In actions of simple contract, no acknowledgment or promise (0) by debt or upon words only (k) shall be deemed sufficient evidence (1) the case, no acknowledge of a new or continuing contract, (m) whereby to take ment shall be any case out of the operation of the said enactments or deemed suffi., either of them, or to deprive any party of the benefit cient unless it be in writing, thereof, unless such acknowledgment (n) or promise shall or by part be made or contained by or in some writing, (o) to be payment.

signed by the party chargeable thereby; and that where Joint con

there shall be two or more joint-contractors, or executors or administrators of any contractor, no such jointcontractor, executor, or administrator shall lose the benefit of the said enactments or either of them, so as


might have been dealings and transactions within the time of the statute.”— Per Lord Hardwicke, C., Welford v. Liddell, 3 Ves. sen. 400: Cases within the exception do not appear to want a new or continuing contract, and therefore are not governed by 9 Geo. 4, c. 14, s. 1. Wilkinson on the Limitation of Actions, &c. 35.

(i) Jones v. Ryder, 4 M. & W. 32.

(k) The legal effect of the acknowledgment or promise, as to how far it may be considered as admitting a debt to be due or amounting to a promise to pay it, is a question of law for the determination of the Court; Snook v. Mears, 5 Price, 636, but extrinsic facts are for the jury, Morrell v. Frith, 3 M. & W. 402; 8 C. & P. 246; Brown v. Brown, 2 Jurist, 255.

Whippy v. Hillary, 3 B. & Ad. 399; and with the debt on its face, Kennett v. Milbank, 8 Bing. 38; and see Martin v. Knowles, 1 N. & M. 421 ; a conditional, Tanner v. Smart, 6 B. & C. 603; or qualified promise must be declared on as such, Haydon v. Williams, 7 Bing. 163; a promise to pay may be inferred from a general acknowledgment, Routledge v. Ramsay, 2 N. & P. 319.

(m) " It is now settled that a mere acknowledgment of the subsistence of the debt, unless coupled with or amounting to evidence of a promise to pay, is not sufficient to take the case out of the statute of limitations ;" Per Lord Tenterden, C. J. in Burley v. Scott, 2 M. & R. 96; and made to the creditor, Greenfell v. Girdlestone, 2 You. & Col. 662.

(n) Bird v. Gammon, 5 Scott, 213; St. John v. Browton, 2 Jurist, 413, (V. C.)

(0) Mountstephen v. Brooke, 3 B. & A. 141.

[ocr errors]

a man the case of

to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them: Provided always, that nothing herein contained shall alter or take away, or lessen the effect of any payment (p) of any principal or interest made by any person whatsoever: Provided also, Proviso for that in actions to be commenced against two or more

joint consuch joint-contractors, or executors or administrators, if Tractors. it shall appear at the trial or otherwise that the plaintiff, though barred by either of the said recited Acts, or this Act, as to one or more of such joint contractors, or executors or administrators, shall nevertheless, be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment, or promise or otherwise, judgment may be given and costs allowed for the plaintiff, as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff.

S. 2.-If any defendant or defendants, in any action Pleas in on any simple contract, shall plead any matter in abate- abatement. 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 of 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.

(p) This will suffice, if made within the limitation im. mediately before the action; Bealey v. Greenslade, 2 Tyr. 121; and payment by one of two or more joint debtors enures as a payment by all; Whitcomb v. Whiting, 2 Dougl. 651 a.; and if the debtor give as security a note of himself and another, A. a payment on behalf of B., after the statute has begun to run, revives the debt as against A. also; Ex parte Woodman v. Turner, 3 M, & Ayr. 609; a written paper containing a statement of mutual accounts between a creditor and debtor, by whom it was signed, is evidence of payment, and must be pleaded as such and not by way of set-off; Sinclair v. Baggeley, 4 M. &. W. 312; 2 Jurist, 683. The words “ seitled, Samuel Hughes," at the foot of a bill of parcels, import a receipt and acquittance;

Indorsements S. 3.- No indorsement or memorandum of any of payment. 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 operation of either of the said

statutes. Simple con. S. 4.—That the said recited Act, and this Act, shall tract debts be deemed and taken to apply to the case of any debt alleged by way of set on simple contract alleged by way of set-off (9) on

the part of any defendant either by plea, notice, (r) or otherwise.

S. 8.-No memorandum (s) or other writing made Memorandums ex necessary by this Act, shall be deemed to be an agreeempted from ment within the meaning of any statute (t) relating to stamps.

the duties of stamps.


[blocks in formation]

2 Will. 4, c. 39. An Act for Uniformity of Process in Personal Actions

in his Majesty's Courts of Law at Westminster."

S. 10.-No writ issued by authority of this Act shall be in force for more than four calendar months from the day of the date thereof, including the day of such date; but every writ of summons and capias may be continued by alias and pluries, as the case may require,

Rex v. Martin, 7 C. & P. 549; and such a payment as is here intended may be made by a transfer of stock ; Breton v. Cope, Peake, 43, 3rd edition.

(9) Bull. Ni. Pri. 180; Remington v. Stevens, 2 Stra. 1271 ; Selw. Ni. Pri. 139. Replication : it must exist at the time of plea pleaded ; Dendy v. Powell, 3 M. & W. 442 ; 6 Dowl. 577.

(r) Since the new rules, Hil. 4 Will. 4. tit. Assumpsit, s. (3.) there cannot be a “ notice" of set-off ; 2 Stra. 1271.

(s) This section applies only to instruments capable of being properly stamped as agreements, and not to promissory notes; Jones v. Ryder, 4 M. & W. 32.

it) 55 Geo. 3, c. 184; Sched. tit. Agreement,

if any defendant therein named may not have been arrested thereon or served therewith: Provided always, that Proviso as to no first writ shall be available to prevent the operation of Statute of any statute whereby the time for the commencement of the action may be limited, unless the defendant shall be arrested thereon, or served therewith, or proceedings to or toward outlawry shall be had thereupon, or unless such writ and every writ (if any) issued in continuation of a preceding writ (u) shall be returned non est investus, (x) and entered of record within one calendar month next after the expiration thereof, including the day of such expiration, and unless every writ issued in continuation of a preceding writ shall be issued within one calendar month after the expiration of the preceding writ, and shall contain a memorandum indorsed thereon or subscribed thereto, specifying the day of the date of the first writ; and return to be made in bailable process by the sheriff or other officer to whom the writ shall be directed, or his successor in office, and in process not bailable, by the plaintiff or his attorney suing out the same, as the case may be.

2 & 3 WILL. 4, c. 71. An Act for shortening the Time of Prescription in cer

tain cases." S. 1.- Whereas the expression, “ time immemorial, or time whereof the memory of man runneth not to the contrary,” is now, by the law of England, in many cases considered to include and denote the whole period of time, from the reign of King Richard the First, whereby the title to matters that have been long enjoyed is sometimes defeated, by shewing the commencement of such enjoyment, which is in many cases productive of inconvenience and injustice; for remedy thereof be it Claims to

right of com

(u) A writ of distringas with a view to outlawry may issue in continuation of writs previously sued out to save the Statute of Limitations; Ray v. Dow, 5 Dowl. 310; 2 M. & W. 188; reported as Reuy v. Youde.

(x) This is indispensable; Gregory v. Des Anges, 3 Scott, 534 ; 5 Dowl. 193.


mon, and enacted, by the King's most excellent Majesty, by and other profits, with the advice and consent of the lords spiritual and temà prendre, not to be defeated poral, and commons, in this present parliamentassembled, after thirty and by the authority of the same, That no claim which years enjoyment, by

may be lawfully made at the common law, by cusshewing the tom, (y) prescription, (3) or grant, (a) to any right of commence

common, (b) or other profit, (c) or benefit(d) to be taken and enjoyed from or upon any land of our sovereign lord the king, his heirs or successors, or any land being parcel of the Duchy of Lancaster, or of the Ducby of Cornwall, or of any ecclesiastical or lay person, or body corporate, except such matters and things as are herein specially provided for, and except tithes, (e) rent, (f) and services, (g) shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated or destroyed by showing only(h) that such right, profit, or

(y) Co. Litt. 110; Danv. 12; this includes such an easement as a right of way, in alieno solo; Grimstead v. Marlow, 4T. R. 717; long usage is of no avail against plain statutory enactment.

(%) The general rule is, that every such claim is good, if by possibility it might have had a legal commencement; Lord Pelham v. Pickersgill, 1 T. R. 667.

(a) Co. Litt. 114 a; 1 Vent. 387.

(6) Of pasture, of turbary, Co. Litt. 122; Noy, 145; Wil. son v. Willes, Knight, 7 East, 121; Solme v. Bullock, 3 Lev. 165; of piscary, of estovers, Arundell v. Steere, Cro. Jac. 25; of pasturage, Jones v. Richards, 6 Ad.& Ell. 530; pur cause de vicinage, Heath v. Elliott, 4 Bing. N. C. 388; 6 Scott, 172.

(c) As a toll, Hill v. Priour, 2 Show. 34; Rowe v. Brenton, 3 M. & R. 133.

(d) E. g. easement, Manning v. Wasdale, 1 N. & P. 172; 5 Ad. & Ell.758; Partridge v. Scolt, 3 M. & W. 220.

(e) Post, 2 & 3 Will. 4, c. 100, p. 138.

(f) Rent-service, rent-charge, rent-seck, Litt. s. 213; rents of assize, 2 Inst. 19 (including chief and quit-rents); and a fee farm-rent, Co. Litt. 143 b, n. 5; Brudbury v. Wright, 2 Dougl. 627, n. l.

(8) Page 4.

(h) But it may be so by proving a leave, favour, or other malter, inconsisient with a claim, or assertion of right, Campbell v. Wilson, 3 East, 294..

« ForrigeFortsett »