Another diffe

rence.

By decision of the Supreme Court, an ac

1.nowledgment

after action brought ceases to have any effect.

Prescription

tuitious alienation of a right exceeds the authority of a tutor, curator, or person acting under a general power.

There is also another difference between an acknowledgment after the time of prescription is accomplished and one before; the latter interrupts the prescription in respect of and against all persons whatever, the former only destroys it against the debtor making the acknowledgment and his heirs, but not against his co-debtors in solido, or sureties, or third persons who have acquired an interest in the lands hypothecated for the debt. For the right of prescription having been once acquired by the accomplishment of the time the debtor may by his subsequent acknowledgment, very well renounce the prescription, so far as regards himself and his heirs, but cannot prejudice the right acquired by third persons.(a)

In an action on a mortgage made before the Ordi nance No. 22 of 1871 came into operation, and falling quoad prescription under Ordinance No. 8 of 1834, an acknowledgment made after action brought may prevent the statutory bar from attaching. If the mortgage were made after the Ordinance No. 22 of 1871 oame into operation, an acknowledgment to take the matter out of the statute must comprise an express or implied promise to pay. An acknowledgments operates as a promise, but when made after action brought, it ceases to have any effect, since an action cannot be supported by proof of a promise made since the commencement of the action.(b)

ACCOUNT STATED: - Plaintiff sued to recover the

of an action on price of goods sold and delivered more than a year

account stated.

(a.) Pothier Ob. I. 461.
(b.) Perera Appuhamy v. Paulo Appu.

Parol acknow

before action brought. Defendant pleaded Ordinance
No, 22 of 1871, section 9. Plaintiff also claimed the ledgment
same amount upon account stated. Plaintiff proved
an oral admission by defendant that the account ap-
pearing to his debt in plaintiff's shop ledger, the
items being all items on one side for good supplied
was correct with an oral promise to pay. It was de-
cided in appeal that plaintiff could not recover upon
either count. A mere parol statement of an existing
debt for goods sold and delivered, which is barred by
the Ordinance, with a parol promise to pay it, will not
suppor an action. (a)

When plaintiff took no steps to revive judgment until more than ten years had elapsed since writ of execution had last issued, it was held that an acknowledgment contained in a bond executed by one of the defendants within the period of prescription, to the effect that a balance of Rs. 250 was then due to the plaintiff in respect of the judgment did not hinder the judgment from becoming prescribed under section 5 of Ordinance No. 22 of 1871.(b)

Acknowledgment by one of defendants could not interrupt a judgment debt being barred.

SECTION V.

PART PAYMENT.

The words in the Ordinance No. 22 of 1871 which refer to part payment are contained in section 13. They are as follows:- Provided always 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 whatsoever.

(a.) Salman Fernando & Co. v. Apponsu Bass.
5. S. C. C. 169.

(b.) Pieris v. Perera. 8. S. C. C. 79.

Section 3 oi

Ord. No. 22 of 1871.

Part payment prevents statutory bar from attaching.

Person making payment after prescrip

tion is accomplished is not entitled to repetition.

A person who pays part of the debt entirely

renounces

prescription.

Alter judgment has be

come res judicata prescripion cannot be

opposed.

An account stated keeps alive the debt although the action for goods sold and deli

Under the above words it was held that part payment of a debt interrupted prescription and prevented the statutory bar from attaching.(a)

If a mere acknowledgment of the debt destroys the prescription a fortiori, should the actual payment do so likewise. A person therefore is deemed to owe what he pays after the time of prescription is accomplished, and is not entitled to repetition.(b)

And further, he who pays a part of the debt against which he had prescribed entirely renounces the prescription, even as to the residue, at least, unless he protests, at the time of payment that he only means to acknowledge the debt so far as the sum paid.(c)

A judgment against the debtor, when it had acquired the force of res judicata, that is when it is no longer open to appeal, likewise extinguishes the prescription and the debtor cannot afterwards be admitted to oppose the prescription, even if he has ommitted to do so in the suit upon which the judgment intervened, for this judgment gives the creditor a new title.(d)

ACCOUNT STATED: - The plaintiff sued on an account stated for the price of goods sold and delivered more than a year before action brought. The defendant pleaded prescription. The plaintiff's suit was instituted vered is pres- November 19, 1886. Held that the examination of

cribed.

accounts between the parties on October 22, 1885, when the defendant attached his signature to the

foot of the plaintiff's account, sufficiently established

the court on account stated upon which the plaintiff could recover although the original debt for goods sold was prescribed.(a)