In the following instances the restraint was held to be void :

1847. Price v. Green, 16 Perfumer, Lifetime of Within 600 miles from M. & W. 346.

toy man,
and hair
merchant.

vendor.

London or Westminster.

[669] SPICKERNELL v. HOTHAM. July 14, 1854.

[S. C. 2 W. R. 638. See In re Scott, 1858, 8 Ir. Ch. R. 321; Mills v. Borthwick, 1866, 35 L. J. Ch. 32; In re Dixon [1899], 2 Ch. 562; [1900], 2 Ch. 562.]

Statute of Limitations. Acknowledgment. Evidence. Trust. Life Interest.

A. gave to B. a promissory note, dated October 1834, for £837, 1s. 6d., payable on demand. In December 1834 demand was made, and A. then promised to pay interest, and signed an unstamped memorandum, dated the 2d December 1834, as follows:-"I promise to pay to B. £837, with £4 per cent. interest thereon.-A." Neither principal nor interest was paid; but, in January 1848, A. wrote to B. a letter referring to a promissory note for a debt which he acknowledged, and promised thereby to pay.

Held, that the memorandum of December 1834, and a letter accompanying it, shewed that interest was running; and that, though in form a promissory note, and unstamped, it could be looked at to see to what debt this interest was to be referred; and that, as no other debt was proved to exist, the £837 there mentioned was to be assumed to be part of the £837, 1s. 6d. secured by the former promissory note.

Held, also, that, in the absence of proof of the existence of any other promissory note

to which it could relate, the letter of 1848 must be taken to refer to the promissory note of October 1834, and thus to take it out of the Statute of Limitations. By a marriage settlement, dated in 1828, A. covenanted to transfer a sum of stock belonging to him to trustees, upon trust to pay the dividends to himself for life, and then upon trusts for the benefit of the intended wife and the issue of the marriage. The stock was not transferred. Held that A. was not a trustee of it within the exception of the Statute of Limitations; but that it was a debt from him, and that, notwithstanding his life interest, time began to run against this debt from the execution of the settlement.

In 1825 A. borrowed from the executors in trust of a will a fund which was thereby bequeathed to them in trust for himself for life and then for other persons, and gave to them a promissory note for the repayment of this sum to them as "executors in trust," with lawful interest. Held, that A. borrowed the fund and promised to repay it as trust money, and therefore that lapse of time was no bar to the claim against him for repayment.

This was a suit for administration of the estate of George V. Drury, the testator in the cause. The first question that arose was as to the effect of the following documents to prevent interest upon the debt being barred by the Statute of Limitations.

"Kirby Hall, 10th October 1834.-I promise to pay to Miss Meyer, or her order, on demand, the sum of £837, 1s. 6d. "GEORGE V. DRURY."

In December 1834 Miss Meyer required payment of the money due upon this note, and G. V. Drury, being unable to pay, promised to pay interest at 4 per cent. from December 2d, 1834; and his wife wrote the following letter accompanying a memorandum on the same sheet, which was signed by him but was not stamped :

"As it is not any inconvenience to you to let the interest run on, we shall thank you to let it do so. Drury will [670] write here the memorandum, and then you can tear it off.

"I promise to pay to Miss Meyer the sum of £837, with £4 per cent. interest thereon. "GEORGE V. DRURY.'"

66

Buxton, 2d December 1834."

Neither principal nor interest was ever paid.

On the 18th of January 1848 the said G. V. Drury wrote to the said Miss Meyer a letter in the following terms:-"In my next visit to you, when I was at Kirby, I purposed noticing the pecuniary obligation my dearest wife and myself were under to you, when my sudden unhappy departure deprived me of this opportunity. This money will be forthcoming whenever you will require it, and indeed would have been liquidated long ago had not all my available funds been swallowed up (some thousands left by my predecessor, add to which the loss of the Crown grant of Mere in Wiltshire) in making this place habitable, and in repairing farmhouses, and numerous other expenses. I am therefore only just beginning to feel my way. The first opportunity, I shall make it a point to repay you with the grateful acknowledgments due to you, and, to prevent accidents or uncertainty, I have long previous to this mentioned the amount in my will to be paid to you or your agents and executors, &c. Mrs. Drury I am not aware left any regular memorandum in her papers, nor was she sensible it was essentially necessary, as she knew I had given you a note of hand for the amount. Believe me that, with my best acknowledgments, I own myself answerable for this debt; and if it will suit you to grant me a little longer credit, I will most cheerfully discharge the amount to your order."

The Master found that the principal sum secured by the promissory note of the 10th of October 1834 was due, together with interest thereon from the 18th of January [671] 1848. To this report an exception was taken, for that interest was due from the 2d of December 1834.

Mr. James, Q.C., and Mr. J. H. Humphrys, for the exception. The promissory note was payable on demand, and interest would become due when a demand was made; and the memorandum of the 2d of December 1834 shews that interest was

running on £837, which must mean this debt. Then the letter of the 18th of January 1848 was an acknowledgment which prevented the operation of the Statute of Limitations. In Edmonds v. Goater (15 Beav. 415) a debt owing on a promissory note to W. was held to be sufficiently acknowledged by a letter in answer to an application by her agent for payment, containing the following words :-"I hope to be at H. soon, when I trust everything will be arranged with W. agreeable to her wishes."

Mr. Chandless, Q.C., and Mr. Messiter, contrà. The acknowledgment is not sufficient. To prevent the debt from being barred there should be a clear acknowledgment from which a Court of law would imply a fresh promise to pay. Then the letter may refer to some other debt-there is nothing to connect it with this promissory note. [The Vice-Chancellor referred to Shortreed v. Cheek (1 Ad. & E. 57), where a debtor wrote:-"I will pay the promissory note;" and it was held that the onus of proving the existence of more than one promissory note to which the letter might refer was thrown upon the person disputing the debt.] Here the promissory note is not properly stamped. [THE VICE-CHANCELLOR. The Master has found that the principal sum is due, and that is not excepted to.] The second document is a promissory note, and is also not properly [672] stamped, and therefore cannot be used as evidence of a promise to pay interest. [THE VICE-CHANCELLOR. It is only used to shew upon what sum the interest just before mentioned was running.] It is not shewn that it was the sum secured by the former promissory note.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I think I must treat the debt as due; but there still remains the question what arrear of interest can be recovered. The promissory note is payable on demand, and would bear interest from the time when a demand was made. The letter of the 2d of December 1834 speaks of interest then running, and the promissory note on the same paper shews that it was interest on £837. It is argued that, this being a promissory note and not properly stamped, it cannot be used as evidence of an undertaking to pay interest; but the purpose for which it is used is to shew to what debt the interest which was running is to be referred, and it is not produced as containing in itself a promise to pay interest. Suppose the letter had been "as interest is running I have sent you a bond for a security," and the bond so sent was unstamped, I might look at it to discover on what debt the interest was running, without making it of any avail as a bond. In the same manner I look at this memorandum, and find that the debt was £837. It is argued that that is not the debt for which the former promissory note was given : but in the absence of proof of the existence of any other debt I must take them to be the same and therefore it is proved that interest was running upon this promissory note on the 2d of December 1834.

The next point is as to the acknowledgment contained in the letter of the 18th of January 1848, in which there is a distinct promise to pay, and a reference to a promis-[673]-sory note. Only one promissory note has been proved to exist, for I cannot treat the memorandum attached to the letter of the 2d of December 1834 as a promissory note itself. I therefore think that there has been a sufficient acknowledgment, and that this debt will be payable with interest from the 2d of December

1834.

The next question arose upon the following claim :—

Thomas Price, Harry Stephen Thompson, James Croft and Stephen Croft, as trustees, claimed to be specialty creditors of the testator in the cause, under and by virtue of an indenture, dated the 26th of September 1828, and made between the testator of the first part, the Rev. Thomas Hatton Croft of the second part, Eliza Thompson, spinster, of the third part, and the said trustees of the fourth part, whereby, after reciting that a marriage was intended between the said Thomas Hatton Croft and Eliza Thompson; and that the said testator, being desirous of making some provision, after the decease of the survivor of himself and Charlotte, his wife, for the said Eliza Thompson and the issue of the said marriage, had agreed to transfer £962 New £4 per cent. annuities belonging to him unto the said trustees, upon the trusts and for the purposes thereinafter expressed or referred to, the said testator, for bimself, his heirs, executors, administrators and assigns, covenanted with the said trustees that he, the said testator, his executors or administrators, would, immediately

after the solemnisation of the said intended marriage, transfer into their names in the books of the Governor and Company of the Bank of England the said £962 New £4 per cent. Bank annuities; and it was thereby declared that the said trustees should permit the said testator to receive the dividends of the said £962 New £4 per cent. annuities for his own use during his life, and after [674] his decease should permit the said Charlotte Drury, his wife, to receive the said dividends during her life, and after the decease of the survivor of them should hold the said £962 New £4 per cent. annuities, and the dividends thereof, upon the trusts therein declared for the benefit of the said Eliza Thompson and the issue of the said then intended marriage.

The marriage between the said Thomas Hatton Croft and Eliza Thompson was duly solemnised; but the said testator did not during his lifetime transfer the said £962 New £4 per cent. annuities to the trustees, pursuant to his said covenant.

Mr. J. H. Palmer, for the trustees. This debt is a specialty debt, and is not barred by the statute, because time did not run against the claim during the lifetime of the testator to whom the interest was payable for life, upon the doctrine laid down in Burrell v. The Earl of Egremont (7 Beav. 205), where it was held that, if the owner of a charge upon an estate be also tenant for life of the estate, as he is bound to apply the rents in payment of the interest of the charge, he will be assumed to have done so; and thus time will not run against the charge during his life. And it was decided in Megginson v. Harper (2 Cr. & M. 322) that part payment to a cestui que trust would prevent the operation of the statute. But, further, this is not a mere debt, but a trust; for the testator covenanted to transfer a certain sum of stock then belonging to him; and therefore he was a trustee of this stock until he should transfer it according to his covenant.

[675] THE VICE-CHANCELLOR Sir W. PAGE WOOD. This is like many other cases which occur upon the Statute of Limitations-a case of considerable hardship; but the Legislature having enacted that the lapse of a certain period shall bar the right to recover a debt, I can see nothing in this case to take it out of the operation of the statute. The debt in question is a legal debt, which accrued in 1828 in respect of a breach of covenant by the omission to transfer a sum of stock into the names of trustees which ought then to have been done.

I think that the principle of Burrell v. The Earl of Egremont (7 Beav. 205) can have no application to this case. It was there decided that, when there is a charge on real estate, and it is the duty of the person entitled to the charge to keep down the interest, it is assumed that he, being in possession of the estate, has done his duty, and that the interest has been paid to himself. But here the sum of stock which ought to have been brought into existence as a trust fund never had any such existence, and I cannot assume that a person has been paying himself the interest of a non-existing fund.

The cestuis que trust could not get at the fund in any other way than by an action to be brought by the trustees; therefore it is not in any sense a trust on the part of the testator, and the action upon the covenant is now barred by the statute.

The third question arose thus :-The executors in trust of the will of Henry Thompson, deceased, having certain trust funds bequeathed to them in trust for G. V. Drury and Charlotte, his wife, for their lives and the life of the survivor, and after the decease of the survivor in trust [676] for their children, if any, and in default of issue for other purposes, in 1825 lent these trust moneys to G. V. Drury upon a request in writing signed by himself and his wife, and contained in a memorandum which recited the trust; and G. V. Drury thereupon gave to them a promissory note for the moneys so lent, with lawful interest for the same, upon demand, the note being in form, "I promise to pay Richard John Thompson, Esq., and Henry Thompson, Esq., executors in trust of Henry Thompson, Esq., deceased, or their order," &c.

Mr. J. H. Palmer contended that Drury took these moneys as trust monies, and that his estate was answerable for them, and that the Statute of Limitations did not apply; or if not, then, by the conjoint effect of Burrell v. The Earl of Egremont (7 Beav. 205) and Megginson v. Harper (2 Cr. & M. 322), as Drury was entitled to a life interest in these funds by the will, time did not run against the claim during his

life.

Mr. Chandless, Q.C., and Mr. Messiter distinguished the cases referred to, and argued that there could be no trust, for it was not shewn that there was any power to lend the fund upon personal security. [THE VICE-CHANCELLOR. This was borrowed as trust money, and was to be repaid to the lenders as executors in trust" of the will.]

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I should have some difficulty in allowing this claim, upon the ground of the testator having been entitled to the interest of these funds during his life, on the principle of Burrell v. The Earl of Egremont (7 Beav. 205).

[677] Here no act has been done by the tenant for life. In that case he had received the rents, and the law would presume that they were applied in payment of the interest of a charge upon the property. The difficulty is occasioned by the expression in the statute 9 Geo. 4, c. 14, s. 1.

But I think that Drury in this case must be taken to have received these moneys into his hands as trust moneys. It is argued that there was no power to lend the trust moneys in such a manner; but, in the absence of evidence, the assumption is the other way. If I could not assume that there was such a power, I should be obliged to hold that Drury received this money in breach of, and subject to, the trust, and then the circumstance of his being tenant for life would be important as to the question of laches; for the fact that he was entitled to receive all the income during that period would be some reason for not applying to him for payment of the principal, and, therefore, would be a ground for now arguing that the claim was not barred.

I therefore think that the money so borrowed by the testator must be repaid with interest.

[678] PRANCE v. SYMPSON. July 18, 1854.

[See In re River Steamer Company, 1871, L. R. 6 Ch. 832; Quincey v. Sharpe, 1876, 1 Ex. D. 74; Banner v. Berridge, 1881, 18 Ch. D. 270; Firth v. Slingsby, 1888, 58 L. T. 483; Langrish v. Watts [1903], 1 K. B. 641.]

Statute of Limitations. Account. Acknowledgment.

To prevent the right to have an account from being barred by the Statute of Limitations, it is not necessary to have an acknowledgment that a debt is actually due; but it is sufficient that there should be an acknowledgment that the account is pending, and a promise to pay the balance, if it should be found to be against the accounting party.

A. having a claim for an account against B. and C. in respect of a former partnership between them, wrote to B.-"C., before he goes, ought to settle the Bridgewater and Minehead account; because, if he is under any idea that there is a balance due to him, he is grossly mistaken, as such balance is due to yours ever, A." B: answered,-"My dear A.-Bridgewater and Minehead: I have had a long talk with my partner about this matter; he says and insists that there is a large balance coming to him, but I have put the matter right with him, and you and I must go into it and settle the account. It is necessary that we should sit down to this matter, and put it on the square: " Held, that this was a sufficient acknowledgment of the right to an account, and promise to pay anything that might be due, to save the right to sue for an account in equity from being barred by the statute.

In August 1845, the Plaintiff being a solicitor and a registered promoter of a provisionally registered company called the Bridgewater and Minehead Railway Company, in pursuance of an agreement contained in certain letters between himself and the Defendant, appointed the firm of A'Beckett & Sympson, in which the Defendant was a partner, jointly with himself, solicitors to the company, upon the terms, that in all matters they should act jointly, and divide all profits equally; and that in arriving at such division each party should allow to the other £10 per cent. on his and their outlay.

V.-C. XIV.-10