No part of Lord Tenterden's Act has given rise to more litigation than this saving clause; but it is now settled that the acknowledgment, in order to bar the Statute of Limitations, must, except in the case afterwards mentioned of a conditional promise which has become absolute by the performance of the condition, contain an unconditional promise to pay. Such promise need not indeed be express, but the law will imply it from an acknowledgment of the debt, provided it be an acknowledgment or admission so distinct that a promise to pay may be reasonably inferred from it (r).
(q) I. e. 21 Jac. 1, c. 16, the English Statute of Limitations, and 10 Car. 1, sess. 2, c. 6, a similar enactment for Ireland.
Many of the older cases display a different doctrine (s). *These, however, are expressly overruled by the leading case of Tanner v. Smart (t), where, in an elaborate judgment, Lord Tenterden, C. J., says, "The only principle upon which it (an acknowledgment) can be held to be an answer to the statute is this, that an acknowledgment is evidence of a new promise, and as such constitutes a new cause of action, and supports and establishes the promise which the declaration states. Upon this principle, whenever the acknowledgment supports any of the promises in the declaration, the plaintiff succeeds; when it does not support them, though it may show clearly that the debt has never been paid,, but is still a subsisting debt, the plaintiff fails." This decision was based chiefly on that of Heyling v. Hastings (u), one of the oldest cases on the Statute of Limitations, and has been recognized and cited in almost every subsequent case on the point (x).
(r) Collis v. Stack, 26 L. J. (Ex.) 138; 1 H. & N. 605; Holmes v. Mack-roll, 3 C. B. (N. S.) (91 E. C. L. R.) 789; Godwin v. Culley, 4 H. & N. 373. Holmes v. Smith, 8 Ir. (Com. Law Rep.) 424; Comforth v. Smithard, 29 L. J. (Ex.) 228; Bourdin v. Greenwood, L. R. 13 Eq. 281; 41 L. J. (Ch.) 73. "It has been established by Tanner v. Smart, and similar cases, that a mere acknowledgment will be insufficient, if the debtor states either that he will not pay, or that he will pay only upon a condition which remains unfulfilled, or at a time which has not elapsed. Beyond establishing this principle, I do not think that much assistance is to be obtained from a perusal of the cases, for one carelessly written letter is not of much use in construing another." Per Bramwell, L. J., in Meyerhof v. Froehlich, 4 C. P. D. (C. A.) 63, 65; 48 L. J. (Q. B. etc.,) 43,45.
(s) Yea v. Fouraker, 2 Burr. 1099; Thornton v. Illingworth, 2 B. & C. (9 E. C. L. R.) 824.
(t) 6 B. & C. (13 E. C L. R.) 603; Turney v. Dodwell, 23 L. J. (Q. B.) 137; 3 E. & B. (77 E. C. L. R.) 136, S. C.
(u) Comyn, 54; Salk. 29, S. C.
As long as the doctrine prevailed, that it sufficed to show an acknowledgment which rebutted the presumption arising from the lapse of time that the *claim was satisfied, it was not only immaterial whether a promise were made or not, but a condition with which such promise, if made, might chance to be coupled, would nowise have defeated the effect and virtue of the acknowledgment: for the acknowledgment was held to be in itself a bar to the statute, and no promise, either express or implied, was required. In Dowthwaite v. Tibbut (y), the debtor said, he "would not," and in Leaper v. Tatton (z), he "could not" pay; and yet in both they were held to have sufficiently admitted the debt. But according to the doctrine now adopted from Tanner v. Smart, any conditional promise defeats the acknowledgment (unless, indeed, the condition be shown to have been performed): so that, however strongly the debt may be admitted, unless there be a promise to pay it, express or implied, it cannot be enforced. Lord Tenterden said, in Tanner v. Smart, "Upon a general acknowledgment, where nothing is said to prevent it, a promise to pay may and ought to be implied; but where the party guards his acknowledgment, and accompanies it with an express declaration to prevent any such implication, why shall not the rule 'Expression facit cessare taciturn' prevail?" So rigorously has this been followed, that, in the case of Hart v. Prendergast (a), the following *written statement was held an insufficient "acknowledg(x) Morrell v. Frith, 3 M. & W. 402; Bateman v. Pinder, 3 Q. B. (43 E. C. L. R.) 574; Hurst v. Parker, 1 B. & Ald. 92; Cripps v. Davis, 12 M. & W. 159; Hart v. Prendergast, 15 L. J. (Ex.) 223; 14 M. & W. 741, S. C; Williams v. Griffith, 3 Ex. 335.
(y) 5 M. & Sel. 75. (z) 16 East, 420. (a) Supra.
Merit or promise" to satisfy the statute: "I will not fail to meet Mr. H. (the plaintiff) on fair terms, and have now a hope that before, perhaps, a week from this date I shall have it in my power to pay him, at all events, a portion of the debt, when we shall settle about the liquidation of the balance." Pollock, C. B., there says, "It is not sufficient that the document contains a promise by the defendant to pay when he is able, or by bill, or a mere expectation that he shall pay at some future time; it should contain either an unqualified promise to pay, that is, a promise to pay on request, or if it be a conditional promise, or a promise to pay on the arrival of a certain period, the performance of the condition or the arrival of that period should be proved by the plaintiff. The only question in the present case is, whether this letter contains a promise to pay the debt on request. Now, certainly, it does not in terms contain such a promise" (b). On the other hand, a letter containing these words, "I will try to pay you a little at a time if you will let me. I am sure that I am anxious to get out of your debt. I *will endeavour to send you a little next week :" has been held sufficient, as an unequivocal acknowledgment, not limited by a refusal or any other qualifying statement (c).
This doctrine as to conditional ability has been carried further, on the authority of Tanner v. Smart, in