what is said by 
 Lord Hutchins as to a constructive statement of accounts. 
 Lord HardwicJce (3) says that if one merchant send an 
 account current to another in a different country, on 
 which a balance was due by himself, and the other keeps 
 it above two years without objection, the rule of a court 
 of equity and of merchants is, that it is considered as a 
 stated account. Perhaps some questions may arise where 
 merchants are in the habit of making rests half-yearly, 
 and from time to time transmitting their accounts, and in 
 that case what is before observed may be material, that if 
 an account be adjusted and a following account is added, 
 in such case the plaintiff shall not be barred by the 
 statute, because it is a running account (4). 
 
 It was held by Mr. J. Dcnison that the clause in the 
 
 lurnf, \ E. 189. 239, and cases cited in Beames on 
 
 (2) Ante. Ph as in Equity, 229. 
 
 •'■■■> S -.sen. (4) Farrington v. Lee, 1 Mod. 
 
 2 Mod. 311.
 
 OF merchants' accounts. 35 
 
 Statute of Limitations about merchants' accounts ex- 
 fended only to cases where there were mutual accounts 
 and reciprocal demands between two persons ( I , hut I 
 apprehend this is laid down too generally, and though it 
 might apply to merchants, yet it would not apply te»- 
 f actors or servants, whose accounts may or may not con- 
 sist of items on each side of the account, as where the 
 goods are delivered into the hands of the factor free of 
 expense; still I apprehend such case would be within the 
 statute. 
 
 Cases within the exception do not appear to want a 
 new or continuing contract, and therefore are not go- 
 verned by the statute, 9 Geo. IV. c. 14, § 1. 
 
 Accounts delivered may, by the memorandum in fre- 
 quent use, " errors excepted, A. B," operate as an ac- 
 knowledgment in writing against the debtor within the 
 new statute, and accounts should always be required to 
 be so signed ; if by partners, by all the partners. 
 
 It was argued in the case of Furster v. Hodgson(2), that 
 by the effect of the exception in the Statute of Limita- 
 tions, a notion had prevailed that there was no limitation 
 to a suit upon merchants' accounts, but the meaning of 
 that exception was only, that if the last item of the ac- 
 count was within six years, that preserved all the pre- 
 ceding items of debt and credit from the operation of the 
 statute, not that an account which has been closed above 
 six years without any demand upon it could be made the 
 subject of suit. That was argued to be the result of the 
 authorities cited in Jones v. Pengree (3), but I apprehend 
 
 (1) Coles v. Harris, Bui. N. P. (3) 6 Ves. jun. 580. And Buff 
 149, 150. x.E. I. Company, 15 Ves. jun. 108. 
 
 (2) 19 Ves. jun. 180. Barber v. Barber, 18 Ves. jun. 286. 
 
 d2
 
 36 
 
 OF THE EXCEPTION, &C. 
 
 this is answered by Lord Eldon, L. C. that the Court of 
 Chancery following the law by analogy to the statute, 
 does not adopt it in all cases ; if there has been that delay 
 or forbearance that makes it not illegal but inequitable to 
 demand payment, that court would tell the plaintiff that 
 the law to which he is entitled is not that which is admi- 
 nistered in a court of equity : he may bring his action. 
 
 . ' S/,.,,.^ «... & -<'- -- 
 
 ... i ,- ..... - ; ■ ^ "•' ' ^ " "^ 
 
 ^^ 
 
 ^
 
 ( 37 ) 
 
 CHAPTER III. 
 
 OF THE EXCEPTIONS ARISING FROM THE REMAINING 
 SECTIONS IN THE STATUTE 21 JAC. I. C. 16. 
 
 AT the time when the Statute of Limitations, (21 Jac. I. 
 c. 16,) was passed, there was comparatively little com- 
 merce in England, and debts and demands were generally 
 examined into, and settled, or properly secured ; therefore, 
 the exceptions in the statute were of little importance, and 
 as the commerce and trade of the kingdom increased, the 
 disposition of the courts, very favourable to the plaintiff 
 in his attempts to evade the statute, increased, until, in 
 process of time, it was decided, that the most trifling pro- 
 mise or acknowledgment made or proved, was sufficient to 
 take the case out of the statute ; the exceptions were little 
 regarded, when the object was attained by other and 
 easier means. 
 
 At present, however, the case is widely different; the 
 recent decisions have over-ruled many of the previous 
 cases; and the statute 9 Geo. IV. c. 14, requires a pro- 
 mise or acknowledgment in writing, to take the case out 
 of the statute. Looking at the whole of the cases of 
 promises and acknowledgment, it will be seen in what 
 few cases, a writing of any description was produced, so 
 that the only chance the plaintiff has in many cases is to 
 bring his case within some of the exceptions, which now 
 rise to considerable importance, and will occasion much 
 discussion..
 
 38 OF THE REMAINING EXCEPTIONS. 
 
 We have already considered the exception (if so it may 
 be termed) of debts by specialty, and impliedly those of 
 a higher nature, and also the highly important exception 
 of merchants accounts. The remaining exceptions will be 
 now discussed. 
 
 By the statute 21 Jac. I. c. 16, § 6, if any person or 
 persons that is or shall be entitled to any such action of 
 trespass, detinue, action sur trover, replevin, actions of 
 account (1), actions of debt, actions of trespass, for as- 
 sault, menace, battery, wounding, or imprisonment; ac- 
 tions upon the case for words, be or shall be at the time 
 of any such cause of action, given or accrued, fallen or 
 come within the age of twenty-one years, feme covert, 
 non compos mentis, imprisoned or beyond the seas, that 
 then such person or persons shall be at liberty to bring 
 the same action, so as they take the same within such 
 times as are before limited after their coming to or being 
 of full age, discovert, of sane memory, at large and returned 
 from beyond the seas, as other persons having no such 
 impediment should have done (2). 
 
 This exception was introduced to protect the interest 
 of those persons, which there was no one of competent 
 age, competent understanding, or competent in point of 
 residence in this country, to protect (3). 
 
 Upon this exception it has been observed, that the sta- 
 tute being general, infants would have been bound if they 
 had not been expressly excepted (4). 
 
 (1) " Actions of accompts," Irish (3) Perry and others \ . Jackson, 
 Statute, 10 Car. I. sess. 2, c. 6, Bart, and others, 4 Durnf. & E. 
 §17. 517. 
 
 (2) In the Irish Statute, 10 (4) Prideaux v. Webber, 1 Lev. 
 Car. I. sess. 2, c. 6, § 17, there is 31. 
 
 a provision in the same terms as in 
 the stat. '.'l Jac. I, c. 16, § C.
 
 OF THE REMAINING EXCEPTIONS. '.',[) 
 
 But although the infant is excepted, yet if an infant, 
 
 during his infancy, by his guardian, do bring an action, 
 the defendant cannot plead the Statute of Limitations I | 
 against the infant, for the infant is not bound to wait till 
 he comes of age; a similar point has been determined on-* 
 the Statute of Fines, 4 Hen. VII. c. 24; the words of 
 which statute are, " that infants and their heirs shall 
 take their action or entry within five years next after they 
 are of the full age of twenty-one years :" still it has 
 been resolved, that an infant may, if he pleases, enter or 
 have his action before he attain his full age, and avoid the 
 fine (2). Although infants are excepted, yet in actions 
 brought where they are substantially, though not nomi- 
 nally, the defendants, (as being cestui que trusts, J the 
 statute will operate without the exception (3). 
 
 Although persons beyond the seas are privileged by 
 this proviso of the statute, which preserves the demand, 
 it cannot be objected, that the plaintiff should have 
 returned to England before he had commenced proceed- 
 ings. The act of parliament was intended to allow privi- 
 leges, and not to abridge any right which the persons 
 mentioned in the proviso had; for if they were obliged to 
 return from beyond seas into England before they can 
 maintain an action here, the statute would not be any 
 benefit to them, and might, in many cases, virtually ex- 
 tinguish the demand ; as if a person constantly resident 
 in the East or West Indies were to sell goods in England, 
 it might not be worth while for him to proceed to England 
 to bring an action : In a case in Chancery, where it was 
 
 (1) Chandler v. Villett, 2 Saund. (2) Stowel v. Zouch, Plowd . 36(3. 
 
 R. 121. Mr. Serj. Williams' note. Catoris case, 1 Leon. 215. 2lnst. 
 
 A third party cannot take advan- 5"19, S.C. 
 
 tage of the statute. Per Gaselee, (3) Wych v. East India Coih- 
 
 J., Mayor v. P>/ne, 1 1 Moore R. 6. puny, ?, P. Will. 309.
 
 40 OF THE REMAINING EXCEPTIONS. 
 
 objected, that a person beyond seas ought to return to 
 enable him to commence an action : Lord Harduucke, L. 
 C, held, that the case was not to be distinguished from the 
 case of the infant in Saunders (1), and therefore he over- 
 ruled the plea. 
 
 The words of the statute being, " that if the persons 
 entitled to the actions shall be beyond the seas, they shall 
 have their actions afterwards." A question arose, whe- 
 ther debtors, as well as creditors, were within the mean- 
 ing of this exception: and in the 2d William and Mary 
 it was said by Dolben, J., to have been an old question, 
 and never then settled, whether the defendant be within 
 the proviso. It was urged this case was within the equity 
 of the statute, but the Court in one case thought other- 
 wise — the defendant had judgment (2). In a subsequent 
 case, where an action was brought on a bill of exchange, 
 and the defendant pleaded the statute, and the plaintiff 
 replied, that the defendant was all that time out of the 
 realm — the replication was adjudged ill (3). 
 
 This question was set at rest by the statute 4 & 5 Ann. 
 c. 16, § 19; " If any person or persons against whom there 
 shall be any cause of action of account or upon the case, 
 or of debt, grounded upon any lending and imprisonment, 
 or any of them be or shall be at the time of any such 
 cause of suit or action, given or accrued, fallen or come 
 beyond the seas, that then such person or persons who is 
 or shall be entitled to any such suit or action, shall be at 
 
 (1) Chandlery. Villett, 2 Saund. 98. Carth. 136. 3 Mod. 311. 
 120, ante, 39. Gage v. Bulkcley, 2 Salk. 420. 
 
 Ridgeway's Rep. temp. Hardw. (3) Cheveley v. Bond, 1 Show. 
 
 284. 08. 22G; and see Swuync v. Ste- 
 
 (2) Hall v. Wj/burn, 1 Show, phcns, Cro. Car. 334.
 
 OF THE REMAINING EXCEPTIONS. 11 
 
 liberty to bring the said actions against such person and 
 persons, after their return from beyond the seas, within 
 such times as are respectively limited for the bringing of 
 the said actions before by this act, and by the said other 
 act made in the twenty-first year of the reign of KiniL 
 James the First. 
 
 A similar enactment was made in Ireland by the Irish 
 Statute, 6 Anne, c. 10, § 17. 
 
 The return contemplated by these statutes must he 
 looked at in their general sense, and in its well known 
 and popular sense; the mere landing on English ground 
 cannot be considered as a return within either of the sta- 
 tutes (1). 
 
 In 1792 a question arose whether, if one plaintiff be 
 abroad and others in England, the action must be brought 
 within six years after the cause of action arises ; and it 
 was held that the action was so limited (2). 
 
 The terms in the statute, 21 Jac. I. c. 16, and 4 & 5 
 Anne, c. 16, are, " beyond the seas " the old term in the 
 previous Statutes of Limitation was, " out of the realm," 
 but the legislature altered it in the statute, 21 Jac. I. 
 c. 16, and the subsequent act, and it has been therefore 
 held that Glasgow, in Scotland, is not within the pro- 
 viso (3). But it has been held by Lord Holt, Ch. J. that 
 Dublin, or any other place in Ireland beyond sea, is within 
 the statute (4). It has also been held that this exception 
 extends to foreigners who are constantly residing abroad (5). 
 
 In the case of Fines, if the party be beyond sea at the 
 
 (1) Gregory v. Hurrill, 8 Moore, (4) Nightingale v. Adams, 1 
 R. 189. 1 Bing. It. 324. Show. 91. Scd quere since the 
 
 (2) Perry and others v. Jackson, union with Ireland. 
 
 Bart, and others, 4 Durnf. & E. 51 6. (5) Stethorst v. Grame, 2 Sir W . 
 
 (3) King v. Walker, 1 Sir W. Black. Rep. 723. 
 Blackst. Rep. 287.
 
 42 OF THE REMAINING EXCEPTIONS. 
 
 time of the fine levied, and never return but die there, it 
 seems the fine will not bar the heir, but if they be in 
 England at the time of levying the fine, and afterwards 
 go beyond sea, and suffer the five years after the procla- 
 mations to pass ; in this case they shall have no more time 
 except they be sent on the king's service and by his com- 
 mandment (1). 
 
 It seems to have been very early considered to be in 
 many cases advisable and in some cases absolutely neces- 
 sary for the plaintiff to bring his action within six years, 
 and to sue out process, in order that if the defendant 
 should afterwards plead the statute, it may be replied that 
 the plaintiff had brought his action within the time limited. 
 
 Cases were, however, likely to happen where the first action 
 might be rendered inoperative by writ of error, motion in 
 arrest of judgment, and in some other cases, and therefore 
 it was also enacted, as an exception, by § 4, that if in any 
 of the actions or suits judgment be given for the plaintiff, 
 and the same be reversed by error, or a verdict pass for 
 the plaintiff, and upon matter alleged in arrest of judg- 
 ment, the judgment be given against the plaintiff that he 
 take nothing by his plaint, writ, or bill ; or if any of the 
 said actions be brought by original, and the defendant 
 therein be outlawed, and shall after reverse the outlawry, 
 that in all such cases the party plaintiff, his heirs, execu- 
 tors, or administrators, as the case shall require, may com- 
 mence a new action or suit from time to time within a 
 year (2) after such judgment reversed, or such judgment 
 given against the plaintiff, or outlawry reversed, and not 
 after. 
 
 The Irish stat. 10 Car. I. c. 6, § 15, is nearly in the 
 same words. 
 
 (1) Sir Thomas Cotton's case, 27 sess. 2, c. 6, § 15, has the word 
 III/. Shep. Touchst. 31, 34. " next'' after " year." 
 
 (2) The Irish statute, 10 Car. I.
 
 OF THE REMAINING EXCEPTIONS. I I 
 
 There are few cases upon this section. In one old 
 case(l) it was held to be immaterial whether the out- 
 lawry mentioned in the statute be reversed by writ of 
 error or avoided by plea; where a person brings an 
 action before the expiration of six years and dies before 
 judgment, the six years being then expired : it has been 
 held, by an equitable rule of construction of the act (2), 
 that his executor or administrator may, within the equity 
 of the fourth section of the statute, 21 Jac. I. c. 10, bring 
 a new action (3), provided he does it recently, or within a 
 reasonable time, and it seems that though the new action 
 should never be delayed, yet the statute is the best guide 
 upon the subject, and the action should at least be com- 
 menced within the year (4). In one case the action was 
 allowed to have been well brought within fourteen months 
 after the testator's death (5). 
 
 Where an action was brought by a feme sole within six 
 years, and the six years expired and then she married, it 
 was holden that she and her husband were allowed to 
 bring a new action within the equity of the statute. The 
 new suit in this case was within two terms (6). 
 
 (1) Sir T. Finch v. Lamb, Cro. Saund. 63, Mr. Serjeant Williams' 
 Car. 294, 5. Sir W. Jones, 312. note; and see WUcocks v. Hug- 
 
 (2) The King v. Morrall, 6 Price gins, 2 Str. 907. Fitzgib. 170. 289. 
 Exch. Rep. 30. (5) Lethbridge v. Chapman, 15 
 
 (3) Matthew v. Phillips, 2Salk. Vin. Abr. 103. 
 
 225. Kinsey v. Hayward, I Lutw. (6) Lord Middlcton v. Forbes 
 260. and Wife, Willes Rep. 260. Note 
 
 (4) Hodsden v. Harridge, 2 by the late Mr. Durnford.
 
 ( 44 ) 
 
 CHAPTER IV. 
 
 OF THE LIMITATION OF ACTIONS, AND OF ACKNOWLEDG- 
 MENTS AND PROMISES, TO TAKE THE CASE OUT OF THE 
 STATUTE OF LIMITATIONS. 
 
 THE words of the statute, 21 Jac. I. c. 16, § 3, are, 
 " That the actions (of account, upon the case and of debt 
 included in it), shall be commenced within three years 
 after the end of the then session of parliament, or within 
 six years next after the cause of action or suit and not 
 after. 
 
 The first period of limitation, three years after the 
 passing of this statute, (which certainly introduced a new 
 and probably, in the estimation of the public, a severe 
 law,) was given to allow suitors sufficient time to proceed 
 for and recover their debts (1). 
 
 The second limitation, within six years after the cause 
 of action or suit (2), has given rise to much discussion. 
 
 (1) There is one case where it turn, and upon demand refuses the 
 
 was pleaded that the cause of ac- delivery here, it will be a new con- 
 
 tion arose in the 9th Jac. I., before version, from which the statute will 
 
 the statute limiting the plaintiff to run ; this was evidently showing 
 
 three years, (Swayn and ot Iters v. the inclination of the court in favour 
 
 Stephens, Cro. Car. 245. 333, 4. of the plaintiffs right. 
 
 Sir T. Jones, 252. Lord Suy and (2) See a case on the Irish Re- 
 
 Sele v. Stephens, S. C.) It was venue Act, 25 Geo. III. c. 34, § 
 
 there laid down (Croke, J. dissen- 108, which directs that the action 
 
 Inn/,,) that if A. converts gooJs against an officer "shall be com- 
 
 beyoud sea, and after six years re- menced within three months next
 
 ACKNOWLEDGMENTS AND PROMISES, &C. 45 
 
 It seems obvious, that it would have been the best 
 mode of taking advantage of the statute in pleading, in all 
 cases to have adhered strictly to the words of the statute, 
 and alleged that the cause of action did not accrue within 
 six years next before the suit. But two modes of plead- - 
 ing were very early adopted, the one probably borrowed 
 from the general issue, non assumpsit, that the defendant 
 did not promise within six years; and the other, that the 
 cause of action did not accrue within six years. It has 
 often happened, that the former mode of pleading the 
 statute, dating the time from the promise, has been 
 adopted when obviously the statute could not begin to 
 operate from the making of the promise, but at a subse- 
 quent period, as upon a promissory note to pay at the 
 end of two years, the statute would begin to operate when 
 the note became payable, for then the cause of action 
 accrued, and the time when the note was made would be 
 wholly immaterial (1). 
 
 These cases, however, have had the good effect of set- 
 tling the law upon this subject. If a demand arises for goods 
 sold, money lent, or money paid, the statute generally runs 
 from the time of the promise or contract, for the cause of 
 action was complete at that time, and the plaintiff might 
 have sued immediately afterwards, and so where there is 
 a promise to pay on demand ; and it has been held in a 
 number of cases, that where a promissory note is payable 
 on demand, the statute runs from the date of the note (2). 
 
 after the cause of action shall ac- months. Wilch ki n, in error, against 
 
 crue." This, it was held, must be Gahan, Irish Term Rep. 591. Goden 
 
 from the actual seizure of goods by v. Ferris, 2 Hen. Blackst. 14. S. P. 
 
 the ollicer. Magravev. Gilbourne, (1) Gould v. Johnson, 2 Salk. 
 
 1 Irish Term Hep. 13.5. Though 422. 2 Ld. Kaym. 838. 
 
 a suit in the revenue court be de- (2) Collins v. Benning, 12 Mod. 
 
 pending at the expiration of three 144. Bull. N. P. 150. S. C
 
 46 ACKOWLEDGMENTS AND PROMISES 
 
 Where, however, a note is payable a certain time after 
 demand, or after sight, or after date, the statute does not 
 begin to run until that time has expired (1). In these cases 
 the statute runs from the last day of grace, and where no- 
 tice is to be given of the dishonour, a further time must be 
 allowed for giving notice. 
 
 Where money is payable on a contingency, the statute 
 runs from the time when the contingency happens, though 
 it may be many years after the making of the promise or 
 contract (2). 
 
 In an action on a special agreement, the cause of action 
 arises at the time when the contract is broken, and from 
 that period the statute begins to run, and though parti- 
 cular damage may be afterwards, at a considerable dis- 
 tance of time, ascertained to have resulted from that 
 breach of contract, yet still the breach is the gist of the 
 action in assumpsit, and the statute does not run from the 
 time of the discovery of such special damage. Some very 
 hard cases have occurred on this subject. 
 
 In one case, Bait?/ and another v. Faulkner and ano- 
 ther (3), the declaration stated, that in consideration that 
 the plaintiff would buy of defendant wheat for seed, the 
 defendant undertook that it should be spring wheat, and 
 the breach was, that it was not of that description but 
 winter wheat. It was stated as special damage, that the 
 plaintiffs had again sold the wheat as spring wheat, and 
 
 Walmsley v. Child, 1 Yes. sen. 342. 347. It is said, that Christie v. 
 Dick and Wife v. Gourney, Irish Fonseck, was doubted by Lord Ten- 
 Term R. 242. Christie v. Fori- terden, C. J. in a late case at nisi 
 seek, C. P. coram Sir James Mans- prius. 1 Selw. N. P. 341. 
 field, C.J. London Sittings after (2) Hodsdcn v. Harridge, 2 
 Michaelmas Term, 52 Geo. III. Saund. Rep. 63. n. (6). Bac. Abr. 
 1 Selw. N. P. 344, MS. tit. Limitation. 1 Tidd Pr. 14. 
 
 (1) Thorpe v. Coombc, 1 Ryan (3) 3 Barnew. & A. 288. 
 & M. 388, note. 8 Dowl. & R.
 
 BARRING THE STAT. OF LIMITATIONS. 17 
 
 that his vendee had sown it in 1810, and that the wheat 
 
 was unproductive, and that the present plaint ill- were 
 sued in Scotland for damages, and had to pay damagi 
 and costs ; the defendant pleaded the general issue and 
 the Statute of Limitations. The facts were as stated in. 
 the declaration; the suit in Scotland terminated in 1818(1), 
 the Chief Justice, in 1820, nonsuited the plaintiffs, and a 
 rule was obtained to set aside the nonsuit, and for a new 
 trial; but it was held, that although the special damage 
 had occurred within six years before the commencement 
 of the action, yet that the breach of contract which in 
 assumpsit was the gist of the action, having occurred and 
 become known more than six years, the Statute of Limi- 
 tation was properly pleaded, and it was said, that if the 
 present plaintiff had sold the wheat and the wheat had 
 been sold several times afterwards, and each party had 
 taken several years to sue, each party having acquired a 
 new cause of action, the plaintiff might, upwards of twenty 
 years after the original transaction, bring an action against 
 the present defendant. 
 
 In a subsequent case, Short v. M'Carth?/(2), the decla- 
 ration stated, that the defendant was retained to ascertain 
 whether a sum of money was standing in the books of the 
 Bank of England in the names of certain trustees for the 
 benefit of one Shaun, and that the defendant undertook 
 to perform and fulfil his duty in the premises, but although 
 it was his duty diligently and sufficiently to search at the 
 Bank of England, yet the defendant did not do so, but 
 afterwards falsely represented to the plaintiff that the 
 
 (1) There are several cases where Gakan, Irish Term Rep. 591. Go- 
 it might have been convenient to den v. Farts, 2 II. Black. 14. 
 wait till certain proceedings ter- (2) 3 Barn. & A. 626. 
 minated. See Wihhkin, in error, v.
 
 48 ACKNOWLEDGMENTS AND PROMISES 
 
 money was standing in the names of the trustees, by 
 reason whereof the defendant paid a sum of money as a 
 consideration for the purchase of the interest of Shaun 
 in that money, whereas, in truth and in fact, the money 
 was not standing in the names of the trustees or either of 
 them for the benefit of Shaun, so that the plaintiff lost his 
 money, and was put to great charges and expenses ; the 
 defendant pleaded the general issue and the Statute of 
 Limitations. At the trial before Abbott, C. J., in 1820, it 
 appeared, that in December, 1812, the plaintiff having 
 agreed to buy Shaun's interest in £700 Bank Annui- 
 ties, applied to the defendant, an attorney, to have the 
 bargain carried into effect. The instructions to him were, 
 that he should see that every thing was right. The deeds 
 were prepared and executed, and the money paid by the 
 plaintiff, but no inquiries had been made at the Bank of 
 England, and no such stock was standing in the trustees' 
 names; this discovery was made in August, 1818, after 
 the six years expired, and the defendant, on being applied 
 to, said it was owing to an omission of his clerk, and he 
 was responsible. The jury found a verdict for the plaintiff, 
 and on a motion for setting aside this verdict and entering 
 a nonsuit, it was held, that the plaintiff was not entitled to 
 recover, for the cause of action (being the omission of the 
 defendant to make due enquiries at the Bank) did not 
 arise within six years before the commencement of the 
 action. A similar case occurred in the Common Pleas ; 
 and in a subsequent case(l), where a special action on the 
 case was brought against an attorney for negligence, and 
 the Statute of Limitations pleaded ; it was held, that it 
 made no difference whether the plaintiff elected an action 
 of assumpsit founded upon a breach of promise or a spe- 
 
 (1 ) Brown v. Howard, 2 Brod. & B. 73.
 
 BARRING THE STAT. OF LIMITATIONS. I') 
 
 cial action on the case, founded on a breach of duty, and 
 that the Statute of Limitations was a bar to the original 
 cause of action, and to all the consequential damages re- 
 sulting from it, unless indeed, it could he shewn that those 
 damages, or any part of them, constituted a new cause of- 
 action, which accrued within six years (1), and the Statute 
 of Limitations is a bar to an action of trover commenced 
 more than six years after the conversion, though the 
 plaintiff was ignorant of the conversion till within the six 
 years, no fraud having been committed by the defendant 
 to prevent the plaintiff's earlier knowledge (2). 
 
 Ciinsc of action is the right to prosecute an action with 
 effect, and no one can have a complete cause of action 
 unless there be some person that he can sue, and no 
 laches can be attributed to a person for not suing, whilst 
 there is no one against whom he may bring his action (3). 
 
 There are several cases on this subject. Stanford's 
 case (4) arose upon the Statute of Fines, (4 Hen. VII. 
 c. 24,) the object of that statute being to limit the time of 
 entry or suit to a person in esse, capable of entering or 
 suing. A term of years was granted in remainder expec- 
 tant on another existing term ; before the expiration of 
 the first term the grantee died ; at the expiration of the 
 first term the lessor entered and levied a fine before admi- 
 nistration granted ; the five years passed, administration 
 was granted ; it was held that the administrator should 
 have five years, for none had title of entry before. 
 
 In an action of assumpsit (5) for money had and received 
 
 (1) Howell v. Young, 5 Barn, phots, Cro. Car. 245, 333, 1. Sir 
 & A. 259. 8 Dovvl. & It. 14. S. C. T. Jones, 252. S. C. 
 
 (2) Granger v. George, 7 Dowl. (3) Joliffe v. Pitt, 2 Vein. 694. 
 & It. 729. See the singular case of (4) Cro. Jac. 61. 
 
 two conversions just after the stat. (5) Cory and wife v. Stephenson, 
 21 .lac. I. c. 10. Swayn v. Ste- Salk. 421. Carth. 335. Skin. 555. 
 
 4 Mod. 372. S. C 
 
 1".
 
 50 ACKNOWLEDGMENTS AND PROMISES 
 
 against one who had received money belonging to the 
 estate of the intestate after his death and before adminis- 
 tration granted, the receipt being six years before the 
 action, but the grant of administration within six years : 
 the court held, that the time of limitation did not begin 
 to rise until the grant of administration. 
 
 In another case (1) there was a gift of a term of years 
 to A. for life, remainder to B. for life, remainder to C. ; 
 C. died in 1736; A. in 1757; B. in 1779. Administra- 
 tion of the effects of C. was first granted in 1816, eighty 
 years from the death, and the administrator brought an 
 ejectment : he was nonsuited at the trial, but the court of 
 Common Pleas granted a new trial. 
 
 And in an action (2) by an administrator tie bonis noil, 
 upon a bill of exchange, payable to the testator, but ac- 
 cepted after his death : it was held, that the Statute of 
 Limitations begins to run from the time of granting the 
 letters of administration, and from the time of the bill 
 becoming due, there being no cause of action until there 
 be a person capable of suing. 
 
 In a subsequent case (3), where the testator resided 
 and died abroad, it was held, his executor in England 
 might be sued within six years after he had taken out 
 probate ; for though an executor may do many acts before 
 he has proved the will, and when he has proved the will 
 his right to the testator's property has relation to the 
 time of testator's death, no action can be maintained 
 against him as executor, as he may renounce until he has 
 taken upon himself to act as such, or has proved the will. 
 
 (1) Fairclaimv. Little, cited in (3) Douglas and another v. For- 
 Murray v. E. J. Company, 5 Barn, rest, Executor, 4 Bing. 686. 1 
 & A. '214. Moore 8c P. 663. S. C. Webster 
 
 (2) Murray, Administrator, v. v. Webster, 10 Ves. 93. 
 The E, /. Company, . r . Barn. & A. 
 204.
 
 BARRING THE STAT. OF LIMITATIONS, 51 
 
 There must not only be a cause of action, and persona 
 to sue and be sued, but ;i jurisdiction in which the action 
 may be maintained; at the same time it is nol every 
 interruption which will prevent the statute from running. 
 Several cases (1) occurred after the restoration of King- 
 Charles II. when the previous troubled state of the king- 
 dom was pleaded and urged as an excuse for not suing, 
 but without effect. In the subsequent revolution in 1688, 
 to prevent such questions and to give the subject his 
 full statute time, it was expressly enacted by the statute of 
 
 1 Wm. § Mary, c. 4, that from the day King James de- 
 parted till the time when King William assumed the 
 government, should not be accounted any part of the time 
 within which actions must be brought (2). 
 
 Previous to the Statute of Limitations, 21 Jac. I. c. 16, 
 there appears to have been always a defence to an action 
 for a stale demand, arising from an intendment of pay- 
 ment from length of time, but that was at a considerable 
 interval and the time not settled; the statute was pa 
 to fix a shorter definite time within which actions should 
 be brought, and though, since the statute, judges seem 
 always to have favoured the right of the plaintiff where 
 the debt appeared to be justly due, yet in an early case 
 on the Statute of Fines, followed by others on the 
 other Statutes of Limitation, it has been uniformly held, 
 that where any of the Statutes of Limitation had once 
 begun to run, no subsequent disability would prevent 
 its running (3) ; there is no calculating how far the time 
 
 (1) Benyonv. Evelyn, O, Bridgm. Jones, 4 Dumford & E. 311. Doe 
 Rep. 356. Prideaux v. Webber, 1 d. Griggs and another v. S/huic, 
 Lev. 32. 4 Dumford & E. 306, 7. As to 
 
 (2) Snode v. Ward, 3 Lev. 283. several disabilities in the same or 
 
 2 Vent. 185. differenl persons, see Cotterell v. 
 
 (3) Stowellv. Lord Zouch,T?\ovr. Dutton, I Taunt. 826. Doe v. 
 |74. Doe d. Count Duroure v. Jesson, 6 ! > -t, ao. 
 
 F. 2
 
 o2 ACKNOWLEDGMENTS AND PROMISES 
 
 might be extended, if several disabilities in succession had 
 been allowed. This rule has been applied to the different 
 Statutes of Limitation, though they are in very different 
 terms, yet, as observed by Lord Tenterden (1), the several 
 Statutes of Limitation being in pari materia, ought to re- 
 ceive a uniform construction notwithstanding any slight 
 variation of phrase, for their object and intention is the 
 same ; the last-mentioned cases afford a strong contrast 
 to the various and unsatisfactory cases on promises and 
 acknowledgments, which will be soon mentioned. 
 
 The Statute, after the limitations of three years from the 
 passing of the act, and six years from the cause of action, 
 adds, " and not after ;" looking at these words, " and not 
 after," Best, Ch. J. (2) says, (and which, it may be ob- 
 served, have been twice repeated in the cause,) " one 
 might be led to conclude that in no instance could a re- 
 medy for a debt be had after six years ;" and certainly no 
 stronger words could be used. 
 
 " Expedit reipublicce at sit Jinis Utium," Bridgman, 
 Ch. J. observed, in 1G64, (the statute having passed in 
 1623,) " it is better to suffer a particular mischief than a 
 general inconvenience ; and such a one must happen, if 
 way be given to equitable constructions against the letter 
 of the act, which is, that they shall be sued within six 
 years after the cause of action. But it rests not there, 
 but adds, ' and not after,' which negative words are the 
 strongest that can be in a law. By another statute of this 
 parliament, 12 Jac. I. c. 4, it is enacted, that informations 
 and other popular actions shall be in the proper counties, 
 and before justices of assise, nisi prius, oyer and terminer, 
 ami gaol delivery, and not elsewhere. These negative 
 
 (1) Murray v. E. I, Company, (2) Ham v. Ruynall and others, 
 nw. & \. 215. 2 Bin?. 306.
 
 BARRING THE STAT. OF LIMITATIONS. .">. J 
 
 words exclude the superior courts, even the king's court, 
 which had an universal and unlimited jurisdiction before. 
 And so here the negative words exclude all time for 
 bringing the action but that which the statute doth ex- 
 pressly allow, for statutes in the negative bind the common 
 law, as it is said, 10 Edw. IV. 7 "(1). 
 
 I suspect that the statute was at first looked upon as 
 laving down a strict and severe rule. It was argued 
 against it that it had taken away the common law. And 
 Lord Holt (2), in one case, says, after twenty years he 
 would presume a bond or a note for a large sum paid, as 
 if six years limitation were not enough. 
 
 However that may be, the courts early took up the 
 idea that the effect of the statute might be prevented by 
 a new agreement, and perhaps it was first considered that 
 a new consideration and promise made within the six 
 years might prevent the operation of the statute, after- 
 wards the old debt might be considered as a good consi- 
 deration for a subsequent promise to pay. 
 
 In Dickson v. Thompson (3), which was assumpsit, and 
 the Statute of Limitations was pleaded, it was ruled by 
 Lord Scroggs, upon evidence, and agreed by all the 
 counsel, that promise of payment within six years, though 
 the debt were contracted long before, will evade the 
 Statute of Limitations, but confession, or only an acknow- 
 ledgment that he owed the plaintiff so much, would not 
 do it. In Bland v. Haselrig (4), Pollexfen, C. J. seemed 
 to be of opinion that if the promise were renewed within 
 the six years, yet if not upon a new consideration, it should 
 not bind, and if there were a new consideration, the action 
 
 (1) Bemjon v. Evelyn, O. Bridg. (3) 32 Car. II. 2 Show. L26 
 Rep. 363. (4) 2 Vent. 1.52. 
 
 (2) In 2 Anne, Anon. 6 Mod. 22.,
 
 54 ACKNOWLEDGMENTS AND PROMISES 
 
 would be against him that promised only (1), although 
 the original promise was by two; but the Reporter adds, 
 " Sed qiuere, for the common practice is, upon a plea of 
 the Statute of Limitations, to prove only a renewing of 
 the promise, without any further consideration ; but a 
 bare avowing of the debt is not taken to be sufficient. 
 Qurere, if the first consideration upon repeating the pro- 
 mise within six years be not enough to raise a new cause 
 of action." 
 
 In the celebrated case of Hyleing v. Hastings (2), the 
 plaintiff* gave evidence that after six years were elapsed 
 since the contract, he, being executor to the person who 
 sold the goods, came to the defendant and demanded the 
 money, but the defendant denied he had bought them, 
 and said, " If the plaintiff would prove it, he would pay 
 him." Holt, Ch. J. tried the cause, and kept the postea 
 till he had the opinions of his brothers of the King's 
 Bench. Holt, Ch. J. said, " doubtless an express pro- 
 mise would revive the debt though it were twenty years 
 afterwards ;" ultimately he reported in the King's Bench, 
 " that he had put this case to all the judges in England 
 (except Lech mere) assembled at Serjeants Inn, and that 
 they were all of opinion this conditional promise had 
 brought the case out of the Statute of Limitations, and 
 that a general indebitatus assumpsit might be well main- 
 tained, because the defendant has waived the benefit of the 
 statute, and it is as strong as an express promise after the 
 condition is performed, being the proof of the debt, which 
 ought to be done in evidence upon the indebitatus as- 
 sumpsit ." 
 
 (1) See the provision as to a (2) Com. Rep. 154. Carth. 470. 
 promise in writing by one only, Sal k. 29. 12 Mod. 223. Holt, 427. 
 9 ' " 0. IV. c. 14, § 1. 1 Lord Raym. 329. 421.
 
 BARRING THE STAT. OF LIMITATIONS. .">.» 
 
 It was also moved, whether the acknowledgment of ;i 
 
 debt within six years would amount to a new promise and 
 to bring it back out of the statute, and they were all of 
 opinion that it would not, but that it was evidence of a 
 promise; and Rokeby, J. compared it to the case of trover 
 and conversion, where a demand and denial is held to be 
 evidence of a conversion but not a conversion. 
 
 It was settled about 1717, (near 100 years after the 
 passing of the act,) that an acknowledgment of the debt 
 takes it out of the Statute of Limitations (1). 
 
 It has been since held, that the slightest acknowledg- 
 ment is sufficient to take the case out of the Statute of 
 Limitations (2) even after action brought (3), as saying, 
 " I am ready to account, but nothing is due to you," or 
 " if there be any demand on me it shall be settled (4)." 
 And if the acknowledgment be to a different debt, the de- 
 fendant must prove it (5). So where the defendant said, 
 when he was arrested, " I will go to my attornies and pa\ 
 the debt and settle it." This was lately ruled to be suf- 
 ficient to take the case out of the statute (6). And where 
 the defendant stated in an affidavit in the cause, that 
 since the bill of exchange no demand of payment had 
 
 (1) Per Price, Baron, Exeter of the statute. Per Bailey, J. 2 
 Lent Ass. 1717. 12 Vin. Abr. 192. Barn. & C. 154. 
 
 (2) Trueman v. Fenton, Cowp. (3) Yea v. Fouraker, 2 Burr. 
 548. Per Lord Mansfield, C. J. 1099. 
 
 Lloyd v. Maund, 2 Durnf. & E. (4) Truman v. Fenton, Cowp. 
 
 762. Per Ash hurst, J. The Statute 548. Quantock v. England, 5 Burr. 
 
 of Limitations is a bar, on the sup- 2630. Richardson v. Venn, Loft, 
 
 position that after a certain time a 45. Baillie v. Lord Inchiquin, I 
 
 debt has been paid and the vouchers Esp. N. P. C. 4 :).'-. 
 
 lost, but wherever it appears by the (5) Baillie v. Lord Inchiquin, I 
 
 acknowledgment of the party that it Esp. N. 1'. C. 435. 
 
 is not paid, that takes the case out (6) Vriggs v. Newnham, I < an 
 
 & P. 6 II
 
 .">.; ACKNOWLEDGMENTS AND PROMISES 
 
 been made, it was left to the jury(l) as an acknow- 
 ledgment. 
 
 So where A. improperly received of B. and several 
 other persons, his tenants, sums to which he was not en- 
 tit led, and B. applied to him to have the money returned, 
 stating, that he and the other tenants had paid more than 
 was due; and A. said, " if there is any mistake it shall be 
 rectified:" it was held, this obviated the statute as to 
 payment by the other tenants as well as B. (2). So where 
 the defendant wrote to the plaintiff's attorney, " I re- 
 ceived yours respecting the plaintiff's demand, it is not a 
 just one. I am ready to settle the account whenever he 
 thinks proper to meet me ; I am not in his debt 90/. or 
 any thing like it. Shall be happy to settle the difference 
 by his meeting me in London, or at my house. I shall 
 write to the plaintiff on the subject." After this letter 
 the statute is out of the question (3). 
 
 And where the defendant said, " what an extravagant 
 bill you have delivered me," it was held a sufficient ac- 
 knowledgment (4). Where to an action on a promissory 
 note the defendant pleaded the Statute of Limitations, 
 and the plaintiff gave in evidence a letter written by 
 the defendant to him, stating " business calls me to 
 Liverpool; should I be fortunate in my adventures you 
 may depend on seeing me in Bristol in less than three 
 weeks; otherwise I must arrange matters with you as cir- 
 cumstances will permit. I shall leave town to-morrow 
 night." And it was not shown that the letter referred to 
 any other transaction between the parties: it was held, 
 
 (1) Bucker v. Hannuy, 4 East If. (3) Colledge v. Horn, 10 Moore 
 604. R. 431. 3 Bing. It. 119. S. C. 
 
 (2) Clarh \. Hougham, 3 Dowl. (4) Lawrence v. Worrall, Peake, 
 & R, 322. 2 Bam. & C. 149. N. P. C. 93.
 
 BARRING THE STAT. OF LIMITATIONS. 5*3 
 
 that it was properly left to the jury to determine whether 
 it related to the note, so as to amount to a sufficient ac- 
 knowledgment to take the ease out of the statute; ami 
 they having decided in the affirmative, their verdict was 
 conclusive (1). _ 
 
 And so where the defendant said, " he would not ]>a\ , 
 there were none paid, and he did not mean to pay unless 
 obligedj" this was held sufficient (2) : — so where the de- 
 fendant said, " if others pay, I will do the same" (3); and 
 where a man, on being arrested, said, " I will go to my 
 attorney, pay the debt, and settle it," it is sufficient; for 
 it is not necessary there should be a new contract, or a 
 new promise; an acknowledgment is all that is required; 
 if a man acknowledges a debt to be still due, the law 
 implies a promise (4) . 
 
 Where there are mutual items of account, every new 
 item and credit in an account given by one party to the 
 other, is an admission of there being some unsettled ac- 
 count between them, the amount of which is afterwards 
 to be ascertained; and any act which a jury may consider 
 as an acknowledgment of its being an open account, is 
 sufficient to take the case out of the statute (5). But 
 perhaps a question may arise, when the demand of one 
 party is long after the demand of the other, whether it 
 will revive the antecedent account (6) ; this doctrine is of 
 mutual accounts. In a late case (7), where the plaintiff 
 having lent defendant money, took from him the following 
 
 (1) Frost v. Bengough, 3 Moore, (5) Per Lord Kenyan, Catling 
 180. v. Skoulding, 6 Durnf. & E. 193. 
 
 (2) Dowthwaite v. Til/but, 5 (6) Crunch, Executor, v. Kirk- 
 Maule & S. 75. man and others, Peake, N. P. C. 
 
 (3) Coweth v. Father gill, 4 121. 
 
 Camp. 185. (7) Uoburts v. Robarls, 1 Moore 
 
 (4) Triggsv. Newnham, 1 Carr \ P. 437. 
 & P. 632.
 
 58 ACKNOWLEDGMENTS AND PROMISES 
 
 memorandum, " I. O. U. £100, C. R. 30th July, 1821. 
 August 17, Received £50, C. R." and the last item was 
 infra sex annos, and the defendant pleaded the Statute 
 of Limitations: it was held that such memorandums might 
 be produced without being stamped (1); but that the last 
 item did not amount to an acknowledgment of the prior 
 debt so as to take the case out of the Statute of Limita- 
 tions. Park, J. however, said, the items were perfectly 
 distinct ; if they had been added together the effect would 
 have been altogether different. 
 
 To give accounts now in evidence as an acknowledg- 
 ment to save the statute, they should be signed, and if by 
 partners, by each of them. In the case of Honey v. 
 Honey (2), where a tenant for life rendered accounts to 
 the remainder man, of timber cut by him during a period 
 of more than six years before a bill is filed against him 
 for an account of such timber, and the value of it, the 
 Statute of Limitations cannot be pleaded to the bill; for 
 though if the remainder man had brought an action of 
 I rover, the tenant for life might, notwithstanding the ren- 
 dering of such accounts, have successfully pleaded the 
 statute, he could not have done so if the plaintiff had 
 brought an action of assumpsit, the bill in equity being 
 considered in that case as analogous to that action. 
 
 Where the defendant said, " I cannot afford to pay 
 my new debts, much less my old debts," meaning promis- 
 sory notes over-due ten years; it was held, the jury were 
 warranted in saying, there was not a subsisting debt to 
 take the case out of the statute (.3): — so where the de- 
 
 (1) Brooke v. Davics, 2 Carr. & of waste was not within any Statute 
 P. 186. Tomkilu v. Ashby, 6 of Limitations. 
 
 Barn. & C. 541. (3) Knott v. Tarrin, 4 Dowl. & 
 
 (2) 1 Simons & S. 568. In this R. 179. 
 it was admitted that the action
 
 BARRING THE STAT. OF LIMITATIONS. .">! ) 
 
 fendant said, " I Mould pay, if you have not removed li\- 
 tures;" this was held hot sufficient (1). And where the 
 
 defendant wrote, " tliat lie would wait on the plaintiH'. 
 whom he should be able to satisfy concerning the mis- 
 understanding between them;" this was held to be no" 
 sufficient acknowledgment (2) : — so where the defendant 
 said in a letter, " that his solicitors were in possession of 
 his determination and ability," and afterwards said, " if 
 the plaintiff had any letter which would bind defendant, 
 the debt would be paid;" the Court of Common Pleas 
 thought this did not take the case out of the statute (3). 
 Nor where the defendant said, to a demand for an old 
 debt, he would see his attorney and do what was right (4). 
 
 Cases have arisen where the defendant acknowledged 
 the debt, but at the same time qualified his admission; as 
 where a defendant acknowledged the debt, but said, " he 
 did not consider himself as owing the plaintiff, it being 
 more than six years since," this was held to be a sufficient 
 acknowledgment (5). 
 
 But where the defendant said, " he knew all about it," 
 (an accountable receipt,) but when asked for the amount, 
 answered, " it is not worth a penny, he would never pay 
 it, though it was his signature, but he had never had the 
 money and never would pay it, it is out of date, and no 
 law will make me pay it;" it was held, this was not a 
 good acknowledgment (6) : and where the defendant said, 
 " I owe you not a farthing, it is more than six years 
 
 (1) Evans v. Verily, 1 Ryan & (4) Miller v. Caldzoell, 3 Dowl. 
 M. 239. & R. 267. 
 
 (2) Craig v. Cox, Holt, N. P. C. (5) Bryan v. Horseman, 4 East, 
 380. -599. 1 Smith R. 125. 5 Esp. R. 
 
 (3) Bkknell v. Keppell, 1 N§w 81. 
 
 Ren. 20. (6) Rozocrqft v. Lomas, l Maule 
 
 \ S. 457.
 
 GO ACKNOWLEDGMENTS AND PROMISES 
 
 since;" it was held not sufficient to take a debt out of the 
 statute (1). 
 
 Where the defendant said, "that the plaintiff had paid 
 money for him twelve or thirteen years ago, and that he 
 had since become a bankrupt, by which he was discharged 
 as well as by law from the length of time;" it was held, 
 this took the case out of the statute (2). But where the 
 defendant said, " you owe me more money, I have a set- 
 off against the note;" it was held, this was not a sufficient 
 acknowledgment (3). 
 
 Where the defendant said, " he had paid the amount 
 and would show the receipt;" it was held, that the ac- 
 knowledgment was sufficient, if the defendant was not 
 able to produce a receipt (4). 
 
 Wliere a defendant admitted a debt, but claimed to be 
 discharged by a written instrument, the acknowledgment 
 was held sufficient: but where the defendant said "he 
 thought the attorney's bill had been settled when the 
 annuity was granted, but that he had been in so much 
 trouble since, he could not recollect anything about it:" 
 it was held, though it was proved the bill was not then 
 paid, this was not a sufficient acknowledgment (5). And 
 where a defendant, an acceptor, in answer to a demand 
 of payment from the drawer of a bill of exchange, acknow- 
 ledges the bill, but said there was no consideration for the 
 acceptance; this was held not a sufficient admission (6). 
 
 (1) Coltman v. Marsh, 3 Taunt. (4) Anonymous, Holt, 381. 
 380. And see De la Torre v. Bar- (5) Halli?iger v. Shuw, 1 Moore, 
 clay, 1 Stark. K. 7. 340. 7 Taunt. 608, S.C.; and see 
 
 (2) Clarke v. Bradshaw, 3 Esp. Bcal v. Nind, 4 Barn. & A. 568. 
 V P. C. 157. (6) Easterly v. Pullen, 3 Stark. 
 
 (3) Swann v. Soricll, 2 B. &, A. 186. 
 759.
 
 BARRING THE STAT. OF LIMITATIONS. Gl 
 
 The promise may be to pay when the defendant is able; 
 and there are cases to show that the ability of tin defend- 
 ant to pay need not be proved (1): but by other and 
 subsequent decisions the ability must be proved at the 
 trial, as will be afterwards stated more at length .' . 
 
 It has been held, that payment of money into Court is 
 not sufficient to take the case out of the Statute of Limita- 
 tions, as to the residue of the demand (3), and that where 
 the principal is paid into Court, the claim for which is 
 barred by the Statute of Limitations, the claim of interest 
 is not taken out of the statute (4). 
 
 It will have been observed, that very many of these 
 cases of promises and acknowledgments have been verbal, 
 several by letter, and one by affidavit, and another as an 
 admission under a rule of Court; and there is one case 
 where a recital in an agreement was considered as an ad- 
 mission (5); and in another, where the existence of a debt 
 was acknowledged within six years in a deed between the 
 defendant and third person, in which case such acknow- 
 ledgment was held to be sufficient (6). 
 
 An acknowledgment of liability may be inferred from 
 the conduct of the party (7). 
 
 It has been held, that the acknowledgment may be 
 made by the party, and, in certain circumstances, by his 
 
 (1) Thompson v. Osborn, 2 Stark. (4) Collyer v. Willock, 4 Bing. 
 98. 313. 
 
 (2) Davies v. Smith, 4 Esp. R. (5) Froysell v. LleweUyn, 9 Price, 
 36. Ayton v. Bolt, 4 Bing. 105. 122. 
 
 Tanner v. Smart, 4 Barn. & A. (6) Mountstephen and others \. 
 
 603. Bruok and others, 3 Barn. &. A. 
 
 (3) Longv. Greville, 4 Barn. 8c 141. 
 
 (J. 10. 4 Dowl. & R. 632. (7) East India Company \. 
 
 Prince, 1 Ryan & M. 407.
 
 6£ ACKNOWLEDGMENTS AND PROMISES, &C. 
 
 wife (1): and to the party, or even to a stranger, as in the 
 case of the acknowledgment in the deed just mentioned. 
 
 It has been held, that a letter written by a defendant 
 (who pleaded the Statute of Limitations) to the plaintiff's 
 attorney, on being served with a writ couched in ambi- 
 guous terms, neither expressly admitting or denying the 
 debt, should be left to the jury to consider whether it 
 amounted to an acknowledgment of the debt, so as to 
 fully take it out of the Statute of Limitations^); and 
 with this agrees the case of Frost v. Be?igoi/gh(3); but in 
 another case it was proved, that a defendant had, after 
 having denied the existence of a debt demanded of him, 
 replied, to an assertion of the plaintiff, that he had docu- 
 ments in his possession which would prove it, " that it 
 was of no use for him to look at them, for I have no 
 money to pay it now:" the Court of Exchequer held, that 
 a nonsuit, which had been directed on such a case, made 
 and relied on by the plaintiff, was right: the legal effect 
 of such conversations, as to how far they may be considered 
 as admitting debts to be due or amounting to promises to 
 pay them, is a question rather for the determination of the 
 Court than the jury (4). 
 
 (1) Gregory v. Parker, 1 Camp. (2) Lloyd v. Mound, 2 Durnf. & 
 
 394. Palethorp v. Furnish, 2 Esp. E. 760. 
 
 511(n.) Anderson v. Sanderson, (3) 3 Moore R. 180. 
 
 2 Stark. 204. Holt 11. 591. (4) Snook v. Mean, 5 Price, 
 
 030.
 
 63 
 
 CHAPTER V. 
 
 OF PROMISES AND ACKNOWLEDGMENTS TO TAKE THE CASE 
 OUT OF THE STATUTE OF LIMITATIONS CONTINUED. 
 
 iiA\ ING now considered most of the cases on promises 
 and acknowledgments, upon which it has been observed the 
 judges have gone for to keep alive the debt and avoid the 
 bar (1), I have purposely reserved some very recent deci- 
 sions, which have a general bearing upon the whole. 
 
 The first case is A' Court v. Cross (2), in the Common 
 Picas; it was an action of assumpsit to recover a debt, 
 and the defendant pleaded the Statute of Limitations; 
 the cause was tried before Gaselee, J., and the evidence 
 to take the case out of the statute was, that the said de- 
 fendant said, on being arrested, " I know that I owe the 
 money, but the bill I gave was upon a three-penny bill 
 stamp, and I will never pay it."' The learned judge did 
 not consider this a promise to pay so as to take the case 
 out of the statute, and nonsuited the plaintiff, giving him 
 leave to move to set the nonsuit aside and enter a verdict 
 for £30. Wilde, Serj. obtained a rule nisi on the ground 
 that the acknowledgment of the debt had taken the case 
 out of the statute, and cited Bryan v. Houseman (3), 
 Swann v. Sou-ell (4), Mounistephen v. Brooke (5), Row- 
 croft v. Lomas (6), Leper v. Tatton (7). 
 
 (1) Maddock v. Bond, Irish (4) 2 Barn. & A. 759. 
 Term Rep. 336. (5) 3 Barn. & A. Ml. 
 
 (2) 3 Bing. 329. 11 Moore R. (6) 4 Maule & S. 4:.?. 
 198, S.C. (7) 16 East, 420. 
 
 (3) 4 East, 599.
 
 G4 OF PROMISES AND ACKNOWLEDGMENTS 
 
 Spankie, Serj. contended, that the effect of the recent 
 cases was almost to throw the statute into desuetude, 
 but even in Bryan v. Houseman (1), the Court intimated, 
 that if the matter had been res Integra, their decision 
 might have been the other way; and in the earlier and 
 better authorities, because they came nearer to contem- 
 poraneous expositions of the statute, it had always been 
 holden, that a mere acknowledgment was not sufficient, 
 but that there must be an express promise, to take a case 
 out of the statute. Bass v. Smith (2), Lacon v. Briggs (3). 
 In Hyeling v. Hastings (4) the Court thought that the 
 acknowledgment was at most only evidence of a promise, 
 but not matter upon which, if found specially, the Court 
 could give judgment for the plaintiff. If, however, the 
 Court would imply a promise from a bare acknowledg- 
 ment unaccompanied with a refusal to pay, they could 
 never imply a promise in the face of such an express re- 
 fusal as had been proved in the present case. To do so 
 would carry the consequence of an acknowledgment far 
 beyond any thing hitherto decided. The statute was 
 passed with the salutary intention of preserving tran- 
 quility, and of protecting men against claims which might 
 be brought forward after a lapse of time, during which 
 the evidence necessary to repel them might entirely have 
 disappeared. But the intention of the statute would ob- 
 viously be defeated if an unguarded acknowledgment 
 were holden to bind a party at any distance of time. 
 
 Wilde relied on the recent decisions, particularly 
 Bryan v. Houseman (5), Trueman v. Fenton (6), and 
 
 (1) 4 East, 599. Salk. 29. 12 Mod. 223. Holt, 427. 
 
 (2) 12 Yin. Abr. 229. 1 Lord Itaym. 329. 421. 
 
 (3) 3 Atk. 105. (5) 4 East, 599, 
 I Com.Rep. 154. Carth.470. (6) Cowp. 548.
 
 TO TAKE THE CA E OUT OF THE 8TATUTE. <i."> 
 
 Lloyd v. Maund{\), in which the point had been settled 
 
 after much consideration. 
 
 Best, C.J.—" I am sorry to be obliged to admit, thai 
 courts of justice have been deservedly censured for their 
 vacillating decisions on the 21 Jac. I. c. 1(>. When, by 
 distinctions and refinements, which, Lord Mansfield says, 
 the common sense of mankind cannot keep pace with, 
 any branch of the law is brought into a stale of uncer- 
 tainty, the evil is only to be remedied by going back 
 to the statute, or, if it be in the common law, settling it 
 on some broad and intelligible principle. But this must 
 be done with caution, otherwise we shall increase 
 confusion that we attempt to get rid of, the authority of 
 no one court is sufficient in such a case; 1 will, there- 
 fore, go no further to-day than I am authorized to go by 
 the authority of modern decisions. 
 
 " The statute says, that actions on the case, account, 
 trespass, debt, detinue, and replevin, shall be brought 
 within six years after the cause of action, and not after — 
 these actions it will be observed are mentioned in the 
 same section of the act, and the limitation of the time 
 within which they must be brought is the same in all of 
 them. 
 
 " In all of them, except assumpsit, the six years com- 
 mence from the moment there is a cause of action, and 
 that time cannot be enlarged by any acknowledgment (2). 
 But in assumpsit it has been holden, that although six 
 years have elapsed since the debt was contracted, if the 
 
 (1)2 Durnf. &. E. 762. for goods sold, &c, might not an 
 
 (2) Quare, In an action of debt acknowledgment lie given in cvi- 
 upon simple contract, the declara- dence to take the case out of the 
 tion stating, the defendant was in- Statute of Limitations ' 
 nebted to the plaintiff in so much 
 
 F
 
 G(; OF PROMISES AND ACKNOWLEDGMENTS 
 
 debtor promises to pay it within six years, he cannot avail 
 himself of the protection of this statute, because this pro- 
 mise, founded on a moral consideration, is a new cause of 
 action. It seems to me, the plaintiff should have been 
 required to declare specially on this new promise, and 
 ought not to have been permitted to revive his original 
 cause of action, for which the statute expressly declares 
 no action shall be brought. By the present practice the 
 defendant has not such distinct information as I think he 
 is entitled to, that the plaintiff means to avail himself of 
 some promise to recover a stale demand ; the real cause 
 of action is kept entirely out of view, and one that cannot 
 be supported brought forward ; this is inconsistent with 
 what is said to be the intent of special pleading. 
 
 "The courts, however, have not stopped here, they have 
 said an acknowledgment of a debt is sufficient, without 
 any promise to pay it, to take a case out of the statute. I 
 cannot reconcile this doctrine either with the words of 
 the statute, or the language of pleadings. The replication 
 to the plea of non assiwifisit infra sex annos is, that the 
 defendant did undertake and promise within six years. 
 
 " The mere acknowledgment of a debt is not a promise 
 to pay it, a man may acknowledge a debt which he knows 
 he is incapable of paying; and it is contrary to all sound 
 reasoning to presume from such acknowledgment that he 
 promises to pay it; yet without regarding the circum- 
 stances under which an acknowledgment was made, the 
 Courts, on proof of it, have presumed a promise. 
 
 " It has been supposed that the legislature only meant 
 to protect persons who had paid their debts, but from the 
 length of time had lost or destroyed the proof of payment. 
 From the title of the act to the last section, every word of 
 it shows that it was not passed on this narrow ground. 
 It is, as I have often heard it called by great judges, an
 
 TO TAKE THE CASE 01 T OF THE BTATUTE. C,~ 
 
 act of peace. Long dormant claims have often more of 
 cruelty than of justice in them: Christianity forbids us to 
 attempt enforcing the payment of a debt which time and 
 misfortune have rendered the debtor unable to discbarge. 
 The legislature thought, that if a demand was not at- 
 tempted to be enforced for six years, some good excuse 
 for the nonpayment might be presumed, and tool: a tea// 
 the legal power of recovering it: I think if I were now 
 sitting in the Exchequer Chamber 1 should say, that an 
 acknowledgment of a debt, however distinct and unquali- 
 fied, would not take from the party who makes it the pro- 
 tection of the Statute of Limitations. But I should not, 
 after the cases that have been decided, be disposed to go 
 so far in this court, without consulting the judges of the 
 other courts. There are many cases from which it may 
 be collected, that if there be anything said at the time of 
 the acknowledgment to repel the inference of a promise, 
 the acknowledgment will not take a case out of the Statute 
 of Limitations. 
 
 " In the present case, the defendant, at the time he ac- 
 knowledged the debt, said he would not pay it, because 
 the plaintiff had arrested him. 
 
 " I cannot therefore say, that there was any cause of 
 action within six years before the bringing of the action ; 
 the other judges concurring, the rule for setting aside the 
 nonsuit was discharged." 
 
 In At/ton v. Bolt (I), it appeared in evidence that the 
 defendant, on being applied to for the debt which was 
 barred by the Statute of Limitations, said, he would be 
 happy to pay it if he could ; no evidence was given of the 
 defendant's ability to pay; and the Court of Common Pleas- 
 said, the case fell within the rule laid down in A' Court v. 
 
 (1) 4 Biuo-. 105.
 
 68 OF PROMISES AND ACKNOWLEDGMENTS 
 
 Cross (1), and a verdict having been found for the de- 
 fendant, a new trial was refused. 
 
 In a subsequent case in the Kings Bench (2), which 
 was an action on a promissory note, to which the defend- 
 ant pleaded the Statute of Limitations at the trial, the 
 plaintiff proved the following acknowledgment by the de- 
 fendant within six years, " I cannot pay the debt at pre- 
 sent, but I will pay it as soon as I can;" there was no proof 
 of any ability on the part of the defendant to pay the 
 debt, a verdict was given for the plaintiff; a rule nisi for 
 a new trial was obtained on the ground that the acknow- 
 ledgment was not sufficient to take the case out of the 
 statute, without proof of ability: after the cause had been 
 argued, the court took time to consider of their judgment. 
 
 Lord Tenterdev, C. J., (on delivering judgment,) said, 
 " The question in this case was whether an acknowledg- 
 ment, which implied that the debt for which the action 
 was brought had not been paid, was an answer to the 
 Statute of Limitations? The action was in assumpsit. 
 Issue was joined upon the statute, and the acknowledg- 
 ment proved was, " I cannot pay the debt at present, but 
 I will pay it as soon as I can." The point, therefore, is, 
 whether this is such an acknowledgement as, without proof 
 of any ability on the part of the defendant, takes the cause 
 out of the statute? 
 
 " There are, undoubtedly, authorities that the statute is 
 founded on the presumption of payment, that whatever 
 repels that presumption is an answer to the statute, and 
 that any acknowledgment which repels that presumption 
 is, in legal effect, a promise to pay the debt, and that 
 though such an acknowledgment is accompanied with only 
 a conditional promise or even a refusal to pay, the law 
 
 (1) 3 Bin-. (-2) Tanner v. Smart, 6 Barn. & C. 603.
 
 TO TAKE Till. CASE 01 l OF THE MAI I I I . (\l) 
 
 considers the condition or refusal void, and considers the 
 acknowledgment of itself an unconditional answer to the 
 statute; and if these authorities be unquestionable, the 
 verdict which has been given for the plaintiff ought to 
 stand, and the rule for a new trial to be discharged. 
 
 " I refer to the cases of Yea v. Fouraker ( 1 ), Lloyd \ . 
 Maund (2), Bryan v. Horseman {3), Leaper v. Tatton i , 
 Dowthwaite v. Tibbuti '(5), Frost v. Bengdugh(6), Row- 
 croft v.Lomas(jT), Swan v. Sowell(8), Mountstephen v. 
 Brooke (9). But if there are conflicting authorities upon 
 the point, if the principles upon which the authoritie I 
 have mentioned are founded appear to be doubtful, and 
 the opposite authorities more consonant to legal rules (10), 
 we ought, at least, to grant a new trial, that the opportu- 
 nity may be offered of having the decision of a court of 
 error upon the point, and that for the future we may have 
 a correct standard by which to act." 
 
 Though this statute (21 Jac. I. c. 16,) puts all these 
 actions upon the same footing, it is only in actions of 
 assumpsit, that an acknowledgment has been held an 
 answer; and when in the case of Hurst v. Parker (1 1 ) it was 
 decided to be inapplicable to actions of trespass, Lord 
 Elleiiborough gave what appears to be the true reason 
 
 (1) 2 Burr. 1099. construction on the Statute of Li- 
 
 (2) 2 Durnf. & E. 760. mitations for the first time ; it had 
 
 (3) 4 East, 599. been decided, that an acknowledg- 
 
 (4) 16 East, 420. ment of the debtor was sufficient 
 
 (5) 5 Maule & S. 75. to take the case out of the statute, 
 
 (6) 1 Bing. 266. and he was bound to hold it so. 
 
 (7) 4 Maule & S. 457. Bradshaw v. Coghlan, 3 Esp. Rep. 
 
 (8) 2 Barn. St A. 759. 157. If the matter has been res 
 
 (9) SBarn.ik A. ill. integra, the point might have ad- 
 
 (10) Lord Kenyon, at nisi prim, mitted of doubt. 4 East R. 599. 
 said, lie was not now to put a (1 1) 1 Barn. & A. 92.
 
 70 OF PROMISES AND ACKNOWLEDGMENTS 
 
 that in assumpsit " an acknowledgment of the debt is 
 evidence of a fresh promise," and that promise is consi- 
 dered as one of the promises laid in the declaration, and 
 one of the causes of action which the declaration states : 
 If an acknowledgment had the effect which the cases in 
 the plaintiff's favour attribute to it, one should have ex- 
 pected 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 causes of action accrued (or 
 the defendant made the promise 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 ac- 
 knowledgment is evidence of a new promise, and as such, 
 constitutes a new cause of action, and supports and esta- 
 blishes the promises which the declaration states. Upon 
 this principle, whenever the acknowledgment supports 
 any of the promises in the declaration, the plaintiff suc- 
 ceeds ; when 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. In one of the ear- 
 liest and leading cases upon the statute, Heylin v. Has- 
 tings{\\ (reported also in Lord Raym. 389. 421 ; Salk. 
 29; and 5 Mod. 425; and mentioned 6 Mod. 309;) in 
 assumpsit by an executor for goods sold by his testator, 
 the defendant pleaded the statute, and the plaintiff 
 proved that within six years the defendant had said, " if 
 you can prove your debt I will pay it." The debt had 
 been contracted above six years when this occurred, and 
 whether this evidence would prove the issue for the plain- 
 tin*', Holt, C. J., doubted. On motion in court, it was 
 
 (I) Com. 04, &c.
 
 TO TAKE THE CASE OUT OF 111 I. BTAT1 II. 71 
 
 agreed by the whole bench, that if six years elapse after 
 a debt is contracted, and then the debtor acknowledg 
 the debt and promises to pay, evidence of such a promise 
 is good to maintain an action; hut they doubted whether 
 such evidence would support an action upon the In 
 contract, and whether the plaintiff should not hare de- 
 clared specially upon the conditional promise, and Roke- 
 by, J., thought that an acknowledgment in such a case, 
 without a promise, would not bind ; but Holt, C. J., 
 thought it would, and said it had often been so held, 
 though the contrary had also been held. Holt, C. J., 
 afterwards talked the point over with ten judges, at Ser- 
 jeants Inn, including the Kings Bench judges, and they 
 agreed, upon consideration, that this promise, after six 
 years elapsed, was sufficient evidence to maintain the 
 declaration; for the defendant expressly promises, on 
 proof of the debt, which proof may be made in the same 
 action. They all agreed, also, that if a man acknowledged 
 a debt after six years, it was good evidence of an assump- 
 sit upon non assumpsit infra sex annos pleaded, for the 
 jury to find a verdict for the plaintiff, but it' is not a 
 matter upon which, if found specially, the court could 
 give judgment for the plaintiff: and the reason for this is, 
 because the jury must draw the conclusion from evidence, 
 not the court. Lord Raymond and Salkeld both state 
 that the judges thought that a general indebitatus as- 
 sumpsit might well be maintained, because the defendant 
 had waved the benefit of the statute, but as the pleadings 
 do not appear to have been calculated to raise the ques- 
 tion of waver, and as neither of the reports in 5th or 6th 
 Mod. Rep. notice this point, we have cited the ease from 
 Com. Rep., because that report appeared to accord best 
 with legal principles.
 
 ', ! OF PROMISES wn ACKNOWLEDGMENTS 
 
 In Green \. Crane{\), in assumpsit by an executor 
 
 upon promises to his testator and nou assumpsit 'infra sex 
 
 annos, the plaintiff proved, that within Bis years the de- 
 fendant owned the debt, and promised payment, but the 
 acknowledgment and promise were made not in the testa- 
 tor's lifetime but after Ins death, and whether that evidence 
 would maintain the issue was the question; and alter the 
 
 ease had been stirred twice and the court had taken fur- 
 ther time to advise, Holt, C. J., delivered the resolution 
 
 of the court, that the\ were all of Opinion that the action 
 could not be maintained, the promise being made to the 
 executor, and so out of the issue. Jn Sard \. Wine (2), 
 the lads wen- e\aetl\ similar to those in Green V. 
 Crane (8), and the court acted upon thai decision. In 
 Ward V. Hunter (4), there was a similar determination. 
 In Manton v.Sculthorp(5), the same point occurred again, 
 in the King's Bench, and they decided accordingly, that 
 the acknowledgment to the executor Mas not evidence 
 
 upon promises to the testator, and a nonsuit was entered. 
 
 In Pittam \. Foster (6), in an action against Foster and 
 
 the wife, duui sola, the defendant pleaded the statute, that 
 tlie cause of action did not accrue within six years: issue 
 
 was taken thereupon, and the plaintiff proved an acknow- 
 ledgment by Foster after the marriage of Norris'and wife, 
 
 and whether that supported the issue and entitled the 
 
 plaintiff to a verdict was the question; and upon argu- 
 ment, the court was clear it did not, for the issue was, 
 whether there was any such promise w ithin six years as 
 the declaration stated, viz. a promise whilst the wife was 
 
 . i , Lord Etaym. 1101. 6 Mod. (4) 6 Taunt, 210. 
 Salk. 28. i i Mod. 37. MS. Trin. 1818. 
 
 i Barn vX C. 'J 18. 
 tn. 1101
 
 in TAX i. THE C \si. 01 i <u i in. s i \ i in. 
 
 sole, and a promise after the wife was married wa nol 
 within that issue. 
 
 All these cast's proceed upon the principle thai under 
 the ordinary issue on the Statute of Limitations, an a< 
 knowledgmeni is onl) evidence of a promise to pay, ami"* 
 unless ii is conformable to and maintain the promises in 
 the declarations, though ii tnaj show to demonstration thai 
 the <lclii has never been paid and is still subsisting, ii ha 
 no effect. The question then comes i<> this, is there any 
 
 promise in 1 1 lis case w I lie 1 1 will SUpporl the promises in the 
 
 declaration? The promises in the declaration are abso- 
 lute and unconditional to pay, when thereunto afterwards 
 requested. The promise proved here was, " I'll p.. 
 soon as I can ; ' and (here w.i no evidence of ability to 
 pay, so as to raise thai which in its terms was a qualified 
 
 promise into • thai was absolute and unqualified. Had 
 
 it been in term- what ii is in substance, " Prove thai I am 
 able to pay and then I will pay," it would have been uh.il 
 
 the promise was taken to be in Heylin \. Hastings ( I , a 
 conditional promise; and when the proof of ability should 
 have been given, but nol before, an absolute one. Upon 
 a general acknowledgment, where nothing is Baid to pre- 
 vent it, a general promi e to pay may and oughl to be 
 implied; but where the party guards his acknowledgment 
 
 and accompanies it with an express declaration to pre\eiil 
 
 any such implication, why shall not the rule expressum 
 facit cessare taciturn apply? In Bicknell v. Keppell(2) s 
 
 where the fpiesliou was whether the case was taken out 
 
 of the statute by a letter in which the defendant referred 
 
 tin; plaintiff to his solicitors, and said, " They are in po 
 
 session of my determination and ability," Mansfield, 
 (I) Ante, 7n. (2) i Mi \\ Rep
 
 74 OF PROMISES AND ACKNOWLEDGMENTS 
 
 C. J., seemed to think the defendant's ability would come 
 in issue upon the trial, and that the solicitors might be 
 examined as to the defendant's ability, as well as to the 
 determination he had communicated to them ; and in the 
 late ease of A' Court v. Cross (I), where the defendant 
 said, " I know I do owe the money, but the bill I gave is 
 upon a threepenny stamp, and I will never pay it," Ga- 
 velet', J., thought this acknowledgment did not amount to 
 a promise to pay, or take the case out of the statute ; and 
 the court, upon argument on both sides, were of opinion 
 that he was right, and that where the defendant distinctly 
 and expressly declared that he would not pay, a promise 
 could not be raised by implication that he would. " Upon 
 legal principles it appears to us that this decision was 
 right, and that in this case the rule for a new trial ought 
 not to be made absolute." 
 
 These cases are highly important ; besides the points 
 determined, they also show the disposition of the judges 
 of the King's Bench and Common Pleas to reconsider the 
 decisions upon promises and acknowledgments to take the 
 case out of the Statute of Limitations. Some of the prin- 
 cipal cases on the Statute of Limitations were formerly 
 decided with the approbation of the twelve judges, and 
 one reason why a new trial was granted in Tanner v. 
 Smart (2) was, that an opportunity may be offered of 
 having the decision of a court of error upon the point, and 
 that for the future the judges might have a correct stand- 
 ard by which to act. 
 
 The truth is, much more importance has been given to 
 acknowledgments than they really deserve ; they have 
 been frequently proved to have been made in the course 
 
 (1) 3 Bin-. -230. 11 Moor R. 198. S. C. (2) 6 Bam. & C. 603.
 
 TO TAKE THE CASE <>l T OF Till. STAT1 TE. 7."> 
 
 of conversations j perhaps even with ;i stranger, and more 
 
 frequently proved by a perjured witness where no promi le 
 or acknowledgment was made, or intended to be made: 
 they are also frequently made upon an unsettled demand, 
 and let in most unsatisfactory proof of the quant inn uf~ 
 damages. 
 
 A most able judge lately retired from the Bench, (Sir 
 George S. Holroyd,) lays down the rule thus, " a mere 
 acknowledgment of the existence of a debt is not suffi- 
 cient, unaccompanied with a promise, express or implied, 
 to pay, to take a case out of the Statute of Limitations."
 
 ( 76 ) 
 
 CHAPTER VI. 
 
 OF THE STATUTE 9 GEO. IV. C. 14, § 1, 2, 3, 4. 
 
 I HAVE now stated the Common Law with respect to the 
 time of bringing actions upon contracts, and supposed that 
 the wager of law kept the common action of debt within 
 due bounds; but that as soon as Slades case had given 
 the subject his election either to bring debt or assumpsit, 
 it then became necessary to pass a law for the limitation 
 of personal actions, which gave rise to the Statute of 
 Limitations, 21 Jac. I. c. 16, and a uniform rule was 
 intended to have been laid down upon the subject; the 
 exceptions in the statute as to debts by specialty, and 
 relating to merchants' accounts, and the other exceptions 
 relating to infants and other persons under disability, and 
 for allowing time after error and outlawry, have been also 
 considered. I have also detailed the different cases on 
 promises and acknowledgments, to take the case out of 
 the statute. 
 
 It was anciently the course to take securities from 
 debtors, among others, by single bill, of which a good 
 idea may be formed by supposing, that the debtor exe- 
 cuted the obligatory part of a bond only, without any 
 condition, and bound himself in the precise sum due (1). 
 The next step was a bill obligatory, where the obligor 
 
 (1) Coip. Dig. tit. Obligation, C.
 
 OF THE STAT. 9 GEO. IV. c. 14, § 1, 2, 3, 4. 7 7 
 
 bound himself in a penalty without any formal condition; 
 
 as if A. acknowledges himself indebted in J. :.'(), and for 
 the payment binds himself in ^40(1), sometimes the single 
 
 bill was accompanied by a separate deed or instrument of 
 defeasance, controlling the bill (2). 
 
 At last the bond in its present form was adopted, con- 
 sisting of the obligatory part in a penalty, and of the con- 
 dition in the nature of a defeazance; our ancestors were 
 led to take security by specialty under the fear there was, 
 that if the creditor had no specialty, the debtor, if sued, 
 would wage his law — this accounts for the trifling number 
 of debts due by simple contract. 
 
 The Statutes Merchant and Statute Staple had been 
 long adopted as a security for merchants, giving an imme- 
 diate execution to the creditor; when another security for 
 the protection of private creditors got into use (3), I allude 
 to the Recognizance in the nature of a Statute Staple, 
 by which the creditor became also entitled to an imme- 
 diate execution ; and it is singular, that this new security 
 continued for some time, until it was thought proper to 
 legalize it by the stat. 23 Hen. VIII. c. 6, which enacted, 
 that a recognizance in the nature of a Statute Staple might 
 be taken before either of the Chief Justices of the Kind's 
 Bench and Common Bench, or in their absence out of 
 term, the Mayor of the Staple of Westminster and the 
 Recorder of London jointly; and the form of the recog- 
 nizance is given. These instruments, notwithstanding 
 what would be now considered the public exposure in 
 court in taking the recognizance, continued until 1721, 
 
 (.1) Com. Dig. tit. Obligation, D. And as to some of the rights of the 
 
 (2) Shep. Touchst. tit. Obliga- cognusee, or creditor, in the real 
 tion, c. 21. property, see Bradby on Din 
 
 (3) See Shep. Touchst. tit. Sta- (2 edit.) 50. 
 tute. 2 Black. Comra. 162. 342.
 
 78 OF THE STAT. 9 GEO. IV, c. 14, § 1, 2, 3, 4. 
 
 and were then " common and beneficial securities," and 
 were by the statute 8 Geo. I. c. 25, improved ; at present 
 they are unknown in practice, and it is said, they have 
 been superseded by warrants of attorney to confess judg- 
 ment (1), which made it unnecessary for the debtor to 
 appear personally in court. 
 
 Between the reigns of Henry the Eighth and George the 
 First arose the security by Inland Bills of Exchange and 
 Promissory Notes. It is said Inland Bills of Exchange 
 did not originate at a much earlier period than the reign 
 of Charles the Second (2), and Lord Holt, in the case of 
 Buller v. Cripps (3), said, he remembered when actions 
 on Inland Bills of Exchange first began — a particular 
 custom was laid between the parties, as merchants traffick- 
 ing with one another in different towns ; in Lord North's 
 time it was said, the custom was part of the common law 
 of England, and these actions became frequent as the 
 trade of the nation increased; afterwards the custom was 
 extended to tradesmen and persons in business, being a 
 general custom to all traders within and without the 
 realm (4); and then to all, whether tradesmen or not: and 
 it was lastly held, not to be necessary to allege the cus- 
 tom (5). Inland bills were further legalized by the statutes 
 9 & 10 Will. III. c. 17, and 3 & 4 Anne, c. 9. 
 
 (1) Manning Rev. Exch. Prac. 1582. Sarsfield v. W'tiherley, Ca.rth. 
 3 : It appears that judgments have 82. 
 
 been long a favourite security in (4) 20 Car. 2. Hardres. 485. 
 
 Ireland ; by one statute there, they Keafe v. Archdekcn, 1 Vern. &, 
 
 have been made capable of assign- Scriv. Irish Rep. 199, 200. 
 
 ment, and by another statute, (ante, (5) Pearson v. Garrett, 4 Mod. 
 
 p. 9,) the twenty years presumption 242. Buller v. Crips, 6 Mod. 29. 
 
 of payment is applied to them. Pinknej/ v. Hall, 1 Ld. Raym. 175. 
 
 (2) Chitty on Bills, 11. Erakine v. Murray, 2 Ld- Raym. 
 
 (3) .' J////-, 6 Mod. 29. And 1542. Chitty on Bills, 1 1 . Foreign 
 << Bromich v. Loyd, 2 Lutw. Bills were of much earlier date.
 
 OF THE STAT. 9 GEO, IV. c. 14, § 1, 2, 9, 4. 79 
 
 Lord Chief Justice Holt, who was a most determined 
 enemy to promissory notes, says, in the 2 Anne {!), that 
 two of the most famous merchants in London had told 
 him it was then very frequent with them to make such 
 notes, and that they looked upon them as hills of ex- 
 change (2), and they had been then used for thirty years; 
 and that not only notes, but bonds for money, were in- 
 dorsed frequently as bills of exchange. Lord lloll 
 agreed a bill might be made by two persons without a 
 third ; but (he said) if there be such necessity of dealing 
 that way, why do not dealers use that way which is legal? 
 The notes were an invention of the Goldsmiths in London, 
 then commencing as bankers, who had a mind to make a 
 law to bind all those who dealt with them. 
 
 Lord Holt thought no action would lie on the notes as 
 an instrument, but they were only to be considered as 
 evidence of a debt (3), this question exercised the judg- 
 ments of the most able men of that time ; but the authority 
 and weight of Lord Holt's opinion made others yield to 
 him (4): it was thought necessary to legalize promissory 
 notes, as being within the custom of merchants, by the 
 statute 3 & 4 Anne, c. 9, made perpetual by the 7 Anne, 
 c. 25, § 3. 
 
 It is singular, that as well recognizances as inland bills 
 of exchange and promissory notes were in frequent use 
 as securities, at times when their legality was disputed (5), 
 and such use induced the legislature to legalize them. 
 
 (1) Buller v. Crips, 6 Mod. 30. (4) Brown v. Harradtn, 4 
 
 (2) The bank post (nil of the Dunrf. & E. 151. 
 
 Bank of England is a promissory (5) An indorsed bond must have 
 
 note of probably an ancient form. been a doubtful instrument: I am 
 
 (3) See Sutton v. Toomer, 7 not aware of any cases on this 
 Barn. & C. 41G. subject a early cas< 
 
 ecuity.
 
 80 OF THE STAT. 9 GEO. IV. C. 14, § 1, 2, 3, 4. 
 
 It will be a very beneficial result of Lord Tenterdens 
 act, if creditors, under the idea that a simple contract 
 debt of six years standing is almost always in hazard from 
 one circumstance or other, will press for investigation into 
 accounts, and payment, or security by bond, or bill of ex- 
 change, or note, or other security; and I beg to suggest, 
 as a bond is certainly preferable, in case of the death of a 
 debtor, to a bill of exchange or promissory note; that the 
 stamp duty on bonds might be advantageously lowered, it 
 would be in the end more productive to the revenue by the 
 increased use of the good old security of a bond ; at pre- 
 sent a money bond of ^£101, is subject to a duty of £2; a 
 very heavy duty of nearly £2 per cent. — the bond will stand 
 good for at least twenty years — the security by bill or note is 
 generally subject to the operation of the Statute of Limita- 
 tions six years after it becomes due, as a bill payable two 
 months after date, six years after two months and three 
 days grace ; a note payable any certain time after notice 
 in writing, does not within a considerable distance of time 
 come within the statute, until notice in writing be given, 
 so that it rests with the creditor to fix the time to put the 
 note in force. 
 
 The late case of Thorpe v. Coombe (1) will illustrate 
 what I have just been observing: a promissory note was 
 made in 1810, payable two years after demand. In an 
 action on the note, the defendant pleaded the general 
 issue and the Statute of Limitations; the plaintiff proved 
 that the note was presented and payment demanded in 
 1823; the defendant said "something about interest, and 
 promised he would write about it(2) ;" other applications 
 
 (1)8 Dowl. h R. 337, and see (2) This is an instance of a hose 
 Clayton v. Gosling, 5 Barn. & C. acknowledgment. 
 360.
 
 OF THE STAT. 9 GEO. IV. C. 14, § 1, 2, S, 4. 81 
 
 were made, but without success: the action was com- 
 menced in 1825; the jury, under the direction of the 
 learned judge, (Lord Tenterden, C. J.) found for the plain- 
 tiff. Scarlett moved to enter a non-suit, on the ground that 
 the Statute of Limitations was a bar to the action, as it 
 must be presumed, after a lapse of thirteen years, pay- 
 ment of the note had been demanded and the account 
 paid, and he cited Holmes v. Kerrison (1), Christie v. 
 Fonseck (2). Baijley, J. was clearly of opinion, that the 
 Statute of Limitations did not begin to run until two 
 years after demand of payment of this note had been 
 made. Here the cause of action did not arise until the 
 two years after demand had elapsed, and consequently 
 the statute affords the defendant no protection ; after 
 the evidence given in this case, there could be no ground 
 for the jury to presume that there had been previous pay- 
 ment or satisfaction of the note, and the rule was re- 
 fused. 
 
 In another case at nisi prius (3), where an action 
 was brought on a promissory note, dated in 1813, for 
 0^700, payable twenty-four months after demand; and the 
 note was presented for payment in 1823, and the cause 
 tried in 1826; it was contended that there was no evi- 
 dence to take the case out of the statute, and Christie v. 
 Fonseck was also cited; but it was answered, that the 
 cause of action did not accrue till twenty-four months 
 after demand, and no demand was made till 1823; Holmes 
 
 (1) 2 Taunt. 323. Selvvyn, N. P. 344; on inquiry 
 
 (2) Mich. T. 52 Geo. III. coram I learn it was a case at nisi prius 
 Sir J. Mansfield, C.J. MS. Selw. before Lord Tenterden, C.J. 
 
 N. P. 137. 344, 7lh edit, (note.) (3) Thorpe and others v. Booth, 
 
 Christie v. Fo?iseck is said to have 1 Ryan & M. 388. 
 been doubted in a late casein K.B.
 
 S-2 of the stat. 5) GEO. iv. c. 14, ^ 1, % t 3, A-. 
 
 \.Kerrison{\) was cited. Lord Tenterden, C.J. said, "this 
 is certainly a point of some doubt and difficulty, but I am 
 of opinion on the authority of Holmes v. Kerrison, that 
 the Statute of Limitations will not, in the present case, be 
 a bar to the plaintiff's right to recover on this promissory 
 note; but that my opinion, if wrong, may be corrected, 
 I shall give the defendant liberty to move to enter a non- 
 suit." In the following term a motion was made accord- 
 ingly, but the Court refused to grant it. 
 
 Had the construction of the statute 21 Jac. I. c. 16, 
 § 3, been strictly confined to the words, or at any rate 
 confined to clear and decided promises of payment, it is by 
 no means improbable but creditors would have continued 
 in the good old practice of requiring securities, either by 
 specialty, or by bills of exchange, or promissory notes, &c. ; 
 but when the judges held, that acknowledgments, even 
 the most trifling, would establish debts, and take cases 
 out of the statute, creditors grew careless of requiring 
 proper securities, and in many cases relied upon acknow- 
 ledgments to answer the purpose, and trusting to the 
 memory of witnesses, the precise terms of the acknow- 
 ledgment could not be well remembered, so that in many 
 cases the real interests of the creditor suffered, while 
 in others it was a great temptation to perjury, especially in 
 cases where the whole depended on the evidence of a 
 friend of the creditor's, as to a private conversation be- 
 tween the debtor and the witness. 
 
 Few statutes are of more practical importance, either 
 to the public or the profession, than the new statute, 
 9 Geo. IV. c. 14; its effects are very general; there are 
 few persons in England, but are entitled to or owe debts 
 of six years standing. 
 
 (1) 2 Taunt. 323.
 
 OF TUT. STAT. 9 GEO. l\ . C. 1.4,' § I , :.', .;. I. 
 
 The statute recites, that by the act passed in England 
 (21 Jac. I. c. 16, §3) (1), "it was (amongst other thi] 
 
 enacted, that all actions of account and upon the • 
 (other than such accounts as concern the trade of mer- 
 chandize between merchant and merchant, their factors or 
 
 servants;) all actions of debt grounded upon any lending 
 or contract, without specialty, and all actions of debt for 
 arrearages for rent should be commenced within three 
 years after the end of that session (21 Jac. I.) or within 
 six years next after the cause of such actions or suit, and 
 not after; and that a similar enactment was contained in 
 an act pased in Ireland (10 Car. I. ses.s. 2, c. (>) (2); and 
 that various questions had arisen in actions founded on 
 simple contract, as to the proof and effect of acknowledg- 
 ments and promises offered in evidence for the purpose of 
 taking the cases out of the operation of the said enact- 
 ments, and that it was expedient to prevent such ques- 
 tions, and to make provisions for giving effect to the said 
 enactments and the intention thereof, it was therefore 
 enacted, that in actions of debt or upon the case, 
 grounded upon any simple contract, no acknowledgment 
 or promise by words only shall be deemed sufficient evi- 
 dence of a new or continuing contract, whereby to take 
 any case out of the operation of the said enactments or 
 either of them, or to deprive any party of the benefit 
 thereof, unless such acknowledgment or promise shall be 
 made or contained by or in some writingf to_ be signed by 
 the party chargeable thereby^ and that where there shall 
 be two or more joint contractors, or executors or adminis- 
 trators of any contractor, no such joint contractor, execu- 
 tor, or administrator, shall lose the benefit of the said 
 enactments or either of them, so as to be chargeable in 
 
 (1) Ante, n. lo. (2) Ante, p. 12. 
 
 , <* - ■ - ; 
 
 BK. : ^-- • --<• ■■ / '•--■■ 
 
 . - ■ . 
 
 i &x£ '■ ' . - '■' •" ■■<■ ■
 
 84 
 
 OF THE STAT. 9 GEO. IV. C. 14-, § 1,2, S, 4. 
 
 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 take away, or lessen the effect of any pay- 
 ..:•. *« ment of any principal or int erest^ made by any person 
 V "whatsoever (1). Provided also, that in actions to be com- 
 ._ S ^ x menced 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 or executors or administrators, 
 shall nevertheless be entitled to recover against any other 
 or others of the defendants by virtue of a new acknow- 
 ledgment 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" (2). 
 
 (1) Payment by one is payment enactments or either of them, or to 
 by all; the one acting virtually as deprive any party of the benefit 
 agent for the rest. Per Lord Mans- thereof, unless such acknowledg- 
 
 field. The defendant has had the ment or promise shall be made or 
 
 advantage of the partial payment, contained by or in some writing to 
 
 and therefore must be bound by it. be signed by the party chargeable 
 
 Doug. 6 2 '."> . thereby, or slurfl be proved by the 
 
 (2) The latter part of the first actual payment of some part of some 
 section in the original bill, which entire demand or sum of money 
 was brought into parliament by sought to be recovered in whole or in 
 Lord Tenlerden, was as follows — part by such action, or of some in- 
 it will be perceived that it has been terest thereon; and that where there 
 considerably uttered in its progress shall be two or more joint con- 
 — "That in actions of debt or upon tractors or executors or adminis- 
 thecase,grounded upon any simple- trators of any contractor, no such 
 contract, no acknowledgment or joint contractor, executor, or admi- 
 promise shall be deemed sufficient nistrator, shall lose the benefit of 
 
 nee of a new or continuing the said enactments or either of 
 contract, whereby to take any case them, so as to be chargeable in re- 
 out of the operation of the said spect or bu reason of any acknow- 
 
 S. - • - .... ' .. ^ ,..1- 
 
 . -,-.:. . «s. ,;s? .. _.^... 
 
 .-.:.-. . ^ 
 
 . .^s~~ e .,/.. ..:.- . - .- ,.~/- 
 
 S. y - ^ #?*&&. ~4~f 
 
 ...... • sx 
 
 v.< . . . .
 
 oi i hi. Bi \ i . 9 oeo. i\ . i . II. 1 . 2. ;;, 1. 
 
 And by § 4 "no indorsement or memorandum of any 
 payment, written or made after the time appointed for 
 
 this act to take effect upon any promissory note, bill of 
 exchange, or other writing by or on the behalf of the 
 party to whom such payment shall be made, shall be 
 deemed sufficient proof of such payment t<> take the 
 (ait of the operation of the Btatute." 
 
 The question, when the act generally takes effect, \~> 
 re erved for future consideration (1). 
 
 It becomes important to inquire, when a neve or con- 
 tinuing contract, to take the case out of the operation of 
 the enactments, or to deprive any party of the benefit 
 thereof, becomes neces-ar\ : and no such contract can be 
 necessary till six years from the accruing of the cause of 
 action have expired, which, in some cases, we have seen (2) 
 commence from the making of the promise or contract, 
 but in others may be many years after the date of the ori- 
 ginal transaction; nor, as it seems, would any such con- 
 tract be necessary, first, where the contract is by specialty 
 judgment or statute; nor secondly, where the parties 
 come within the exception relating to merchants or their 
 
 ledgment or promise made by any contractors or executors or admi- 
 
 other or others of them, or by any nistrators, shall nevertheless be en- 
 
 payment made by any other or titled to recover against any other 
 
 others of them, unless such payment or others of the said defendants by 
 
 shall be proved to have been made virtue of a new acknowledgment or 
 
 with his or their privily or consent, promise, or otherwise judgment 
 
 Provided always, that in actions to may be given and costs allowed for 
 
 be commenced against two or more, the plaintiff as to such defendant 
 
 such joint contractors or executors or defendants against whom he 
 
 or administrators, if it shall appear shall recover, and for the other de- 
 
 at the trial or otherwise that the fendant or detendants against the 
 
 plaintiff, though barred by either plaintiff." 
 
 of the said recited acts or this act, (1) See Chap. XII. 
 
 as to one or more of such joint (2) Ante, 45, kc.
 
 S6 OF THE STAT. 9 GEO. IV. C. 14, § 1, 2, 3, 4. 
 
 factors or servants, or within any of the other exceptions 
 in the statute 21 Jac. I. c. 16, and statute 4 Anne, c. 16: 
 I have before observed, that the meaning of the exception 
 relating to merchants' accounts, appears to me to be un- 
 settled by decision. 
 
 The act 9 Geo. IV. c. 14, § 5, particularly provides, 
 that it shall not alter or take away or lessen the effect of 
 the payment of any principal or interest made by any 
 person whatsoever; if, therefore, principal or interest has 
 been paid, and can be duly proved, there can be no need 
 of any new or continuing contract till six years from the 
 time of such payment ^^^ -^ "^ 
 ' tc K case occurred at the last York Assizes (1) on this 
 exception of payment, it was an action on a promissory 
 note: the plea was the Statute of Limitations; to avoid 
 this plea the plaintiff proposed to prove part-payment of 
 interest within six years; and for this purpose called a 
 sheriff's officer, who proved, that when he arrested the 
 defendant he said, " it is a hard case, for I paid £10 
 lately in part of the interest." 
 
 Bay ley, J. said, " this case comes within the mischief 
 intended to be remedied by the late act ; I am of opinion 
 that proof of acknowledgment of payment is not sufficient 
 to take the case out of the statute ; there must be proof 
 of actual payment, but the plaintiff may take a verdict, 
 and the defendant has leave to move to enter a non- 
 suit." (2). V/^-x..-, .., £> ^y A^.^.c v. ^Zmu^J 
 
 This case shows that the exception is likely to be 
 construed strictly ; it is certainly as easy to prove an ac- 
 knowledgment of payment as an acknowledgment of a 
 
 (1) WiUit v. Ncwham, MS. (2) Jones, Serj, for the plaintiff, 
 (Exch.) York Suinm. Ass. 1829, Broug ham, for the defendant. 
 coram Bailey, J, ./«_*»-* „>*. *^*-^- 
 ^■-^C><.^ < _z> j/ *2* £ if /^" r J •" <* "*" ' vv ' ' - ' ^-" <^^i
 
 OF THE STAT. 9 GEO. IV. C. 14, § 1, £, 3, 4. ^7 
 
 debt, to take the case out of the statute, and nearly the 
 same danger of perjury in both (1); at the same time it is 
 to be observed, that payment is excepted out of the sta- 
 tute 9 Geo. IV. c. 14, and may be proved without a 
 writing; perhaps something may have turned on the 
 species of evidence, an acknowledgment to a sheriff's 
 officer, and it might be considered as suspicious and un- 
 satisfactory evidence (2). 
 
 It has been doubted whether accounts delivered, 
 though unsigned, would not be an implied exception, 
 even when the parties are not merchants: a cause in the 
 Exchequer, in which this point was likely to have oc- 
 curred, came on for trial in the sitting after Trinity Term 
 last, but it was referred, with liberty for the arbitrator to 
 state the facts in his award, that the opinion of the Court 
 might be obtained. I have suggested before that the 
 accounts of partners with others should be required to be 
 signed by each of the partners, to affect all by the ac- 
 knowledgment arising out of the accounts within the new 
 statute. 
 
 It will have been observed, that by the statute 
 9 Geo. IV. c. 14, § 3, that no indorsement or memoran- 
 dum of any payment, written or made after the time ap- 
 
 (1) A case of the Executors of Courts of Requests (of which in 
 Baldwin v. Clarke, is said to have some, several hundreds are tried, 
 occurred at Lincoln before Lord or rather disponed of in a day;) the 
 Tenterden, C.J. (Aug. 4, 1829), verdict is obtained upon proof of 
 Lincoln Ass. in which it was held an acknowledgment by the plain- 
 that payment by the executors of tiff's agent, who is in fact the at- 
 one of two makers of a promissory torney, and probably relies on the 
 note, would bind the other maker, success of the cause for his charges 
 I have not been able to obtain a — what a fruitful source of perjury 
 report of this case. X *" a court where almost every cause 
 
 (2) I am informed that in many is tried. 
 of the innumerable causes in the 
 
 ■ ■-<■ ^4fs~^*^* * < ■ * - . j$s^ ^ w^. *> 2 -^ . ," ^ *G~~ - ** . 
 
 ' '^y- *' ; <^~ ~*£ ~^4to^m?*0*>~~-»''~~ &-^ ^^^ - > >4 ' *S* 
 
 ■~*-y~r~~~~ =2 ^- spS. ... -* -^^ /? ^^, &*-&. ■ <£/j— ^.W- . , ^~--
 
 88 OF THE STAT. 9 GEO. IV. c. 14, § 1 , 2, 3, 4. 
 
 pointed for the act to take effect, upon any promissory 
 note, bill of exchange, or other writing, by or on the be- 
 half of the party to whom such payment shall be made, 
 is to be deemed sufficient proof of such payment so as to 
 take the case out of the operation of the Statute of Limita- 
 tions ; perhaps this was not intended entirely to prevent 
 such indorsement being evidence, but that it should not 
 be evidence for that particular purpose (1). 
 
 The actions to which the first section applies are 
 actions of debt or upon the case upon simple contract. 
 The action of account is not mentioned: it will be seen 
 how far that action may be resorted to, to evade the new 
 statute. 
 
 I presume the acknowledgment and promises men- 
 tioned, must mean the same acknowledgments and pro- 
 mises which existed before the act, as modified by the 
 late important decisions (2), with this addition, that they 
 must be in writing; but it seems to me, that while pro- 
 mises and acknowledgments in writing will be certainly 
 allowed, yet the present inclination of the courts is to 
 hold the plaintiff to strict proof of the promises; and 
 many of the old cases are now in effect over-ruled. Lord 
 Tenterden, C. J. states the result of the late cases thus (3) : 
 — " it is now settled that a mere acknowledgment of the 
 subsistence of the debt, unless coupled with or amounting 
 to evidence of a promise t o pay , is not sufficient to take 
 the case out of the operation of the Statute of Limita- 
 tions." ^<~- % ff- ** 
 
 The new statute speaks of a new or continuing con- 
 tract; the word " continuing," I presume, applying to 
 
 (1) See post, chap. VII. and (2) See ante, chap. IV. 
 Bosnorth and another v. Cotchetl, (3) Barley v. istott, 2 Manning 
 MS. fc It. 96.
 
 OF THE STAT. 9 GEO. IV. C. 14, § 1, 2, 8, 1. 89 
 
 cases of promises to pay simply upon the original consi- 
 deration, and a new contract where the consideration is 
 new, or where the promise is to pay upon consideration 
 or otherwise different from the original promise; and the 
 contract in the act is to take the case out of the operation* 
 of the statute 21 Jac. I. c. 16, in England, or the 10 Car. 1. 
 sess. 2, c. 6, in Ireland, or to deprive the party of the 
 benefit thereof. " Such acknowledgment or promise 
 must be made or contained by or in some writing to be 
 signed by the party chargeable thereby;" the meaning of 
 this, I presume, is, that it must be in some writing made 
 for the express purpose, or be contained in some other 
 writing, as in the case of Mountstephen v. Brooke (1), in 
 a recital of a deed, and the writing must be signed by the 
 party chargeable, excluding any signature by an agent; 
 by the new Bankrupt Act, 6 Geo. IV. c. 16, § 131, the 
 new promise under that act may either be signed by the 
 bankrupt or by an agent, but in this case the act of the 
 agent seems to be cautiously excluded (2). 
 
 It will probably be considered frequently advisable to 
 declare specially on any new promise; this is strongly 
 urged by Lord Wynford in A' Court v. Cross (o). 
 
 (1) 3 Barn. & A. 141. bankrupts, and Hubert v. Moreau, 
 
 (2) See post, chap. XIII. of new 2 Carr. & P. 528. 
 promises by insolvent debtors and (3) Ante, chap. \ . 
 
 ft s—** <£-~ JCZ- ~ZZZs~ ^:. ^/~^ £, t'
 
 ( 90 ) 
 
 CHAPTER VII. 
 
 OF THE STATUTE 9 GEO. IV. C. 14, § I, 2, 3, 4, 
 CONTINUED. 
 
 THE case of Heyling v. Hastings (1) having decided, 
 that an acknowledgment took the case out of the Statute 
 of Limitations. It has been followed by several decisions 
 upon the effect of the promise or acknowledgment of one 
 of several parties to a contract, to take the case out of 
 the Statute of Limitations. 
 
 The leading case upon the subject is Whitcomb v. 
 Whiting (2) in 1781; but previous to that case, and also 
 previous to the case of Heyling v. Hastings, 10 Wm. III. 
 occurred the case of Bland v. Haselrig and others (3): 
 in which the verdict, after a plea of the Statute of Limita- 
 tions, was, that one of the defendants assumed within six 
 years, and the other non assumpsit ; and it was moved 
 that no judgment could be given against the defendant 
 upon whom the verdict was found, for it was an entire 
 contract, and all must be found to promise. Pollexfen, 
 C. J. Powell and Rokeby, J. were of opinion the plaintiff 
 could not have had judgment: Ventris, J. inclined to the 
 contrary; he admitted that if several defendants pleaded 
 
 (1) Ante, chap. IV. (3) 2 Ventr. 151 
 
 (2) Doug. 629.
 
 OF THE STAT. 9 GEO. IV. C. 14, ^ 1, 2, .'>, I. 'J I 
 
 the general issue, and the verdict was, that one promised, 
 the plaintiff failed, but here it may be taken that they 
 did all promise at first, and one only renewed the promise 
 within six years; the plea of non assumpsit, infra -sex 
 annos implied a promise at first, and if one only renew act* 
 his promise within six years, it would bind him, and the 
 plaintiff must sue all, or vary from the original contract; 
 the Chief Justice Polled fen seemed to be of opinion, that 
 if the promise was renewed within six years, yet if not 
 upon a new consideration, it would not bind; and if 
 there were a new consideration, the action would lie 
 against him that promiseth (1). 
 
 There were, no doubt, considerable difficulties attend- 
 ing this case, but it seems to have been the opinion of 
 three of the judges, that if one of the defendants had 
 promised within six years and the others not, that promise 
 would have bound him alone; and subsequently, in an 
 action against the drawer of a note, proof was given that 
 the indorser had acknowledged his handwriting to the 
 indorsement, but such proof was considered insufficient 
 against the drawer, on the ground that no person's 
 confession but the defendant's could be evidence against 
 him (2). 
 
 The case of Whitcomb v. Whiting (3) occurred in 
 1781 ; it was an action on a promissoi'y note, and the pleas 
 were the general issue and the Statute of Limitations; 
 the plaintiffproduced in evidence a joint and several note 
 by the defendant and three others, and then proved pay- 
 ment by one of the others of interest, and of part of the 
 principal within six years (4), Hotham, Baron, thinking, 
 
 (1) See the provision in the sta- (3) Doug. 629. 
 
 tute 9 Geo. IV. c. 14, § 1. (4) Seethe exception of payment 
 
 (2) Hennings v. Robinson, in the statute 9 Geo. IV. c. 14, 
 Barnes, 436. § 1.
 
 92 OF THE STAT. 9 GEO. IV. C. 14, § 1, 2, 3, 4. 
 
 that it was sufficient to take the case out of the statute 
 as against the defendant — a verdict was found for the 
 plaintiff*. On a motion for a new trial, Bland v. Ha- 
 selrig (1), Hennings v. Robinson (2), were cited; and it 
 was urged that a door would be open to frauds and col- 
 lusions if the evidence were admitted; a plaintiff might 
 get a joint drawer to make an acknowledgment, or to pay 
 part, in order to recover the remainder, although it has 
 been already paid. Per Lord Mansfield — The question 
 is only whether the action is barred by the Statute of 
 Limitations; when cases of fraud appear, they will be 
 determined on their own circumstances ; payment by one 
 is payment for all, the one acting virtually as agent for 
 the rest (3) ; and in the same manner an admission by 
 one is an admission by all, and the law raises the pro- 
 mise to pay when the debt is admitted to be due. The 
 rule for a new trial was discharged. 
 
 The doctrine of rebutting the Statute of Limitations by 
 an acknowledgment other than that of the party himself, 
 began, says Lord Ellenborough (4), with the case of Whit- 
 comb v. Whiting ; by that decision, however, there was 
 an express acknowledgment by the actual payment of a 
 part of the debt by one of the parties liable. But that 
 case was full of hardship. For this inconvenience may 
 follow from it — suppose a person liable with thirty or 
 forty others (5) to a debt he may have actually paid, 
 may have had in his possession the document by which 
 that payment was proved, but he may have lost his re- 
 
 (1 ) Ante, 90. (5) This might be the case to an 
 
 (2) Ante, 91. alarming extent, if a person were 
 
 (3) See the stat. 9 Geo. IV. a shareholder of one of the joint 
 c. 14, § 1. stock companies, of six years stand- 
 
 (4) Brandram v. Wharton, 1 ing. 
 Barn. & A. 4G8.
 
 OF THE STAT. 9 GEO. IV. C.*44, § 1 , 2, 3, 4. 93 
 
 ceipt, then, though this was one of the very cases which 
 the statute was passed to protect, he may still be bound, 
 and his liability be revived by a random acknowledgment 
 made by some one of the thirty or forty others, who may 
 be careless of what mischief he is doing, and who may eveiP 
 not know of the payment which has been made. Beyond 
 that case, therefore, (continued his Lordship,) I am not 
 prepared to go, so as to deprive a party of the advantage 
 given him by the statute by means of an implied acknow- 
 ledgment. 
 
 Whitcombv. Whiting has been, (says Lord Tenterden(l),) 
 relied upon to shew, that such payments would take the 
 case out of the Statute of Limitations ; it is not necessary 
 to say whether that case, which is contrary to a former 
 decision in Ventris (2) woidd be sustained, if reconsidered; 
 but I am warranted in saying, by what fell from Lord 
 Ellenborough in Brandram v. Wharton (3), that it ought 
 not to be extended ; the payment was by one of several, 
 originally liable, here (that is in AtJcins v. Treadgold,) we 
 are called upon to go further and say, that a payment by 
 one of several, liable alicnojure, will raise an implied pro- 
 mise by them all, such a decision would introduce great 
 difficulty in administering the affairs of testators; suppose 
 an executor to have waited six years, and then no claim 
 having been made, to dispose of the assets in payment of 
 legacies, he might be subsequently rendered liable to the 
 payment of demands to any amount, by the acknowledg- 
 ment of a person originally joint debtor with the testator ; 
 the inconvenience and hardship arising from such a lia- 
 bility satisfies me that the principle of Whit comb v. Whit- 
 ing ought not to be extended to this case. 
 
 (1) Atkins v. Treadgold, 2 Barn. (2) Bland v. Haselrig, 2 Vent. 
 &C. 28. 1.51. 
 
 (3) 1 Rani. & A. 468.
 
 91 OF THE STAT, ii GEO. IV. C 1 1. § 1. 2; >>, \. 
 
 Mr. J.Bayley said(l), " it is said that a joint pro- 
 miser, having made a payment within six years, the exe- 
 cutors of the others are liable, and WhUcomb v. Whiting 
 is relied upon, that is certainly a very strong case, and it 
 may be questionable whether it does not go beyond proper 
 legal limits." 
 
 Ilolroyd, J. (2) " Whitcomb v. Whiting has gone far 
 enough, even if that case be law." 
 
 Best, J. (3) " beyond Whitcomb v. Whiting this court 
 ought not to go." 
 
 Best, C. J. (4) in a subsequent case supports Whitcomb 
 v. Whiting, and considers Bland v. Haselrig as of no 
 authority ; in that case it was held, that an acknowledg- 
 ment within six years by one of several joint makers of a 
 promissory note, would revive the debt against the other, 
 although he has made* no acknowledgment, and only 
 signed the note as a surety; in a subsequent case, also 
 of a surety, where the action was brought against the 
 administrators of the surety, proof was given of a payment 
 made by the other maker in the lifetime of the surety, and 
 it was held, such payment operated as a new promise by 
 the surety to pay, and his administrator was liable (5) ; 
 and in an action on a joint and several note, a letter 
 written by the defendant to the other maker within six 
 years desiring him to settle the money, was ruled (6) to be 
 evidence to take the case out of the Statute of Limitations. 
 
 In an action on a joint and several promissory note, it 
 was proved that the payee received a dividend under a 
 commission of bankrupt against one of the makers on ac- 
 
 (1) 2 Barn. 8c C. 29. (5) Hurley and others, executors, 
 
 (2) 2 Barn. & C. 31. v. Stott, administratrix, 2 Manning 
 
 (3) 2 Barn. & C. 31. vV R. 36. 8 Barn. & C. 36.*£~ «*•••> 
 
 (4) Verhnm v. Jlm/nrlt, 2 Bing. (6) Hallidai/ v.Warde the elder, 
 307. 3 Camp. 32. 

 
 OF THE .STAT. GFO. IV. C. 1 1 . § I, 8, .',. I. 
 
 count of the note, it was held, that it was such an acknow- 
 ledgment of the debt as would prevent the other maker 
 from availing himself of the Statute of Limitations I ; 
 but in a subsequent case, where one of two joint drawers 
 of a bill of exchange became bankrupt, and under hi#~- 
 commission the indorsees proved a debt beyond the 
 amount of the bill for goods sold, and they exhibited the 
 bill as a security, and afterwards received a dividend, it 
 was held in an action by the indorsees of the bill against 
 the solvent partner, that the Statute of Limitations was a 
 good defence, though the dividend had been paid within 
 six years; and when Jackson v. FairbanJt was cited, it 
 was answered, that it wanted one material circumstance 
 which existed in Whitcomb v. Whiting, for the party who 
 revived the debt by his acknowledgment, became himself 
 liable to contribute to it; and Lord Tenterden, (then Ab- 
 bott, J.) said, "he was by no means satisfied that Jackson 
 v. Fairbank was a sound or good decision" (2). 
 
 Lord Tenterden, C. J. has lately ruled, where one of 
 two partners, then a certificated bankrupt, acknowledged 
 a debt formerly due to the plaintiff from his partner and 
 himself, that it was not a sufficient acknowledgment to 
 take the case out of the statute (3). 
 
 It has been contended that the case of Whitcomb v. 
 Whiting extended to exec/dors so as to make them liable 
 by a payment made after the death of their testator; but 
 in an action brought on a joint and several promissory 
 note, by the executors of the payee against the executors 
 of one of the makers, it was held, that the payment of in- 
 terest by the other maker ten years after the death of the 
 testator, did not take the case out of the Statute of Limita- 
 
 (1) Jackson v. Fairbank, 2 II. (3) Marten v. Bridges, 3 Carr. 
 Klack. 34n. & P. 83. 
 
 (2) Branrlrui/i v. Wharton, 1 
 Barn. & A. 463.
 
 9G OF THE STAT. 9 GEO. IV. C. 14, § 1, 2, 3, 4. 
 
 tions, so as to make the executors liable (1). And where 
 an action was brought against A. and B. and C. his wife, 
 upon a joint promissory note made by A. and C. before 
 her marriage, and the promise was laid by A. and C. be- 
 fore her marriage, and the defendant pleaded the Statute 
 of Limitations, whereupon issue was joined: it was held 
 that an acknowledgment of the note by A. within six 
 years, but after the marriage of B. and C. was not evi- 
 dence to support the issue (2). 
 
 It has been ruled by Lord Ellenborough, C. J. (3), that 
 an acknowledgment, to bind a partner, ought to be clear 
 and distinct, and unless there be an express and unequi- 
 vocal acknowledgment of an existing debt by one, it 
 would not bind the other. 
 
 This was the state of the law when the stat. 9 Geo. IV. 
 c. 14, was passed, in which by § 1, it was enacted, " that 
 where there shall be two or more joint contractors, or execu- 
 tors or administrators of any contractor, no such joint con- 
 tractor, executor, or administrator, shall lose the benefit of 
 the said enactments, or either of them, so as to be charge- 
 able in respect or by reason only of any written acknowledg- 
 ment or promise made and signed by any other or others 
 of them; provided always, 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 other- 
 wise, that the plaintiff, though barred by either of the 
 said recited acts, or that 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 acknowledg- 
 ment or promise, or otherwise judgment may be given and 
 
 (1) Atkins and another, execu- (2) Pittamv. Furstcr, 1 Barn. & 
 
 tors, v. Treadgold and another, ex- C. 248. 
 
 ecuiors, 2 Barn.&C. 23. 3 Dowl. (3) Holme v. Green, 1 Stark. 
 
 &R. 200. N P. C. 488.
 
 OF THE STAT. 9 GEO. IV. C. 14, § 1, 2, 3, 4. D7 
 
 costs allowed for the plaintiff as to such defendant or de- 
 fendants against whom he shall recover, and for the other 
 defendant or defendants against the plaintiff" (1). 
 
 This clause will render it necessary that plaintiffs 
 should act with great caution where there are two or" 
 more joint contractors, or the personal representative of 
 any contractor, for not only will the joint contractor or 
 personal representative be not bound by the written ac- 
 knowledgment or promise signed by his co-contractor 
 or joint representative; but if an action be commenced 
 against them, and it shall appear at the trial or otherwise 
 (so is the act worded,) that one of the defendants has 
 signed, but not the others, though the plaintiff will re- 
 cover against those who have signed, yet judgment shall 
 be given, and costs allowed for the defendants who have 
 not signed. 
 
 By § 2, " if any defendant or defendants in any action 
 
 (1) Tt should be observed that part two or more such joint contractors, 
 of this clause is materially varied or executors, or administrators, if 
 from the original bill; it stood thus : it shall appear at the trial or other- 
 " that where there shall be two or wise, that the plaintiff though bar- 
 more joint contractors, or executors, red by either of the said recited 
 or administrators, of any contractor, acts, or this act, as to one or more 
 no such joint contractor, executor, of such joint contractors, or exe- 
 or administrator, shall lose the be- cutors, or administrators, shall ne- 
 nefit.of the said enactments, or vertheless be entitled to recover 
 either of them, so as to be charge- against any other or others of the 
 able in respect or by reason of any defendants by virtue of a new 
 acknowledgment or promise made acknowledgment, or promise, or 
 by any other or others of them, or otherwise judgment may be given 
 by any payment made by any other and costs allowed for the plaintiff 
 or others of them, unless such pay- as to such defendant or defendants 
 ment shall be proved to have been against whom he shall recover, ami 
 made with his or their privity or for the other defendant or defend- 
 consent; provided alzvays, that in ants against the plaintiff. " 
 actions to be commenced against 
 
 i_ S X' s .-* ' ■ / , - - - ^ S .- , ' r ■" ■ ■ '
 
 98 OF THE STAT. 9 GEO. IV. C. 14, § 1, 2, 3, 4. 
 
 on any simple contract, shall plead any matter in abate- 
 ment 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 said recited acts, or this act, or of either of 
 them, be maintained against the other person or persons 
 named in such plea or any of them, the issue joined on 
 such plea shall be found against the party pleading the 
 same." 
 
 This section contemplates, that to the declaration, 
 which, in some cases, will be upon the original contract, 
 and in others, necessarily upon the new promise, and this 
 may hereafter frequently be the case ; the defendant may 
 plead in abatement the non joinder of any of the parties 
 originally liable, or of any personal representatives; and 
 in that case if it appear at the trial that the action could 
 not, by reason of the Statute of Limitations, or of the sta- 
 tute 9 Geo. IV. c. 14, be maintained against the persons 
 named in such plea or any of them, the issue joined in 
 such plea shall be found against the party pleading the 
 same. 
 
 The next section applies to indorsements or memo- 
 randums of payment upon any promissory note, bill, or 
 other writing, by the party to whom the payment shall 
 have been made. I was not aware till I met with the case 
 of Bosworlh v. Cotehett, (of which a report will be after- 
 wards given,) of any cases in which it has been held that 
 such indorsements on bills or notes would be admissible ; 
 but they appeared to rest on the same principle as in- 
 dorsements, on bonds, of payment of interest or principal. 
 
 In the case of Serle v. Lord Barrington (1), which is the 
 
 (1) 2 Str. 826. 8 Mod. 279. 2 Ld. Raym. 1370. 3 Brown. Pari. 
 C. 593.
 
 OF THE STAT. [) GEO. IV. C. 1 1, § I, 2, ft, 1. !)!) 
 
 earliest reported case, the question was much discu 
 and ultimately, after trials at nisi prius, writs of error 
 into the Exchequer Chamber, and subsequently to the 
 House of Lords, were brought: this principle was esta- 
 blished, that indorsements by the obligee, purporting t" 
 be made after twenty years after the date of a bond, 
 though not proved by direct evidence to have been made 
 within that time, are yet admissible to repel the pre- 
 sumption of payment after the lapse of twenty years, and 
 are proper to be left to the consideration of the jury, pro- 
 vided there are any circumstances in the case to show 
 that the indorsements have been made before the pre- 
 sumption could arise (1). 
 
 Lord Ellenborou<yJi (2) observes, that if such indorse- 
 ments were receivable whensoever they may have been 
 written, this would be allowing the obligee to manufacture 
 evidence for himself to contradict the fact of payment, 
 and he had been at a loss to see the principle on which 
 these receipts in the handwriting of the creditor have 
 sometimes been admitted as evidence against the debtor, 
 and he was of opinion they could not be properly ad- 
 mitted, unless they are proved to have been written at a 
 time when the effect of them was clearly in contradiction 
 to the writer's interest. 
 
 It was decided in the case of Boswortb and Parr v. 
 Cotchett (3) in the House of Lords, in an action by the 
 
 (1) Phill. Evicl. 172. Glynn v. House of Lords, 6th May, 1824. 
 Barik of England, 2 Yes. sen. 42. 2 Phill. Evid. 14.'!. Bosworth and 
 Turner v. Crisp, 2 Str. 827. Parr, executors of George Los> by, 
 
 (2) Rose v. Bryant, 2 Camp, who was executor of John Loseby, 
 3 J3. v. Cotchett, MS. The plaintiffs in 
 
 (3) Leicester Summer Assizes, errorin Hilary Term, 181 9, brought 
 1819, coram Richards, C. B. verdict an action of assumpsit ^ executors 
 and judgment for the defendant, of the last will and testament oi 
 and judgment of reversal in the George Loscby, deceased, who w is 
 
 H2
 
 100 OF THE STAT. 9 GEO. IV. C. 14, § 1, 2, 3, 4. 
 
 executors of an executor of the payee of promissory 
 notes against the maker, that when the payee had written 
 
 the executor of the last will and 
 testament of John Loseby, deceased, 
 against the defendant in error, 
 Thomas Cotchett, on two promis- 
 sory notes, by one of which pro- 
 missory notes, bearing date 29th 
 September, 1803, Thomas Cotchett 
 promised to pay to John Loseby 
 £500 with interest on demand, 
 and by the other of which promis- 
 sory notes, bearing date the 25th 
 March, 1805, Thomas Cotchett 
 promised to pay John Loseby the 
 sum of £400 with interest on de- 
 mand. The defendant in error 
 pleaded to the action, first, the 
 general issue, and secondly, 
 thirdly, and fourthly, non assumpsit 
 infra sex annos to different counts; 
 the plaintiff replied, that the de- 
 fendant did undertake within six 
 years to the second, third, and 
 fourth pleas. This action came 
 on at the Summer Assizes at Lei- 
 cester in the year 1819, and at the 
 trial the counsel for the plaintiffs, 
 in error, after having produced 
 in evidence the promissory notes, 
 and having proved that they were 
 made by Thomas Cotchett, and de- 
 livered by him to Joseph Loscby, 
 tendered in evidence certain in- 
 dorsements on each of the pro- 
 missory notes; of which indorse- 
 ments a part was proved to be in 
 the handwriting of John Losebij, 
 and other part was proved to 
 
 be in the handwriting of George 
 Loseby. Indorsements of the pay- 
 ment of a half year's interest pur- 
 ported to have been made half- 
 yearly upon the note of 29th Sep- 
 tember, 1803, the first of which 
 bearing date April 2, 1804, and 
 the last May 16th, 1808, these 
 were respectively signed " J. 
 Loseby," and were proved at the 
 trial to be in the handwriting of 
 John Loseby, deceased: indorse- 
 ments of a like description and 
 signed in the same manner, and 
 proved to be in the same hand- 
 writing, were at the trial shown 
 to be on the note dated the 25th 
 March, 1805, the first of these in- 
 dorsements bearing date the 14th 
 October, 1805, and the last the 
 16th of May, 1808; there were 
 similar indorsements by George 
 Loseby. 
 
 It was admitted by the counsel 
 for Thomas Cotchett, that a notice 
 had been duly served on the attor- 
 ney of Thomas Cotchett, calling 
 upon him to produce at the trial 
 of the said cause any receipts or 
 other papers in his possession, or 
 in the possession of Thomas Cot- 
 chett, relative to the matter in 
 issue, under which notice no pa- 
 pers were produced by the attor- 
 ney at the trial. 
 
 It was proved on the part of the 
 plaintiffs, that John Loseby died in
 
 OF 
 
 THE STAT. 9 GEO. IV. C. 14, § 1, J.', .',. I 
 
 101 
 
 indorsements of the half-yearly, payment of interest from 
 the time of making the notes till his death, which hap- 
 
 the month of April, 1809, no evi- 
 dence of any kind was offered at 
 the trial on the part of the de£ aid 
 ant in error. 
 
 • The counsel of the plaintiffs 
 in error admitted, when the said 
 indorsements were tendered in evi- 
 dence, that they had no evidence 
 extrinsic of the said indorsements, 
 as to the time of the making of the 
 said indorsements; the counsel for 
 the defendant in error then insist- 
 ed, before the Lord Chief Baron, 
 that the indorsements ought not to 
 be admitted in evidence. And the 
 counsel for the plaintiffs in error 
 insisted, that they ought to be 
 admitted. Richards, Lord Chief 
 Baron, delivered his opinion, that 
 the indorsements so tendered in 
 evidence on the part of the plain- 
 tiffs in error, could not be admit- 
 ted, unless supported by sufficient 
 extrinsic evidence, and refused to 
 admit the indorsements in evi- 
 dence. The jury gave their ver- 
 dict for the defendant in error. 
 The counsel for the plaintiffs in 
 error then excepted to the opinion 
 of the Lord Chief Baron, and ten- 
 dered a bill of exceptions, which 
 was signed and sealed ; the plain- 
 tiffs in error sued out a Writ of 
 Error to the House of Lords, to re- 
 verse the judgment entered up for 
 the defendant, Thomas Cotchett. 
 The printed reasons for the 
 
 plaintiff in error; "first, beca 
 extrinsic proof as to the time of tfii 
 
 making of the said indorsements 
 was imt indispensablj necessary to 
 
 be produced previous to the ad- 
 mission of them in evidence, such 
 indorsements are properly admis- 
 sible, if they contain sufficient in- 
 trinsic evidence as to the time of 
 their being made; and the said 
 indorsements do contain intrinsic 
 evidence as to the time of their be- 
 ing made, sufficient without ex- 
 trinsic proof. The said indorse- 
 ments, therefore, were strictly ad- 
 missible, and fit to be considered 
 by a jury. Secondly, because no- 
 thing appeared in proof at the trial 
 that could reasonably suggest any 
 ground for presuming fraud or 
 false representation in the making 
 of the said indorsements; and it 
 being the daily practice for holders 
 of promissory notes, obligees in 
 bonds, &c. at the request of the 
 makers of the notes, or of the 
 obligors, to make indorsements on 
 promissory notes, bonds, &c. &c. 
 of interest received from time to 
 time; and this practice being for 
 the benefit of the debtor, it ought 
 to be taken in the absence of all 
 proof to the contrary, that the in- 
 dorsements in this case were made 
 in the usual manner at the request 
 of the maker of the said notes, and 
 that great and manifold inconveni-
 
 102 OF THE STAT. 9 GEO. IV. C. 14, § 1, 2, 3, 4. 
 
 pened within six years of the date of the notes, and the 
 like indorsements of his executor, who died before the 
 commencement of the action, they were admissible in evi- 
 dence in answer to a plea of the Statute of Limitations, 
 though there was no extrinsic evidence offered of the time 
 when the indorsements were made. 
 
 By the statute 9 Geo. IV. c. 4, § 3, no indorsement or 
 memorandum of any payment written or made, after the 
 time appointed for that act to take effect, upon any pro- 
 missory note, bill of exchange, or other writing, by or on 
 the behalf of the party to whom such payment shall be 
 made, shall be deemed a sufficient proof of such payment, 
 so as to take the case out of the operation of either of the 
 said statutes. 
 
 Perhaps this section will not entirely destroy the effect 
 of indorsements of payment in all cases, but only where 
 the indorsement or memorandum is produced as proof of 
 payment to take the case out of the Statute of Limitations. 
 
 I think parties should not be deterred from making in- 
 dorsements of payments, for though they are not evidence 
 to take a case out of the statute, yet they state items for 
 
 ences would arise from the total evidence the indorsements are not 
 exclusion of such evidence." — proved to have been made at a pe- 
 (Thomas Dk.nman, S. M. Phil- riod when it was contrary to the 
 lii'ps.) interest of the maker of them 
 Reasons for the defendant in to have fabricated them." — (W. 
 error; "first, because the admission Reader, A. Amos.) 
 of such indorsements, by whatever On the Gth of Way, 1824, the 
 extrinsic evidence supported, is in House of Lords ordered and ad- 
 violation of the rule of law, that no judged, that the judgment given in 
 person shall make evidence for the Court of King's Bench be re- 
 himself, and is not within any ex- versed ; and it was further ordered, 
 ception to the rule that may have that the said court do award a 
 been allowed in other cases. Se- venire facias de novo, and proceed 
 Mildly, because without extrinsic according to law.
 
 OF THE si \T. J) GEO. i\ . t . 14, § I , ', .i, I. !(»■! 
 
 the honest account between the parties, and ma) still In- 
 evidence in some cases: it would in future be advisable 
 either to obtain the debtor's signature to the indorsement, 
 or to state it thus, " 1st May, 1830. Payment of 650 bj 
 
 B. to A. on account. Witnesses, C. D. of , and /,'._ 
 
 F. of ." In which case recourse maj be always baa" 
 
 to the particular witnesses during their lives, though the 
 indorsement may not be evidence.
 
 ( 104 ) 
 
 CHAPTER VIII. 
 
 OF THE MODES OF TAKING ADVANTAGE OF THE STATUTES 
 OF LIMITATIONS. 
 
 THE general rule with respect to the Statutes of Limi- 
 tations is, that where an action is required by statute to 
 be brought within a limited time, it is the duty of the 
 plaintiff to prove that he has done so, or he will fail in his 
 suit, as for instance, the statute 31 Eliz. c. 5, § 5, limits 
 actions upon penal statutes to two years after the commis- 
 sion of the offence, where forfeiture is given to the king 
 only, and to one year where it is to the king and any other 
 person, is in terms similar to the present, yet the defend- 
 ant is allowed to take advantage of that statute on the 
 general issue, and need not specially plead it, and the 
 practice at Nisi Prius has long been, and is, for the de- 
 fendant to call upon the plaintiff* to prove the commence- 
 ment of his action within the limited period (1). 
 
 The true ground of distinction between the statute 21 
 Jac. I. c. 16, and the statutes limiting penal actions, is 
 said to be, that the statute 21 Jac. I. c. 16, § 3, limits 
 those actions where a debt or other cause of action is 
 already vested in the plaintiff by means of some contract 
 between the parties, prior to the bringing of the action; 
 
 (1) Hodsdai v. Harridge, 2 Saund. R. 62, n. (6). Mr. Serjeant Wil- 
 liams note. Lcc v. Clarke, 2 East. 11. 336. Per Lawrence, J.
 
 OF THE STATUTES OF LIMITATION-. 105 
 
 but in penal actions the duty or right of action attachei 
 in the plaintiff, merely by bringing the action, and did 
 not exist in him before;; and unless he bring his action 
 within the time prescribed, there is no right of action 
 attached in him, therefore he seems as much bound to 
 prove the commencement of his action within time, which 
 is the cause or consideration of it, in order to entitle him- 
 self to a verdict, as a person who brings assumjtsit or 
 debt for goods sold and delivered, or money lent, and the 
 like, is to show the cause or consideration of his action to 
 entitle him to a verdict; and if he fail therein, it appears 
 that he has no cause of action. But the Statute of Limi- 
 tations admits the cause or consideration of the action 
 still existing, and merely discharges the defendant from 
 the remedy, so that a promise within six years without 
 any other consideration is sufficient to revive the action ; 
 therefore if he will take advantage of that circumstance it 
 is necessary he should plead the statute (1). 
 
 It was very soon after the passing of the statute 21 
 Jac. I. c. 16, made a question, whether if it appeared by 
 the declaration that the debt accrued more than six years 
 before, the plaintiff could recover. It has been long set- 
 tled that he may, for, it is said, the debtor may take ad- 
 vantage of the statute if the debt be older than the time 
 limited for bringing the action, or he may wave the ad- 
 vantage: and there might be divers causes that the 
 plaintiff could not bring his action sooner, as that he was 
 in prison, or within age, or beyond the seas, or that he 
 
 (1) Hodsden v. Harridge, 2 always favoured the plaintiff, and 
 
 Saund. R. 63, (a), n. 2. Mr. Ser- thought it hard for him to lose his 
 
 jeant Williams'' note. Quantock v. just debt after six years, and tin n - 
 
 England, 5 Burr. 2630. Petrie v. fore refused to allow the defence <>t 
 
 White, 3 Durnf. & E. II. Is it the statute unless it were pleaded » 
 not the true reason that the Court
 
 106 OF THE MODES OF TAKING ADVANTAGE 
 
 had sued the defendant to outlawry, and the defendant 
 had reversed the outlawry, and this action brought within 
 a year after the reversal, (and that was the case in one 
 instance,) and then the action was well brought (1). 
 
 By the statute 9 Geo. IV. c. 14, § 2, if any defendant 
 in any action upon simple contract, shall plead the non- 
 joinder of another in abatement, and issue be joined on 
 such plea, and it shall appear at the trial that the action 
 could not be maintained against the person not joined, 
 the verdict shall be against the party pleading such plea. 
 
 There are some early cases in which the general issue 
 was pleaded, and the jury found specially that the actions 
 were brought six years after the causes of action accrued, 
 and the Court decided the cases upon the special ver- 
 dicts (2) ; thus allowing the statute to be given in evidence 
 upon the general issue. It has been said (8), that if the 
 defendant plead non assumpsit, he cannot give in evi- 
 dence the statute, because the assumpsit goes to the 
 prater tense, and therefore the statute must be specially 
 pleaded. But it was ruled by Lord Holt, C.J. that upon 
 nil debet pleaded, the statute is good evidence, because 
 the issue is joined by words in the present tense, and by- 
 virtue of the statute it is no debt, although it was a debt ; 
 the modern practice, however, is not to rely upon the 
 plea of nil debet only in such a case, though it is still said, 
 that under a replication of nil debet to a plea of set-off, 
 this statute may be given in evidence. 
 
 Before dismissing the plea of general issue it may be 
 right to observe, that under such a plea the defendant 
 
 (1) Trankcrsley v. Robinson, 115. Sherzvin v. Cartwright, Hutt. 
 
 Cro. Cur. 163. Style v. Finch, 109. 
 
 i ■■. Car. 181. Hawkins v. Bill- (3) Per Uolt, C.J. Hertford 
 
 head, Crb; Car. 404. Ass. 1690. 1 Salk. 278. Draper 
 
 I ' Brown v. Hancock, Cro. Car. v. Glassop, 1 Ld, Ilaym. 153.
 
 OF THE STATUTES oi LIMITATIONS. 10', 
 
 may give in evidence such circumstances as show dial the 
 debt, from length of time, must be presumed to have been 
 paid. 
 
 I have before referred to a case anterior to the statute 
 3 & 4 Anne, c. 9, where Lord Holt, C. J. said, he 
 would presume payment of a note of any considerable 
 sum after a lapse of twenty years: in the case of DnJ/ic/d 
 v. Creed (1), the action was upon a note dated in 1782, 
 payable seven days after sight, and was brought twenty 
 years after the date of the note; the defence was, that 
 the note had been paid, then been lost, and got into circu- 
 lation again. Lord Ellenborough, C.J. said, "if this 
 had been a bond, twenty years would have raised a pre- 
 sumption of payment, in which case he would have left 
 the presumption of payment to the jury; and he thought, 
 as this note was unaccounted for, the same rule of pre- 
 sumption of payment ought to apply." In the case of 
 Cooper v. Dame Turner, a widow (2), the question arose 
 in an action of assumpsit, where the defendant pleaded 
 a set-off for money lent; the replication denied the set-off; 
 evidence was given that the defendant had lent to the 
 plaintiff .£50 thirteen years before; and although there 
 ivas no replication of the Statute of Limitations, yet 
 Dallas, C.J. said, " it was for the jury to consider, whe- 
 ther after so great a length of time, the debt set off had 
 not been satisfied" — the jury found for the whole of the 
 plaintiff's demand. 
 
 But in a subsequent case (3), which was assumpsit on 
 a promissory note, dated 1787 at Paris, payable sis 
 months after date; the defendant pleaded the general 
 
 (1) 5 Esp. 52, and see Fladong (2) 2 Stark. I!. 197. 
 v. Winter, 19 Ves. jun. 196. Ante, (3) Du Belloix \. Lord II U 
 7 g ? 9. park, 1 Dowl. t* K. ir>.
 
 108 OF THE MODES OF TAKING ADVANTAGE 
 
 issue and the Statute of Limitations, and the issues were, 
 first, on the general issue, and secondly, whether the 
 plaintiff had been living in Great Britain within six years 
 before the action brought : there was no evidence that the 
 plaintiff had been in England since the note was made; 
 and it was contended at the trial, that the jury were 
 bound to presume, by analogy to the case of a bond, that 
 after twenty years the note had been paid, although there 
 was no proof that the payee had been within the realm, 
 and Ditffield v. Creed (1) was referred to. But Abbott, 
 C. J. who tried the cause, was of opinion, that the case of 
 a bond was distinguishable from promissory notes and bills 
 of exchange, which were simple contract debts, and were 
 subjected to the provisions of the Statute of Limitations; 
 whereas the rule for presuming payment of a bond after 
 twenty years was founded on the common law, there 
 being no statutable provision with respect to obligations of 
 that nature, and, therefore, without some decisive autho- 
 rity upon the point he could not direct the jury in the 
 way contended for. The jury found a verdict for the 
 plaintiff for the principal sum, but not for the interest, 
 which seems to have been the principal question in the 
 cause (2). On a motion to increase the verdict by adding 
 the interest, the Lord C.J. said, "the plaintiff was sin- 
 gularly fortunate in recovering his principal money after 
 a lapse of thirty-four years," and the Court refused to 
 give the interest. 
 
 The words of the statute 21 Jac. I. c. 16, § 3, are, 
 " that the actions first mentioned shall be brought within 
 siv years next after such action or suit;" and therefore it 
 would seem always to be best to follow the words of the 
 statute in the plea. 
 
 ( 1) .5 Esp. R. 52. terpark, S. C. Bay ley on Bills, 21, 
 
 (2) See Du Belloix v. Lord Wa- n. 40.
 
 OF THE STATUTES OF LIMITATIONS. 109 
 
 There has, however, prevailed two modes of pleading 
 the statute in assumpsit, first, non assumpsit infra sex 
 annos, and secondly, actio non accrevit infra sex an- 
 nos (i). 
 
 The plea of non assumpsit infra sex annos is insuilicient 
 in many cases; for if the cause of action accrued within 
 six years, it is immaterial when the promise was made, or 
 the original transaction was. 
 
 Thus where the declaration stated a promise made- 
 seven years before to pay money three months after, and 
 the defendant pleaded non assumpsit infra sex annus, it 
 was held it ought to have been actio nan accrevit infra sex 
 annos (2). So in an action upon a promise to pay money 
 three months afterwards, the defendant pleaded non 
 assumpsit infra sex annos : it was held he ought to haw- 
 pleaded, that the cause of action did not accrue within six 
 years, and Twisden, Justice, said, " if I promise to do a 
 thing upon request, and the promise were made seven years 
 ago and the request yesterday, I cannot plead the statute; 
 but if the request were made six years ago, it must be 
 pleaded specially, viz. that causa actionis was above six 
 years since (3): and where the defendant pleaded non 
 assumpsit infra sex annos to a declaration in assumpsit, 
 which stated, that in consideration that the plaintiff would 
 receive certain persons into her house as guests, and provide 
 for them meat, drink, and other necessaries ; the defendant 
 promised to pay so much money as the plaintiff deserved, 
 
 (1) These should be always words of eauivalent import. Per 
 
 pleaded with the general issue non Buy Icy, J. Id. ibid. 3 Barn. \ ('. 
 
 assumpsit. See Lawes (Serj. Edw.) 237. 
 
 on Assumpsit, 533. 723: the act (2) Pucklc v. Moor, 1 Ventr. 
 
 of parliament ought to be pleaded 191. 
 
 in the very words of the act. Per (3) 1 Mod. 89, and sic Webb v. 
 
 Littledalc, J . Pratt v. Swaine, 2 Martin, 1 Lev. 48. 1 Sid. GO. 
 
 Manning & R. 352: or at least in 1 Keb. 177, S.C.
 
 110 OF THE MODES OF TAKING ADVANTAGE 
 
 which persons were received into the house and provided 
 with necessaries ; the plaintiff' demurred to the plea, and 
 there was judgment for the plaintiff, for this being an 
 executory collateral promise, the defendant could not 
 plead non assumpsit infra sex annos, but should have 
 pleaded "causa actionis non accrevit infra sexanfios" if 
 the cause of action accrued within the six years, it matters 
 not when the promise was made, the dieting might be 
 long afterwards, but if it had been indebitatus assumpsit, 
 that plea had been good (1). 
 
 Where a count stated that the defendant promised 
 payment of £150 upon the 30th of January, and the de- 
 fendant pleaded non assumpsit infra sex annos, and the 
 plaintiff demurred, because the six years were to be com- 
 puted from the time of the performance, and not of the 
 promise, so that the plea might be true, and the plaintiff 
 not barred by the statute, and that the plea ought to have 
 been actio non accrevit infra sex annos, and of that opi- 
 nion was the Court (2). 
 
 But where the plaintiff declared, in indebitatus as- 
 sumpsit, on a promise to pay on demand, and the defend- 
 ant pleaded non assumpsit infra sex annos — the plaintiff 
 demurred, because the plea should have been, that there 
 was no demand within six years, or non assumpsit infra 
 sex annos after demand: but the Court held, that an 
 indebitatus assumpsit shows a debt due at the time of the 
 promise, and, therefore, the plea was good ; but if the 
 promise had been of a collateral thing, which would create 
 no debt till demand, it might be otherwise (3). 
 
 (1) Gould v. Johnson, 2 Ld. (3) Pozvel v. Pierce, Mich. 
 Raym. 838. 2 Salk. 422. G Mod. 4 Geo. I. Bull. Ni. Pri. 151. 
 •2G. 1 Camp. 539. 
 
 (2) H) Mod. 104. 206.
 
 OF THE STATUTES OF LIMITATION -. Ill 
 
 Although the statute should take place from the time 
 of making the promise, yet the plea of actio non accrevit 
 infra sex annos is proper, therefore it has been considered 
 the safest and best way of pleading tin.' statute, in all C 
 of assumpsit, or debt on simple contract, to say. " thai 
 the said several causes of action in the said declaration 
 mentioned, or any, or either of them, did not accrue i<> 
 the said plaintiff within six years next before the com- 
 mencement of the suit," or in actions by bill " exhibiting 
 the bill of the plaintiff." 
 
 It was atone time questioned, whether to the plea of 
 non assumpsit infra sex annos, it was necessary to con- 
 clude to the country, or with a verification, though it 
 seems clear on principles of pleading, that the latter is 
 the proper course. 
 
 The plea of actio non accrevit infra sex annos, as be- 
 fore observed, may be safely pleaded in all cases, and is 
 peculiarly necessary where the statute does not begin to 
 run from the time of the transaction or promise (1). 
 
 If the defendant regularly pleaded the Statute of Limi- 
 tations, of course he was always entitled to the advantages 
 given by the statute, but for a long period the courts were 
 not inclined to favour this plea. In 1748, the Court of 
 Common Pleas refused to set aside a judgment to allow the 
 defendant to plead the Statute of Limitations (2) ; and in 
 1764, that court refused to permit a plea of the Statute of 
 Limitations to be added to the general issue, saying, " the 
 
 (1) Castles v. Merchant, cxe- Lambert v. Taylor, 6 Dowl. & Et. 
 
 cutor of Merchant, 1 Vern.& Scriv. 199. The King v. Morrall, 6 
 
 Irish Rep. 212. Qiuere, whether Price Exch. Rep. 2G. 29. 
 
 this plea as usually pleaded admits (2) Willctt v. Atterton, I Sh 
 
 that a cause of action ever existed ' Wm. Blackst. Rep 
 Bland v. Haselrig, 2 Vent. 151.
 
 1 12 OF THE MODES OF TAKING ADVANTAGE 
 
 statute excluded the merits (1); and in 1788, where the 
 defendant -was under terms of pleading issuably, and 
 pleaded the general issue, and a set-off, and the Statute 
 of Limitation, the Court set aside the last plea, also say- 
 ing, " it excluded the merits" (2). But in Rucker and 
 another v. Ilannay, (Bart.) (3), the defendant was under 
 terms of pleading issuably, and pleaded the general issue, 
 and the Statute of Limitations, the Court of King's Bench 
 refused to set aside the latter plea; the Statute of Limita- 
 tions having been considered by the Court of Common 
 Pleas as an issuable plea within the meaning of the order. 
 And it was held that the defendant was not precluded 
 from pleading the Statute of Limitations after an order 
 for time, and it was observed that in many cases it was a 
 very fair plea; and the Court of Common Pleas, in a sub- 
 sequent case, refused to restrain a defendant from plead- 
 ing the Statute of Limitations on setting aside a regular 
 interlocutory judgment, for the plea of the Statute of 
 Limitation was not necessarily unconscientious (4). 
 
 The usual replication to a plea of non assumpsit infra 
 sex annos, is, " that the plaintiff did promise within six 
 years;" and to the plea of actio non accredit infra sex 
 annos, " that the causes of action did accrue within six 
 years before the exhibiting of the bill, or the commence- 
 ment of the suit," (as the plea may be). But if the bill or 
 declaration was beyond six years, and the plaintiff had 
 
 (1) Cox v. Rolt, 2 WUs. 253. (3) 3 Durnf. & E. 124. 
 
 (2) Stadtholm, executor, v.Hodg- (4) Maddocks v. Holmes and 
 son, 2 Durnf. & East, 390. See others, 1 Bos. & Pul. 228. And 
 Stafford v. Rowntree, East. T. 24 Drinkwater v. Claridge, MS. Hil. 
 Geo. III. K. B. Benson v. King, T. 27 Geo. III. C. P. Impey C. 
 Hil. T. 25 Geo. III. K. B. Tidd, P. 253. 
 
 Prac. 471.
 
 Or Tilt STATUTES OF LIMITATIONS. I I.' 
 
 issued his writ within time, it will be necessan to 
 reply specially, setting out the process and the pi- iceed 
 ings thereon, and that it was issued for (he purpos of 
 proceeding against the defendant, and that the causes of 
 •action accrued within si\ years nexl before tin- issuin 
 the process; or if the process has been continued, it will 
 be necessary to set out the continue d process, in which 
 case the first must be shewn to have been returned (1). C S 
 
 The plaintiff may also reply, thai " he was abroad, or 
 that the defendant was abroad, and the action was com- 
 menced within six years after the return" (2); or." that, 
 the plaintiff was an infant, and the action was brought 
 either during his infancy, or within six years next after 
 he became of age*' (3); or " that a judgment between the 
 parties for the same debt had been arrested or reversed 
 for error, and that the plaintiff sued within a year after- 
 wards," &c. (4); or " that the plaintiff being an executor, 
 his testator commenced an action within six years, which 
 abated by his death, and that the plaintiff's action was 
 commenced recently, or in a reasonable time after the 
 death (5); or the plaintiff to a plea of set-off may reply in 
 his turn the Statute of Limitations (6). 
 
 The form of pleading the statute to a set-off is not yet 
 settled, whether it should be " was not indebted within 
 six years before the plea," or " the commencement of the 
 action," the latter is said to be safest, as it must include 
 
 (1) Hodsden v. Harridge, 2 (3) Chandler v. Vilett, 2 Saund.. 
 
 Saund. R. 62, n. (6). Quare the 118. 
 
 effect of the statute 9 Geo. IV. c. (4) Hodsden v. Harridge, 2 
 
 14, upon this replication of process Saund. R. 63, («). 
 
 issued? (5) Hodsden v. Harridge, 2 
 
 (2) Statutes 21 Juc. I.e. 16, § 7, Saund. K. 63, 64. 
 
 and 4 & 5 Ann. c. 16, § 19. (6) Remington v. Stevens, 2 Str. 
 
 Chandler v. Vilett, 2 Saund. H. 121, 1271 
 
 n. 4. 2 Chitty Plead. 1161, 1162. H^^flS^A*
 
 114 Ot TUli MODES OF TAKING ADVANTAGE 
 
 the former (I). It should seem the statute may be given in 
 evidence under a replication of non indebitatus to a plea 
 of set-off; as the plaintiff can only reply singly, he must 
 give up the advantage of pleading non indebitatus, or of 
 pleading the statute (2). 
 
 The plaintiff may also reply that the plaintiff and de- 
 fendant are merchants, and that the debts or accounts 
 concern the trade of merchandize between them as mer- 
 chants, I do not find this replication has been pleaded for 
 a great length of time, and therefore I shall refer to what 
 is said in the books on that subject. 
 
 With respect to the form of pleading to bring the case 
 within the exception relating to merchants accounts, in 
 Farrington v. Lee, according to one report (3), to a plea 
 of non assumpsit infra sex annos, the plaintiff replied, 
 that he was a merchant, the defendant was his factor, he 
 then recited the clause in the statute 21 Jac. I. c. 3, re- 
 lating to merchants' accounts, and averred that the money 
 became due to the plaintiff upon an account between him 
 and the defendant concerning merchandize, &c. The 
 defendant to this replication made an impertinent rejoin- 
 der, to which the plaintiff demurred. 
 
 The plaintiff in Webber v. Thill (4), to a plea of non 
 assumpsit infra sex annos, replied, that the money in the 
 several promises and undertakings in the declaration 
 became due and payable on trade had between the par- 
 ties as merchants, and wholly concerned the trade of 
 merchandize (5). 
 
 (1) Mucfadzen v. O/iphanf. 6 (3) 1 Mod. 269. 
 East R. 387. See Ord v. liuspini, (4) 2 Saund. 123. 
 
 2 F>p. Rep. 570. (.5) See also God/re,;/ v. Saun- 
 
 (2) Sec / a,, is (Serjeant Edward) dns, 3 Wils. 04, which was an 
 on Assumpsit, 533. 723. Qu. whe- action of account. 
 
 ther the plea of the statute admits 
 the debt '
 
 OF THE STATUTES OF LIMITATIONS. I I .*> 
 
 Lastly, as it has been said that the statute only runs 
 from the time fraud is discovered, such fraud must be 
 specially replied to a plea of the Statute of Limita- 
 tions (1). 
 
 (1) Brce v. Holbectc, 2 Doug. Macdonald \. Macdonald, 1 I'.h.li 
 654. "Brown v. Houurd, 4 .Monro, Rep. 315. Clarke v. Hougfnim, 2 
 Rep. 508. 2 Brod. & B. 73,S.C. Barn. & C. 153. 
 
 I 2
 
 ( 116 ) 
 
 CHAPTER IX. 
 
 OF THE STATUTE 9 GEO. IV. C. 14, § 5, AS TO PROMISES IN 
 WRITING, AFTER FULL AGE, TO PAY DEBTS CONTRACTED 
 DURING INFANCY. 
 
 AN infant is by the common law liable for necessaries 
 suitable to his rank and degree in life ; but generally 
 speaking all contracts, except for necessaries, may be 
 avoided by the infant. 
 
 It is probable that before the reign of King William 
 the Third, persons under age had little credit: the com- 
 mon action then in use (the action of debt) was not well 
 adapted to charge persons when of age w T ith promises to 
 pay simple contract debts contracted during infancy, and 
 until after Slades case (I), (44 Elizabeth,) the action of 
 assumpsit was not much in use. 
 
 Before that decision had brought the action of assump- 
 sit into use, our cautious ancestors seem to have taken 
 single bills and bonds from infants, (questionable secu- 
 rities as they might be,) and cases on the confirmation of 
 these securities are to be met with ; but I have met with no 
 decisions upon the question how far an adult could make a 
 promise to pay a simple contract debt during infancy, until 
 the following by Lord Holt, C. J. in Ball v. Hesketh (2); 
 
 (1)4 Rep. 05. the money at full age, he shall not 
 
 (2) Sittings at Guildhall, 8 Wm. avoid the contract. Vin. Abr. tit. 
 
 IH. Comb. 381. If an infant sell Infant, K. 14 Hen. VIII. 29. Per 
 
 ahorse for £10, and bring debt for Brudenell. See (iodbolt, 138.
 
 OF PROMISES AFTER [NPAN( "i . 117 
 
 it was ruled (as apparently a new point) that where tin- 
 defendant, under age, borrowed money of the plaintiff, 
 and afterwards, at full age, promised to pay him, (his u 
 a good consideration for the promise, and the defendant 
 shall be charged; and in Southerton \. II hillock ([) 
 it was ruled by Raymond, C. J. that if goods, which 
 are not necessaries, be delivered to an infant, who, after 
 full age, ratifies the contract by a promise to pay, he is 
 bound. 
 
 It is by no means improbable but that these decisions 
 have been partly the means of young men obtaining 
 credit, under an idea that any promise after the debtor 
 had come of age would be a security. A promise to pay 
 part, will however bind to that extent, and no farther (2), 
 and the payment of part will not bind to pay the re- 
 mainder. Bare acknowledgment is not sufficient after 
 a majority (3), and a promise under arrest is not bind- 
 ing (4). 
 
 The distinction between promise to pay a debt con- 
 tracted during infancy, and a promise to take a case out of 
 the Statute of Limitations, has been much considered in a 
 late case (5) : under a replication (to a plea of infancy) 
 that the defendant promised to pay after he became of 
 age; proof was given of a promise after the action was 
 commenced; and the case of Yea v. Fouraker (6) was 
 relied upon, that an acknowledgment of the debt after 
 
 (1) Guild/tall, 12 Geo. I. 1 Str. (4) Hurmer v. Killing, 5 East, 
 690. R. 102. 
 
 (2) Green v. Parker, Abingdon (5) Thornton v. Illinguorth, 4 
 Spring Ass. 1755. Per Forster, J. Dowl. & R. 545. 2 Barn. & C. 
 MS. Peake Evid. 278. S.C. 
 
 (3) Lara v. Bird, Sitting after (6) 2 Burr. 1099. 
 Hil. 31 Geo. III. MS. Peake 
 
 Evid. 278.
 
 118 OF PROMISES AFTER INFANCY. 
 
 the commencement of the action, would take the case out 
 of the Statute of Limitations; but it was held that there 
 was a plain and important distinction between the two 
 cases; where the Statute of Limitations applies, it ope- 
 rates only to extinguish the claim for a pre-existing debt, 
 it allows that the debt has existed, but presumes that it 
 has been discharged, and then the subsequent promise 
 rebuts the presumption of payment, and revives the origi- 
 nal debt without creating any new obligation ; but where 
 infancy is pleaded and proved, there is neither debt nor 
 obligation existing until the party comes of age, because 
 any promise made by him during his infancy is void in 
 law : if, upon arriving at full age, he makes a promise to 
 pay a debt incurred during his infancy, that promise is 
 binding upon him. But why? — because it constitutes 
 a new debt and a new liability, and that debt and liability 
 date their existence from the precise period of the pro- 
 mise only, without reference to the commencement of the 
 action. 
 
 It must be apparent, that even where the infant is liable 
 to a demand for necessaries, many questions may arise 
 both as to what are necessaries, and as to what ought to 
 be the extent of such necessaries, and their reasonable 
 amount in value ; and where the contract is not for neces- 
 saries, the debtor may be placed in a very dangerous situa- 
 tion, and subjected to much oppression, more particularly 
 where personal applications are made to entrap him. It 
 was therefore decided by Lord Alvanley, C. J. that 
 where an infant, under the terror of an arrest, had a pro- 
 mise extorted from him, or where it was given ignorant of 
 the protection afforded him, he, Lord Alvanley, would 
 hold (1), that the infant was not bound by it. 
 
 (1) Hornier v. Killing, 6 Esp. N. P. C. 102.
 
 OF PROMISES AFTER INFANCY, I I!) 
 
 In the case of Tltrupp v. Fielder (1), where die pay- 
 ment of a part by the defendant alter he beeanw pj 
 was proved. Lord Kon/on .said, " I am pf opinion this is 
 not such a promise as satisfies the issue. The ea>e of 
 infancy differs from the Statute of Limitation ; in tLuv. 
 latter case a hare acknowledgment has been held to be 
 sufficient: in the case of an infant 1 shall hold an acknow- 
 ledgment not to he sufficient, and require proof of an 
 express promise to pay made by the infant after he has 
 attained that age, where the law presumes that he has 
 discretion. Payment of money made, as in the present 
 case, is no such promise." 
 
 To give a person, when he became of age, an oppor- 
 tunity of making a promise to pay any of his just debts 
 contracted during infancy, and at the same tune to relieve 
 him from the oppression which may be exercised upon 
 him by extorting a promise to pay such debt, and not 
 to trust such promise to the evidence of interested persons, 
 the legislature hath required that such promise shall be in 
 writing; for by the 9th Geo. IV. c. 14, § 5, " no action 
 shall be maintained upon any promise made after full age 
 to pay any debt contracted during infancy, or upon any 
 ratification after full age of any promise or simple con- 
 tract during infancy, unless such promise or ratification 
 shall be made by some writing signed by the party to be 
 charged therewith." Upon this section it may be ob- 
 served, that it does not declare such promise or ratifica- 
 tion to be illegal, but that no action shall be maintained, 
 a distinction to which I have before adverted (2). It seems 
 to apply to any debt contracted during infancy, and to 
 any promise or simple contract made during infancy, and, 
 
 (I) 2 Esp. N. P. C.628. Peake (2) Ante, 11. 
 Evid. 278, S.C.
 
 [20 OF PROMISES AFTER INFANCY. 
 
 therefore, to contracts for necessaries as well as other 
 contracts made by infants : but on a contract for neces- 
 saries, unless for the purpose of taking a case out of 
 the Statute of Limitations, or other case requiring a pro- 
 mise or ratification after full age, the action for necessaries 
 will, it seems, remain at common law; the promise or 
 ratification must be made by writing signed by the party 
 to be charged with it; and it should seem, from the words 
 of the act, that a writing signed by an agent would not be 
 sufficient. 
 
 The act speaks not only of a promise, but also of a 
 ratification to a plea of infancy ; the old form of replica- 
 tion to a plea of infancy was, that the defendant promised 
 after he became of age, but latterly it has been usual to 
 state that the defendant attained his age of twenty-one 
 years, and that he afterwards ratified and confirmed the 
 promises in the declaration (1); and this I apprehend 
 accounts for the terms " promise and ratification." 
 
 This statute will materially reduce the number of ac- 
 tions on promises to pay debts contracted, and to ratify 
 simple contracts made during infancy. 
 
 (1) See Cohen v. Armstrong, 1 Maule & S. 724. 

 
 ( 121 1 
 
 CHAPTER X. 
 
 OF THE STATUTE 9 GEO. IV. C. 14, § 6, RESPECTING REPRE- 
 SENTATIONS IN WRITING OF CHARACTER AND CREDIT. 
 
 ■MERCHANTS frequently have customers recom- 
 mended to them, or they desire from a new or suspected 
 buyer a reference to some respectable person, or request 
 a guarantee. 
 
 When an inquiry is made of the degree of credit which 
 ought to be given to any person previous to a commercial 
 transaction, the person applied to may give no answer; 
 but if he do, it must be according to the truth as far as 
 he knows; for if he affirmed falsely with intent to de- 
 fraud the person applying, and the latter received damage, 
 an action on the case lay for the deceit, and in such an 
 action it was not necessary that the person applied to 
 should be benefited by the deceit, or collude with the 
 person who is (1). This was decided in the King's Bench 
 by Lord Kenyon, Mr. J. Bullet- , and Mr. J. Ashurst, 
 against the opinion of Mr. J. Grose, in the celebrated 
 case of Pasley against Freeman, and is now well esta- 
 blished (2), though Mr. Justice Grose held his former 
 opinion in a subsequent case (3). 
 
 (1) Pasley v. Freeman, 3 Term (2) Haycrqft v. Creasy, 2 East 
 R. 51. Eyre v. Dunsfbrd, \ East R. 104. 
 
 R. 328, 329. (3) In Pauley v. Freeman, Mr. 
 
 Justice Grose said, " that he had
 
 122 OF REPRESENTATIONS IN WRITING 
 
 The doctrine in this case has since been much observed 
 upon. Lord Eldon in Evans against Bicknell(\), after 
 observing that as to Pasley and Freeman it was almost im- 
 proper now to say anything to shake it, and the doctrine 
 laid down in that case is in practice and experience most 
 dangerous, says, " I state that upon my own experience, 
 and if the action is not to be maintained in opposition to 
 the positive denial of the defendant, against the stout 
 assertion of a single witness, where the least deviation in 
 the account of the conversation varies the whole, it will 
 become necessary, in order to protect men from the conse- 
 quences, that the Statute of Frauds should be applied to 
 that case (2); suppose a man asked whether a third person 
 may be trusted, answers, ' you may trust, if he does not 
 pay you, I will;' upon that the plaintiff cannot recover, 
 because it is a verbal undertaking for the debt of another; 
 but if he does not undertake, but simply answers, ' you 
 may trust him, he is a very honest man and worthy of 
 trust,' &c. then an action will lie ; whether it is fit the law 
 should remain with such distinctions it is not for me to 
 determine. Upon the case of Pasley v. Freeman, I have 
 always said, when I was chief justice, that I so far doubted 
 the principles of it, as to make it not unfit to offer, as I 
 always did to the counsel, that a special verdict should be 
 taken, but that offer was so uniformly rejected, that I 
 suppose I was in some error upon this subject; I could 
 
 not met with any case of an action (1) 6 Ves. jun. 174. And see 
 
 upon a false affirmation, except Eyre v. Dunsford, 1 East R. .328. 
 
 against a party to a contract, and Thompson v. Bond, 1 Campb. 4. 
 
 where there had been a promise 13 Ves. jun. 134. 1 Taunt. 564. 
 
 either express or implied, that the (2) See statute 9 Geo. IV. c. 14, 
 
 fact is true which is misrepre- § 6. 
 sented." Pasley v. Freeman, 3 
 Darnf. k R. 53.
 
 AS TO CHARACTER AND CREDIT. I 28 
 
 therefore only point out to the jury the danger of finding 
 verdicts upon such principles, and I succeeded in impress- 
 ing them with a sense of that danger so far that the plain- 
 tiffs in such actions very seldom obtained verdicts. It 
 appears to me a very extraordinary state of the law, that 
 if the plaintiff in the case of Paslcy v. Freeman had come 
 into equity, insisting that the defendant should make good 
 the consequence of his representation, and the defendant 
 positively denied that he had made that representation, 
 and only one witness was produced to prove it, the Court 
 of Equity would give the defendant so much protection 
 that they would refuse the relief, and yet upon the very 
 same circumstances the law wovdd enable the plaintiff to 
 recover; whether that is following equity, or quite out- 
 stripping equity, is not a question for discussion now: but 
 it leads to the absolute necessity of affording protection 
 by a statute (1) requiring that these undertakings shall be 
 in writing" 
 
 In a subsequent case (2), Lord Eldon, L. C. also said, 
 " the Statute of Frauds requiring a written engagement 
 for the debt of another has been considerably cut down 
 ever since the case of Paslcy v. Freeman at law, where 
 this was determined, that if you throw into the declaration 
 an allegation that the engagement was fraudulent, and in 
 the form of a representation that the party is of sufficient 
 substance to pay the debt, the recovery is not of the debt 
 as debt upon the contract, but a recovery of damages to 
 compensate what they call a fraud. It was long before I 
 was reconciled to that, but with those doubts, I know it 
 has been settled as law by subsequent decisions." 
 
 " I am old enough," observes Gibbs, C. J. in Ashlin v. 
 
 (1) See the statute 9 Geo. IV. (2) Exjuntc CatT, ■) Vez. & 
 14, s (j. Beames Rep. 1 id.
 
 124 OF REPRESENTATIONS IN WRITING 
 
 White (1), "to remember when this species of action came 
 into use, it was dexterously intended to avoid the Sta- 
 tute of Frauds ; by that statute no man was bound to 
 answer for the debt of another without an undertaking in 
 writing; but the design of this action, when first intro- 
 duced into our courts of law, was to make a man responsi- 
 ble for having given a better character of another than 
 such person deserved : when the principle of this action 
 first gained ground, I remember a flood of causes followed, 
 and such mischief and injustice would have ensued had it 
 not been brought back, after some struggle, within its 
 proper legal limits ; Haycroft v. Creasy, has marked the 
 boundaries, it has wisely and justly established that the 
 foundation of this action was fraud and falsehood in the 
 defendant, and a damage to the plaintiff, by the occasion 
 of such fraud and falsehood." 
 
 " Actions of this description ought not to be encou- 
 raged, it is absolutely necessary that a clear case of an 
 intention to defraud must be made out" (2). 
 
 The objection has been started, that this is an under- 
 taking to answer for the debt of another, and not being 
 in writing is void by the Statute of Frauds, it has been 
 answered by saying, that that statute, however, has no 
 relation to these cases, and it raises certain legal pre- 
 sumptions of fraud for the want of certain formalities in 
 contracts and other transactions, against which it guards 
 by avoiding them, but that has no application to actions 
 founded on actual fraud and deceit in order to recover 
 damages by the party grieved (3). 
 
 (1) Holt's N. P. C. 338. (3) Eyre v. Ditnsford, 1 East, 
 
 (2) Per Dallas, C. J. Ames and 328. 
 others v. Milward, 2 Moore C. P. 
 Rep. 715.
 
 AS TO CHARACTER AND CREDIT. 1^."> 
 
 Where A. having a credit upon the defendant, in conse- 
 quence alone of his having deposited goods to a much 
 greater value, was represented by the defendant ;is a 
 person generally entitled to credit, and the plaintiff 
 trusted him with goods, and A. soon after failed — an 
 action on the case was held to lie, even though the in- 
 formation given was said to be without prejudice; and 
 where A. fraudulently represented (1) the circumstances 
 of B. to be good, in order to induce C. to give him credit, 
 and added, " if he does not pay for the goods I will," an 
 action may be maintained against A. for the misrepre- 
 sentation, notwithstanding the addition of the promise. 
 
 The foundation of such action (which must be an 
 action on the tort or wrong, and not for goods sold, for 
 there is no contract) (2), is fraud and deceit in the de- 
 fendant (3), and damage to the plaintiff' (4) ; and, there- 
 fore, where to an inquiry concerning the credit of another, 
 who was recommended to deal with the plaintiff, a repre- 
 sentation by the defendant that the party might safely be 
 credited, and that he spoke this from his own knowledge, 
 and not from hearsay, will not sustain an action on the 
 case for damages on account of a loss sustained by the 
 default of the party, who turned out to be a person of no 
 credit, if it appear that such representation were made by 
 the defendant bond fide, and with a belief of the truth 
 of it, and taking the assertion of knowledge secundum 
 subjectam materiam, viz. the credit of another ; it meant 
 no other than a strong belief founded on what appeared 
 to the defendant to be reasonable and certain grounds ; 
 
 (1) Earner v. Alexander, 2 New (3) Haycrqfl v Creasy 2 East, 
 Rep. 241. 92. 
 
 (2) Thompson v. Bond, 1 Camp. (4) Ibid. 
 4.
 
 126 OF REPRESENTATIONS IN WRITING 
 
 and the action was held not to lie (1) where the inquiry 
 was made of the defendant, with a view to entrap him, 
 and thereby to obtain his guarantee for payment of a 
 debt contracted by a person in insolvent circumstances. 
 
 The person making such fraudulent representation of 
 the credit of another, is only answerable to the merchant 
 for goods sold to the creditor to a reasonable extent; 
 and the merchant should be cautious of trusting too far 
 on the faith of such representation ; if he tell the buyer 
 he will sell him no greater amount without further refer- 
 ences, and after that entrusts him with more goods, the 
 author of the representation is not liable beyond the sum 
 due at the date of the plaintiff's declaration (2). 
 
 I have before adverted to what was said by Lord 
 Eldon, L. C. (3), "in that there was an absolute necessity 
 of affording protection by a statute requiring these un- 
 dertakings to be in writing." And now by the 9 Geo. IV. 
 c. 14, § 6, " no a ction shall be brought whereby to charge 
 any person upon or by reason of any representation or 
 assurance made or given concerning or relating to the 
 character, conduct, credit, ability, trade, or dealings of 
 any other person, to the intent or purpose that such other 
 person may obtain credit, money, or goods upon, unless 
 such representation or assurance be made in writing, 
 signed by the party to be charged therewith" (4). 
 
 (1) Tapp v. Lee, 3 Bos. St Pul. assurance made or given coneern- 
 .367. ing or relating to the character, 
 
 (2) Hutchinson v. Bell, 1 Taunt, conduct, credit, ability, trade, or 
 .5J8. dealings, of any other person, to 
 
 (3) 6 Ves. jun. 174. the intent or purpose that such 
 
 (4) The clause in the original other person may obtain credit or 
 
 bill was somewhat different, "that confidence, unless such representa- 
 
 no action shall be brought where- tion or assurance be made in writ- 
 
 by to charge any person upon or ing signed by the party to be 
 
 by reason of any representation or charged therewith." ^•^,-^'^^-^r 
 ^^_„__^.^p /./^-^ s SL-~, /fJf S^s? ^~^> - 
 
 .* , .. -.«.•>■ ' -
 
 AS TO CHARACTER AM) CREDIT. l~'7 
 
 In this case, also, the writing is to be signed by t he- 
 party, and therefore it seems that a signature by an agent 
 will not be sufficient. 
 
 The effect of this enactment will be to reduce the num- 
 ber of actions on fraudulent representations; if a person is 
 really anxious to obtain a valid representation or assur- 
 ance under the statute, and another willing to give it, it 
 must be fairly and honestly requested to be in writing.
 
 ( 128 ) 
 
 CHAPTER XI. 
 
 OF EXECUTORY CONTRACTS UNDER THE STATUTE OF 
 FRAUDS, AND OF THE STATUTE 9 GEO. IV. C. 14, § 7. 
 
 BY the Statute of Frauds, 29 Car. II. c. 3, § 17, it is 
 enacted, "that from and after the 24th day of June, 1677, 
 no contract for the sale of any goods, wares, and mer- 
 chandizes, for the price of £10 sterling or upwards, shall 
 be allowed to be good, except the buyer shall accept part 
 of the goods so sold, and actually receive the same ; or 
 give something in earnest to bind the bargain, or in part 
 of payment, or that some note or memorandum in writing 
 of the said bargain be made and signed by the parties to 
 be charged by such contract or their agents, thereunto 
 lawfully authorized" (1). 
 
 The statute 9 Geo. IV. c. 14. recites, as a legislative de- 
 duction from the cases, " that the enactments 29 Car. II. 
 c. 3, § 17, (English) and 7 Wm. III. c. 12, (Irish) do 
 not extend to certain executory contracts for the sale of 
 goods, which, nevertheless, are within the mischief in- 
 tended to be remedied by these act.;, and that it is expe- 
 dient to extend the enactments to such executory con- 
 tracts;" and from the latter part of the clause it may be 
 
 (1) The Irish Statute on this subject is the 7 Wm. III. c. 12, * 13.
 
 UNDER THE STATUTE OF FRAUDS. I .". I 
 
 gathered, that the contracts alluded to arc those in which 
 the goods are intended to be delivered at sonic future 
 time, or may not at the time of such contract be ac- 
 tually made, procured or provided, or lit or ready lor d- li- 
 very, or some act may be requisite for the making and • 
 completing thereof, or for rendering the same fit for deli- 
 very. 
 
 I will now proceed to the cases themselves under the 
 Statute of Frauds applicable to executory contracts. 
 
 The first is the case of Toners v. Sir John Osborne (1). 
 The defendant had bespoken a chariot, and when it was 
 made refused to take it; in an action for the value, 
 Pratt, C. J. (afterwards Lord Camden, ) ruled this not to 
 be a case within the Statute of Frauds, which, he said, 
 related Only to contracts for the actual sale of goods, 
 where the buyer was immediately answerable without 
 time being given him by special agreement, and the seller 
 is to deliver the goods immediately. 
 
 This case of Towers v. Osborne has been much ob- 
 served upon : it has been said that it was out of the sta- 
 tute as a contract for work and labour; the thing con- 
 tracted for did not exist at the time; and it was also 
 observed by Grose, C.J. upon this case, that it went 
 upon the general principle, that executory contracts were 
 not within the meaning of the statute; if by that were 
 meant contracts for the sale of goods to be executed on 
 a future day, such a construction would be a repeal of the 
 act, but if it only meant such contracts as were incapable 
 of being executed at the time, then the decision was 
 right (2). 
 
 (1) At Guildhall, coram Prutt, ford & E. 16, and also Garbuttx. 
 C..T. 1 Str. 506. Watson, .3 Barn. & A. 614. 
 
 (2) Cooper v. Elxton, 7 Dnrn-
 
 130 OF EXECUTORY CONTRACTS 
 
 In Clayton v. Andrews (I), the defendant agreed to 
 deliver one load and a half of wheat within three weeks 
 or a month, at the rate of twelve guineas a load, to be 
 paid on delivery, which wheat was at that time unthrashed. 
 The court, on the authority of Towers v. Osborne, (which 
 Aston, J. said, had always been considered an authority 
 upon questions of this kind,) decided that this agreement 
 was not within the statute. This case, Clayton v. Andrews, 
 has also met with the disapprobation of subsequent judges, 
 and Holroyd, J. in Garbutt v. Watson (2), said, he could 
 not agree with Clayton v. Andrews. It was, however, fol- 
 lowed in the case of Alexander v. Comber (3). In a sub- 
 sequent case, Groves v. Buck (4), a contract for the pur- 
 chase of oak-pins, which were not then made, but were to 
 be cut out of slabs and delivered to the buyer, was held 
 not to be within § 17 of the statute, for Lord Ellenborougli 
 said, the subject-matter of the contract was incapable of 
 delivery and of part acceptance, and so out of the statute. 
 
 In Rondeau v. Wyatt (5), the defendant entered into a 
 verbal contract to sell and deliver flour to be put in sacks 
 to be sent to the mill, and shipped on board of vessels to 
 be provided by the plaintiffs. The case of Toicers v. 
 Osborne, and the subsequent cases, were pressed; but 
 the court decided that the contract was void, being within 
 the Statute of Frauds, though it were executory, for the 
 words are " no contract for the sale of goods ," and it was 
 observed, that Clayton v. Andrews was an agreement to 
 
 (1) 4 Burr. 2101. 1 Sir Win. ard weight or measure must be 
 
 Black. Rep. 602. Such a contract expressed, 
 
 by local measures or weights will (2) 5 Barn. & A. 613. 
 
 now be void, unless it be according (3) III. Blac. 20. 
 
 to the statute 5 Geo. IV. c. 1-1, § 15 ; (4) 3 -Maule &, S. 178. 
 
 the ratio of the local with the stand- (5)2 II. Blac. 63. 3 Bio. C. 
 
 C 154.
 
 UNDER THE STATUTE OP FRAUDS. 1)1 
 
 deliver corn at a future period, and some work was to be 
 performed, for the corn was to be thrashed; and that the 
 intention of this statute was, that something direct and 
 specific should he done, to show that the agreement was 
 complete, to prevent confusion and uncertainty in the 
 transactions of mankind: it has been observed of this case, 
 that the construction was brought back to the manifest 
 intention of the legislature (1). 
 
 In a subsecprent case (2), it was held, in accordance with 
 Rondeau v. Wyatt, that a sale of wheat by sample, at 
 Nottingham, to be delivered at Gainsborough, was clearly 
 within the statute. 
 
 In the late case of Garbutt and another v. Watson (3), 
 the plaintiffs, who were millers, made an agreement with 
 the defendant, a corn merchant, for the sale of flour, to 
 be got ready to ship in three weeks, the flour at the time 
 of the bargain was not prepared or capable of being im- 
 mediately delivered; Bay ley, J. was of opinion, at Nisi 
 Prius, that the case fell within the 17th section of the 
 Statute of Frauds, and the plaintiffs were nonsuited : on 
 a motion by leave to enter a verdict for the plaintiff, 
 L Towers v. Osborne and Clayton v. Andrews were cited, 
 in all which the goods were not capable of an immediate 
 delivery; but it was said by the court, that it was sub- 
 stantially a contract for the sale of flour, and whether the 
 flour was ground or not was immaterial, and the question, 
 Bayley, J. said, was, whether this was a contract for 
 goods, or for work and labour and materials, and if so, it 
 fell within the Statute of Frauds. 
 
 It being considered expedient to extend the Statute of 
 
 (1) Per Lord Kenyan, in Cooper (3) 5 Barn. & A. 613. 1 Dowl. 
 v. Elston, 7 Durnf. & E. 16. & K. 219. 
 
 (2) Cooper v. Elston, 7 Durnf. 
 & E. 14.
 
 132 OF EXECUTORY CONTRACTS. 
 
 Frauds to the executory contracts after mentioned, it 
 was enacted by the 9 Geo. IV. c. 14, § 7, that the enact- 
 ments (29 Car. II. c. 3, § 17, (English,) and 7 Wm. III. 
 c. 12, § 13, (Irish,) ) should extend to all contracts for the 
 sale of goods of the value of £10 sterling (1), notwith- 
 standing the goods may be intended to be delivered at 
 some future time, or may not at the time of such contract 
 be actually made, procured, or provided, or fit or ready 
 for delivery, or some act may be requisite for the making 
 or completing thereof, or rendering the same fit for 
 delivery. 
 
 (1) The bill originally stood and upwards, of which the whole 
 thus, " of the value of £10 sterling price shall not be paid." 
 

 
 ( 133 ) 
 
 CHAPTER XII. 
 
 OF THE CONCLUDING SECTIONS OF THE 9 GEO. IV. C. 14, 
 
 § 8, <J, 10. 
 
 JoY section 8, " no memorandum or other writing made 
 necessary by this act, shall be deemed to be an agreement 
 within the meaning of any statute relating to the duties of 
 stamps." 
 
 Though this clause be expressed clearly, yet I conceive 
 it will be necessary to act with great caution before a 
 cause is carried into court upon an unstamped agreement 
 or instrument under this act (1). 
 
 (1) There is frequently a great 
 failure of justice by reason of non- 
 suits, where instruments are at- 
 tempted to be produced in evidence 
 and rejected, because they are not 
 sufficiently stamped; this might be 
 remedied by a short. enactment to 
 the following effect: — " That in all 
 cases when any trial may be had 
 before any court of record, or any 
 judge sitting at nisi prius, it shall 
 be the duty of the officer of such 
 court, or of the officer at nisi prius, 
 to inspect the stamps upon all 
 deeds, instruments, and writings 
 attempted to be produced or pro- 
 duced in evidence therein ; and in 
 case any question should arise, that 
 the same are not properly stamped, 
 
 it shall and may be lawful in all 
 cases where any additional or other 
 stamp may be required by law, for 
 any court of record, or any judge 
 sitting at nisi prius, to ascertain 
 and determine the amount of such 
 additional or other stamp, and that 
 it shall be lawful for the party pro- 
 ducing such deed, instrument, or 
 writing, to pay into the hands of 
 the officer of the court the amount 
 of such additional duty, with a 
 penalty of £5, for the use of his 
 Majesty, his heirs, and successors, 
 and then, and in such case, the 
 cause or trial shall proceed as if 
 the instrument had been properly 
 stamped."
 
 134 OF THE CONCLUDING SECTIONS 
 
 By section 9, nothing in this act shall extend to Scot- 
 land. This confines the operation of the act to England, 
 Wales, and Ireland. 
 
 The times of limitation or prescription in Scotland are 
 entirely different from that of England, and any altera- 
 tion must be made by particular enactment; the acts for 
 the Limitation of Actions on Contracts appear to have 
 commenced early in Scotland. 
 
 There are questions of great importance on the last 
 section of the statute 9 Geo. IV. c. 14, that the act shall 
 commence and take effect on the 1st day of January, 
 18:29. 
 
 This may deserve//^/ consideration. As to the commence- 
 ment of statutes in general it was decided in the House of 
 Lords, according to the unanimous opinion of the judges 
 in the Attorney General v. Panter (1), that where no spe- 
 cific day be mentioned in an act of parliament from which 
 it is to take effect, it commences by legal relation from 
 the first day of the sessions; in that case an act of par- 
 liament in the 7 Geo. III. enacted, that a duty of sixpence 
 in the pound should be paid upon all rice exported out of 
 the kingdom, which had been imported duty free ; the act 
 did not receive the royal assent till the 29th June, 1767, 
 and the question was whether it attached upon such rice 
 as had been imported between the first day of the session 
 and the day on which the act passed. The House of 
 Lords held that it did; the act of parliament by which 
 the duties were imposed referred to another act of the 
 same sessions, which, it was unsuccessfully contended, 
 took the case out of the general rule. 
 
 (1) Dom. Proc. 1772. 6 Bro. the cases cited in La t tens, execu- 
 
 V. ('. 553. And see 4 Inst. 25. trix, and Patten v. Holmes, 4 
 
 Pro, Ahr. tit. Parliament, pi. 86. Durnf. & E. 660. 
 Bro N't lation, pi. 43. And set
 
 of the 9 geo. iv. c. 1 I. 8, '■>. I<). 135 
 
 A case (1) also arose on the annuity act, on a motion t<> 
 set aside some annuity deeds, because the) were n<>t pro- 
 perly registered ; it appeared the annuity was secured by 
 
 an indenture bond and warrant of attorney, dated the 
 14th January, 1777. On the 13th of August, 1771 
 proportionable part of the annuity was assigned 1>\ a deed- 
 poll. By the annuity act, 17 Geo. III. e. 26, it is enacted. 
 that every deed, bond, &C. whereby any annuity shall 
 be granted after the passing of the act, shall within twent) 
 days after the execution thereof be enrolled in the Court 
 of Chancery in the manner in the said act mentioned. 
 otherwise every such deed, bond, &c. shall be null and 
 void: that act did not receive the royal assent until .May, 
 1777, being nearly four months after the execution of the 
 said assurances; and the session in which the act passed 
 commenced on the 31st of October, 177G: no memorial 
 of any assurances for securing the annuity, or of the said 
 deed-poll of Patten, was enrolled in Chancer ij until the 
 1st of December, 1791, when memorials of both were en- 
 rolled. No judgment was entered up by virtue of the 
 warrant of attorney, nor any action or suit commenced on 
 the said bond. The question was whether this annuity, 
 and the instruments by which it was secured, were void. 
 
 The court made the rule absolute for setting aside the 
 securities, and held, that the act operated by legal rela- 
 tion from the first day of the session; and they said with 
 respect to the argument, that the annuity act required an 
 impossibility, the act only rendered the thing which is 
 done, void, unless certain requisites are complied with. 
 
 To remedy this inconvenience it was enacted by the 
 statute 33 Geo. HI. c. 13, that the clerk of the parliament 
 should indorse on every act passed after the 8th of April, 
 
 (1) Lutkss, executrix, and Patten v. llohms, I Durnf. \ E. 660.
 
 136 OF THE CONCLUDING SECTIONS 
 
 1793, after the title of the act, the time when the same 
 shall have passed, and such indorsements shall be the 
 date of its commencement, if not otherwise provided (1). 
 
 The above cases and observations relate to the time 
 when a statute begins to operate; in some instances from 
 the first day of the session, in others, from the time when 
 the act receives the royal assent, in others, from particu- 
 lar specified times. 
 
 Another class of cases more particularly bears upon 
 the question, in what manner the statute 9 Geo. IV. c. 14, 
 § 10, may operate as to the time of its commencement. 
 
 The words of the Statute of Limitations, 21 Jac. c. 16, 
 § 6, were, that all actions upon the case for slanderous 
 words to be sued or prosecuted in any court after the end 
 of that parliament, if the damages be assessed under forty 
 shillings, then the plaintiff* should recover only so much 
 costs. In SendaVs case (2) the action was brought before 
 the parliament, and the prosecution was afterwards; it was 
 resolved, after argument in the King's Bench, that the 
 prosecution afterwards, though the commencement was 
 before the parliament, is within the statute, by the word 
 in the statute "prosecute." 
 
 A similar difficulty also arose on the statute 29 Car. II. 
 c. 3, one provision of which is extended by the statute 
 9 Geo. IV. c. 14; the words of the Statute of Frauds, 29 
 Car. II. c. 3, § 4, are, " that from and after the 24th day 
 of June, 1677, no action shall be brought whereby to 
 charge any person upon any agreement in consideration 
 of marriage, &c. unless some note or memorandum there- 
 of be in writing signed by the party, or some other person 
 by him lawfully authorized." 
 
 (1) And see stat. 48 Geo. III. continuing acts taking effect from 
 c. 106, (an act little known,) as to the expiration of the former act. 
 
 (2) 1 Latch. 2, :J.
 
 OF THE 9 GEO. IV. C. 14, § 8, 9, 10. |.i7 
 
 In an action against an executor (1) on a promise by 
 the testator by parol, in consideration of marriage, to pay 
 in his lifetime, or leave at his death, a sum of money; the 
 promise was stated to have been made in February, 1676, 
 the action was brought in Michaelmas Term, 16771 
 The defendant's testator died in August, KJ77, between 
 the promise and that time was the Statute of Frauds, 
 2D Car. II. c. o, made; all this was found in a special 
 verdict: it was argued for the defendant, that the pro- 
 mise was void by the statute, the action being commenced 
 after the statute, although the promise was made before ; 
 and the words of the enacting clause were likewise in- 
 sisted upon; but it was urged that the statute plainly 
 intended only promises after the 24th day of June, 1G77, 
 and never was designed a retrospect to avoid marriage 
 agreements made and concluded any time before; and so 
 were the judges' opinions at Serjeant's Inn, in the case of 
 a devise by will in writing, not having three witnesses to 
 it, made and published before the act, whose testator 
 died after the act. Now it is no devise till after the tes- 
 tator's death, and yet it was held good enough, and 
 though this was no judicial opinion (2), yet it was said, 
 the title and style of the whole act was plain enough, that 
 
 (1) Elmore v. Shuter and others, several years after the statute, and 
 2 Sliow. Rep. 16. Gillmore v. Sim- then died without altering his will. 
 ter, T. Jones R. 108. 1 Ventr. 330. Master of the Rolls— 11 1 think this 
 2 Lev. 227. Gillmore v. Executor is a good will to pass the lands, 
 of Shooter, 2 Mod. 31. S. C. being made before the statute, 
 
 (2) See 2 Show. 16. The fol- though the testator died after;" 
 lowing case is in Prec. Chan, but the other side insisted to have 
 77. — A man made his will several it tried at law — lie directed it ac- 
 years before the Statute of frauds, cordini,iy — (what became of the 
 and the will had but two wit- case does not appear.) Seel Vein, 
 nesses to it; the testator lived & Scriven Irish Rep. 471.
 
 138 OF THE CONCLUDING SECTIONS 
 
 it designed only, a prospect for the future, the title being 
 "An Act for the Prevention of Frauds." 
 
 Lord Scroggs, Wylde, and Jones, J. (Twisden, J. ab- 
 sent,) said, they believed the intention of the makers of that 
 statute was only to prevent for the future, and that it was 
 a cautionary law ; and if a motion were made in the House 
 of Lords concerning it, they would all explain it so ; be- 
 sides, it would be a great mischief to explain it otherwise ; 
 to annul all promises made by parol before that time, 
 upon which men had trusted and depended, reckoning 
 them good and valid in law, as they are yet amongst 
 honest men, and, therefore, judgment was given for the 
 plaintiff. 
 
 There are several reports of this important case; ac- 
 cording to one by Sir Thomas Jones, one of the judges 
 who decided it, it was urged for the plaintiff, that no act 
 of parliament should be intended to be taken to be made 
 against natural justice, as it would be if this act was 
 taken literally, for then good and legal causes of action 
 for debts and other things upon promises, made upon 
 good and valuable consideration, would be destroyed, and 
 entirely taken away by the retrospect of a law, which no 
 one could divine would be made ; the whole Court, except 
 Twisden, J. (absent from illness) said, that the action lay 
 notwithstanding the act, and the justices agreed that the 
 act did not extend to promises before the 24th day of 
 June, 1677; and judgment was given for the plaintiff: 
 and they further said, that by an easy transposition of the 
 words of the act, a construction agreeable to justice may 
 be made — the words are, " after the 24th day of June, 
 1677, no action shall be brought for any promise without 
 note or writing," &c. these words being transposed would 
 be thus, "no action should be brought upon any pro-
 
 OF THE 9 GEO. IV. C. 11, § 8, 9. 10. I. J! I 
 
 mise after the 24th day of June, 1677," then no retro- 
 spect or other injury to any one; and it was usual to 
 make such transposition of words, that private contracts 
 might agree with the intention of the parties, as upon a 
 lease made the 2Gth March for years, rendering nut at 
 the Annunciation and Michaelmas during the term; the 
 first rent shall be payable at Michaelmas; a fortiori, this 
 should be done to make acts of parliament agreeable to 
 common justice. 
 
 This case was cited in the case of Couch, qui tan/, \. 
 Jeffries (1), to show that there was a right vested, which 
 right should not be taken away; and it was observed, 
 Gilmores case was plain and clear upon the words of 
 that act of parliament, 29 Car. II. c. 8; and Lord Mumh 
 field, C. J. observed, " here is a right vested, and it is 
 not to be imagined that the legislature could by general 
 words mean to take it aivay from the person in whom it 
 was so legally vested." 
 
 A case (2) also occurred on the Irish Statute, 25 
 Geo. III. c. 34, §108, which enacts, "that in case any 
 action shall be brought for anything done by virtue of 
 that act or any other act relating to his Majesty's revenue 
 in Ireland, the action shall be commenced within three 
 months next after the alleged cause of action shall ac- 
 crue." An action of trespass was brought in the Ex- 
 chequer in Ireland, for taking tobacco; the defendant 
 pleaded the general issue; it was proved that the defend- 
 ant acted as a revenue officer in taking the tobacco, 
 whereupon it was objected that the plaintiff's action was 
 
 (1) 4 Burr. 2460, and see the Saund. Rep. 03, n. 6, and 1 Sir W. 
 
 observations of the late Mr. Serj. Black. Com. 45. 
 Williams on vested Causes of Ac- (2) Cochran v. Spillar, Vcrn. & 
 
 tion, Hodsden v. Harridge, 2 Scriv. Irish Rep. 463.
 
 110 OF THE CONCLUDING SECTIONS 
 
 barred, not having been commenced within three months 
 next after the action accrued, according to the before 
 mentioned statute; to this it was answered, that the act 
 did not extend to causes of action which accrued before 
 the act passed; the plaintiff had a verdict, subject to the 
 opinion of the Court upon this point. 
 
 It was urged for the plaintiff to be a clear principle in 
 the construction of statutes, that they should not have 
 a retrospect, unless such an intention of the legislature 
 manifestly appeared; that the words of the statute ex- 
 tended only to subsequent causes of action; that if its 
 operation be extended one instant back, it might have 
 taken away the remedy against a revenue officer for a 
 trespass, however flagrant and oppressive, if committed 
 three months before the passing of the act; and though 
 a man had brought his action before the passing of the 
 act, yet he would be barred if such action were not com- 
 menced within three months after the passing of the act; 
 that it cannot be presumed the act had a retrospect to 
 take away the plaintiff's right, and Gilmore v. Executor 
 of Shooter (1) was cited, and The King v. Sparrow (2): 
 it was also objected that the defendant had not pleaded 
 the statute. 
 
 It was urged for the defendant, but very slightly, that 
 the case came within the statute; that the words "done 
 and executed," and " shall have arisen," where the act 
 directs the action to be brought in the proper county, 
 gave it a retrospective operation. 
 
 The Court ( Yelverton, C. B. Hamilton, and Metge, 
 B.) was of opinion, that it did not extend to rights 
 of action accrued before ; that to take away a common 
 law vested right, strong and clear words were necessary ; 
 
 (1) Ante, 137. (2) 2 Sir. 1123.
 
 of the 9 geo. iv. c. 14, § 8, 0, 10. 1 II 
 
 that the statute not having specified any time for the 
 commencement of its operation, took effect from the fir t 
 day of the session; that there were no words in it which 
 could seem to give it an earlier operation, excepi tin- 
 words "done or executed," but that they were capable 
 of another reasonable construction, that is, "to be done 
 or executed;" that the words "shall have arisen," &c. 
 are not a mode of speaking of the time then passed, but 
 mean that when an alleged cause of action should there- 
 after arise, the action should be brought in the proper 
 county. The Court ought not to be ingenious in con- 
 struing the act, so as to work an argumentative wrong. 
 (Postea to the plaintiff'.) 
 
 It has lately been held that the New Bankrupt Act, 
 6 Geo. IV. c. 16, is retrospective; in one case (1), a 
 payment made in June, 1825, by a debtor, bond Jicle, 
 without intention of fraudulent preference, eight days be- 
 fore a commission of bankrupt was issued against him, 
 was held to be protected by § 82, " payment made," as 
 well as "hereafter to be made," being in the clause; 
 and in another case (2), the bankruptcy took place on the 
 26th July, 1822, and the bankrupt paid the defendant, 
 who knew of his insolvency, a sum of money in August, 
 1822, and a commission was sued out in May, 1823; it 
 was urged that the § 82 must be construed with § 135, 
 and that the assignees had an existing right when the 
 act was passed, and that it is a general principle that a 
 law shall not have an expostjacto operation, unless where 
 its terms are precise to that effect; but it was held that 
 the assignees could not, after the act came into operation, 
 
 (1) Churchill and another, As- (2) Terrington, Assignee qf Pul- 
 signees ofCudo«an,v. Crease, 5 Bing. lcn,\\ Hargrcavcs, 5 Bing. 439. 
 177.
 
 142 OF THE CONCLUDING SECTIONS 
 
 sue the defendant for money had and received, confirm- 
 ing Churchill v. Crease: but Lord Wynford said, it has 
 been contended on the one side, and conceded on the 
 other, that the provisions of a statute cannot be retro- 
 spective, unless declared to be so by express words, he 
 acceded to that position; but there were words in § 82 
 which expressly render that section retrospective, and 
 which have no meaning, unless such a construction be 
 adopted. 
 
 By § 10 of the statute 9 Geo. IV. c. 14, that act shall 
 commence and take effect on the 1st January, 1829 (1). 
 
 The language of the clauses is different. 
 
 By § 1, no acknowledgment or promise shall be deemed 
 sufficient evidence of a new or continuing contract to take 
 a case out of the statute, unless such acknowledgment or 
 promise shall be in writing. 
 
 By § 3, no indorsement or memorandum of payment 
 made after the time appointed for the act to take effect 
 
 (1) It is said the noble Lord, (from the multiplicity of acts of 
 
 who framed the bill, was applied parliament in each year) were not 
 
 to, to extend the time in his bill aware of the provisions or conse- 
 
 beyond the 1st January, 1829, quences of the new statute, until 
 
 but he did not think it proper to even after the 1st January, 1829; 
 
 make any alteration; the time was the time might perhaps have been 
 
 eight months, including part of extended; besides, in many cases, 
 
 Easter, and the whole of Trinity the plaintiff might not know the 
 
 and Michaelmas Terms, and one residence of his debtor, or he might 
 
 assizes and the sittings in and after not be in England ; in either case 
 
 Easter, Trinity, and Michaelmas the plaintiff could not commence 
 
 Terms; (post, 143, 144,) but consi- an action to save the statute; on 
 
 dering the unwillingness of the ere- the other hand, had a longer time 
 
 ditor to make out old accounts, and been given, it would have given 
 
 difficulty of ascertaining old debts, rise to considerable litigation, and 
 
 and collecting the means of prov- to many experimental and oppres- 
 
 ing them,' particularly in large sive actions, which the noble Lord 
 
 concerns, and that many persons no doubt wished to prevent.
 
 OF THE 9 GEO. IV. C. 11, § S, 9, 10. 143 
 
 by the creditor, is sufficient proof of such payment to take 
 the case out of the statute. 
 
 By § 5, no action shall be maintained to charge anj 
 
 person upon any promise made alter full age, &C. 
 
 By § 6, no action shall be brought to charge an\ pel 
 upon any representation, Sec. 
 
 By § 7, the said enactments (in the Statute of Frauds 
 shall extend to all contracts for the sale of goods, &c. 
 
 By § 10, (as before) the act shall commence and take 
 effect on the 1st January, 1829. 
 
 The act 9 Geo. IV. c. 14, passed on the 9th of Ma\, 
 1828, and in November the first case occurred (1); it was 
 an action of assumpsit: the defendant obtained a rule to 
 change the venue, in answer to which an affidavit was 
 produced, stating that the defendant's attorney was in- 
 formed of the defendant's admissions and promises of 
 payment, when he said, " that Lord Teuterdens Act 
 came into operation on the 1st of January, and that he 
 should change the venue and beat the plaintiff, as he had 
 no promise in writing." Best, C. J. thought the venue 
 ought not to be changed, and said that it was with a view 
 to prevent an ex post facto operation with respect to 
 suits already commenced, that the period of the act's 
 coming into force was postponed till six months after it 
 passed. To make this rule absolute, would be in effect 
 to put off the trial till after the next term, while, if it were 
 tried after the present term, the plaintiff might succeed 
 on a parol promise, which, when the act came into opera- 
 tion, might prove insufficient, though upon that point 
 he abstained from pronouncing any opinion; but acting on 
 the spirit of the postponing clause, they ought not to pre- 
 
 (1) Anmer and another v. Cattle, 5 Tiincr- 208. 2 Moore ^ P 
 and MS.
 
 144 OF THE CONCLUDING SECTIONS 
 
 vent the plaintiff from trying his cause, if he be enabled 
 to do so within the time limited by the act for the continu- 
 ance of the old law. 
 
 Park, J. said, " with respect to the new statute re- 
 quiring a written promise to render a party liable in 
 respect of a debt extinguished by the statute, no one 
 approves of it more than I do; but in seeking to fur- 
 ther the object of that statute, we must be careful not 
 to do injustice. When the legislature gives six months 
 before allowing the act to come into operation, it indi- 
 cates an intention to enable parties, now relying on parol 
 promises, to sue on them effectually. The plaintiff for 
 that purpose lays his venue in London, where his cause 
 will come to trial before the six months have elapsed ; the 
 defendant seeks to defeat the claim by removing the 
 cause to Warwick, and we should be lending ourselves to 
 injustice if we were to assist him in his attempt." Bur- 
 rough, J. said, " upon the present occasion he proposed 
 that the defendant's attorney should be allowed to answer 
 the affidavit of the plaintiff's attorney, but was willing to 
 concur in discharging the rule, if such affidavit should not 
 prove to be an answer to the former." 
 
 Gaselee, J. dissentiente (1). 
 
 The Court then permitted the defendant's attorney to 
 answer the affidavit of the plaintiff 's attorney ; but the 
 answer not containing, in the opinion of the Court, an 
 explicit denial of the language ascribed to him in the affi- 
 davit of the plaintiff's attorney, the rule was discharged. 
 
 About the same period as the preceding case occurred 
 an application to Lord Wynford, (then Best, C. J.) 
 at nisi prius, to take out of turn a case, in which the 
 Statute of Limitations had been pleaded, which was al- 
 
 (1) See 2 Moore & P. 367, &c.
 
 OF THE 9 GEO. IV. C. 14, § 8, 9, 10. 
 
 I 1/ 
 
 lowed, that the cause might be tried before the 1st -Ja- 
 nuary, 1829(1). 
 
 In Ansell v. Ansell (2) the action was assumpsit, the 
 pleas were the general issue and the Statute of Limita- 
 tions. The only evidence given to take the cast- out of 
 the statute was a parol acknowledgment. Gurney, for the 
 defendant, submitted, that since the act of the 9 Geo. IV. 
 c. 14, such an acknowledgment was not sufficient. Sir J. 
 Scarlett, for the plaintiff, stated, that the action was com- 
 menced before the 1st day of January, 1829, when that 
 act came into operation, and contended, that, therefore, 
 its provisions did not apply. Lord Tenterden, C. J. was 
 of opinion, that the words of the new statute had relation 
 to the time of the trial, and, therefore, that the parol pro- 
 mise was not sufficient evidence to take the case out of 
 the operation of the Statute of Limitations — afterwards 
 a juror was withdrawn, 
 
 The case of Kirkth 
 for goods sold and delivered, the defendant pleaded the 
 Statute of Limitations. The action was brought in Mi- 
 chaelmas Term, 1828. The cause came on to be tried 
 before the late Mr. Baron HullocJc, at the Cumberland 
 Lent Assizes, in March, 1829. Evidence was tendered 
 of a verbal acknowledgment of the debt made by the de- 
 fendant, and it was urged by Aglionby, for the plaintiff, 
 that the statute 9 Geo. IV. c. 14, § 1, was only meant to 
 refer to promises or acknowledgments made after the 1st 
 day of January, 1 829, and could not have a retrospective 
 effect. 
 
 But Hullock, Baron, ruled that it contemplated the 
 time of the trial, and that no promise or acknowledgment, 
 
 iugh v. Herbert (3), was an action 
 
 
 w 
 
 (1) Anon. 3 Carr. & P. 564. (3) Cumberland Lent Assizes, ^ 
 
 (2) 3 Carr. & P. 563. < — » 1829, coram Hullock; Baron, MS. 
 
 —-"* V 4-T O * 
 
 ; — /svp, %2~s>. 
 
 ■ "
 
 H 
 
 146 OF THE CONCLUDING SECTIONS 
 
 unless made in writing, could be admitted in evidence 
 after the 1st January, 1829, and he therefore nonsuited 
 the plaintiff. 
 
 The same point has been determined in the same way 
 by Mr. Justice Bayleij, on the northern, and Mr. Justice 
 Gaselee, on the western, circuits (1). 
 
 The following case (2) was also ruled on the midland 
 circuit, it was an action of assumpsit, and the defendant 
 pleaded the Statute of Limitations, upon which issue was 
 joined at the trial before Lord Wynford, (then Best, C. J.) 
 at Lincoln, the plaintiff relied on a parol acknowledgment 
 within six years, to take the case out of the Statute of 
 Limitations; the action was brought before Lord Tenter- 
 dens act, but not tried till after; the chief justice non- 
 suited the plaintiff, with liberty to move accordingly. 
 Mereweather, Serjeant, moved and obtained a rule nisi to 
 enter a verdict for the plaintiff for the sum (7/. 10*.) 
 which the jury, under his lordship's directions, found to 
 be due, if the plaintiff could use the evidence of the parol 
 acknowledgment. Adams, Serjeant, for the defendant, 
 on showing cause, contended strongly the meaning and 
 intent of the act was clear, that such parol acknowledg- 
 ment could not be admitted. Mereweather, Serjeant, 
 cited the cases of Gilmour v. Shuter (o), and Cochran v. 
 Spillar (4), and strongly urged the injustice of a retro- 
 spective operation of the act. The chief justice said, he 
 understood the Court of King's Bench had granted rules 
 to show cause in two actions on the point; the court would 
 therefore postpone its judgment until they had consulted 
 with the judges of the King's Bench. Cur. adv. vult. 
 
 (1) 3 Carr. & P. 564. Assizes, 1829, and in Common Pleas, 
 
 (2) Towler v. Chutterton, MS. Easter and Trinity Terms, 1829. 
 coram Best, C. J. Lincoln Spring (3) Ante, 137. 
 
 gtf^jsr. «._«„ r <?~4*& (4) Ant 137<149 .
 
 OF THE 9 GEO. IV. C. 11, § 8, 9, 10. 1 17 
 
 No judgment on the point has yet been given, either in 
 the King's Bench or Common Pleas, but 1 am informed, 
 Lord Tenterden, C. J. since, at the sittings in An 
 last, stopped a cause in which Mr. Gurney staled the 
 action was brought before the act, and that he had a parol 
 acknowledgment to take the case out of the Statute of 
 Limitations. And Lord Tenterden also decided a ca 
 in accordance with his former opinions at the last War- 
 wick Assizes. 
 
 (1) Holmes v. Wright, MS. coram Lord Tenterden, Warwick Summer 
 Assizes, 1829. 
 
 -<- / s^^-ei 
 
 /7z -*-2 < o* 

 
 ( 148 ) 
 
 CHAPTER XIII. 
 
 OF NEW PROMISES BY INSOLVENT DEBTORS AND 
 BANKRUPTS. 
 
 i\.T the time when Lord Tenterden brought in his bill 
 " for rendering a written memorandum necessary to the 
 validity of certain promises and engagements," there was 
 the following clause inserted, being thejifth clause in the 
 bill. " And be it further enacted, that no person who by 
 virtue of any act for the relief of insolvent debtors hath 
 been, or hereafter shall be, adjudged to be discharged 
 and entitled to the benefit of such acts, either forthwith, 
 or at any future time, shall be made liable to pay or satisfy 
 any debt, claim, or demand, or any part thereof, to which 
 such adjudication shall extend, upon any contract, pro- 
 mise, or agreement made, or to be made after the filing of 
 the petition of such person, unless such contract, promise, 
 or agreement be made in writing, signed by such person." 
 
 This clause was withdrawn, not because the principle 
 of Lord Tenterden 's act ought not to be extended to new 
 contracts by insolvent debtors, but probably because there 
 were particular provisions in an existing act which, in a 
 great measure, rendered it unnecessary. 
 
 The existing law relating to new promises by Insolvents 
 and Bankrupts is little known, the present chapter will
 
 OF NEW PROMISES BY INSOLVENT DEBTORS, &C I 1!' 
 
 therefore contain the law respecting new promises l>\ 
 Insolvent Debtors and Bankrupts. 
 
 The first observations on this subject in the books axe 
 relating to bankrupts. It is said, if a bankrupt has since 
 his certificate made a new promise, thai deserves a gob* 
 sideration, and entitles the plaintiff to a discover} in 
 equity (1). Can it be doubted if the bankrupt give a new 
 security his effects are all liable (2)? If a bankrupt apply 
 to an old creditor, after a discharge by certificate, to lend 
 him a new sum of money to carry on his trade, or to he- 
 come security for any office, this ought to be a good con- 
 sideration for the remainder of the old debt (3). 
 
 The first case at law on this subject is that of Turner 
 v. Shomberg (4); a man gave a promissory note for £36j 
 and was afterwards discharged on the Insolvent Act, 16 
 Geo. II. c. 17, § 18, he verbally promised to pay the debt 
 at two guineas per month, and paid part; being sued and 
 arrested for the balance, he was on motion discharged, 
 the court saying it was no new consideration, but the old 
 debt. This is observed in another case to have only been 
 a question as to bail, that case also determining the ques- 
 tion of bail; the defendant being indebted to the plaintiff 
 became bankrupt, the creditors did not appear to have 
 come in under the commission, but after the certificate 
 was obtained the plaintiff produced his account to the 
 bankrupt, who desired time to examine it, and then ac- 
 knowledged the balance, and verbally promised to pay it 
 when he should be able ; the defendant was arrested, and 
 the general question was argued; the promise was com- 
 
 (1) Twiss v. Massey, (1737,) 1 (3) Per Lord Chancellor, 1 Atk. 
 Atk. 67. 255. 
 
 (2) 1 Atk. 20 J. (4) 2 Sir. 1233.
 
 150 OF NEW PROMISES 
 
 pared to a promise to pay a debt barred by the Statute of 
 Limitations, or a promise made by an infant, ratified after 
 full age; and it was said, that Lord Raymond, C. J. (1). 
 had held the infant was bound. The Court gave no opi- 
 nion on the general question, but discharged the defend- 
 ant on common bail; in one report the court added they 
 would not say he (the defendant) might revive the old 
 debt, which was clearly due in conscience. In a subse- 
 quent case of Barnardiston v. Co upland (2), 1761, Lord 
 Chief Justice Willes said, the revival of an old debt is a 
 sufficient consideration. 
 
 In the case of Lewis v. Chase, in Chancery (3), a bank- 
 rupt brought a bill in equity, to be relieved from a bond 
 given for payment of his debt in consideration of with- 
 drawing a petition against the allowance of the bankrupt's 
 certificate. It was decided that equity would not relieve 
 against such a bond. This case is not wholly reconcila- 
 ble with subsequent decisions (4) ; but the language of 
 the Court is strong to show their feelings, for they say, 
 " here is an honest creditor, and the bankrupt, if he pays 
 him all, still pays but what in conscience he ought." 
 
 In Trueman v. Fenton (5), (1777) the general question 
 was determined, that a bankrupt, after a commission of 
 bankruptcy sued out, may, in consideration of a debt due 
 before the bankruptcy, and for which the creditor agreed 
 to accept no dividend or benefit under the commission, 
 make such creditor a satisfaction in part, or for the whole 
 
 (1) Soutlierton v. Whitlock, 1 (4) Smith v. Bromley, Dougl. 
 Str. 190, ante, 116. 150. 696. Sumner v. Brady, 1 H. Black. 
 
 (2) MS. Cowp. 544. 647. 
 
 (3) I P. Will. 620. (5) Cowp. 5 14.
 
 BY INSOLVENT DEBTORS AND BANKRUPTS. 151 
 
 of his debt, by a new undertaking or agreement I . 
 It was an action brought on a promissory note given alter 
 the plaintiff had delivered up two acceptances to be can- 
 celled, and Lord Mansfield, C.J. said, " a bankrupt may 
 undoubtedly contract new debts; therefore, if there be 
 an objection to his reviving an old debt b\ a neir promise, 
 it must be founded upon the ground of its being nudum 
 pactum; as to that, all the debts of a bankrupt are due 
 in conscience, notwithstanding he has obtained his certi- 
 ficate." This is a leading case, and the doctrine has 
 been extended to cases where the creditor proved under 
 the commission, and the certificate has been obtained (2), 
 and afterwards the bankrupt makes a new promise to pay 
 the balance of the old debt (o); and so it has been held, 
 that a promise by an insolvent debtor, after his discharge, 
 will revive an antecedent debt (4). 
 
 The case of Trueman v. Fenton was very favourable to 
 the introduction of the doctrine, for Lord Mansfield, C. J. 
 observed, there was no fraud, no oppression, no scheme 
 whatever on the part of the plaintiff to deceive or impose 
 upon the defendant; the transaction excluded the plaintiff 
 from having anything to do with the certificate — he relin- 
 quished all hope or chance of benefit under the commis- 
 sion, the proposal first moved from and was the bankrupt's 
 own voluntary request. 
 
 Subsequent cases have not been of the same favourable 
 
 (1) But where a party thus (2) Birch v. Shareland, 1 Durnf. 
 
 agrees not to prove his debt, if he & E. 71.5. 
 
 does prove, he cannot recover on (3) Roberts v. Morgan, 2 Esp. 
 
 the agreement. Colls v. Lovell, 736. Brix v. Brahavt, 8 Moore 
 
 1 Esp. N. P. C. 282, and see Car- Rep. 161. 1 Bing. 281. S.C. 
 
 penter v. White (an insolvent,) (4) Hutt v. Verdier, 2 Sir W. 
 
 3 Moore Rep. 231. Blackst. 724. Best v. Barker, 
 
 8 Price Rep. 533, (n.)
 
 152 OF NEW PROMISES 
 
 description, and there is no doubt that in many of them 
 the greatest oppression has been exercised to extort pro- 
 mises, both from bankrupts and insolvents ; and the wit- 
 nesses being frequently friends of the creditor, have in 
 many cases been guilty of perjury, by proving a verbal 
 promise, where none was either made or intended to be 
 made; so that in one case, Fleming v. Hayne (1), Lord 
 Ellenborough, C.J. directed the jury that they ought to 
 be satisfied that the defendant made a distinct unequi- 
 vocal promise to pay, before he is to be placed again in 
 the responsible situation from which the law had dis- 
 charged him; and if they thought that the defendant, 
 being under no legal obligation to pay the debt, but con- 
 templating his legal and moral situation, deliberately pro- 
 mised to pay the debt, the plaintiff would be entitled to 
 a verdict, otherwise they ought to find for the defendant, 
 and they did find for the defendant. 
 
 A general promise to pay every one, has been held not 
 to be sufficient (2). The promise may be either to pay 
 generally or conditionally; in the first case, assumpsit 
 will lie on the original consideration and promise (o), but 
 where the promise is to pay conditionally, the plaintiff 
 should, it seems, where he relies on the new promise, 
 declare specially, and allege the conditions to be per- 
 formed (4); and, at any rate, the conditions must be 
 proved to have been performed at the trial; and that if 
 
 (1) 1 Stark. 371. Raym. 309. Trueman v. Fenton, 
 
 (2) Lynbuy v. Weightman, 1 Cowp. 544. Penton v. Bennett, 
 Esp. N. P. C. 193. Gent. 4 Camp. 205. Colls v. Lo- 
 
 (3) Williams v.Dyde and others, veil, 1 Esp. N. P. C. 282. Brix 
 Peake N. P. C. 99. Penn v. Ben- v. Brahum, 8 Moore R. 261. 
 nett, Gent, one, fyc. 4 Camp. R. 1 Bing. 281, S.C. Ayton v. Bolt, 
 205. 4 Bing. 105. Tanner v. Smart, 
 
 (4) lJyktitii v. Hastings, 1 Ld. 6 Barn. & C. 603.
 
 BY INSOLVENT DEBTORS AND BANKRUPTS. 153 
 
 a bankrupt promise to pay when he is able, in an action 
 on that promise, his ability to pay must be shewn unci 
 proved (1). 
 
 With respect to insolvents there seems to have beea^ 
 a distinction between contracts to pay existing debts, pre- 
 vious to the discharge of the insolvent, and contracts 
 after the discharge to pay debts from which the insolvent 
 has been discharged. It seems in the former case the 
 contract would be void, but in the latter case it would 
 have been good (2). 
 
 An insolvent is not discharged from debts negligently 
 or fraudulently omitted by him in his schedule (3) : but if 
 the creditor be implicated in the fraudulent omission, he 
 cannot afterwards sue the insolvent for any part of the 
 debt (4). 
 
 It is now enacted by the 7 Geo. IV. c. 57, § 46, " not 
 only that the insolvent should be discharged from the 
 debts in his schedule, but also as to the claims of all other 
 persons not known to such prisoner at the time of such 
 adjudication, who may be the indorsees or holders of any 
 negotiable security setjorth in the schedule /^. 
 
 To protect insolvents from the oppression of their 
 creditors in requiring a new contract, it was by the statute 
 7 Geo. IV. c. 57, § 61, enacted, " that after any person 
 shall have become entitled to the benefit of this act by 
 any such adjudication as aforesaid, no writ of fieri facias 
 or elegit shall issue on any judgment obtained against 
 
 (1) Ante, 66, &c. (3) Baker v. Si/dec, 7 Taunt. 170- 
 
 (2) Wilson and another v.Kemp, Taylor v. Buchanan, 4 Barn. & 
 3 Maule & S. 595. Horton v. C.419. 
 
 Moggridge, 6 Taunt. 563. Best v. (4) Carpenter v. White, ■'. Moi a 
 
 Burker, 8 Price, 533, (n.) Jackson It. 231. Reeves v. Lambert, 4 
 
 v. Davison, 4 Barn. &r A. G91. Burn. & C. 214. 
 Rogers v. Kingston, 2 Bing. 441.
 
 134 OF HEW PROMISES 
 
 such prisoner, tor any debt or sum of money with respect 
 to which such person shall have so become entitled, nor 
 in any action upon any new contract or security for pay- 
 ment, except upon the judgment entered up against any 
 such prisoner according to this act; and that if any suit 
 or action shall be brought, or any scire facias be issued 
 _ nst such person, his or her heirs, executors, or admi- 
 nistrators, far any such debt or sum of money, or upon 
 any new contract or security for payment thereof, or upon 
 any judgment obtained against, or any statute or recogni- 
 zance acknowledged by such person for the same, except 
 as aforesaid, it shall and may be lawful for such person, 
 his or her heirs, executors, or administrators, to plead 
 generally, that such person was duly discharged accord- 
 ing to this act. by the order of adjudication made in that 
 behalf, and that such order remains in force, without 
 pleading any other matter specially : whereto the plaintiff 
 or plaintiffs shall or may reply generally, and deny the 
 matters pleaded aforesaid, or reply any other matter or 
 thing which may shew the defendant or defendants not 
 to be entitled to the benetit of this act. or that such 
 . - a was not duly discharged according to the provi- 
 sions thereof, in the same manner as the plaintiff or 
 plaintiffs might have replied in case the defendant or 
 defendants had pleaded this act. and a discharge by 
 virtue thereof, specially." 
 
 The discharge under the present Insolvent Act. T 
 Geo. IV. c. 57, thus, it appears, protects the insolvent 
 where an action is brought against him on any new con- 
 tract, engagement, or security for the payment of any 
 debt which arose before his discharge, by allowing him to 
 plead his discharge generally in the terms prescribed by 
 the act as a bar, and also protects him from every execu- 
 tion upon any judgment in respect of the old debt, or on
 
 BY EN80LVEM1 DEBTOJW AMD BAMKE1 PI 155 
 
 account of the new contract; but the creditor i- entitled 
 under the general judgment entered up according to the 
 
 act. 
 
 It is probable that this provision will . t oi 
 
 preventing creditor- from extorting from iri-.olvent . 
 or note.-, or other securities, by which tbey derive an 
 advantage over the rest of the i I). 
 
 The former acts do not contain the provision ai to new- 
 contracts, and, therefore, it seems, the old law will apply 
 to them. 
 
 For the further prevention of both fraud and perjury, 
 the legislature have required new prom m bank- 
 
 rupts to be in icritinu; by the statute 6 Geo. IV. c. 10, 
 § 1J1, no bankrupt after his certificate shall have been 
 allowed under any then present or future eonmrif 
 shall be liable to pay or satisfy any debt, claim, or demand, 
 from which he shall have been discharged, or a:, 
 such debt, claim, or demand, upon a contra 
 agreement, made or to be made after the su:. . _ ii the 
 
 commission, unless such promise,, contract, or a. 
 be made in writing, signed by the bankrupt, or by some 
 person thereto lawfully authorized . -uch 
 
 bankrupt. 
 
 It is by no means improbable, as many would give a 
 verbal promise to revive a debt barred, by the Statu: 
 Bankrupts, who would not give a promise in writi \ 
 that the effect of the statute will be to reduce considera- 
 bly the :. umber of actions on new promises to revive 
 discharged by the certificate, an effect which will show 
 clearlv that many of these actions were grounded in op- 
 pression, as well as fraud, and perjury, and that the
 
 156 OF NEW PROMISES BY INSOLVENT DEBTORS, &C. 
 
 dom of the legislature was wisely exerted in repressing 
 the increasing crime of perjury. 
 
 A case (1) has arisen upon this section of general import- 
 ance; a person became bankrupt, and a commission issued; 
 afterwards, and before the certificate was obtained, he 
 called at the office of his attorney (to whom he had been 
 indebted before the bankruptcy,) and there, in the ab- 
 sence of the attorney, wrote a letter promising to pay the 
 attorney c£'100; the only signature was a flourish of the 
 pen, which it was contended formed the letter " M," the 
 initial letter of the defendant's name {Moreau) ; it was 
 ruled, that if it was an " M," it was not a sufficient sig- 
 nature under the Bankrupt Act, 6 Geo. IV. c. 16, § 131, 
 and it seems if such a letter be without date, the time 
 when it is written cannot be proved by parol evidence; 
 the Court of Common Pleas refused a rule to set aside 
 the nonsuit. 
 
 (1) Hubert v. Moreau, 2 Carr. case on the Statute of Frauds, § 17, 
 & P. 528. And see Elmore v. that the note in writing must state 
 Kingscote, 8 Dowl. & It. 343, a the price.
 
 ( lf>7 ) 
 
 CHAPTER XIV. 
 
 OF VARIANCES, AND OF THE STATUTE 9 GEO. IV. C. 15. 
 
 INSTANCES of variances between writings produced 
 in evidence and recitals, and notices of such writings upon 
 the record, in matters not material to the merits of the 
 case, have frequently occurred, and occasioned many 
 lamentable failures of justice; for instance, in an action on 
 a bill of exchange or note, a misdescription of such bill or 
 note, as in the date, in the name of the party, in the 
 direction of the bill, in the consideration for it, in the 
 species of currency, these have all been held grounds of 
 nonsuit. In an action of assumpsit, where the plaintiff 
 declares specially on the contract, nonsuits have frequently 
 occurred, notwithstanding Pleaders have endeavoured to 
 state the contract in every possible way; the truth is, that 
 contracts are frequently so loosely and irregularly made, 
 it is difficult even when in writing, in which the precise 
 terms are known, and little liable to be varied by parol 
 evidence, to state their legal effect, particularly where the 
 contract is to be taken from contradictory papers: in con- 
 tracts depending upon parol testimony the difficulties are 
 considerably increased. In actions of debt and covenant, 
 variances between the instruments and the proofs have 
 frequently occurred.
 
 158 OF VARIANCES, 
 
 It seems that at common law a Judge of the Court in 
 which the cause was depending might make the amend- 
 ments in the progress of a trial at Nisi Prius (1). 
 
 To cure mistakes in setting out written instruments, it 
 was provided by the statute 9 Geo. IV. c. 15, that every 
 Court of Record holding plea in civil actions, any judge 
 sitting at Nisi Prius, and any Court of Oyer and Ter- 
 miner, and general gaol delivery in England, Wales, the 
 town of Berwick-npon- Tweed, and Ireland, if such Court 
 or Judge shall see fit so to do, to cause the record on 
 which any trial may be pending before any such Judge 
 or Court in any civil action, or in any indictment or infor- 
 mation for any misdemeanor, when any variance shall 
 appear between any matter in writing, or in print, pro- 
 duced in evidence, and the recital or setting forth thereof 
 upon the record whereon the trial is pending, to be forth- 
 with amended in such particular by some officer of the 
 court, on payment of such costs (if any) to the other party, 
 as such Judge or Court shall think reasonable; and there- 
 upon the trial shall proceed, as if no such variance had 
 appeared. And in case such trial shall be had at Nisi 
 Prius, the order for the amendment shall be indorsed on 
 the postea, and returned together with the record, and 
 thereupon the papers, rolls, and other records of the 
 court from which such record issued shall be amended 
 accordingly. 
 
 This statute applies to Courts of Record holding plea in 
 
 (1)3 Taunt. 81. The liberality sionally plaintiffs will be induced, 
 
 of the courts in allowing amend- on this account only, to venture to 
 
 ments, (so essential frequently to a trial upon a defective record : upon 
 
 good and perfect record, and to a trifling amendments might not the 
 
 fair trial,) is materially affected by costs of amendment (as is the case 
 
 the costs of amendments, which are in equity,) be a certain fixed sum? 
 sometimes very heavy; and occa-
 
 AND OF THE STATUTE 9 GEO. IV. C. 15. 159 
 
 civil actions and to Judges sitting at Nisi Prius, so that, 
 what is very useful in practice, a Judge of the Kings 
 Bench, sitting at Nisi Prius, may amend a record of the 
 Common Pleas or Exchequer, and vice versa; it would be 
 very desirable if during the circuits any Judge had autho- 
 rity to make amendments, though the cause be not in his 
 own court. 
 
 To return to the statute, it seems it will apply to indict- 
 ments, and informations in the crown office of the King's 
 Bench, which are tried at Nisi Prius, but it will not apply 
 to Courts not of Record, as County Courts; in other crimi- 
 nal cases it will apply to misdemeanors in Courts of oyer 
 and terminer and general gaol delivery, but not to felonies 
 or to Courts of Quarter Sessions, &c. to which the pro- 
 visions will probably in time be extended. 
 
 The statute extends to England, Berwick-upon-Tweed, 
 Wales, and Ireland. 
 
 The amendment is only to be made if the Judge see fit. 
 
 Very early after the making of this statute, in an action 
 on the case for a malicious arrest, the declaration alleged, 
 that the plaintiffs in the original action did not prosecute 
 it, but made default, whereupon it was considered that 
 they should take nothing by their bill and the pledges to 
 prosecute should be in mercy, which was the legal descrip- 
 tion of a nonsuit; the proof was a discontinuance: on an 
 application to amend, Lord Tenterden, C. J. thought it 
 right to consult the other Judges, Bay ley, Holroyd, and J. 
 Parke, J. and his Lordship, then said, " it was not a case 
 within the statute, it was nothing like a mere mistake in 
 setting out a written instrument, it was the allegation of a 
 matter totally different from that offered in evidence, and 
 lie accordingly refused to allow the plaintiff to amend" (1). 
 
 (1) Webb v. Hill and another, 1 Moody & M. 253.
 
 160 OF VARIANCES, 
 
 In a case on the Oxford circuit, before Vaughan, Baron (1), 
 which was an action of covenant, and the date of the deed 
 was mistaken, the learned Judge only allowed the plaintiff 
 to amend upon payment of costs ; the defendant alleging 
 that the declaration in its original form, and a recovery 
 upon it, would not have been sufficient to have prevented 
 another action against him, and that he had defended the 
 action on that ground. In a subsequent case (2) of re- 
 plevin, where there were eighteen avowries for rent, and 
 the pleas in bar were non tenuit and riens in arrear, the 
 lease, when produced in evidence, showed that the terms 
 of the holding were different from those stated in any of 
 the avowries. On an application for leave to amend, un- 
 der the statute 9 Geo. IV. c. 15, Park, J. said, it was 
 not a case contemplated by the act, there was no recital of 
 any particular deed, and that if he were to suffer them to 
 amend the plaintiff might be let in to plead de novo; he 
 also said, that the case neither fell within the spirit or the 
 letter of the act, and that he was of opinion that that act 
 of parliament only applied to cases where some particular 
 written instrument was professed to be set out or recited 
 in the pleadings. 
 
 This is a hard case, for at common law it would have 
 been requisite to set out in the avowry on replevin the 
 whole of the title of the lessor, and also the lease, and 
 then it would have come within the statute, and it is 
 only in compliance with the statute 11 Geo. II. c. 19, that 
 the defendant shortened his avowries (3), and as he had 
 so many, the probability is, that the lease was in the pos- 
 session of the plaintiff, and could not be obtained by 
 
 (1) Anon, coram Vaug han, Baron, (2) Rider v. Mulbon, coram 
 
 Lent Ass. 1829. Park, J. 3 Carr. & P. 594. 
 
 (3) Wilk. on Replev. 54, &c.
 
 AND OF THE STATUTE 9 GEO. IV. C. 15. Hi I 
 
 the defendant: the statute 9 Geo. IV. c. 15, will cer- 
 tainly be less beneficial, if it be held not to apply to 
 the common avowries in replevin, and may induce defend- 
 ants occasionally to resort to the avowry at common law •- 
 It will be a great advantage if the statute 9 Geo. IV. c. 15, 
 can be extended to the trial by the record, in which some- 
 times, from a variance, there is a serious and most vexa- 
 tious failure of justice. 
 
 M
 
 A V V i-: N I) I X 
 
 STATUTES. 
 
 Statute 21 Jac. I. c. 16, 
 
 An Act for Limitation of Actions, and for avoiding Suits at Law. 
 
 Sect. III. (1). And be it further enacted, that all actions of 
 trespass quare clausum fregit, all actions of trespass, detinue, 
 action sur trover, and replevin for taking away of goods and 
 cattle, all actions of account (2), and upon the case (3), other 
 than such accounts as concern the trade of merchandize between 
 merchant and merchant, their factors or servants (4), all actions 
 of debt (5), grounded upon any lending or contract without spe- 
 cialty (6), all actions of debt for arrearages of rent, and all 
 
 (l) For the common law before the 
 statute, see ante, 1, &c. Slade's case, 
 ante, 5. (I have a MS. report of this 
 case. 1 MS. Rep. temp. Eliz. ISO.) 
 Lord Coke in his Second Institute 
 (2 lust. 96) says, " seeing personal 
 actions are at this day more frequent 
 than they have been times past, it 
 were to be wished for establishing a 
 quiet and avoiding of old suits, that 
 Bracton's Rules (Brae 1. 2, fo. 228) 
 by some new provision, extended to 
 them also, and that they were limited 
 within some certain time :" and he adds, 
 
 M 
 
 after the act was passed, "since we 
 wrote this commentary, there is a 
 good statute made concerning certain 
 personal actions in Anno %\ Jacdbi 
 Regis, c. 16." 
 
 (2) Actions of account, ante, 15. 
 
 (3) Actions on the case, ante, 15. 
 
 (4) For the exception of Merchants' 
 accounts, ante, p. 17. 
 
 (5) Actions of debt, ante, 15, I" 1 
 rent, ante, 15, 16. 
 
 (6) For the exception relating to 
 specialties, ante, 15, 16.
 
 164 APPENDIX. 
 
 actions of assault, menace, battery, wounding, and imprison- 
 ment, or any of them, which should be sued or brought at 
 any time after the end of this present session of parliament, 
 shall be commenced and sued within the time and limitation 
 hereafter expressed, and not after (1), (that is to say) the said 
 actions upon the case (other than for slander,) and the said ac- 
 tions for account and the said actions for trespass, debt, detinue, 
 and replevin for goods or cattle, and the said action of tres- 
 pass quare clausum /regit, within three years next after the 
 end of this present session of parliament, or within six years 
 next after the cause of such actions or suit, and not after (2) ; 
 and the said actions of trespass, of assault, battery, wounding, 
 imprisonment, or any of them, within one year next after the 
 end of this present session of parliament, or within four years 
 next after the cause of such actions or suit and not after ; and 
 the said actions upon the case for words, within one year after 
 the end of this present session of parliament, or within two years 
 next after the words spoken, and not after (3). 
 
 IV. And nevertheless be it enacted, That if in any of the 
 said actions or suits judgment be given for the ' plaintiff, and 
 the same be reversed by error, or a verdict pass for the plaintiff, 
 and upon matter alleged in arrest of judgment, the judgment be 
 given against the plaintiff, that he take nothing by his plaint, writ, 
 or bill; or if any the said actions shall be brought by original, 
 and the defendant therein be outlawed, and shall after reverse 
 the outlawry, that in all such cases the party plaintiff, his heirs, 
 executors, or administrators, as the case shall require, may com- 
 mence a new action or suit from time to time within a year after 
 
 (1) These words, " not after," occur (2) Ante, 44, &c. 
 
 five times in this statute; shewing the (3) By this clause certain actions 
 
 strong feeling of the legislature, that enumerated are declared to be limited, 
 
 the creditor was to be satisfied with and then the actions are again enume- 
 
 the times of limitation, and that they rated with their respective times of 
 
 were not to be extended. See ante, limitation; the actions first mentioned 
 
 12. 44, &c. ; in addition to the opi- are, 1, trespass quare clausum fregit 
 
 nions against the act, ante, 12, Ellis, J. — 2, trespass— 3, detinue — 4, actions 
 
 (2 Mod. 71) said, he was for restoring sur trover — 5, replevin for goods and 
 
 the common law as much as he could. cattle— 6, actions of account— 7, upon
 
 APPENDIX, 
 
 K». 
 
 such judgment reversed, or such judgmenl given againsl the 
 plaintiff or outlawry reversed, and not after (1). 
 
 VII. Provided nevertheless, and be it further enacted, Thai if 
 any person or persons that is or shall be entitled to any Buch 
 action of trespass, detinue, action stir tracer, replevin, actioi 
 account, actions of debt, actions of trespass for assault, menace, 
 battery, wounding, or imprisonment, actions upon the case for 
 words, be or shall be at the time of any such cause of action 
 given or accrued, fallen or come within the age of twenty-one 
 years, feme covert, no/i compos mentis, imprisoned or beyond the 
 seas, that then such person or persons shall be at liberty to bring 
 the same actions, so as they take the same within such times as 
 are before limited after their coming to or being of full age, dis- 
 covert of sane memory, at large and returned from beyond the 
 seas, as other persons having no such impediment should have 
 done (2). 
 
 the case — 8, debt on lending and con- 
 tract without specialty, and for rent — 
 9, actions of assault — 10, menace — 
 
 11, battery — 12, wounding — 13, im- 
 prisonment — this arrangement (not 
 good in itself) is lost sight of in the 
 second enumeration, which is, 1, case, 
 other than slander — 2, account — 3, 
 trespass — 4, debt — 5, detinue — 6, re- 
 plevin — 7, trespass quare clausum /re- 
 git, in six years ; and 8, assault — 9, 
 battery — 10, wounding — and 11, im- 
 prisonment, within four years ; and 
 
 12, case for words, within two years. 
 It will be observed, that not only 
 trover (ante, 11 ), but actions for me- 
 nace (no doubt a branch of trespass) 
 are omitted in the second enumeration ; 
 the first enumeration includes account 
 6, assumpsit (a division of case), 7, 
 debt 8, detinue 3, case 7, (including 
 trover 4) replevin 5, trespass, 1 , 2, 
 9, 10, 11, 12, 13— the second, ac- 
 count 2, assumpsit 1, debt 4, detinue 
 5, case 1, replevin 6, trespass 3, 7, 
 8, 9, 10, 11 ; and section 7 has ac- 
 
 count 5, debt 6, detinue 2, of case 
 only, trover .">, and slander 1:3, reple- 
 vin 4, trespass 1, 7, 8, 9, 10, 11, 
 12 ; seven different actions of trespass 
 are mentioned in §3: the legislature 
 seem to have been anxious to limit 
 this action, depending much on parol 
 evidence. I believe the framing of 
 the hill has been attributed to Lord 
 Bacon, it must have been left In him 
 in a very imperfect state : the Journals 
 only say the- hill was brought in, and 
 do not say by whom: $ 7, in favoui 
 of infants, &C. was probably added 
 afterwards: it is to be regretted pro- 
 visions of such great importance and 
 utility were not re-enacted in a more 
 perfect state. Time has now in a 
 measure settled the construction with 
 respect to these inaccuracies ; the 
 Irish statute on the subject, 10 Cor. I. 
 sess. 2, c. 6, is nearly in the same 
 words as the statute 21 Jac. 1. 
 
 (1) See ante, 42, &C 
 
 (2) This clause it appear: 
 added to the original bill, and i* not)
 
 l(i(i APPENDIX. 
 
 4 Anne, c. 16. 
 
 An Act for the Amendment of the have and the better Advancement 
 of Justice. 
 
 XIX. And be it further enacted by the authority afoi-esaid, That 
 if any person or persons against whom there is or shall be any 
 such cause or suit or action for seamen's wages, or against whom 
 there shall be any cause of action of trespass, detinue, actions 
 sur trover, or replevin for taking away goods or cattle, or of 
 action of account or upon the case, or of debt grounded upon 
 any lending or contract without specialty, of debt for arrearages 
 of rent, or assault, menace, battery, wounding, and imprison- 
 ment, or any of them, be or shall be at the time of any such 
 cause or suit or action, given or accrued, fallen or come beyond 
 the seas, that then such person or persons who is or shall be enti- 
 tled to any such suit or action, shall be at liberty to bring the 
 said actions against such person and persons after their return 
 from beyond the seas, so as they take the same after their return 
 from beyond the seas within such times as are respectively 
 limited for the bringing of the said actions before by this act, and 
 by the said other act made in the one and twentieth year of the 
 reign of King James the First (1). 
 
 to be seen in a separate parchment by him commenced, sucli plaintiff shall 
 tacked to the other clauses; the not be barred by any statute of limita- 
 actions here mentioned are 1, trespass tion, but shall from time to time upon 
 — 2, detinue — 3, trover — 4, replevin the rising of the parliament be at li- 
 — 5, account — 6, debt — 7, trespass berty to proceed to judgment and 
 — 8, assault — 9, menace— 10, bat- execution. (See Earl Lonsdale v. Lit- 
 tery — 11, wounding — 12, imprison- tledale, 2 H. Black, 273, &cc. 300, &C 
 meiit — 13, case for words, (here case Tidd's Prac. 166, 9th edit.) 
 except slander and trover, is omitted, (1) This clause includes 1, trt ispasg 
 ante, 11) —2, detinue — 3, trover — 4, replevin for 
 By the 12 & 13 Win. III. c. 4, § 3, taking goods or cattle — b, actions of 
 where any plaintiff' shall by reason of account— 6, upon the case — 7, debt— 
 privilege of parliament be stayed or 8, assault — 9, menace— 10, batter; 
 prevented from prosecuting any suit 1 1, wounding— 12, imprisonment.
 
 LPPENDIX. 167 
 
 Statute 9 Geo. IV. c. II. 
 
 An Act for rendering a Written Memorandum necessary to the 
 Validity of cert (tin Promises and Engagements. 
 
 [9th May, 1828.] 
 Whereas by an Act passed in England, in the twenty-first year 
 of the reign of King James the First(l), it was, among other 
 things, enacted, that all actions of account and upon the case, 
 other than such accounts as concern the trade of merchandize 
 between merchant and merchant, their factors or servants, all 
 actions of debt grounded upon any lending or contract without 
 specialty, and all actions of debt for arrearages of rent, should be 
 commenced within three years after the end of the then present 
 session of parliament, or within six years next after the cause of 
 such actions or suit, and not after : and whereas a similar enact- 
 ment is contained in an Act passed in Ireland, in the tenth year 
 of the reign of King Charles the First (2) : and whereas various 
 questions have arisen in actions founded on simple contract, 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 (3); and it is expedient to prevent such 
 questions, and to make provision for giving effect to the said 
 enactments and to the intention thereof: be it therefore enacted 
 by the King's most excellent Majesty, by and with the advice 
 and consent of the lords spiritual and temporal, and commons, 
 in this present parliament assembled, and by the authority of 
 the same, that in ac tions of debt or_upon_the_case groun ded u pon 
 any simple co ntract no acknowledgment or promise by words only 
 shall be deemed sufficient evidence of a new or continuing con- 
 tract, whereby to take any case out of the operation of the said 
 enactments, or either of them, or to deprive any party of the 
 benefit thereof, unless such acknowledgment or promise shall be 
 made or contained by or in some writing to be signed by the 
 party chargeable thereby (4); and that where there shall be two 
 
 (1) English Act, 21 Jac. I. c. 16, (3) Ante, b3, Sec. 
 ante, 165. (4) Ante, 83, &c. <fa - 
 
 (2) Irish Act, 10 Car. I. sess. 2, 
 c. 6,
 
 1G8 APPENDIX. 
 
 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 (1): provided always, that nothing herein con- 
 tained shall alter or take away or lessen the effect of any pay- 
 ment of any principal or interest made by any person whatso- 
 ever (2) : provided also, that in actions to be commenced against 
 two or more such joint contractors, or executors or administra- 
 tors, 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 admi- 
 nistrators, shall nevertheless be entitled to recover against any 
 other or others of the defendants, by virtue of a new acknow- 
 ledgment 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. 
 
 II. And be it further enacted, that if any defendant or defend- 
 ants in any action on any simple contract shall plead any matter 
 in abatememt, 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 
 said recited Acts or this Act, or of either of them, be maintained 
 against the other person or persons named in such plea, or any 
 of them, the issue joined on such plea shall be found against the 
 party pleading the same (3). 
 
 III. And be it further enacted, that no indorsement or memo- 
 randum of any payment written or made after the time appointed 
 for this Act to take effect, upon any promissory note, bill of 
 exchange, or other writing, by or on the behalf of the party to 
 whom such payment shall be made, shall be deemed sufficient 
 proof of such payment, so as to take the case out of the opera- 
 tion of either of the said statutes (4). 
 
 IV. And be it further enacted, that the said recited Acts and 
 
 (1) Ante, 90. (3) Ante, 97. 
 
 (2) Ante, 8<i, &c. (1) Ante, 98, &c.
 
 APPENDIX. 1(J9 
 
 this Act shall be deemed and taken to apply to the case of any 
 debt on simple contract alleged by way of set-off on the part of 
 any defendant, either by plea, notice, or otherwise (1). 
 
 V. And be it further enacted, that no action shall be main- 
 tained whereby to charge any person upon any promise made"* 
 after full age to pay any debt contracted during infancy, or upon 
 any ratification after full age of any promise or simple contract 
 made during infancy, unless such promise or ratification shall be 
 made by some writing signed by the party to be charged there- 
 with (2). 
 
 VI. And be it further enacted, that no action shall be brought -,/• / 
 whereby to charge any person upon or by reason of any repre- /, . 
 sentation or assurance made or given concerning or relating to "/ 
 
 the character, conduct, credit, ability, trade, or dealings of any'' J'^* ~gl 
 
 other person, to the intent or purpose that such other person /£ /Aa-rcr/^ 
 may obtain credit, money, or goods upon, unless such representa- ..,''' 
 tion or assurance be made in writing, signed by the party to be ^ 2 e c < : jf 'J* 
 charged therewith (3). /*•»*?*»*• e *j <?r 
 
 VII. And whereas by an Act passed in England, in the* / ^ , 
 twenty-ninth year of the reign of King Charles the Second, inti- *. 
 
 tided An Act for the Prevention of Frauds and Perjuries, it is, ,/> t /& X Jrn 
 among other things, enacted, that from and after the twenty- , >t/ £ y/is Jg . /i ^ 
 fourth day of June, one thousand six hundred and seventy-seven, j r .. < ~ 
 no contract for the sale of any goods, wares, and merchandizes, a > /<■ 
 for the price often pounds sterling or upwards, shall be allowed 
 
 (1) This section has been omitted actions by assignees of a bankrupt, 
 
 in its proper place, the Statutes of where it may be given in evidence 
 
 Limitation and the statute 9 Geo. IV. under the general issue. 1 Durnf. \ 
 
 c. 14, are expressly applied to debts E. 115. Per Butler, J. and Anon, 
 
 on simple contract, alleged by way of MS. coram Hullock, Baron, York Ass. 
 
 set-off, the statute 21 Jac. I. c. 16, 1826, it seems to me desirable in the 
 
 had been before applied to the case of case of set-off to allow the defendant 
 
 set-off, {ante, 113, 114,) though the to plead several matters ; they are al- 
 
 statutes of set-off have no provision to lowed in replevin, where the plaintiff 
 
 that effect; the clause applies only to may plead in bar several matters j in 
 
 debts on simple'contract, but to pleas each case tuo causes arc in (J)i.ct tried, 
 
 and to notices of set-off and evidence and if defences are allowed on the one 
 
 under them, and to such cases where side, why not on the other? 
 it is not requisite the set-off should be (2) Ante, 1 16. 
 either pleaded, or under notice, as in (3) Ante, KM.
 
 170 APPENDIX. 
 
 to be good, except the buyer shall accept part of the goods so 
 sold, and actually receive the same, or give something in earnest 
 to bind the bargain, or in part of payment, or that some note or 
 memorandum in writing of the said bargain be made and signed 
 by the parties to be charged by such contract, or their agents 
 thereunto lawfully authorized : and whereas a similar enactment 
 is contained in an Act passed in Ireland in the seventh year of 
 the reign of Kins; William the Third: and whereas it has been 
 held, that the said recited enactments do not extend to certain 
 executory contracts for the sale of goods, which nevertheless 
 are within the mischief thereby intended to be remedied ; and it 
 is expedient to extend the said enactments to such executory 
 contracts (1); be it enacted, that the said enactments shall ex- 
 tend to all contracts for the sale of goods of the value of ten 
 pounds sterling and upwards, notwithstanding the goods may be 
 intended to be delivered at some future time, or may not at the 
 time of such contract be actually made, procured, or provided, 
 or fit or ready for delivery, or some act may be requisite for the 
 making or completing thereof, or rendering the same fit for 
 delivery (2). 
 
 VIII. And be it further enacted, that no memorandum or 
 other writing made necessary by this Act shall be deemed to be 
 an agreement within the meaning of any statute relating to the 
 duties of stamps (3). 
 
 IX. And be it further enacted, that nothing in this Act con- 
 tained shall extend to Scotland (4). 
 
 X. And be it further enacted, that this Act shall commence 
 
 AND TAKE EFFECT ON THE FIRST DAY OF JANUARY, ONE THOUSAND 
 EIGHT HUNDRED AND TWENTY-NINE (5). 
 
 (1) Ante, 128. (4) Ante, 134. 
 
 (2) Ante, 131. (5) Ante, 134. 
 
 (3) Ante, 133.
 
 1 N I) E X 
 
 ABATEMENT, 
 
 plea of nonjoinder, 97, 98. 106. 
 
 trial on, under new statute, 9 Geo. IV. c. 14. . . <.>7 . 
 evidence, 97. 
 verdict for plaintiff', 97, 98. 
 
 defendant, 97, 98. 
 judgment, 97, 98. 
 
 ACCOUNT, action of, 18. 
 now disused, 18. 20. 
 when now necessary, 20. 
 limitation of action of, 10, &c. 164 
 exceptions, 17, &c. 
 
 ACCOUNTS, 
 
 merchants' accounts, 
 
 exception in 21 Jac. 1. c. 16, as to reason of, 17. 
 to what actions, 18. 
 
 account, 18, 19. 
 
 not exclusively, 20. 
 
 assumpsit, 20. 
 
 debt, 20. 
 to what persons, 21, &c. 
 
 merchants, 2 1 . 
 
 partners, 23. 
 
 factors, 21. 31. 
 
 servants, 21. 
 
 others, 2 1 
 
 tradesmen, 23. 
 
 shopkeepers, 2 :; . 
 
 agents, 24. 
 
 bankers, 29.
 
 172 INDEX. 
 
 ACCOUNTS, merchants'— (continued.) 
 to what accounts, 
 
 open and current, 31, 32. 
 stated, 31, 32. 35. 
 signature to, 35, 36. 
 replications of, &c. — See Pleading. 
 statement of, 35. 
 
 ACKNOWLEDGMENT.— See Promises. 
 
 ACTIO PERSONALIS MORITUR CUM PERSONA, 1. 
 
 ACTIONS. — See Limitations — Accounts. 
 on new promise in writing, 96. 
 against whom, 97. 
 pleas in 
 
 abatement, 98. 
 bar, 97, 98. 
 verdict, 97, 98. 
 judgment, 97, 98. 
 costs, 97, 98. 
 
 ACTION ON THE CASE.— See Cam. 
 
 ADMINISTRATOR.— See Executor. 
 
 AGENTS TO RECEIVE DEBTS, 
 
 accounts of, whether excepted, 24. 
 
 ANNUITY, 
 
 after first day of session and before act 17 Geo. III. c. 26, passed, 
 is void for non- registration, 135. 
 
 ARREST OF JUDGMENT, 
 
 new action after, 42. 
 
 ASSAULT, 
 
 limitations of actions of, 10, &c. 1G3. 
 
 AVOWRIES, 
 
 for rent under statute 32 Hen. VIII. c. 2. . . 16. 
 by parol, 16. 
 indenture, 16. 
 
 AWARD, 
 
 limitations of actions on, 16.
 
 INDEX. 1~J 
 
 BANKERS, 29. 70. 
 
 BANKRUPTS, 22. 
 
 acknowledgments by, to save the statute againsl his partni 
 new promises by, 148. 
 
 by statute, to be in writing, I 
 
 BATTERY, 
 
 limitation of action of, 10, Jcc. 163. 
 
 BILL, 
 
 security by, 
 
 single, 76. 
 obligatory, 76. 
 
 with defeazance, 77. 
 
 BILL OF EXCHANGE, 
 
 security by, 78. 
 
 indorsement of payment on, 98, &c. 
 
 by debtor, 98, 8cc. 
 creditor, 98, &c. 
 
 how to be made, 103. 
 
 BOND, 
 
 security by, 77. 
 
 history of, 77. 
 
 indorsement of payment on, 98. 
 
 indorsement of, 79. 
 
 C. 
 
 CASE. — See Merchants' Accounts. 
 
 limitation of action of, 10, &c. 163. 
 
 slander, 10, &c. 163. 
 
 trover, 10, &c. 163. 
 Co>n.-po.>-ifiorv Deed. t~*U~ c .*<- e rfcu&t- <*V 
 CONTINUING CONTRACT, 17. 
 
 CONTRACTS.— See Limitation— Exceptions. 
 
 COSTS, 
 
 on judgment under 9 Geo. IV. c. 16, § 1, . . 97. 
 plea in abatement, 
 generally, 
 
 for plaintiff, 97, 98. 
 defendant, 97, 98.
 
 174 INDEX. 
 
 CO-CONTRACTORS, 
 
 acknowledgments and promises by, s« Promisi s 
 
 COUNTY COURTS, 
 
 actions in, 2, ice. 
 
 COUNTY COURT BILL, 5, 6. 
 
 D. 
 
 DEBT, 
 
 ancient form of action, 2. 
 
 wager of law in, see Wager oi Law. 
 
 limitation of, see Limitation. 
 
 for merchants' accounts, see Merchants' Accounts. 
 
 DETINUE, 
 
 limitation of action of, 10, &c. 
 
 E. 
 
 ECCLESIASTICAL COURTS, 
 
 limitations of suits for tithes in, 16. 
 
 EQUITY, 
 
 limitation of suits for tithes in, 16. 
 
 ERROR, 
 
 new action after, to save the Statute of Limitations, 42. 
 
 ESCAPE, 
 
 debt for, not within the statute 21 Jac. I. c. 21, . . 15. 
 
 EXCHEQUER, 
 
 no wager of law in, 5. 
 
 petition for, refused, 5. 
 
 EXECUTORS, 
 
 promise or acknowledgment by one, 90, &c. 
 plea by, 96, &c. 
 
 in abatement, 96. 
 verdict, and costs, 96, &c. 
 
 EXECUTORY CONTRACTS, 
 
 Statute of Frauds, cases as to, 128. 
 
 Statute 9 Geo. IV. c. 14, § 7. . . 128. 131.
 
 INDEX. 175 
 
 F. 
 
 FACTOR. — See Merchants' Accounts, &c. 
 agents to receive debts, 24. 
 
 FEME COVERT, 
 
 exception of, in statute 21 .lac. I. c. 16. . . 37, 8u 
 now action after marriage to save the statute, 42, 8c< 
 
 FRAUD, 
 
 replication of, 11 ■">. 
 
 FRAUDULENT REPRESENTATION, 
 history of action for, 121. 
 observations on, 121, &c. 
 statute thereon, 126. 
 to be in writing, 12G. 
 
 <;. 
 
 GENERAL ISSUE, 
 
 evidence of commencement "I -.nil under, 1(»4. 
 
 GOLDSMITHS, 
 
 ancient bankers, 7 ( .>. 
 
 inventors of promissory notes, 79. 
 
 1. 
 
 [MPRISONMENT, 
 
 limitation of action for, 10, &c. 
 exception of, 37, &c. 
 
 INDORSEMENTS, 
 
 on bonds, 79. 
 
 of payment, 98, &c. 
 
 INFANCY, 
 
 exception of, in statute 21 .lac. I. C. 10. . . .57, &< 
 
 of fines, 39. 
 replication of, 113. 
 promises by, 116. 
 promise after, 21. 116. 
 
 history of, 1 16. 
 
 by statute- to be in writing, 1 19-
 
 176 INDEX. 
 
 INSOLVENTS, 
 
 new promises by, 148. 
 statute relating to, 153. 
 
 JUDGMENTS, 
 
 a security in Ireland, 78, n. 
 
 protected by statute, 78, c 
 under statute 9 Geo. IV. c. 1 4. 
 for plaintiff, 96, &c. 
 defendant, 96, &c. 
 on plea in abatement, 98. 
 
 KING, 
 
 when bound by the Statute of Limitations, 13. 
 
 Letter ^~fff-c~^i<i >PJ >»J L. 
 
 LEASE, 
 
 debt on parol within 21 Jac. I. c. 16. . . 15, 16. 
 
 LIMITATIONS, 
 
 rule of common law, 1, &c. 
 old statutes of, 2. 
 
 how personal actions restrained, 2, &c. 
 history of statute 21 Jac. I. c. 16. . . 1, &c. 
 statute 21 Jac. I. c. 16. . . 10, &c. 
 inaccuracies of, 11. 
 times of limitation, 44. 163, &c. 
 three years, 44. 
 six years, 44, &c. 
 subsequent disability does not prevent, 51. 
 cause of action, 49. 
 from what time, 44, 45. 
 goods sold, 45, 
 notes and bills, 45. 
 special agreements, 46, &c. 
 special damage, 46, &c. 
 parties, 49. 
 jurisdiction, 51.
 
 INDEX. 177 
 
 LIM ITATIONS— (continued.) 
 statute of, 
 
 actions on, 14, 15. 
 account, 15. 
 
 assumpsit, 15. _ 
 
 debt, 15, 
 specialty, 15, 16. 
 exceptions in 
 
 on specialties, 15, 1(3. 
 
 for merchants' accounts. — See Merchants' Ac- 
 counts. 
 infants, &c. 37. 
 new action after error, 42. 
 
 MARRIED WOMEN.— See Feme Covert. 
 
 MAXIMS. 
 
 actio personalia moritur cum persona, 1. 
 
 a right never dies, 2. 
 
 expedit rcipulilica ut sit finis /ilium, 52. 
 
 MERCHANTS, 17, 22. 
 
 MERCHANTS* ACCOUNTS.— Sec Accounts. 
 
 N. 
 
 NEW ACTION. 
 
 to save the statute, 42, Sec. 
 
 NEW CONTRACTS.— See New Promislj. 
 
 NEW PROMISE, 
 
 to save the statute, 
 
 to be in writing, 83, &c. 
 by bankrupts, 148, &c. 
 
 to be in writing, 155. 
 insolvents, 148, &c. 
 after infancy, 116. 
 
 NON ASSUMPSIT.— See Pli i 
 
 NIL DEBET.— See Plea. 
 
 NON COMPOS MENTIS, 
 
 exception in stat. 21 Jac, 1. c. 16 . • 37 '.
 
 178 INDEX. 
 
 NON INDEBITATUS, 
 
 to a plea of set-off. — See Pleading. 
 
 NON-JOINDER, 
 
 plea of. — See Abatement. 
 
 O. 
 
 OUSTER LE MER, 
 
 exception in the stat. 21 Jac. I. c. 16 . . 37, &c. 
 replication of, 113. 
 
 OUTLAWRY, 
 
 new action after reversal of, 42. 
 
 P. 
 PARTNERS.— See Merchants' Accounts. 
 
 PAYMENT, 
 
 indorsement of, 96. 
 
 cases on, 96, &c. 
 presumption of, 7, &c. 
 
 PERJURY, 
 
 dread of, made wager of law obsolete, 56. 
 resolution of judges of England to check, 5. 
 statutes to check, preface, vi. 
 
 PLEA, 
 
 of law wager, 3. 
 
 in abatement. — See Abatement. 
 
 General issue, 104. 
 
 presumption of payment under, 106. 
 non assumpsit, 106. 
 nil debet, 106. 
 
 non assumpsit infra sex annus, 109. 
 actio non accrevit infra sec annos, 109. 
 
 PRACTICE. — See Actions, Limitations. 
 PRESUMPTION OF PAYMENT.— See Pa ymemt. 
 
 PROCESS, 
 
 replication of, 1 13.
 
 INDEX. l~[) 
 
 PROMISES AND ACKNOWLEDGMENTS, 
 
 what to save the statute, 53, &c. 
 
 to be in writing under the statute 9 Geo. IV. c II.. 83, 8cc 
 by one of several contractors, 9G, ^c. 
 executors, 9(3, &c. 
 
 PROMISSORY NOTES, 
 
 security by, 78, 79. 
 presumption of payment of, 9. 
 limitation of action on, 10, 15. 
 
 R. 
 
 RECOGNIZANCE, 
 
 by statute merchant, 77. 
 
 staple, 77. 
 in the nature of statute staple, 77. 
 
 RENT, 
 
 debt for, 15, 1(5. 
 
 limitation of action for, 10, ^cc. 
 
 REPLEVIN, 
 
 for goods and cattle, 
 
 limitation of actiou on, 10, &c. 
 avowries in. — See Avowries. 
 
 REPLICATION, 112, &c. 
 
 of process to save the statute, 113. 
 
 plaintiff or defendant beyond sea, 1 1 3. 
 plaintiff an infant, 113. 
 
 judgment arrested or reversed and new action, I 13. 
 former plaintiff's death and new action by executor, 1 13. 
 of Statute of Limitations to set-off, 113, 114. 
 non indebitatus to set-off, 113, 114. 169. 
 
 evidence under, 113, 114 
 merchants' accounts, 114, 
 fraud, 114. 
 
 S. 
 SCOTLAND, 
 
 statute 9 Geo. TV. c. 1 1, not to extend to, 133. 
 cription in, 13 1. 
 
 n 2
 
 180 INDEX. 
 
 SECURITIES, 
 
 kinds of, 76. 
 
 SHOPKEEPERS, 23. 
 
 SET-OFF, 
 
 Statute of Limitations pleaded to. 113, 114. 
 
 extended to, 169. 
 when plea or notice necessary, 169. 
 
 SLANDER, 
 
 limitation of action for, 10, &c. 163. 
 
 STAMPS, 
 
 on bonds, 80. 
 
 prevent security by bond, 80. 
 on promises and acknowledgments, 
 when necessary, 133. 
 under statute 9 Geo. IV. c. 14 . . 133. 
 proposed bill to prevent nonsuits respecting, 133, n. 
 
 STATUTE, 
 
 
 
 
 merchant, 77. 
 
 
 
 staple, 
 
 77. 
 
 
 
 
 recognizance, in nature 
 
 of, 77. 
 
 STATIT E S, 
 
 
 
 
 20 Hen. III. c. 8 . . 
 
 2. 
 
 
 
 3 Edvv. I. c. 39 . . 2. 
 
 
 
 13 Edw. I.stat. 2, c 
 
 1 . 
 
 . 2. 
 
 
 
 6 . 
 
 2. 
 
 . 2. 
 15. 
 
 
 1 Rich. II. c. 12 . 
 
 
 4 Hen. VII. c.24 . 
 
 . 2. 
 
 39. 49.51. 
 
 
 7 Hen. VIII. c. 3 
 
 . 2 
 
 
 
 23 Hen. VIII. c. 6 
 
 .77 
 
 
 
 32 Hen. VIII. c. 2 
 
 . 2 
 
 16. 
 
 
 2 &3 Edw. VI. c. 
 
 12 . 
 
 . 16. 
 
 
 13 Eliz. c. 7 . . 22. 
 
 
 
 
 27 Eliz. c. 13 . . 2. 
 
 
 
 
 31 Eliz. c. .5 . . 3. 
 
 
 
 
 12 Jac. I.e. 4 . . 52 
 
 
 
 
 21 Jac. I.e. 16 . .8 
 
 10, 
 
 &c. 37, &C.55.69.76 
 
 
 ■21 Jac. I. c. 19 . . 22. 

 
 INDIA. 181 
 
 ST LTUTES— (continued.) 
 
 10 Car. I. sess. 2, c. 6, Irish, 17. 42. 
 
 29 Car. II. c. 3 . . 128, &c. 136, 137. 150. 
 
 1W.&M.C.4..51. 
 
 7 Win. III. c. 12, Irish, 131, 132. 
 
 9 & 10Wm. III. c. 17 . . 78. ■* 
 
 12 8c 13 Wm.III. c. 4 .. 166. 
 
 3 & 4 Anne, c. 9 . . 15. 78, 79. 
 
 4 Anne, c. 16 . .40. L66. 
 
 6 Anne, c. 10, Irish, 41. 
 
 7 Anne, c. 25 . . 79. 
 
 8 Geo. I. c. 4, Irish, 9. 
 
 8 Geo. I. c. 25 . . 78. 
 
 11 Geo. II. c. 19 . . 160. 
 
 16 Geo. II. c. 17 .. 149. 
 
 17 Geo. III. c. 26 . . 135. 
 
 25 Geo. III. c. 34, Irish, 139. 
 33 Geo. III. c. 13 . . 135. 
 48 Geo. III. c. 106 ..136. 
 53 Geo. III. c.27 . . 15. 
 
 6 Geo. IV. c 16 . . 144. 155. 
 
 7 Geo. IV. c. 57.. 153, 154. 
 
 9 Geo. IV. c. 14. 
 
 § 1 . . 37, &c. 167. 
 § 2 . . 97. 168. 
 § 3 . . 98. 168. 
 § 4 . . 113. 169. 
 § 5 . . 116, &c. 169. 
 § 6 . . 121, &c. 169. 
 § 7 . . 128. 169. 
 § 8 & 9 .. 133. 170. 
 § 10 . . 133, &c. 170. 
 9 Geo. IV. c. 15 . . 158, &e. 
 commencement of, 
 
 from first day of session, 134. 
 cases on, 134. 
 time of passing, 134. 
 
 indorsement by clerk of parliament, 135. 
 of continuing acts, 136. 
 actions sued before, but prosecuted after statute 21 Jac. I. 
 
 c. 16, § 6, within that act, 136. 
 promise before and action after, sufficient under Statute 
 of Frauds, 137, 138, 139.
 
 182 INDEX. 
 
 STATUTES— (continued.) 
 
 will before, without three witnesses, and death after, suffi- 
 cient, 137, &c. 
 new Bankrupt Act retrospective, 141. 
 of stat. 9 Geo. IV. c. 14. 134. 
 
 TITHES, 
 
 actions for, 
 
 out of statute 21 Jac. I. . 15, 16. 
 limitation of, by statute 53 Geo. III. . 16. 
 
 TRADESMEN.— See Merchants' Accounts. 
 
 TRESPASS, 
 
 limitation of action of, 10, &c. 163. 
 assault, 10, &c. 163. 
 battery, 10, &c. 163. 
 wounding, 10, &c. 163. 
 imprisonment, 10, &c. 163. 
 ijaarc cluunum J'rcgit, 10, &c. 163. 
 
 TRIAL. — See Merchants' Accounts. 
 
 cause hastened at nisi prius to prove parol acknowledgment 
 before 1st January, 1829 . . 144. 
 
 TROVER, 
 
 limitation of, 10. 44. 
 
 two conversions, 44. 
 
 VARIANCES, 
 
 failure of justice by, 157. 
 
 statute 9 Geo. IV. c. 15, to allow amendment at trial, 158. 
 cases, what within it, and what not, 153, &c. 
 
 VENUE, 
 
 not allowed to be changed to postpone trial, till after statute 
 9 Geo. IV. c. 14, has commenced, 143. 
 
 VERDICT, 
 
 Mil plea in abatement, 96. &c.
 
 I NDEX. 
 
 w \(,i.i; OF LAW, 
 
 in courts baron, 3 
 
 ;ill causes tried by, 3. 
 county courts, :s. 
 superior court , 3 
 in action-; of debt, 3. 
 
 kept actions in due bound 
 Statute of Limitations unnecessary, J. 
 when allowed, ;i. 
 when not allowed, 
 
 in Exchequer, 3. 
 
 actions on the * I 
 benefit of, 7. 
 now disused, 7. 
 
 WARRANTS OF ATTORNEY, 7». 
 effect of introduction of, 78. 
 
 WORDS, 
 
 limitations of actions for, 10, &c. 
 
 WOUNDING, 
 
 limitation of action for, 10, ivc. 
 
 is.; 
 
 LIEN 
 
 
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