(hh) Smith v. Simms, 9 Ga, 418; Davidson v. Delano, 11 Allen, 523.

(i) Mills v. Fowkes, 5 Bing. N. C. 455; Nash v. Hodgson. 6 De G.. M. & G. 474, 31 Eng. L. & Eq. 555. But see Ayer v. Hawkins, 19 Vt. 26. And see ante, vol. ii p. *630, n. (o)•

(j) Burn v. Boulton, 2 C B 476. And see State Bank v. Wooddy, 5 Eng. 638; Wood v. Wylds, 6 id. 754. See also Pond v, Williams, 1 Gray, 630.

(k) Burn v. Boulton, 2 C. B. 476.

(l) Evans v. Davies, 4 A & E. 840.

(m) Wainman v. Kynman, 1 Exch. 118.

(n) Parsonage Fund v. Osgood, 21 Me. 176; Bealev v. Greensdale, 2 Tyrw. 121, 2 Cromp. & J. 61; Sanford v. Hayes, 19 Conn. 591; Brad field v. Tapper, 7 Exch. 27, 7 Eng. L. & Eq. 541. In re Hollings-worth, 37 Ch. D. 651.

1 Payment of interest, however, under compulsion of law, not being such that a promise to pay the principal could be inferred in fact from it, is not sufficient to take struck, it has been held that this converts the items allowed into a part payment, to take the case out of the statute. (o) And a payment by the debtor for the creditor, and at his request, or to one whom the creditor owes, has the same effect as the payment to him. (p)

Lord Tenterden's act provides, "That nothing herein contained shall alter, or take away, or lessen the effect of any payment of any principal or interest made by any person." Hence, it leaves the fact of part payment to operate as before; but an interesting question has arisen, whether the preceding clause of the act, which requires that the new promise or acknowledgment shall be in writing, requires, by construction or implication, that an admission or acknowledgment of part payment shall be proved or verified by writing. The tendency of the English decisions, for some time, was to require this;(q) but *when the question arose in this country, it was held that the statute should be construed as leaving the matter of part payment where it was before, both as to the evidence of it, and as to its effect.(r) And the same view has recently been adopted in the principal debt out of the operation of the statute. Morgan v. Rowlands, L. R. 7 Q.B.493 - K

(o) Thus, in Ashby v. James, 11 M. & W. 542, it was held, that where A has an account against B, some of the items of which are more than six years old, and B has a cross-account against A, and they meet and go through both accounts, and a balance is struck in A's favor, this amounts to an agreement to set off B's claim against the earlier items of A's, out of which arises a new consideration for the payment of the balance, and takes the case out of the operation of the statute of limitations, notwithstanding the provisions of Lord Tenlerden's act. And Lord Abinger said. "I think Lord Tenterden's act does not apply at all to the fact of an account stated where there are items on both sides." [His lordship read the act.] "This is not an acknowledgment or promise by words only; it is a transaction between the parties, whereby they agree to the appropriation of items on the one side, item by item, to the satisfaction, pro tanto, of the account on the other side. The act never intended to prevent parties from making such an appropriation." And Alderson, B., said: "The courts have never laid it down that an actual statement of a mutual account will not take the case out of the statute of limitations. They have, indeed, determined that a mere parol statement of, and promise to pay, an existing debt, will not have that effect; because to hold otherwise would be to repeal the statute. The truth is, that the going through an account with items on both sides, and striking a balance, converts the set-off into payments; the going through an account where there are items on one side only, as was the case in Smith v. Forty, 4 C. & P. 126, does not alter the situation of the parties at all, or constitute any new consideration. Here the striking of a balance between the parties is evidence of an agreement that the items of the defendant's account shall be set off against the earlier items of the plaintiff's, leaving the case unaffected, either by the statute of limitations, or the set-off." And see Worthington v. Grimsditch, 7 Q. B. 479.

(p) Worthington v. Grimsditch, 7 Q, B. 479.

(q) See Willis v. New ham, 3 Younge & J 518; Waters v. Tompkins, 2 Cromp M. &. R. 723; Bayley v. Ashton, 12 A. & E. 493; Maghee v. O'Neil, 7 M. & W. 531; Eastwood v. Saville, 6 id. 615.

(r) See Williams v. Gridley, 9 Met. 482; Sibley v. Lambert, 30 Me 253. See, however, * 73, n.

England, in the Exchequer Chamber, (s)1 It has been held, * in England, that the written acknowledgment which

(s) Cleave v. Jones, 6 Exch. 573. This was an action on a promissory note, for £350, with interest. The defendant pleaded the statute of limitations. At the trial, the only evidence given by the plaintiff to take the case out of the statute, was the following unsigned entry in a book of the defendant, and in her handwriting: "1843. Cleave's interest on £350, £17 10s." Held, in the Exchequer Chamber, reversing the judgment of the court below, that this was sufficient evidence of payment of interest to the plaintiff to take the case out of the statute of .limitations. And Lord Campbell, in delivering the judgment of the court, said -"The time has come when Willis v. New-ham, having been brought before a court of error, must be overruled. The question on this record is, whether an entry in an account-book of the defendant, in her handwriting, by which there is a state-.ment that she has within six years paid interest upon the promissory note on which the action is brought, is evidence for the jury to take the case out of the statute of limitations. It was held by the learned judge who tried this case, in deference to that decision, that it was not. We are to determine that question. If Willis v. Newham was well decided, the learned judge was fully justified in saying that the entry was not evidence to go to the jury; for this very case is put in Willis v. Newham, and it is there asked 'whether such an acknowledgment would be sufficient; and the learned baron who 'delivered the judgment of the court, answers 'no; because the act says, the defendant shall not be charged except by an acknowledgment in writing, signed by him' Does the act say so or not? In our opinion the act says no such thing; and we cannot extend the provisions of the statute from a desire to prevent mischief in consirnili casu. The preamble of the 9 Geo. IV. c. 14, recites, that ' questions have arisen as to the proof and the effect of acknowledgments and promises offered in evidence for the purpose of taking the case out of the operation of the statute of limitations.' and the statute then goes on to legislate so as to guard against such questions afterwards arising. Before this statute passed, according to the construction of the 21 Jac. L c, 16, three modes were in practice to take a case out of the operation of that statute; first, an acknowledgment by words only; secondly, a promise by words only; and thirdly, part payment of principal or interest. Let us, then, see whether the 9 Geo. IV. c 14, does not confine itself to the two first, leaving the third precisely as it was before that statute passed. The words are,' that in actions of debt, &c„ no acknowledgment or promise, by words only, shall be deemed sufficient evidence of a new or continuing contract,' to take the case out of the statute,' unless such acknowledgment or promise shall be made or contained by or in some writing, to be signed by the party chargeable thereby.' Does that lessen the effect of the proof of payment of principal or interest? It does not, but is confined to acknowledgments or promises by words only; and part payment of principal or interest is not an acknowledgment by words, but by conduct. If the statute had stopped there, it would not have met the case of part payment; but to guard against all danger of such a construction being put upon it, there is a proviso in express terms, that nothing herein contained shall alter, or take away, or lessen the effect, of any payment of principal or interest,' etc. Does not that leave the effect and proof of payment exactly as it was before the statute passed ? With deference to the Court of Exchequer, I think it does. That construction of the statute seems so plain, that it cannot be strengthened by further observation. If we say, as we feel bound to do, that Willis v. Newham was improperly decided, we must return to the true construction of the statute, and hold that the evidence rejected ought to have been submitted to the jury. It would indeed be strange if Lord Tenterden had introduced, or the legislature had passed, an act to exclude evidence such as this, so likely to occur in the common course of business, and which is not open to fabrication, like a mere promise or acknowledgment by words, and, being litem scripta, cannot deceive. It is said that the effect of our decision will be to let in verbal evidence of payment; but the legislature must have thought that more mischief would the statute requires, must have the actual signature of the party himself, that of his agent not being sufficient (t) And it is held in California, that part payment indorsed on a note, whether before or after the claim is barred, does not take the case out of the statute, on the ground that the acknowledgment must be signed by the party to be charged, (tt) Generally, such in-dorsement, of interest or principal, if made by the authority of the debtor, takes the note out of the statute, (tu) And a payment of interest stops the running of the statute against the surety, as well as against the principal, (tv)