Hammond v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 21 December 1864 |
| Date | 21 December 1864 |
| Court | High Court of Chancery |
English Reports Citation: 55 E.R. 443
ROLLS COURT
S. C. 9 L. T. 746; 10 Jur. (N. S.) 117; 12 W. R. 328.
[452] hammond v. smith. Dec. 21, 1864. [S. C. 9 L. T. 746; 10 Jur. (N. S.) 117 ; 12 W. R. 328.] A debtor wrote to his creditor, " I will pay you as soon as I get it in my power." Held, that the Statute of Limitations did not commence running until the debtor became of ability to pay. A legacy by a debtor to a creditor held to be a pro tanto discharge of the debt, it appearing that the testatrix had made a proposal to that effect to her creditor, and that he had not objected to the arrangement. In 1852 Sarah Smith, a baker, was indebted to the Plaintiff Hammond, a miller, in the sum of 566, 5s. Id., for which she gave a written acknowledgment. She retired from business in 1852, and went to live with her parents, who were advanced in years. The Plaintiff in 1853 applied for payment, and in answer Sarah Smith, on the 25th of November 1853, wrote: "The time may not be long before I shall be able to discharge my debt to you. I can get no money at present. Should I get any paid me, you shall very soon have it." On the 4th of March 1856 Sarah Smith wrote to the Plaintiff, stating that her parents were living, but were of great age and in a precarious state of health. She added, " I will pay you as soon as I get it in my power ; before I cannot. I have nothing to pay with, or I should willingly do it." Sarah Smith's mother died, and her father died about [453] seven days after, viz., on the 9th of February 1861. Sarah Smith then became entitled to personal property amounting to about 1200 and to a freehold messuage. In 1861 the Plaintiff renewed his application for payment, and on the 9th of July 1861 Sarah Smith wrote to him referring to her difficulties, and added, "There will be interest due I suppose some time in August; when I receive I shall send to you half-yearly, that is all I can do; you must share with me according to what I have 444 HAMMOND V. SMITH 33 BBAV. 4M. got. At my death you shall receive 300; I shall have it put in my will, which at present is riot made. I cannot pay you interest for more than the half, or there will be nothing left to live on. You can write and say if you approve of that what I have said to you, if not, you can act as you think proper." The Plaintiff, on the 20th of July 1861, wrote to Sarah Smith as follows: - July 20th, 1861.-Madam,-I received your letter of the 9th inst. respecting your affairs...
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