Darling vs. Brown.

both together, both being in writing, and the letter signed by him, I think this sufficiently complies with the statute. Suppose the account current had been continued over half a sheet of paper, and the letter had followed immediately after the striking of the balance, and then had been signed by the Defendant at the end of the letter, would there be any doubt that the Statute would have been complied with? Or, as already suggested, suppose they had been attached together with a ribbon and the ends sealed, with William Darling's seal unbroken, would it not be said that the two papers were incorporated together? If sent together, which I do not doubt they were, may they not be considered as one document for the purposes of the Statute? I think they may. In Hartly v. Wharton, (1) where Defendant was an infant when goods were sold to him, it was sought to make him liable on a written promise of ratification under Imperial Statute 9th George IV, chap. 14, sec. 5. The written document was in the form of a letter, but was not addressed to any one and contained no date. Lord Denman, in giving judgment, said, "there is no date to the writing, the Act requires none, but only a promise or ratification made by some writing, signed by the party to be charged therewith. Then it is urged that the party to whom the promise was made is not named. That I do not think necessary If such a promise were in a letter the address would be evidence, and if that were in an envelope evidence might be given to connect the two, and so evidence may be given for or to whom the written acknowledgment was made by delivery or otherwise." So here we connect the letter and the statement of the account by evidence, and thus connected together they are an admission of (1) 11 A. & E., 934.

Darling vs. Brown.

the balance due signed by William Darling. The later cases seem to sustain the view that you may use another document or paper referring to the contract to make it binding under the statute of frauds. In a recent case, a learned judge said----" On the document itself there must be some reference from one to the other, leaving nothing to be supplied by parol evidence, except the identity, as it were, of the document," Peirce v. Corf, (1); Buxton v. Rust, (2). If the object of the Statute be taken into con. sideration, I can hardly conceive a more satisfactory way of acknowledging an amount due than the rendering of an account showing the balance, and a letter accompanying it, saying----“I send you a statement of your account"; and this in reply to a written request to send it. Here there is nothing transacted by "parole" between the parties. It is all in writing; all the act of the party to be charged therewith. Suppose the account had only been running five years, and Isabella had been in Montreal and asked William Darling for a statement of her account, and one had been made out showing a balance due her of $1,000, and this, though not signed, had been handed her by William Darling, there is no doubt if she had sued William Darling within a month for that balance, and had proved just what has been stated, she would have recovered as for the admitted balance of the account. She could not have recovered after the six years, because the admission is not in writing. But, being sent in a letter signed by him, it then became an admitted balance under his signature, and so taken out of the Statute----see Baumann v. James, (3). There is a very late case as to an acknowledgment taking the case out of the Statute in the Exchequer

(1) L. R. 9. Q. B., 217; (2) L. R. 7 Exch., 282; (3) L. R. 3 Ch. Ap., 509; Maxwell on Statutes p. 262.

Darling vs. Brown.

Division before Baron Cleasby in Skeet v. Lindsay (1). It was argued at some length, and many cases were referred to. The learned Baron adopted the language of Mellish L. J. in the case of the River Steam Co.; Mitchell's claim (2). "There must be one of these three things to take the case out of the Statute. 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 then the evidence that the condition has been performed."

Here there is the clearest evidence of the acknowledgment of the debt, the account current showing the amounts and the balance due. The law then implies the promise to pay, this was less than six years before the entry of this case into court, and therefore, considering the matter as a fairly commercial one, and the rules of evidence in commercial cases in England to apply, I think we ought to hold that the action is properly maintainable.

It was pressed upon us in argument that we should hold that if the Statute had run so as to bar the remedy that the subsequent admission should not take the case out of the statute, and the debt should be considered as wholly extinguished. The case of Bowker v. Fenn, (3) was referred to. How far that case may be affected by Walker v. Sweet (4) in the Court of Appeals in Quebec, recently decided, it is not necessary to determine. Under the decided cases in England there can be no doubt that the legal effect of an acknowledgment of a debt barred by the statute of limitations, is that of a promise to pay an old debt, and for this pur

(1) 36 L. T. N. S., 98; (2) L. R. 6 Ch. Ap., 822; (3) 10 L. C. Jur., 120; (4) 21 L. C. Jur., 19.

Darling vs. Brown.

pose the old debt may be said to be revived. It is viewed as a consideration for a new promise. If the creditor simply acknowledges an old debt, the law implies from that simple acknowledgment a promise to pay it, for which promise the old debt is a sufficient consideration. This is the language of Vice-Chancellor Wigram, used in Philipps v. Philipps (1), and referred to in subsequent cases, particularly in Buckmaster et al. v. Russell (2).

At this late day, I do not think we should lay down a different rule as to the effect of acknowledgments to take a case out of the Statute.

The evidence showed that Thomas Darling was not the party bound to pay the indebtedness of the firm to Isabella Darling, and as to Thomas, it was not argued before this Court that the case was not properly decided in his favour; and as against William, if the evidence to establish liability was sufficient, he, (William), being charged as jointly and severally liable, the judgment was proper enough, he being solely liable.

As to the first question submitted to this Court, I think there was sufficient evidence of William Darling's indebtedness to the amount of $2,288.44, with interest at 6 per cent., since 1st January, 1871; and I do not think the explanations given in the evidence in behalf of William Darling were sufficient to exonerate him from liability. Second-The articles of the Code as to the prescription of interest to five years does not apply in this case, as the prescription began before the Code was promulgated. Third-Whether the matter in question was commercial or not, the remedy is not barred by the lapse of five years before the bringing of the action. Fourth-Six years had not elapsed before the commencement of this action since the written acknow

(1) 3 Hare, 281-299; (2) 10 C. B., N. S., 745.

Darling vs. Brown.

ledgment was made by William Darling, which took the case out of the Statute. Fifth.-It was not argued before this Court that the plea of compensation for board and lodging was established by appellant. If it had been argued, I think the evideuce was not sufficient to sustain the plea.

The rate of interest in this account was six per cent. per annum making annual rests. In this way the account was rendered by Darling & Co., and Isabella Darling did not object. It may be considered, therefore, that this was the mode agreed upon between the parties as to the interest, and, according to that mode, the Plaintiffs should be entitled to recover. I do not quite understand how the learned Judge in the Superior Court fixed the amount to be recovered from the Defendant, William Darling, at $1,746.42, balance shown to be due on 31st December, 1863, under Plaintiff's exhibit No. 2, with interest on $1,661.23, balance due 31st December, 1863, until perfect payment and costs. I fail to see why the balance on 31st December, 1863, should be fixed as the sum due, or why that balance should not carry interest until payment. If the mode adopted of computing interest, and making annual rests anterior to 1863, be correct, it seems to me it should be followed up to the time of the bringing of the suit, or to the last balance which would have been struck previous to the bringing of this action. Taking the balance of the account, say on 1st January, 1871, as stated in William Darling's account at $2,535, and allowing for the excess of the five payments of interest credited with the interest thereon computed in the same way, I make the balance due the Plaintiff, $2,288.42, bearing interest from the 1st January, 1871, which, I