« ForrigeFortsett »
exchange, by the delivery of it to the creditor;(a) and a small sum generally on account, (6) the delivery of goods in reduction of the demand, (c) or payment of a dividend under a fiat in bankruptcy, (d) have the like effect. But a payment into Court upon a plea as to principal money only, does not affect the interest, (e) nor when made by a representative of a deceased cocontractor, does it affect the survivor. (f)
So also by a direct acknowledgment (g) in writing (h), signed by the debtor, and though by his initials only; (i) provided it amounts to a direct (k) promise to pay; and if put in evidence merely for this purpose, it does not require any stamp; (2) the terms of it must refer to the creditor (m) and not to a stranger, and be absolute, (n) as to the recognition of the debt; its amount
(a) Irving v.Veitch, 3 M. & W.90; Jones v. Ryder, 4 M. & W. 32. (6) Evans v. Davies, 4 Ad. & E. 840; 2 Har. & W. 15. (c) Houper v. Stevens, id. 71 ; 1 Har. & W. 480. (d) Ex parte Doudney, 15 Ves. 499. (e) Collyer v. Wilcock, 4 Bing. 313.
(f) Whitcomb v. Whiting, 2 Doug. 651; Atkins v. Tredgold, 2 B. & C. 23; 3 D. & R. 200; Burleigh v. Stott, 8 B. di C. 36 ; 2 M. & R. 93; Slater v. Lawson, 1 B. & Ad. 396; Wyatt v. Hoder, 1 M. & Scott, 442; Clarke v. Hooper, 4 id. 353.
(g) Bird v. Gammon, 5 Scott, 213; Morrell v. Firth, 3 M. & W. 402; 8 C. & P. 246.
(h) 9 Geo. 4, c. 14, s. 1, Appendir; Mountstephen v. Brooke, 3 B. & A. 141.
(i) Morris v. Dixon, 4 Ad. & E. 845; 2 Har. & W.57; St. John v. Browton, 2 Jurist, 413.
(k) Routledge v. Ramsay, 3 N. & P. 319; 4 Ad. & El. 845. (1) Sect. 8; Jones v. Ryder, 4 M. & W. 32 ; 3 M. & Cr. 499. (m) Grenfell v. Girdlestone, 2 You. & Col. 662. (n) Bird v. Gammon, 3 Bing. N.C. 183; 5 Scott, 213.
e documenhout any ne though
may be proved by parol. (0) Where the construction turns upon a single letter, and without any other evidence to explain, it is a question of law for the judge;(p) but for the jury if it consists of several letters, or a letter in connexion with other evidence, or depends on the meaning of a mercantile document. A mere parol statement of an antecedent debt, without any new contract or consideration, (q) or an account stated, though in writing, will not suffice for this purpose ; (r) nor a judgment or sentence in France, or other foreign country; for here it is considered only as a simple contract debt;(s) nor a suit in equity, (t) though a receiver was appointed ; (u) and the fact of the creditor becoming bankrupt, (x) or a mere demand, (y) will not be of any avail, nor has a direction for the payment of debts in a will of personal estate any effect. (2)
There are certain disabilities and impediments which, while they exist, (a) prevent the operation of the statute ; (6) as if the creditor is, when the right accrues,
(0) Lechmere v. Fletcher, 1 C. & M. 623; Dickenson v. Hatfield, 2 M. & M. 141; Chesling v. Dalby, 2 You. & Col. 170.
(p) Morrell v. Frith, 3 M. & W. 402 ; 8 C. & P. 246; Taylor v. Dering, E. T. 1838 (Q. B.); Brown v. Brown, 2 Jurist, 255.
(9) Jones v. Ryder, 4 M. & W. 32.
(s) Duplein v. De Roven, 2 Vern. 540; Price v. Dewhurst, 8 Sim. 279.
(t) Anon. H. 1736 ; 2 Atk. 1. (u) Anon. H. 1737; 2 Atk. 15. (c) Gray v. Mendez, 1 Stra. 556; 3 P. Wms. 143. (y) Hodle v. Healey, 1 Ves. & B. 540. (2) Freake v. Cranefeldt, 3 Myl. & Cr. 499. (a) 21 Jac. 1, c. 16, s. 7, Appendix ; 1 Sid. 453. (6) Hall v. Wybunk, 3 Mod. 311; Carth. 136; I Show. 98.
under the age of twenty-one years, non compos mentis, a feme covert, in prison, (c) or beyond seas ; (d) and there is the same provision (e) in case of the debtor being beyond seas. The statute does not run as against a foreigner (f ) until he comes to England, nor against a debtor (g) where the right of action arises within the jurisdiction of the Supreme Court at Calcutta and while the parties are resident there. The limitation is not suspended in the case of several joint creditors; unless they are all under disability; (h) and a subsequent disability will not affect the limitation.(i)
The statute 21 Jac. 1, c. 16, s. 4, (k) provides, that if judgment be given for the plaintiff, and it is afterwards reversed or arrested, or if an outlawry against the defendant be reversed, a new action may be commenced within one year afterwards; and where at the death of the deceased the six years had not elapsed; his personal representative may, within one year afterwards, take out process ;(l) and if he dies, his executor has the same time allowed to him. (m) If a plaint is removed from an inferior Court into a superior Court,
(c) Piggott v. Bush, 4 Ad. & E. 912; 2 Har. & W. 28.
(d) 3 & 4 Will. 4, c. 42, s. 7, Appendix ; Strithorst v. Græme, 2 W. Bla. 723; 3 Wils. 145.
(e) 4 Anne, c. 16, s. 19, Appendix.
(k) Karver v. James, Willes, 255. This and the last section extend also to actions ex delicto, see p. 22, 24.
(1) Lumbe v. Finch, W. Jones, 312.
the limitation is calculated from the levying the plaint; provided the whole proceedings are set out in the replication ; (n) and the same principle holds where conusance is demanded ;(o) or a suit concerning the revenue is removed into the Exchequer ;(p) or where the grant of probate or of letters of administration is delayed, and without default in the party. (9)
10. Actions of debt, bills, and informations for forfeitures and penalties, given by penal statutes, either to the informer alone, or qui tam, must be commenced by him within one year next after the time when the for
thereon first accrued. (v)
11. In order to restrain the operation of these statutes by process, it must be actually sued out; (s) and the fact of its being impossible to do so, as from the offices being closed, or some other cause, will not avail. The course is by issuing a writ of summons, (t) and which, though informal, will suffice ;(u) or when
(n) Matthews v. Phillips, 1 Salk. 424; Highwood v. Barlow, Barnes, 421; Clarke v. Harbin, id. 90 ; Turner v. Bean, id, 345.
(0) Jenk. Cent. 31 ; Mo. 276, 603. (v) Hammond's case, Hard. 176; 1 Ro. 290; and Appendix. (9) Bac. Abr. III. 514 (5). (r) 31 Eliz. c. 5, s. 5; Franklyn's case, 1 Mod. 68. (s) Prideaux v. Griffiths, 2 C. M. & R. 45; 2 Ch. C. 217. (t) 1 & 2 Vict. c. 110, s. 2; 2 Will. 4, c. 39, s. 1; Finnie v. Montague, 5 B. & Ad. 877; Thompson v. Dicas, 2 Dowl. 93.
(u) Leadbetter v. Markland, 2 W. Bla. 1131.
terms of payment to the defendant of his costs thereon; and if issued for a debt, with liberty for him to pay the debt and costs as indorsed, within four days after amendment made and costs of it paid. (y) But a re-sealing, without leave of the Court, will not have this effect, for it only operates as a new writ. (z) If the defendant is served with a copy of the writ, (a) and he enters an appearance, (b) the cause will be fully in Court; and so also if he enters it on process of distringas (c) against him. But where he does not enter an appearance, the plaintiff can only do so(d) if the copy of the summons was served, and the day of service was within three days indorsed on the summons by the party serving it. (e) If a levy was made under the distringas, (f) the plaintiff may, as a matter of course, enter an appearance for the defendant;(g) but not if nulla bona was returned, except by order of a judge or the Court. (h) If the service cannot be effected, and the Court will not allow it to be made upon
(y) Bodington v. Woodley, 1 Jurist, 960 ; Partridge v. Welbank, 5 Dowl. 93.
(3) Siggers v. Sanson, 2 Dowl. 745; Glenn v. Wilkes, 4 Dowl. 322 ; Leigh v. Leigh, 4 Dowl. 650.
(a) 12 Geo. 1, c. 29, ss. 1, 2; Morris v. Coles, 2 Dowl. 79; 3 M. & Sc. 194.
(6) 2 Will. 4, c. 39, s. 2; 2 Jurist, 808, 946. (c) Sect. 3; Tucker v. Brand, 4 Dowl. 411. (d) Roberts v. Spurr, 3 Dowl. 551; 5 Dowl. 150; 1 Har. & W.137. (e) R. M. 3 Will. 4, (3); Brook v. Edridge, 2 Dowl. 647. (f) Esdaile v. Marshall, 2 Jurist, 182.
(g) 2 Will. 4, c. 39, s. 3; Johnson v. Smealy, 1 Dowl. 526; Page v. Hemp, 4 Dowl. 203 ; Tucker v. Brand, id. 411.
(h) Sect. 3; Copeland v. Neville, 4 Dowl. 51.