Payment of interest on a simple contract debt by a devisee for life of the debtor's real estate will keep the creditor's right of action alive against all parties interested in such real estate in remainder (Hollingshead v. Webster, 37 Ch. D. 651). It was said in one case that such a payment would operate to prevent time running as regards the testator's real estate only (Boatwright v. Boatwright, 17 Eq. 74). 9 Geo. 4, c. 14. of interest on simple contract debt by devisee for life It was held under 47 Geo. 3, c. 74, that a payment by the executrix of of debtor's a trader would not take a debt out of the statute, so as to enable the real estate; creditor to claim payment out of the real estate in the hands of a devisee by executor, (Putnam v. Bates, 3 Russ. 188; conf. Wilson v. Leonard, 3 Beav. 373, effect as where a devisee was held not bound by the amount of a claim substantiated against beneagainst the executor in an action at law to which he was not a party). ficial devisee. And it has since been held under Administration of Estates Act, 1833 (post), that the payment of interest on a debt of the testator by his executors, they being also trustees of his real estate not subjected by the will to debts, did not necessarily keep the debt alive as against such real estate; for although the executors and trustees were the same persons, they filled different characters, and where the payments were made by them in the character of executors only, the real estate was not affected by it (Fordham v. Wallis, 10 Hare, 217; compare Astbury v. Astbury, 1898, 2 Ch. 119, where Stirling, J., held that an acknowledgment which might have bound personal estate did not bind real estate; and see Re England, Steward v. England, 1895, 2 Ch. 109). The demand of a simple contract creditor as against the real estate of the testator, which would otherwise be barrod by the statute, is not kept alive by the effect of any right to have the assets marshalled (Fordham v. Wallis, sup. ; see, however, Darb. & Bos. Stat. Lim. 2nd ed. 130). Payment of interest on a testator's simple contract debt made by a party Where execu filling the two characters of beneficial devisee and executor, will be tor is beneattributed to both characters, and not to one only, for the moral obliga- ficial devisee. tion does not attach more to one character than to the other. But it is Where execuotherwise where the characters held by the party are entirely distinct, as tor is trustee. where he is personally liable as debtor, and is answerable also in the character of trustee of another; for he then represents two persons, and the question in such a case is by whom the promise is made and not what is its extent or effect (Fordham v. Wallis, 10 Hare, 217; compare Brown v. Gordon, 16 Beav. 302; and as to payments keeping alive a mortgagee's twofold remedies against the person and the land, see Pears v. Laing, 12 Eq. 41; Dibb v. Walker, 1893, 2 Ch. 429; Leahy v. De Moleyns, 1896, 1 I. R. 206). Payments having been made to some residuary legatees by the executors, Effect in it was held that such payments whilst the debts of the testator remained keeping alive unpaid were a breach of trust, and that the debts having been kept alive right to make against the executors, the statute was no bar to the claim of the creditor legatees as against the residuary legatees to the extent of their interest in the refund. residue, and they must therefore refund the moneys they had received on account of the estate (Fordham v. Wallis, 10 Hare, 217). A claim by a creditor to make legatees refund was held barred by lapse of time and acquiescence (Blake v. Gale, 32 Ch. Div. 571). See further as to the acknowledgment of a simple contract debt by payment, Whitcomb v. Whiting (1 Smith, L. C.); and see the cases quoted under R. P. Lim. Act, 1833, s. 40 (ante, p. 197), and Civil Proc. Act, 1833, s. 5 (ante, p. 219). 3. That no indorsement or memorandum of any payment, Indorsements written or made after the time appointed for this act to take of payments. effect, upon any promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such pay 9 Geo. 4, c. 14, s. 3. Simple contract debts alleged by ment, so as to take the case out of the operation of either of the said statutes. As to this section, see ante, p. 241. 4. That the said recited acts and this act shall be deemed and taken to apply to the case of any debt on simple contract, way of set-off. alleged by way of set-off on the part of any defendant, either by plea, notice, or otherwise. See ante, p. 223. 19 & 20 Vict. c. 97, 8. 9. VI. THE MERCANTILE LAW AMENDMENT ACT, 1856. 19 & 20 VICT. c. 97, ss. 9-14. An Act to amend the Laws of England and Ireland affecting $ 9. Actions on Merchants' Accounts to be commenced within six years...244. § 10. Absence beyond seas and imprisonment of creditor not to be disability...244. § 11. Joint Debtors beyond seas...245. § 12. Definition of "beyond seas"...245. § 13. Acknowledgments by agents...246. § 14. Part payment by one co-contractor...246. 9. All actions of account or for not accounting, and suits for such accounts, as concern the trade of merchandize between Limitation of merchant and merchant (a), their factors or servants, shall be actions for Absence beyond seas or imprisonment of a creditor not to be a disability. commenced and sued within six years after the cause of such actions or suits, or when such cause has already arisen then within six years after the passing of this act; and no claim in respect of a matter which arose more than six years before the commencement of such action or suit shall be enforceable by action or suit by reason only of some other matter of claim comprised in the same account having arisen within six years next before the commencement of such action or suit. (a) Ante, pp. 222, 224. 10. No person or persons who shall be entitled to any action or suit with respect to which the period of limitation within which the same shall be brought is fixed by the act of the twentyfirst year of the reign of King James the First, chapter sixteen, section three (b), or by the act of the fourth year of the reign of Queen Anne, chapter sixteen, section seventeen, or by the act of the fifty-third year of the reign of King George the c. 97, s. 10. Third, chapter one hundred and twenty-seven, section five (c), 19 & 20 Vict. or by the acts of the third and fourth years of the reign of King William the Fourth, chapter twenty-seven, sections forty, fortyone and forty-two (d), and chapter forty-two, section three (e), or by the act of the sixteenth and seventeenth years of the reign of her present Majesty, chapter one hundred and thirteen, section twenty (f), shall be entitled to any time within which to commence and sue such action or suit beyond the period so fixed for the same by the enactments aforesaid, by reason only of such person, or some one or more of such persons, being at the time of such cause of action or suit accrued beyond the seas, or in the cases in which by virtue of any of the aforesaid enactments imprisonment is now a disability, by reason of such person or some one or more of such persons, being imprisoned at the time of such cause of action or suit accrued. (b) Ante, p. 222. (c) Ante, p. 210. (d) Ante, pp. 190, 200. (e) Ante, p. 215. This section was retrospective, and included causes of action accrued before the statute was passed (Pardo v. Bingham, 4 Ch. 755; see Cornill v. Hudson, 8 El. & Bl. 429). to are beyond 11. Where such cause of action or suit with respect to which Period of limitation to the period of limitation is fixed by the enactments aforesaid or run as to joint any of them lies against two or more joint debtors, the person debtors in the or persons who shall be entitled to the same shall not be entitled kingdom, any time within which to commence and sue any such action though some or suit against any one or more of such joint debtors who shall seas. not be beyond the seas at the time such cause of action or suit accrued, by reason only that some other one or more of such joint debtors was or were at the time such cause of action accrued beyond the seas; and such person or persons so entitled Judgment as aforesaid shall not be barred from commencing and suing any recovered action or suit against the joint debtor or joint debtors who was debtors in the against joint or were beyond seas at the time the cause of action or suit kingdom to accrued after his or their return from beyond seas, by reason only that judgment was already recovered against any one or more of such joint debtors who was not or were not beyond seas at the time aforesaid. See ante, p. 232. be no bar to proceeding against others beyond seas after their return. seas," within 12. No part of the United Kingdom of Great Britain and Definition of Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, “beyond and Sark, nor any islands adjacent to any of them, being part 4 & 5 Anne, of the dominions of her Majesty, shall be deemed to be beyond c. 16, and seas within the meaning of the act of the fourth and fifth years of the reign of Queen Anne, chapter sixteen, or of this act. See R. P. Lim. Act, 1833, s. 19, ante, p. 196; Civil Proc. Act, 1833, s. 7, ante, p. 221. This section of the act is not retrospective (Flood v. Patter this act. c. 97, s. 12. 19 & 20 Vict. son, 29 Beav. 295). A testator residing in Jersey appointed his widow, who also lived there, his executrix. She proved his will in Jersey, but not in England, and, though she had been three weeks in England shortly after his death, she did not act as executrix in England: held, that she could not be sued in this country, and that time did not therefore run in favour of her testator's estate (Ib.). Provisions of 16 & 17 Vict. and 27, extended to acknowledg ments by agents. Part payment Statutes of in favour of another contractor, &c. Old law as to payments by one of several joint contractors. Payments 13. In reference to the provisions of the acts of the ninth year of the reign of King George the Fourth, chapter fourteen, sections one and eight (i), and the sixteenth and seventeenth years of the reign of her present Majesty, chapter one hundred and thirteen, sections twenty-four and twenty-seven (k), an acknowledgment or promise made or contained by or in a writing signed by an agent of the party chargeable thereby, duly authorized to make such acknowledgment or promise, shall have the same effect as if such writing had been signed by such party himself. (i) Ante, pp. 233, 236. (k) Ante, pp. 234, 236. 14. In reference to the provisions of the acts of the twentyfirst year of the reign of King James the First, chapter sixteen, section three (), and of the act of the third and fourth years of the reign of King William the Fourth, chapter forty-two, section three (m), and of the act of the sixteenth and seventeenth years of the reign of her present Majesty, chapter one hundred and thirteen, section twenty (), when there shall be two or more co-contractors or co-debtors, whether bound or liable jointly only or jointly and severally, or executors, or administrators of any contractor, no such co-contractor or co-debtor, executor or administrator, shall lose the benefit of the said enactments or any of them, so as to be chargeable in respect or by reason only of payment of any principal, interest or other money, by any other or others of such co-contractors or codebtors, executors or administrators. (1) Ante, p. 222. (m) Ante, p. 215. (n) Ante, p. 216. Before this act, it was held that payment of interest by one of the makers of a joint and several promissory note was sufficient to take the case out of the Statute of Limitations as against the other maker ( (Whitcomb v. Whiting, 2 Doug. 652), although such payment was made after the statute had run (Channell v. Ditchburn, 5 M. & W. 494; Goddard v. Ingram, 3 Q. B. 839; see Atkins v. Tredgold, 2 B. & C. 23; Slater v. Lawson, 1 B. & Ad. 396; Burleigh v. Stott, 8 B. & C. 36; Munderston v. Robertson, 4 M. & R. 140. Where a debtor, A., gave as security a note of himself and another, B., a payment on behalf of B., after the statute has begun to run, was held to revive the debt as against A. (Ex p. Woodman, 3 Mont. & A. 613). The doctrine of Whitcomb v. Whiting was applied to the case of one of the co-contractors being a principal and the other a surety (Perham v. Raynall, 2 Bing. 306; Wyatt v. Hodson, S Bing. 309). But the doctrine was limited to cases where a joint liability existed, and was never applied where the liability arose from promises which were several only (Re Wolmershausen, 62 L. T. 544); even where one of the promisors was a principal mortgaging real estate and another a surety for him (Ib.). So where a joint contract is severed by the death of one of the contractors, nothing can be done by his personal representatives to take the debt out of the statute as against the survivor (Slater v. Lawson, 1 B. & Ad. 396), nor by the survivor so as to affect the deceased (Atkins V. Tredgold, 2 B. & C. 23). 19 & 20 Vict. c. 97, s. 14. after death of one of several So also payments of interest on a partnership debt by surviving joint conpartners have not the effect of taking the debt out of the statute as tractors. against the real or personal estate of a deceased partner (Way v. Bassett, Partners: 5 Hare, 55; Brown v. Gordon, 16 Beav. 302). See the doubts previously payments expressed as to this, Winter v. Innes (4 M. & Cr. 111); Braithwaite v. after death of Britain (1 Keen, 221). Even where payments are made by a surviving one of several; partner, who is also executor of the deceased partner, the presumption seems to be that the payments are made in the character of surviving partner, and not as executor (Thompson v. Waithman, 3 Drew. 628). Where a partnership continues, and all the partners are living, it has payments been decided, since 19 & 20 Vict. c. 97, that the above section does not after dissoluapply to a payment made by one partner on account of a debt due by the tion. firm, such a payment being considered as a payment of the firm itself (Goodwin v. Parton, 42 L. T. 91; see Watson v. Woodman, 20 Eq. 730). But where a partner retires, and the retirement is publicly announced, part payment by a continuing partner cannot be set up against the retiring partner as an answer to the statute (Watson v. Woodman, 20 Eq. 721). Secus where the retirement is secret (Re Tucker, 1894, 3 Ch. 429). For the effect before the Merc. Law Amdt. Act, 1856, of a payment by Executors. one of several executors as regards his co-executors, see Atkins v. Tredgold (2 B. & C. 23); Scholey v. Walton (12 M. & W. 512). The effect since the act of one of several executors paying interest on a simple contract debt of his testator is discussed, Hollinshed v. Webster (37 Ch. D. 658). See Re Macdonald, Dick v. Fraser, 1897, 2 Ch. 181. Under the above section (which was held not retrospective as regards Cases on the the date of the payment, Jackson v. Woolley, 8 E. & B. 784), part pay- section. ment by one of two makers of a joint and several promissory note did not take the case out of the statute as against the other (Cockrill v. Sparkes, 1 H. & C. 699). The section does not apply in the case of payments under R. P. Lim. Act, 1874, s. 8, ante, p. 211 (Re Frisby, Allison v. Frisby, 43 Ch. Div. 106). As to the effect of a mortgagor's payment of interest where by a separate instrument a surety had guaranteed the mortgage debt, see Re Powers, Lindsell v. Phillips (30 Ch. Div. 291, a separate bond); Re Wolmershausen (62 L. T. 541, a separate promissory note). 16. In citing this act it shall be sufficient to use the expres- Short title. sion "The Mercantile Law Amendment Act, 1856." 17. Nothing in this act shall extend to Scotland. Extent of act. VII. THE TRUSTEE ACT, 1888. 51 & 52 VICT. c. 59, ss. 1, 8, 12. An Act to amend the Law relating to the Duties, Powers, and Liability of Trustees. [24th December, 1888.] 1.-(1.) This act may be cited as the Trustee Act, 1888. (2.) This act shall not extend to Scotland. Short title, extent, and definition. |