(k) In re River Steamer Co., supra, per Mellish, L. J., at p. 828. See also, as to the duty of the plaintiff to show that the condition has been performed, per Pollock, C. B., in Hart v. Prendergast, 14 M. & W. 741, 745, ante, p. *524.

1 Leigh v. Linthicum, 30 Tex. 100; Aldrete v. Demitt's Heirs, 32 lb. 575; Lafarge v. Jayne, 5 Pa. St. 410; Mattocks v. Chadwick, 71 Me. 313; Tompkins V. Brown, 1 Den. 247.

34 529 up with a view to the debt being paid in a particular way (l).

It is not necessary that the sum due should be named : but if there is an unequivocal admission of the debt, and a difference only upon the amount, the operation of the statute is barred (m).

Whether an acknowledgment is a sufficient admission or not to take a case out of the statute, being substantially a question of the construction of a written document, is for the judge and not the jury (n).

The promise or acknowledgment must, in all cases, be made before action is brought; it is unavailable if made afterwards (o).

As observed before (p), the Court of Common Pleas decided in Hyde v. Johnson (q) that, there being no mention of an agent, a signature by an agent was not sufficient for the purpose, so that it is curious enough to observe, that while under this Act a man's agent could not bind him by the acknowledgment of a simple contract debt, yet under 3 & 4 Wm. IV., c. 24, s. 5 (r), the agent may do so by acknowledging a bond debt which is a contract *of so much more importance in the eye of the law. But this anomaly has been removed, and the signature of an agent, both within this statute and the 16 & 17 Vict., c. 113 (Irish Com. L. Procedure Act), ss. 24 and 27, is now sufficient (s).

(l) Cripps v. Davis, 12 M. & W. 159. See Collinson v. Margesson, 27 L. J. (Ex.) 305.

(m) Waller v. Lacy, 1 M. & Gr. (39 E. C. L. R.) 54; Gardner v. M'Mahon, 3 Q. B. (43 E. C L. R.) 561.

(n) Sidwell v. Mason, 26 L. J. (Ex.) 407; 2 H. & N. 306.

(o) Bateman v. Pinder, 3 Q. B. (43 E. C. L. R.) 574.

(p) Ante, pp. *405, *406.

(q) 2 Bing. N. C. (29 E. C. L. R.) 776.

(r) Ante, p. *510.

(s) 19 & 20 Vict., c. 97, s. 13. 530

There is still another and a fifth exception. This arises from a clause in Lord Tenterden's Act, which exempts from the operation of that Act the effect of any payment, whether of principal or interest. Before Lord Tenterden's Act, a part payment, whether of principal or interest, had the effect of taking the debt in respect of which it was paid out of the operation of the Statute of Limitations (t), and therefore will have the same effect since (u). Indeed, from the case of Whitcomb v. Whiting just cited, you will see that where there were several joint debtors, payment by one took the debt out of the operation of the statute as against the others. But it has been enacted, that for the future part payment by one shall not deprive another of the benefit of the enactments of the Statute of Limitations (x).

*There have been many decisions as to what is a sufficient payment to bar the statute, of which some notice is expedient, In Bateman v. Pin-der (y), Wighlman, J., said, "Part payment is an acknowledgment, and an acknowledgment, though not a promise in terms, may amount to one virtually; but, where it is not made till after action brought, it cannot prevent the operation of the statute." Part payment by an agent must therefore be by such an agent as is authorized to make such payment by the parties to be bound by this act of his; and, therefore, if made by a receiver appointed by the Court of Chancery without the sanction of such parties, his payments do not amount to any acknowledgment by them, and do not against them take the case out of the statute (z). And this part payment may be made by a bill, as well as by money, for the statute intending to make a distinction between mere acknowledgments by word of mouth, and acknowledgments proved by the act of payment, it cannot be material whether such payment be afterwards avoided by the thing turning out to be worthless. The intention and the act by which it is evinced remain the same. The word payment must be taken to be used by the Legislature in a popular sense large enough to include *the species of payment by a bill (a). Part payment of interest equally suffices (b). But payment of interest under compulsion of law is not sufficient to take the principal debt out of the operation of the Statute of Limitations, for it is not such a payment that a promise to pay the principal can be in fact inferred from it. On this ground, where within six years before action the plaintiff had sued the defendants for interest upon a note made payable with interest, and the defendants defended the suit, the plaintiff recovered judgment for the interest claimed, and the defendants thereupon paid the amount recovered, this payment was held insufficient(c). Nor is it essential that money or a bill should actually pass; for the statement of a mutual settlement of account between the parties is equivalent to a payment if the party to whom the debt is owing agree that it shall be paid by the setting off of the same amount, so that the sum set off is evidence of

{t) Whitcomb v. Whiting, Dougl. 652; Goddard v. Ingram, 3 Q. B. (43 E. CLR.) 839.

(u) Wyatt v. Hodson, 8 Bing. (21 E. C.L. R.) 309; Channel v. Ditchburn,5 M. & W. 494; Bamfield v. Tupper, 7 Exch. 27; Fordham v. Wallis, 22 L. J. (Chanc.) 548. And see In re Rutherford, Brown v. Rutherford, 14 Ch. Div. 687; 49 L. J. (Ch.) 654, reversing lb. 345.

(x) 19 & 20 Vict., c. 97, s. 14. Thompson v. Waithman, 26 L. J. (Ch.) 134; 3 Drew. 628; Jackson v. Woolley, 27 L. J. (Q. B.)448 (Ex. Ch.), reversing lb. 181; Ridd v. Moggridge, 2H. &N. 567.

(y) 3 Q. B. (43 E. C. L. R.) 574.

(z) Whitley v. Lowe, 2 De G. & J. 704.

(a) Turney v. Dodwell, 23 L. J. (Q. B.) 137; 3 E. & B. (77 E. C. L. R.) 136

(b) Dowling v. Ford, 11 M. & W. 329.