(c) Morgan v. Rowlands, L. E. 7 Q. B. 493; 41 L. J. (Q. B.) 187. 532 payment, if the party against whom it is set off did not object to it when his account was settled (d). The principle of this is, that the going through an account with items on both sides, and striking a balance, converts a set-off into a payment, and is a "transaction out of which a new consideration may be said to arise (e). That money also need not actually pass, is shown by the following case. After a debt due to the plaintiff from his son had been barred by the statute, the plaintiff, his son, and his son's wife, had an interview at which the interest was calculated. The plaintiff's son then put his hand into his pocket as if to get out the money to pay it. The plaintiff stopped him, and writing a receipt for the interest, gave it to his son's wife, saying that he would make her a present of the money. No money actually passed between the parties, but the transaction was held to be a sufficient payment to take the debt out of the Statute of Limitations (f).

Where a specific sum of money is due, as upon a promissory note, the mere fact of a payment of a smaller sum by the debtor to the creditor is some evidence of a part payment to take the case out of the Statute of Limitations (g). The object and effect of such payments are rather matters of evidence than of law (h); as where a party, on being applied to for interest, paid a sovereign, and said he owed the money but would not pay it, it was considered to be a question for the jury to say *whether he intended to refuse payment, or merely spoke in jest (i). The question will always turn upon the distinction between cross demands and set-off on the one hand, and part payment on the other, a distinction clear enough in principle, but dependent for its application on facts and therefore not always applicable with ease (k).

(d) Scholey v. Walton, 12 M. & W. 510.

(e) See also Asbby v. James, 11 M. & W. 542.

(f) Maber v. Maber, L. R. 2 Ex. 153; 36 L. J. (Ex.) 70.

(g) Burn v. Boulton, 15 L. J. (C P.) 97; 2 C. B. (52 E. C. L. R.) 476, S. C.

(h) Nashu. Hodgson 23 L. J. (Chanc.) 780.

(i) Wainman v. Kynman, 1 Excb. 118.

On the construction of this part of Lord Tenterden's Act, the case of Waters v. Tompkins (l) contains the "following important observations, with which this exception will be amply explained :-"On the first perusal of the first clause of Lord Tenterden's Act, it would seem that the proviso takes the case of part payment of principal, or payment of interest, out of the operation of the statute altogether; and therefore, that these facts would not only have the same effect, but might be proved exactly in the same way that they would have been, if the Act had not passed; and consequently, by the defendant's parol admission, which species of proof of a simple fact is not exposed to the same degree of clanger as attended the admission of acknowledgments of the debt itself. But the Court of Exchequer, in the case of Willis v. Newham (m), decided that the verbal acknowledgment of part payment of a debt was insufficient *and they construed the act as containing a general provision, that, in no case should an acknowledgment or promise by words only be sufficient to take the case out of the Statute of Limitations, whether such acknowledgment were of the existence of the debt, or of the fact of part payment; and they considered the proviso as leaving to the fact of part payment, if properly proved, that is, not by an acknowledgment only, the same effect which it had before the statute.

(k) Worthington v. Grimsditch, 15 L. J. (Q. B.) 52; 7 Q. B. (53 E. C. L. R.) 479, S. C.; Waugh v. Cope, 6 M. & W. 824. (l) 2 (Jr. M. & R. 726. (m) 3 Y. & J. 518. 534

And this construction of the Act certainly extends the remedy, and obviates the mischief to be guarded against, in a greater degree than the words taken in their ordinary sense would do. But if part payment, or payment of interest, is proved in any legal mode, and not by admission only, this case is no authority that such proof is not sufficient. The Act of 9 Geo. IV., as explained by that case, does not prohibit or qualify the ordinary mode of legal proof in any respect, save that it requires something more than mere admission. The meaning of part payment of the principal, is not the naked fact of payment of a sum of money, but payment of a smaller on account of a greater sum, due from the person making the payment to him to whom it is made; which part payment implies an admission of such greater sum being then due, and a promise to pay it: and the reason why the effect of such a payment is not lessened by the Act is, that it is not a mere acknowledgment *by words, but it is coupled with a fact. The same observation applies to the payment of interest. But if the payment of a sum of money is proved as a fact, and not by a mere admission, there is nothing which requires the appropriation to a particular account to be proved by an express declaration of the party making it at the time; such appropriation may be shown by any medium of proof, and many instances might be put of full and cogent proof of such appropriation, where nothing was said at the time by the debtor; as for example, if the day before the debtor had called and informed the creditor that he would, the day after, send his clerk with a specific sum, on account of the larger debt, then described, for which the action was brought, and should require a receipt for it, and the clerk did pay that-specific sum, and took the creditor's receipt, expressly stating the account on which it was received, and delivered it to his employer; there could be no doubt that such evidence would not only be admissible, but, if distinctly proved, at least as satisfactory as a declaration accompanying the act of payment." After considering attentively the reasoning here quoted, the student will be prepared to hear, that by a subsequent case, in which the Court of Exchequer Chamber distinctly overruled Willis v. Newham, it was decided that as regards the evidence of payment, an admission of payment suffices, *although not in writing, but merely by word of mouth (n).1 The sixth exception to which I have to advert is that arising out of the exception in the statute of James the First, of accounts between merchant and merchant. I advert to this only for the purpose of showing that this exception, like several others, has been abrogated by the statute 19 & 20 Vict., c. 97, s. 9. And now "all actions of account or for not accounting, and suits for such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, shall be commenced and sued within six years after the cause of such actions or suits, or when such cause has already arisen, then within six years after the passing of this Act; and no claim in respect of a matter which arose more than six years before the commencement of such action or suit shall be enforceable by action or suit by reason only of some other matter of claim comprised in the same account having arisen within six years next before the commencement of such action or suit" (o).