tion of inability. [PARKE, B.-Suppose he had said "I will pay after a long time." That would not be a sufficient acknowledgment.] That *139] would certainly not support the averment in the *declaration of a promise to pay on request. But, if he had said "I fear I may not be able to pay for a long time," the acknowledgment would be sufficient; for a mere expression of fear, or, as in the present case, of hope, with respect to the time of payment, does not show inability to pay at once. It was admitted at the trial that the debt for which the mortgage, which Turner proposes to transfer, was given as security, had been paid off. But to hold that the acknowledgment must be consistent with an intention to pay immediately is contrary to the decision in Eicke v. Nokes. Dabbs v. Humphries, 10 Bing. 446 (E. C. L. R. vol. 25), and Bird v. Gammon, 3 New Ca. 883 (E. C. L. R. vol. 32), are also in favour of the plaintiffs. [PARKE, B.-The acknowledgment must be consistent with an intention to pay, either on request, or else (which practically comes to the same thing) at the end of a particular period which has elapsed, or on some condition which has been fulfilled.] If the transfer of the mortgage is to be regarded as a condition precedent to payment in the present case, it is a condition which has not been fulfilled. But the statement in the letter as to the transfer is nothing more than an expression of a hope for a particular mode of payment, added to an unqualified acknowledgment of the debt. [WILLIAMS, J.-Vice-Chancellor Wigram, in Philips v. Philips, 3 Hare, 281, 299, states very clearly how the law stands as to acknowledgments of this kind. He says: "It is not strictly accurate to say, that the effect of acknowledging a debt barred by the Statute of Limitations is to revive it for all purposes." "The new promise, and not the old debt, is the measure of the creditor's right.' "If the debtor promises to pay the old debt when he is able, or by instalments, or in two years, *or out of a particular fund, the cre*140] ditor can claim nothing more than the promise gives him."] Dodson v. Mackey, 8 A. & E. 225 (E. C. L. R. vol. 35), is an authority to show that the admission of the debt in the defendant's letter is a sufficient acknowledgment to create a promise of payment, and that the effect of such acknowledgment is not qualified by the subsequent statement of his expectations as regards the time and mode of payment. Humphreys v. Jones, 14 M. & W. 1,† and Gardner v. M'Mahon, 3 Q. B. 561 (E. C. L. R. vol. 43), are also in point. In Barrett v. Birmingham,;1 Flan. & K. (Rolls, Ireland), 556, a return of a judgment debt made by an insolvent in his schedule was held to be a sufficient acknowledgment of the debt to take it out of the operation of stat. 3 & 4 W. 4, c. 27, s. 40. [PARKE, B.-In Kennet v. Milbank, 8 Bing. 38 (E. C. L. R. vol. 21), which turned upon stat. 9 G. 4, c. 14, the mere recital of a debt in a deed of composition with creditors, the amount not being mentioned, was held to be no sufficient acknowledgment. In Bird v. Gammon, however,

the Court held that I was right in considering the mention of the amount not material.] At any rate there was sufficient evidence here to allow of the jury finding that Turner hnd promised to pay the debt. [PARKE, B.—That is not a question for the jury. The later cases have decided that the effect of the document set up as an acknowledgment is entirely a question for the Court, unless extrinsic evidence is necessary to qualify or explain it.]

Tomlinson, contrà.-Hart v. Prendergast, 14 M. & W. 741,† is a strong authority to show that the acknowledgment here *amounts, at [*141 the most, only to a qualified promise to pay at a time which has not elapsed, and therefore does not support the promise, alleged in the declaration, to pay on request. [PARKE, B.-We are all of opinion that the letters do not, by themselves, amount to a sufficient acknowledgment; but we are not at present agreed as to the validity of the reason given by the Lord Chief Justice for his ruling; namely, that they only express a hope that Turner may be able to pay off the whole debt. It may be questioned whether they do not, under all the circumstances, amount to a promise of some kind; but you are bound to support the ruling on the ground given by the Lord Chief Justice, and on that alone. You must satisfy us that they express nothing more than a hope of payment.] The ruling must be read with the bill of exceptions, which explains it. The bill states that the counsel for the plaintiffs required the Lord Chief Justice to direct that the letters were, "under the circumstances,' sufficient acknowledgment. That expression means only the circumstances which are set out in the bill. If counsel for the plaintiffs had, in the bill, set out and insisted upon other evidence tending to convert the mere expression of hope into an absolute promise to pay, the ground of the ruling might have been objected to; but, as the bill of exceptions now stands, the ground was correct. An acknowledgment, to be within the meaning of stat. 9 G. 4, c. 14, must be absolute and unqualified, either on the face of it, or by proof of the occurrence of the particular event, or the performance of the particular condition, by which it is qualified. Here no such proof was insisted upon in the bill of exceptions; and the ruling was therefore right.

*Honyman, in reply.-The argument that the ruling of the [*142 Lord Chief Justice may be explained by the bill of exceptions cannot be supported. The question whether any, and what, evidence. is to be mentioned in the bill of exceptions, in support of the objections there taken, depends upon the ruling itself. The Lord Chief Justice directed the jury that the letters expressed nothing more than a hope of payment; the plaintiffs' counsel, therefore, could not insist upon the effect of evidence which would be available only where there already existed a conditional promise. In Hart v. Prendergast, 14 M. & W. 741,† there was no promise at all; here there is a promise, followed by an

expression of hope as to the time of payment, which does not at all qualify the effect of the absolute promise which precedes it.

66

PARKE, B.-We are all of opinion that the direction of the Lord Chief Justice was right, on the ground given by him. It is not, therefore, necessary to inquire whether, if we had differed as to the correctness of that ground, the ruling could have been supported. The Lord Chief Justice told the jury that the letters were not sufficient acknowledgment or promise to take the debt out of the Statute of Limitations, or to support a cause of action for it within six years before the commencement of the action. This was expressly excepted to. The ground given by the Lord Chief Justice for his ruling was that the letters expressed only a hope that on the transfer of the mortgage" Turner "might be able to clear off the whole that might be standing against" him. We need not now consider whether, if this construction of the *143] letters were incorrect, and they had *amounted to a conditional promise, they might, if the effect of other evidence had been insisted on in the bill of exceptions, have been held to amount, under all the circumstances, to a sufficient acknowledgment within the meaning of stat. 9 G. 4, c. 14. There has been no question, since Tanner v. Smart, 6 B. & C. 603 (E. C. L. R. vol. 13), that an acknowledgment of a debt must, in order to take it out of the operation of the Statute of Limitations, be sufficient to support the promise laid in the declaration, namely, to pay on request. By stat. 9 G. 4, c. 14, that acknowledgment must now be in writing; but it must still support a promise to pay on request, either by showing, on the face of it, an unconditional promise to pay, or by the collateral fact of the performance of the condition, or the occurrence of the event, by which the promise is qualified. No doubt a mere acknowledgment of the existence of the debt (as, for instance, an I. O. U.), if unaccompanied by any expressions which control its effect, is sufficient to support an unconditional promise to pay. But in the present case there is no such acknowledgment. In the letter of the 26th June, Turner speaks of certain claims against him on account, not mentioning the amount or specifying the items. Whether that letter related at all to the debt of 275l. 188. 11d. was a question for the jury. Assuming that it did, the construction of the letter was for the judge; and the Lord Chief Justice was, we think, right in holding that it did not, even when coupled with the letter of the 25th June, amount to any distinct acknowledgment of the debt, or promise to pay it, but only to a hope that, at some future time, and by the transfer of the mortgage, *Turner might be able to clear off what might be standing against *144] him. We all agree that this cannot, under any reasonable construction, be considered as a positive engagement to pay on the part of Turner, and that the direction of the Lord Chief Justice was right. The judgment, therefore, must be affirmed.

CRESSWELL, TALFOURD, and WILLIAMS, Js., and PLATT and MARTIN, Judgment affirmed.

Bs., concurred.

That a promise or admission to take a case out of the statute of limitations must be positive, absolute, and unqualified, is now the settled doctrine of the Courts in this country as in England. It is necessary to refer to a few only of the late leading cases on this subject: Farley v. Kustenbader, 3 Barr, 418; Cocks v. Weeks, 7 Hill, 45; Manning English, 762; Poole v. Relfe, 23 Alav. Wheeler, 13 N. Hamp. 486; Robbins bama, 706; Harbold v. Kuntz, 16 v. Farley, 2 Strobhart, 348; Westbrook Penna. State Rep. 210.

Martin v. Broach, 6 Georgia, 21; Ventris v. Shaw, 14 N. Hamp. 422; Kensington Bank v. Patton, 14 Penna. State Rep. 479; Arey v. Stephenson, 11 Iredell, 86; Sherman v. Wakeman, 11 Barb. Sup. Ct. 254; Boxley v. Gayle, 14 Alabama, 151; Bryan v. Ware, 20 Alabama, 687; Grant v. Ashley, 7

v. Beverly, 11 Smedes & Marshall, 419;

The QUEEN v. The GREAT WESTERN Railway Company. (The GREAT WESTERN Railway Company v. TILEHURST.) Reported, 15 Q. B. 1085 (E. C. L. R. vol. 69). (Judgment, Tuesday, February 10th.)

The Master, Pilots, and Seamen of the Town of NEWCASTLE UPON TYNE in the County of NEWCASTLE UPON TYNE v. BRADLEY and POTTS. Feb. 21.

Reported, 2 E. & B. 428, note (a) (E. C. L. R. vol. 75).

*SHEPHERD v. The Marquis of LONDONDERRY and An[*145

other. Feb. 3.

The Tithe Commissioners have no power, under stat. 6 & 7 W. 4, c. 71, ss. 45, 50, to determine a suit pending between two rival claimants of tithes; inasmuch as the words " touching the right to any tithes," in sect. 45, refer only to suits which raise questions as to the titheability of particular lands, not to those which bring into question the right of particular parties to tithes of which the existence is admitted: And, further, because a suit raising only a question of title between two claimants of tithes is not a "difference" "whereby the making" of the award by the Commissioners is "hindered," within the meaning of sect. 45.

REPLEVIN, for cattle distrained upon a certain close of the plaintiff, and detained, &c.

Avowry that the said close, at the time when, &c., was chargeable with the payment of a certain yearly rent-charge, under the Tithe Commutation Acts: that a certain amount of the said rent-charge had then been in arrear for more than twenty-one days, and after ten days' notice, &c. and, because the defendant the Marquis of Londonderry was entitled to the said amount, the said defendant, and the other defendant as his bailiff, well acknowledge the said taking of the said cattle, &c., as a distress for the said amount of rent-charge, &c.

Plea 1. That the said close was not chargeable with the payment of the alleged yearly rent-charge, in manner and form, &c. Issue thereon.

Plea 2. That the said Marquis was not the person entitled to the said rent-charge or to any part thereof, in manner and form, &c. : Issue thereon.

The action was brought by direction of the Court of Chancery, for the purpose of determining the question of the Marquis of Londonderry's right to tithes in respect of certain land in the parish of St. Giles, Durham, of which he claimed to be the impropriate rector, and part of which had been enclosed under a private Act in 1816. In 1829 the Marquis had filed a bill in equity against the owners of certain burgage tenements in the said *parish, to whom the land enclosed *146] had been allotted, for an account in respect of tithes due from them as such occupiers. The answers to the bill set forth that the Marquis was not entitled to the said tithes as impropriate rector, inasmuch as the tithes arising from one portion of the said parish belonged to the curate, and those arising from the remaining portion had been granted away, more than 200 years ago, by the then owners of the impropriate rectory, to the respective owners of the land within that portion, including the then proprietors of the said burgage tenements, and now belonged to the present proprietors: and that there had not been, at all events for many years, any glebe land belonging to the rectory of the said parish, or anything to constitute an impropriate rectory.

While this suit was pending, the Assistant Tithe Commissioner, acting under the Tithe Commutation Act, 6 & 7 W. 4, c. 71, made his award, apportioning the amount of rent-charge payable in respect of the lands in question. At the time of making the award, he had notice that the suit was pending, and was required to enter upon and determine the question raised by it; but he declined to do so.

On the trial of the present action, before Williams, J., at the Durham Summer Assizes, 1851, it was objected, on behalf of the plaintiff, that, under stat. 6 & 7 W. 4, c. 71, ss. 45, 50, the Commissioner was bound to determine the suit before making his award; and that the award was consequently invalid, and the close not legally chargeable with the rent-charge. The jury found that the Marquis was the im