(p) The acknowledgment under this section may be made, it would seem, to a stranger (Moodie v. Bannister, 4 Drewry, 432), and it has been held that the setting forth a judgment debt in an insolvent schedule is a sufficient acknowledgment within the 3 & 4 Vict., c. 27, s. 40 (M'Carthy v. O'Brien, 2 Ir. L. R. 67; Dugdale v. Vize, 5 Ir. L. R. 586). The report of a Master in Chancery finding a certain sum due is not an acknowledgment within the meaning of the Statute (Hill v. Stawell, 2 Ir. L. R. 302). (4) A payment made in the Landed Estates Court out of the estate of the debtor will take a case out of the Statute (Cronin v. Dennehy, Ir. R. 3 C. L. 289). So also a payment made by a receiver appointed by the Court of Chancery over the debtor's estate( Chinnery v. Evans, 11 H. of L. C. 115). Where there are several debts due by the debtor, some of which are and some are not barred by the Statute, a payment made generally will operate to renew the debtor's liability upon the debts not barred, but it will not revive those which have been already barred (Nash v. Hodgson, 6 D. M. & G. 474). Payment by one co-debtor will not operate to deprive the other codebtor of the benefit of the Statute (19 & 20 Vict., c. 97, s. 14); and it has been held that this section is not retrospective (Jackson v. Woolley, 27 L. J., Q. B. 448). To whom it may be made. Payment. How it may be made. Where seve ral debts. (r) An acknowledgment or payment under this section must be replied How pleaded (Kempe v. Gibbon, 9 Q. B. 609); secus in cases falling under the next section. 24. In actions grounded upon any simple contract no acknowledgment or promise shall be deemed sufficient evidence of a new or continuing contract (s), whereby to take any case out of the operation of the provisions of this Act in relation to the limitation of actions, or to deprive any party of the benefit thereof, unless such acknowledgment or promise (t) shall be made or contained by or in some writing to be signed by the party chargeable thereby (u); and where there shall be two or more joint contractors, or executors, or administrators of any contractor, no such joint contractor, executor, or administrator, shall lose the benefit of this Act, 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: provided always that nothing herein contained shall alter, or take away, or lessen the effect of any payment of any principal or interest made by any person whomsoever (v). ment or pay (s) Unlike the previous section, the present one does not expressly pro- Acknowledgvide that an acknowledgment shall renew a liability on a simple contract. ment in acIt merely provides that the acknowledgment or promise, when not evidenced tions of simby payment, must be in writing. This difference between the two sections ple contract. arises from the fact that, where the liability arises on a simple contract, the acknowledgment, or promise, or payment is, per se, and independent of the provisions of the Act, a new cause of action, which it cannot be where the Need not be replied. May be declared on. To whom made. Form of acknowledg ment. When made by agent. Payment by co-debtors. original liability arises from a specialty. For the same reason it is unnecessary, in cases within the present section, to reply the acknowledgment or payment, as the plaintiff by taking issue asserts in effect that the cause of action did accrue within the prescribed period (Tanner v. Smart, 6 B. & C. 603, 606). So also the plaintiff may, if he wish, declare specially upon the defendant's new promise, as in Lechmere v. Fletcher, 1 C. & M. 623. And in Holmes v. Smith, 7 Ir. C. L. R. 461, it seems to have been considered that, in order to entitle a personal representative to rely upon an acknowledgment made to himself by the debtor, a count is required stating the existence of the debt at the time of the death of the testator, and in consideration thereof a promise by the defendant to pay. The renewal of liability by acknowledgment is confined to cases of debts acknowledged, and does not arise where the breach of contract does not result in a debt (Whitehead v. Howard, 2 Br. & B. 372). (t) The acknowledgment or promise must be made to the creditor, as otherwise no promise could be inferred. (Godwin v. Culley, 4 H. & N. 373, 380, per Bramwell, B.). The new promise to pay may be either absolute, or it may be conditional; in which case the plaintiff cannot sue till the condition has been performed (Tanner v. Smart, 6 B. & C. 603). Or, although there has been no promise, yet an acknowledgment of the debt being due may be given, from which the law will imply a promise. See, as to when the law will imply such a promise, Cassidy v. Firman, Ir. R. 1 C. L. 8, and the cases referred to there. If a defendant acknowledges the debt, but expresses his intention of not paying, no promise can of course be implied. A requisition to tax costs, with an undertaking to pay the amount, when taxed, is a sufficient acknowledgment (Archer v. Leonard, 15 Ir. Ch. R. 267). (u) Under the section as it stood, an acknowledgment signed by the agent of the debtor was not sufficient to revive a debt (Hyde v. Johnson, 2 Bing. N. C. 776). By sect. 13 of the 19 & 20 Vict. c. 97, however, it is now provided that an acknowledgment or promise made in writing by an agent of the debtor shall be sufficient. See, as to the construction of this section, Archer v. Leonard, ubi supra ; Leland v. Murphy, 16 Ir. Ch. R. 500. (v) In consequence of the concluding proviso of the section, it followed one of several that a payment by one of two co-debtors operated to revive the remedy as against the other; but now, by sect. 14 of the 19 & 20 Vict. c. 97, it is provided that one co-debtor shall not lose the benefit of the Statute by reason of a payment by another co-debtor. How payment to be made. Endorsement of payment by creditor not to take case out of Statute. It is not necessary that the payment should be actually made in money. It may be made in goods (Hooper v. Stephens, 4 A. & E. 71). În Maber v. Maber, L. R. 2 Ex. 153, it was held that where a debtor put his hand in his pocket, as if to get out the money to make a payment on account, but was stopped by the plaintiff, who wrote a receipt for the amount about to be paid, and gave it to the debtor's wife, saying that he would make her a present of the money, the debt was taken out of the Statute of Limitations. 25. No endorsement or memorandum of any payment written or made upon any promissory note, bill of exchange or other writing (w), by or on 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 ope- 9 Geo. 4. ration of the provisions of this Act in relation to the limita-14, 8. 3. tion of actions. (w) The "other writing" spoken of here means a writing containing the "Other wricontract by which the party is to be bound; and the words do not apply ting." therefore to a memorandum made elsewhere (Bradley v. James, 13 C. B. 822). made. (z) When the indorsement was made by a person at the request of both By whom parties, it was held by Pennefather, B., that it was sufficient evidence to take the case out of the Statute (Chatterton v. M'Alister, Ir. Cir. Rep. 46). 26. This Act shall be deemed and taken to apply to the case of any debt alleged by way of set-off on the part of any defendant. 27. 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 on stamps. As to debts way of setoff alleged by 9 Geo. c. 14, 8. 4. Memorandus not to require With respect to the duration and continuance of writs to continuance prevent the operation of any Statute of Limitation : 28. No writ of summons and plaint shall be in force for the purpose of service for more than six calendar months from the day of the date thereof, including the day of such date (y); but if any defendant therein named shall not have been served therewith, the original or duplicate writ of summons and plaint may be renewed at any time before its expiration for six calendar months from the date of such renewal (2), and so from time to time during the currency of the renewed writ, by being marked with the common seal of the Superior Courts, with a memorandum, signed or initialed by the officer, of the date of the day, month, and year of such renewal provided always that no writ of summons and plaint so renewed shall be available to prevent the operation of any Statute whereby the time for the commencement of the action may be limited, unless such renewal shall be had by leave of the Court or a Judge on an affidavit to satisfy the said Court or a Judge that reasonable diligence was used to effect service thereof (a). of writs. Renewal of mons to save the Statute and for other writs of sum of Limitation purposes, 15 & 16 Vict. c. 76, s. 11. computed. (y) The day of the date of the writ is to be reckoned in the six months How time during which it remains in force; and, therefore, a writ issued on the 15th June is not in force on the 15th December following, and cannot be renewed upon that day (O'Leary v. Loftus, 10 Ir. Jur. N. S. 133). When last day falls on a holiday. Where writ renewed. Renewing vent opera When the last day of the six months falls upon a Sunday or holiday, the following day is not to be reckoned in the period provided by the Act, notwithstanding the 6th G. O. of 1854 (Evans v. Jones, 2 B. & S. 45). (z) If a writ has not been renewed within the prescribed period, and there has been no default on the part of the officer of the Court, the Court cannot order a writ to be renewed nunc pro tunc (Nazer v. Wade, 1 B. & S. 728). The day upon which a writ is renewed is to be reckoned in the period of six months during which it remains in force (Anonymous, 1 H. & C. 664). (a) If there be several defendants, and any one of them cannot be served, writ to pre- although reasonable diligence be used for that purpose, the Court will make an order for the renewal of the writ, although service might have been effected on the other defendants, but was not (Dickson v. Capes, 11 Ir. C. L. R. where several 334); and the renewal will operate to prevent the Statute running in favour of the others. tion of Statutes of limitation defendants. Renewal of writs issued before this act. 1516 Vict. c. 76, s. 12. Production of 29. Where any writ of summons shall have been issued in any action before and shall be in force at the commencement of this Act, such writ may, at any time before the expiration thereof, be renewed under the provisions of and in the manner directed by this Act; and where any writ of summons, or capias ad respondendum issued in continuation of a preceding writ, according to the provisions of an Act passed in a session of Parliament holden in the third and fourth years of the reign of Her Majesty the Queen, shall be in force and unexpired, or where one calendar month next after the expiration thereof shall not have elapsed at the commencement of this Act, such continuing writ may, without being returned non est inventus, or entered of record, according to the provisions of the said Act of Her Majesty the Queen, be filed in the proper office of the Court within one calendar month next after the expiration of such writ, or within twenty days after the commencement of this Act; and the original writ of summons or capias in such action may thereupon, but within the same period of one month next after the expiration of the continuing writ, or within twenty days after the commencement of this Act, be renewed, under the provisions of and in the manner directed by this act; and every such writ shall after such renewal have the same duration and effect for all purposes, and shall, if necessary, be subsequently renewed, in the same manner as if it had originally issued under the authority of this Act. 30. The production of the writ of summons and plaint, renewed writ purporting to be marked with the common seal of the said commence- Superior Courts, and initialed by the said officer, showing action, the same to have been renewed according to this act, shall be ment of sufficient evidence of its having been so renewed, and of the 15 & 16 Viet. commencement of the action as of the first date of such renewed writ, for all purposes whatsoever. c. 76, s. 13. With respect to the service of such writs of summons and Service of plaint (b): writs. county. 15. he 31. The writ of summons and plaint may be served in any Writs may place or county in which the defendant may be found within served in any the jurisdiction of the Court, and not out of said jurisdiction, unless by an order of the Court or Judge (c); and the person 15 & 16 Viet. serving the same is hereby required, on the day of such ser- c.76, ss. 14, vice, or at latest on the day next after, to endorse on the writ the place and day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of no appearance and defence, to proceed under this Act (d); and every affidavit of service of such writ shall mention the day on which such endorsement was made. to be effected in general. (b) This and the next four sections provide for the service of the writ of How service summons and plaint in ordinary cases. The service must, where reasonably practicable, be upon the defendant personally (vide p. 26, note (e)). Where personal service has not been effected, notwithstanding that due and reasonable diligence has been exercised, service may be effected by serving some member of the defendant's family or household at his residence, provided he be within the jurisdiction (vide p. 28, notes (ƒ), (h), post). When service cannot be effected in either of the two modes mentioned, either in consequence of the defendant avoiding service, or being out of the jurisdiction, service must be substituted under the 34th section; in which case it will be necessary to apply to the Court or a Judge. When service has been effected, the person who effects it must endorse the particulars of service upon the writ (vide note (d), infra); and where it becomes necessary to mark a judgment by default, an affidavit of service has to be made (sect. 35). Sect. 33 provides for service upon a corporation. Where the action is one of replevin, the manner in which service is to be effected is provided for by sect. 228, post; and in actions of ejectment by sect. 197, post, and sects. 55, 56, 57, and 74 of 23 & 24 Vict. c. 154. (c) Unless by an order of the Court or Judge." This refers to cases where leave is obtained to substitute service on a defendant out of the jurisdiction under the 34th section of the Act. In replevin and eject ment. of service. (d) The provisions of the section as to the indorsement upon the writ of Indorsement the place and day of service, are mandatory, and not directory; and in case the prescribed indorsement be not made within the time mentioned, the Court has no jurisdiction to supply the omission (Studdert v. Leary, 7 Ir. Cannot be C. L. R. 543; Vandeleur v. Smith, 3 Ir. C. L. R. 86). The provisions of dispensed the Act, moreover, apply to actions of ejectment as well as to ordinary actions (Vandeleur v. Smith, ubi supra), and to cases where the service is substituted, as well as to cases where it is personal (Rogers v. Burke, 9 Ir. C. L. R. App. 34). with. |