mencement of the suit, verbally promised, within six years, that the matter should be arranged; it was determined, that the statute of frauds having been once satisfied by the original promise being in writing, it was not necessary, in order to take the case out of the statute of limitations, that the latter promise should also be in writing. (k) If an agent has been employed to pay money for work done for the defendant, and the workmen are referred to him for payment, an acknowledgment or promise by him to pay will take the case out of the statute of limitations. (1) So, the admission of the wife, who was accustomed to conduct her husband's business, is sufficient to take the case out of the statute, in an action against the husband. (m) And, in an action against a husband, for goods supplied to his wife for her accommodation, while he occasionally visited her, a letter written by the wife, acknowledging the debt, within six years, was deemed admissible evidence for that purpose. (n) So, an acknowledgment by one of several drawers of a joint and several promissory note, will take the case out of the statute, as against any one of the other drawers, in a separate action on the note against him. (o) But where one of two joint drawers of a bill of exchange becomes bankrupt, and the indorsees proved a debt under his commission beyond the amount of the bill, for goods sold, &c., and exhibited the bill as a security they then held for their debt, and afterwards received a dividend; the Court held, in an action by the indorsees of the bill against the solvent partner, that the statute of limitations was a good defence, although the dividend had been paid by the assignees of the bankrupt partner within six years. (p) If a letter be written by a defendant to the plaintiff's attorney, on being served with a writ, couched in ambiguous terms, neither expressly admitting nor denying the debt, it should be left to the jury to consider whether it amounts to an acknowledgment of the debt. (q) And if there be a mutual account of any sort between the plaintiff and defendant, for any item for which credit has been given within six years, that is evidence of an acknowledgment of there being such an open account between the parties, and of a promise to pay the balance, as to take the case out of the statute. (r) So, if a defendant admit the existence of a debt, which would otherwise be barred by the statute of limitations, but claim to be discharged by a written instrument, which does not amount to a legal discharge, he shall be bound by his admission. (s) And where the acceptor of a bill of exchange acknowledged his acceptance, and that he had been liable, but said that "he was not liable then because (k) 1 Barn. & Ald. 690. (7) 5 Esp. Rep. 145. (m) 1 Holt, Ni. Pri. 591. (n) 1 Campb. 394. (o) Doug. 652, 3. 2. H. Bl. 340. But 10 1 Barn. & Ald. 465. (p) 1 Barn. & Ald. 463. it was out of date, and that he would not pay it, and that it was not in his power to pay it :" this was deemed sufficient to take the case out of the statute. (t) So, it is sufficient to prove, that upon a demand being made by a seaman on the owner of a ship, for wages which had accrued during an embargo, he said, "if others paid, he should do the same." (u) And a promise by a defendant in embarrassed circumstances, to pay a debt by instalments, if time were given him, is sufficient to take a case out of the statute. (v) But a note written by a debtor to an executor, "that the testator always promised never to distress him for the debt," is not evidence of a promise to pay it, made to the testator within six years. (w) And where the acknowledgment was, "I had the money, but the testatrix gave it to me;" the latter words were held to qualify the generality of the first admission, and not to amount to a new promise or confession of the defendant, sufficient to take it out of the statute. (x) So, where the defendant had said to the plaintiff, "I owe you not a farthing, for it is more than six years since;" the Court held, that this was not to be left to the jury, as evidence of an admission, to take a debt out of the statute of limitations. (y) In like manner a qualified admission, by a party who relies on an objection, which would at any time have been a good defence to the action, does not take the case out of the statute. (z) So, where a defendant on being applied to by the plaintiff's attorney, for the payment of a debt, wrote in answer, that he "would wait on the plaintiff, when he should be able to satisfy him. respecting the misunderstanding which had occurred between them;" this was holden not to be such an acknowledgment of a debt, as to take the case out of the statute; and that such evidence ought not to be left to a jury, as ground to infer a new promise to pay. (a) So, in an action of assumpsit by an attorney, to recover his charges relative to the grant of an annuity, evidence that the defendant said, "he thought it had been settled when the annuity was granted, but he had been in so much trouble since, that he could not recollect any thing about it," was holden not to be a sufficient acknowledgment of the debt to take it out of the statute of limitations, and ought not to be left to the jury, as evidence of an admission of such debt, although the plaintiff proved his bill was not paid at the time of granting the annuity. (b) And where the defendant on being applied to for payment, said, "I think I am bound in honour to pay the money, and shall do it when I am able;" Lord Kenyon ruled, that it was a conditional promise only, and that the plaintiff was bound to shew that the defendant was of sufficient ability to pay. (c) (w) 6 Taunt. 210. (x) 6 Esp. Rep. 67, 8, (y) 3 Taunt. 380.; and see 4 Maule & Sel. 457. If a cause of action, arising from the breach of a contract to do an act at a specific time, be once barred by the statute of limitations, a subsequent acknowledgment by the party, that he broke the contract, will not, it seems, take the case out of the statute. (d) The exception in the statute of James, touching such accounts as concern trade of merchandize between merchant and merchant, their factors and servants, extends to those cases only where there are mutual accounts and reciprocal demands, and where such accounts are current and open, and not to accounts stated between them, (e) for no other actions are excepted but actions of account. (ƒ) It has been supposed, that by the effect of the above exception, there can be no limitation to a merchant's open and unsettled account: this opinion, however, appears erroneous; for, if there is no item in the account, or an acknowledgment of the debt within six years, the statute will take effect; but if the last item of the account is within six years, that preserves all the preceding items from the operation of the statute. (g) And from these decisions it should seem, that merchants' accounts do not stand upon any better ground, in regard to the statute, than those of others. It should also be observed, that the exception extends to all merchants, as well inland as to those trading beyond sea. (h) And the effect of the exception has also been extended to other tradesmen, and persons having mutual dealings. (i) But in all these cases, the accounts must be mutual, with reciprocal demands on each side, and not as in the case of a tradesman and his customer, in the common way of business, where the items of credit are all on one side only. (k) The statute of James does not begin to take effect till the cause of action is complete, and the party is capable of suing upon it; (4) as in the case of a consignee of goods for sale, no action lies for not accounting and returning the goods undisposed of until demand; and, therefore, the statute does not begin to run until the time of demand. (m) So, the statute begins to operate only from the time when a bill of exchange or promissory note, &c. is due, and not from the date. (n) It has been held, however, that notes payable on demand run from the date of the note, and not from the time of the demand. (o) So, where the cause of action is complete in the life time of the testator, the statute begins to run from that time, and not from the time of granting of the probate. (p) The second provision in the statute of James relates to the plaintiff's being beyond sea. (q) But by 4 & 5 Ann. c. 16. s. 19., the effect of this (d) 2 Campb. 160.; and see Peake's Evid. 205. 1 Barn. & Ald. 92. (e) Bul. N. P. 149. Sir W.Jones, 401. (h) Vid. 2 Saund. 127. c. 2. Bl. Rep. 723. (1) Peake, 127. (k) 2 Saund. 127. b. (1) Cro. Car. 139. 1 Lev. 48. (n) 1 H. Bl.631. 5 Barn. & Ald. 214. (p) Willes' Rep. 27. (2) Carth. 136. 226. 1 Show. 98. provision is extended to the defendant's being beyond sea, at the time of the cause of action accruing. If therefore the defendant be abroad at the time of making the contract, he need not be sued until six years after his first return into this country. (r) The statute of limitations extends to persons absent in Scotland, (s) but not to those in Ireland; (t) the latter being considered as beyond the sea, within the meaning of the above provision; and foreigners living beyond the sea have the same advantage of the proviso as persons residing here. (v) If the plaintiff be in England when the cause of action accrues, the time of limitation begins then to run, and a subsequent departure from the kingdom, and going beyond the seas, will not entitle the plaintiff, or his representative, to maintain an action after the expiration of the six years. (w) (r) 2 Saund. 121. a. b. (s) 1 Bl. Rep. 286. (t) Per Holt Ch. J. 1 Show. 91. (v) 2 Bl. Rep. 723. |