Part II. Payment. v. Cox, 2 Stra. 1194. are more accounts than one between a debtor and his creditor, as, for instance, one debt on a bond, and another on a simple contract: if the debtor when he pays a sum of money declare that he pays it specifically on either of these accounts, the creditor cannot afterwards place Goddard it to the other. But if the payment be general, and no specific application made by the debtor at the time of payment, the creditor may place it to which account he pleases, unless where one account is with the debtor, as executor, and the other in his own right, in which case the law will apply the payment to the money due from himself individually, and not permit the creditor to apply it to the other account. cases too where an account is running on, and payments made generally on account, the law will apply the money to the old subsisting account, and not suffer the creditor at a subseMeggot v, quent time to apply it to the latter articles. As where a trader being indebted pays money, Ray. 286. and, after leaving off trade, contracts a further debt, and makes further payments, if nothing be said as to the application, the law applies the payment to the first debt, so as to prevent the creditor from taking out a commission of bankruptcy, if sufficient has been paid to reduce Mills, I Lord Dawe v. Holds worth, Peake's Cas. 64. ley v. In the debt, contracted while the party was a Hammers- trader, under 100% Again, where a person Knowlys, keeping cash with a banker, deposited with 2 Es. Cas. him the note of a third person for a sum of money, telling him at the same time that it was 66. a note a note made for his accommodation, and afterwards paid a sum of money into the banker's hands without making any specific appropriation of it, Lord Kenyon held that this money must be placed, as far as it would go, towards the discharge of the then existing debt, and that the banker could not hold the maker of the note responsible for more than the balance remaining due at the time of such payment, though he afterwards trusted his debtor with a further sum of money. The most ordinary Special Pleas are, 1. A Set-off of a Debt due from the plaintiff to the defendant. 2. The Statute of Limitations. 3. A Tender of the Money before the commencement of the action. Ch. II. f.3. Dale v. Sollet, 4 Burr. As to the first, it should be observed, that where a particular sum of money is received by the defendant, who is entitled to retain a 2133. part of it for his labour; or the plaintiff agrees to money being retained by the defendant to satisfy himself some other demand; these are not properly matters of set-off, but are evidence under the general issue as payment. But where it becomes necessary for the defendant to have recourse to the statute of set-off, he must prove the same facts in support of his counter demand, as if he himself were plaintiff in another action; and if he has not pleaded his set-off, but given notice of it, he must be prepared to prove the delivery of such notice. A set-off can only be made. where Part II. where both the plaintiff's and defendant's demands are certain and liquidated. Statute of Limita tions. Gould v. 838. Salk. The Statute of Limitations is pleaded in two forms; as, first, that the defendant did not Johnson, undertake within six years next before the 2LdRaym. commencement of the action; or, 2dly, That the cause of action did not accrue within that time. The last form is applicable to all cases, and the only one that can be made use of where the promise is executory, viz. to pay money; or do an act at a distant time; for till that time is past, no cause of action accrues. In either case the issue is thrown on the plaintiff, who, on the common replication, must shew a promise or acknowledgment of the debt by the defendant within six years next before Catling v. the filing of the declaration. Where a mutual unSkoulding, 6T. Rep. liquidated account, consisting of cross demands, 189. is subsisting between the parties, if any item be Kirkman, within six years, this prevents the operation of the statute on the rest, for each new item is an acknowledgment that the account remains unsettled: but, if the demand be all on one side, one item being within six years will not take the others out of the statute (g). In cases where the statute has operated, a very little Cranch v. Peake's Cas. 121. Cotes v. Harris, Bul. N.P. 149. (g) The exception in the statute as to Merchants' Accounts, does not properly fall within the plan of this Work, which, as often before observed, is confined to the proof required in actions, and is not intended to discuss the Law, further than is necessary to point out the Evidence required; but I cannot avoid referring the reader to the very elaborate and learned note of Mr. Serjeant Williams, on this subject, in his edition of Saun ders, vol. ii. p. 127. matter "I am Ch.II. L. 3. 1 Limitations. Heyling v. Has tings, Salk. 29. 2 and 3, by Ld Mansfield, in 4 Law rence v. Peake's Cas. 93. yea,bart. v. Four aker, 1999. matter has been held to be sufficient to revive the debt, and the slightest acknowledgment will raise a fresh promise, or give a fresh cause of action. Thus, if the defendant say, prove your debt, and I will pay you';" or, ready to account, but nothing is due;" or, "if he has any demand on me, it shall be settled '," or, on meeting the plaintiff soon after the delivery of his bill, say, you have made Trueman an extravagant demand;" without insisting that v. Fenton, Cowp.548 it has been paid*; or, "that he was surety for another person who had the money, but Worral, that he is willing to pay half of it; all these being acknowledgments that the defendant was once liable, and that there is an unsettled account between the parties, the law raises a 2 Burr. promise to pay, on the plaintiff proving the existence of the debt. So a letter written by the defendant to the plaintiff, on being sued, couched in ambiguous terms, neither expressly admitting nor denying the debt, may be left to the Jury to consider, whether it amounts to an acknowledgment. But if the defendant deny that any debt was ever due, as if he say, in an owen v. action by an executor, "I acknowledge the Wooley receipt of the money, but the testator gave it 148. me;" this does not take the case out of the comb statute. Payment of interest, by one of several Whiting, Dougi. makers of a joint and several promissory note, 652 takes it out of the statute as to all; and, in Fairlike manner, if one become bankrupt, and bank, the creditor prove his debt, and receive a 340. dividend Lloyd v. 2 T. Rep. 760. Bul. N.P. Whit Jackson v. 2 H. Blac. Part II. dividend under his commission, this takes it Statute of out of the statute, as against the others Limita tions. Budd v. Birkenhead, Salk. 420. Smith v. Bower, 6 T. Rep. 662. also. The plea applying to the time of the commencement of the action, as it appears on the declaration, it is necessary for the plaintiff, in cases where the promise was not made within six years before that time, but where a writ was sued out and returned within six years after the cause of action accrued, to state such writ and the day it issued specially in the replication. Where there have been more writs than one, it must appear that they are regular continuances of each other, as a latitat on a Bill of Middlesex, or the like; for an attachment of privilege would be no continuance of a common writ, being process of a different nature. To this replication the defendant rejoins either by denying the writ, if none in fact issued, or stating the exact day it was sued out, if the plaintiff only mentions the teste, and pleading that he did not undertake within six years next before the suing it out. In the last case the plaintiff's evidence will be the same as if he had traversed the plea, except as to the time. In the other a matter of record being put in issue, namely, the suing forth a writ duly returned and filed, the Court inspects the record, and gives judgment as in other cases on the plea of nul tiel record. The plaintiff may also reply that he origiginally commenced his action in an inferior court |