The case of Waters v. Earl of Thanet (d), where the defendant gave an acknowledgment of certain overdue bills of exchange in a memorandum thus worded: "I hereby debar myself of all future plea of the Statute of Limitations in case of my being sued for the recovery of the amounts of the said bills and of the interest accruing thereon at the time of my being so sued; and I hereby promise to pay them, separately or conjointly, with the full amount of legal interest on each or both of them, whenever my circumstances may enable me to do so, and I may be called upon for that purpose.' Now in this case the defendant had become able to pay the bills above six years before the action was brought; but the plaintiff was ignorant of it. But it was decided, that when a debtor protected by the statute promises to pay whenever he may be able, the creditor is expected to be on the watch, and when he brings his action *must prove the ability which revives his right. The period at which it is revived is that of the fact taking place, not of his becoming acquainted with it. These decisions have been thought unsupported by the case of Heyling v. Hastings, from which that of Tanner v. Smart derived its authority, and even at variance with it: the words there used by the debtor were, "Prove it, and I will pay you:" and it was held, that "the promise, though conditional, shall bring it back within the statute, for the defendant waives the benefit of the Act as much as by an express promise;" and Holt, C J., having reserved the point, ten judges conferred and approved of the judgment; adding, that if the creditor proved the delivery of the goods, which he might do at the trial, it would suffice to take the case out of the statute (e). The law, however, seems settled (f): and in a more recent case it was held that although a simple acknowledgment of the debt, without any qualification, may be sufficient to bar the Statute of Limitations, because the law will infer a promise to pay the debt; yet if there be anything to qualify the acknowledgment or make it doubtful it is not *sufficient. Therefore, where there was merely a proposal that if so much was allowed on one side so much should be allowed on the other, and, independently of such condition, there was no acknowledgment of the debt, it was considered to be no bar to the statute (g). Similarly it would seem, though it is not, it is believed, expressly decided, "that a letter," to quote the words of 31ellish, L. J. (h), "which is stated to be without prejudice cannot be relied upon to take a case out of the Statute of Limitations, for it cannot do so unless it can be relied upon as a new contract. Now if a man says his letter is without prejudice, that is tantamount to saying 'I make you an offer which you may accept or not, as you like; but if you do not accept it, the having made it is to have no effect at all.' It appears to me, not on the grounds of bad faith, but on the construction of the document, that when a man says in his letter it is to be without prejudice, he cannot be held to have entered into any contract by it if the offer contained in it is not accepted."1
(b) See also Spong v. Wright, 9 M. & W. 629; Morrell v. Frith, supra; and Cripps v. Davis, 12 M. & W. 159; Bush r. Martin, 33 L. J. (Ex.) 17; Cock-erill v. Sparke, 32 L. J. (Ex. 118; Banner v. Berridge, 18 Ch. Div. 254; 50 L. J. (Ch.) 630; Green v. Humphreys, 26 Ch. Div. 474; 53 L. J. (Ch.) 625; reversing S. C, 23 Ch. Div. 207; 52 L. J. (Ch.) 659.
(c) Lee v. Wilmot, L. R. 1 Ex. 364; 35 L. J. (Ex.) 175. See also Chasemore v. Turner, L. R. 10 Q. B. 500, 45 L. J. (Q. B., etc.) 66; Quincey v. Sharpe, 1 Ex. D. 72, 45 L. J. (Q. B., etc.) 347; Skeet v. Lindsay, 2 Ex. D. 314, 46 L. J. (Q. B., etc.) 249.
(d) 2 Q. B. (42 E. C. L. B.) 757.
(e) 1 Ld. Raym. 398, and 421; Salk. 29, S. C.
(f) Smith v. Thome, 21 L. J. (Q. B.) 199; 18 Q. B. (83 E. C. L. B. ) 134, Ex. Ch.; Rackhara v. Marriott, 26 L. J. (Ex.) 315; 2 H. & N. 196 (Ex. Ch.); Hughes v. Paramore, 24 L. J. (Ch.) 681; Everett v. Robertson, 28 L.J. (Q. B.) 23.
(g) Francis v. Hawkesley, 28 L. J. (Q. B.) 370; Goate v. Goate, 1 H. & N. 29; Buckmaster v. Russell, 10 C. B. (N. S.) (100 E. C L. B.) 745.
(h) In re River Steamer Co., Mitchell's claim, L R. 6 Ch. 831.
1 Bell v. Morrison, 1 Peters, 351; Barlow v. Barnes, 1 Dillon, 418; Crawford v. Childress, 1 Ala. N. S. 482; Worthington v. De Bardlekin, 33 Ark. 651; Walker v. Griggs, 32 Ga. 119; Sumner v. Sumner, 1 Mete. 394; Richardson
If the evidence be of a promise to pay on condition, and the condition be performed, it becomes absolute, and is a promise to pay on request. For instance, where the acknowledgment was, "I am *in receipt of your letter of the 6th, handed me this morning. I have forwarded it to Mrs. J., with a request she will come over without delay to settle the business. May I beg you will write to her by the first post to press payment, and what she may be short I will assist to make up. I send you her address." This was held sufficient, it having been proved on behalf of the plaintiff that Mrs. J. had been applied to on his part for payment, but without effect (i).1
In short, where Lord Tenterden's Act is satisfied by a writing duly signed, "there must be one of these three things to take the case out of the Statute [of Limitations]. Either there must be an acknowledgment of the debt, from which a promise to pay is to be implied; or, secondly, there must be an unconditional promise to pay the debt, or, thirdly, there must be a conditional promise to pay the debt, and evidence that the condition has been performed" (k).
It has been also held, that an acknowledgment may prima facie satisfy the statute, but that other evidence is admissible to rebut such inference; such, for example, as shows that a document was *drawn
v. Thomas, 13 Gray, 381; Ten Eyck v. Wing, 1 Mich. 74; McDonald v. Grey, 29 Tex. 80.
(i) Humphreys v. Jones, 14 M. & W. 3, per Parke, B.