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19 & 20 Vict. c. 97, s. 10.

Period of limitation to run as to joint debtors in the kingdom, though some are beyond seas. Judgment recovered against joint debtors in the kingdom to

ceeding against

This section, as to the imprisonment of the creditor, applies to cases where the cause of action accrued before that act came into operation, and no action is commenced till after that time. (Cornill v. Hudson, 8 El. & Bl. 429; 3 Jur., N. S. 1257; 27 Law J., Q. B. 8.) This section is retrospective, and therefore even where the cause of action has accrued before the statute was passed, no person is entitled to any time within which to commence an action beyond the time fixed by the Statutes of Limitation, by reason of such person being beyond the seas when the cause of action accrued. (Pardo v. Bingham, L. R., 4 Ch. 755.)

11. Where such cause of action or suit with respect to which the period of limitation is fixed by the enactments aforesaid or any of them lies against two or more joint debtors, the person or persons who shall be entitled to the same shall not be entitled to any time within which to commence and sue any such action or suit against any one or more of such joint debtors who shall not be beyond the seas at the time such cause of action or suit be no bar to pro- 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 as aforesaid shall not be barred from commencing and suing any action or suit against the joint debtor or joint debtors who was or were beyond seas at the time the cause of action or suit 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 (g).

others beyond

seas after their return.

Definition of
"beyond seas,"
within 4 & 5
Anne, c. 16, and
this act.

Provisions of

9 Geo. 4, c. 14, ss. 1 and 8, and 16 & 17 Vict.

c. 113, ss. 24 and 27, extended to

(g) Ante, p. 273.

12. No part of the United Kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any islands adjacent to any of them, being part of the dominions of her Majesty, shall be deemed to be beyond 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 (h).

(h) See 3 & 4 Will. 4, c. 27, s. 19, ante, p. 193; 3 & 4 Will. 4, c. 42, s. 7, ante, p. 264. This section of the act is not retrospective. (Flood v. Patterson, 29 Beav. 295.) A testator resided in Jersey, and died, having appointed his widow, who also lived there, the executrix of his will. She proved his will in Jersey, but not in England, and, though she had been three weeks in England shortly after the testator's death, she did not act as executrix in England: it was held, that she was not a person whom a creditor of the testator could sue in this country, and that the Statute of Limitations did not therefore run in favour of her testator's estate. (lb.)

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 acknowledgments 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

by agents.

same effect as if such writing had been signed by such party 19 & 20 Vict. himself.

c. 97, s. 13.

(i) Ante, pp. 274, 278.
(k) Ante, pp. 274, 278.

14. In reference to the provisions of the acts of the twentyfirst of the reign of King James the First, chapter sixteen, year section three (1), 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 (n), 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 co-debtors, executors or administrators.

(1) Ante, p. 265.

(m) Ante, p. 258.

(n) Ante, p. 259.

Part payment by &c. not to prevent bar by certain tions in favour of another contractor, &c.

one contractor,

statutes of limita

This section is not retrospective, and therefore a payment by one co- This section not debtor made before this act takes the case out of the Statute of Limitations retrospective. as against the other. (Jackson v. Woolley, 8 El. & Bl. 784; 27 L. J., Q. B. 448; 6 W. R. 686; overruling on this point Thompson v. Waithman, 3 Drew. 628.) But this section applies to notes made before the act, where the payment or acknowledgment has been made after the act. In 1853, H. as principal, and the defendant as surety, gave a joint and several promissory note to the plaintiff, payable on demand. In 1861, H. made an assignment for the benefit of his creditors, and the defendant signed and gave the following letter to the plaintiff :-"I consent to your receiving the dividend under H.'s assignment, and do agree that your so doing shall not prejudice your claim upon me for the same debt." The plaintiff accordingly received a dividend on the note, and afterwards brought an action on it against the defendant for the balance, to which the defendant pleaded the Statute of Limitations. It was held that the payment of the dividend, coupled with the letter, did not amount to more than "a payment only" by one co-debtor, under this section; and that, therefore, the defendant, the other co-debtor, was entitled to the benefit of the statute. (Cockrill v. Sparke, 32 L. J., Ex. 118; 1 H. & C. 699; 11 W. R. 428.)

old law as to payments by one of several joint contractors.

Before 19 & 20 Vict. c. 97, 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, although such payment was made after the statute had run. (Channell v. Ditchburn, 5 M. & Wels. 494; Goddard v. Ingram, 3 Q. B. 839. See Atkins v. Tredgold, 2 B. & C. 23; 3 Dowl. & R. 200; Slater v. Lawson, 1 B. & Ad. 396; Burleigh v. Stott, 8 B. & C. 36; 2 M. & Ry. 93; Whitcomb v. Whiting, Dougl. 652; Munderston v. Robertson, 4 Man. & R. 140. See cases cited 5 M. & W. 498, n.) The correctness of the above decision in Channell v. Ditchburn was questioned in Story on Partnership, 324, n. If 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 parte Woodman, 3 Mont. & A. 609. See lb. 613.) Where the joint contractors are partners, it seems, even since 19 & 20 Vict. c. 97, open to question whether a payment by one partner must not be con- Payments by one sidered to be made by him as agent of the firm, and therefore to bind the other partners. (See 1 Lindley on Partnership, 465, 2nd ed.)

partner.

19 & 20 Vict. c. 97, s. 14.

Payments after death of one of several joint contractors;

after death of one of several partners.

Payments by one of several executors.

Short title.

Extent of act.

It had been decided before 19 & 20 Vict. c. 97, where a joint contract is severed by the death of one of the contractors, nothing can be done by the personal representatives of the other to take the debt out of the statute as against the survivor; as where, after the death of one maker of a joint and several promissory note, signed by two, a payment upon it by the executor of the deceased party will not take the debt out of the Statute of Limitations as against the survivor. (Slater v. Lawson, 1 B. & Ad. 396; 2 B. & C. 25; 8 B. & C. 36.) On this point the law has not been altered.

In the case of the death of one partner, it was said by Lord Cottenham, in Winter v. Innes (4 M. & Cr. 111), that it was questionable whether the deceased's representatives could set up the statute so long as the survivor continued liable to the payment of the debt, and the deceased's estate was consequently liable to be called upon by the survivor for contribution. (See Braithwaite v. Britain, 1 Keen, 206, 221.) But it has been since held that payments of interest on a partnership debt by surviving partners have not the effect of taking the debt out of the statute as against the real or personal estate of a deceased partner. (Way v. Bassett, 5 Hare, 55; Brown v. Gordon, 16 Beav. 302.) Even where payments are made by a surviving 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.) For the effect before this act of a payment by one of several executors as regards his co-executors, see Atkins v. Tredgold, 2 B. & Cr. 23, and Scholey v. Walton, 12 M. & W. 510.

16. In citing this act it shall be sufficient to use the expression "The Mercantile Law Amendment Act, 1856."

17. Nothing in this act shall extend to Scotland.

ABOLITION OF FINES AND RECOVERIES.

3 & 4 WILLIAM IV. CAP. 74.

An Act for the Abolition of Fines and Recoveries (a), and for the Substitution of more simple Modes of Assur[28th August, 1833.]

ance.

I. Interpretation clause, s. 1.

II. Fines and recoveries abolished, ss. 2, 3.

III. The tenure of ancient demesne, ss. 4—6.

IV. The amendment of fines and recoveries, and the rendering them valid in certain cases, ss. 7-12.

V. The custody of the records of fines and recoveries, s. 13.

VI. Estates tail not barrable by warranty, s. 14.

VII. Disposition of lands entailed, ss. 15-21.

VIII. Definition of the protector, ss. 22—33.

IX. Powers of the protector, s8. 34—37.

X. Confirmation of voidable estates created by tenant in tail, s. 38.
XI. Enlargement of base fees, s. 39.

XII. Modes in which dispositions of land under this act by tenants
in tail are to be effected, ss. 40—49.

XIII. Estates tail in copyholds, ss. 50—54.

XIV. Bankrupts' estates tail, ss. 55-69.

XV. Money to be laid out in lands to be entailed, ss. 70-72.

XVI. The inrolment of deeds, &c., ss. 73–76.

XVII. Alienation by married women, ss. 77-91.

XVIII. Ireland, s. 92.

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I. INTERPRETATION CLAUSE.

tain words and
expressions.
"Lands."

1. Be it enacted, that in the construction of this act the word Meaning of cer"lands shall extend to manors, advowsons, rectories, messuages, lands, tenements, tithes, rents and hereditaments of any tenure (except copy of court roll), and whether corporeal or incorporeal, and any undivided share thereof, but when accompanied by some expression including or denoting the tenure by copy of court roll, shall extend to manors, messuages, lands, tenements and hereditaments of that tenure, and any undivided

This act does not extend to Ireland, but on the 15th August, 1834, the statute 4 & 5 Will. 4, c. 92, was passed, entitled "An Act for the Abolition of Fines and Recoveries, and for the Substitution of more simple Modes of Assurance in Ireland." This act corresponds in most particulars with the English statute. The general period fixed for the Irish act to come into operation was the 31st October, 1834, instead of 31st December,

3 & 4 Will. 4, c. 74, s. 1.

"Estate."

"Base fee."

"Estate tail."

"Actual tenant in tail."

"Tenant in tail."

"Tenant in tail entitled to a base fee."

"Money."

"Person."

Number and gender.

Settlement.

share thereof; and the word "estate" shall extend to an estate in equity as well as at law, and shall also extend to any interest, charge, lien or incumbrance in, upon or affecting lands, either at law or in equity, and shall also extend to any interest, charge, lien or incumbrance in, upon or affecting money subject to be invested in the purchase of lands (b); and the expression "base fee" shall mean exclusively that estate in fee simple into which an estate tail is converted where the issue in tail are barred, but persons claiming estates by way of remainder or otherwise are not barred (c); and the expression "estate tail," in addition to its usual meaning, shall mean a base fee into which an estate tail shall have been converted; and the expression "actual tenant in tail" shall mean exclusively the tenant of an estate tail which shall not have been barred, and such tenant shall be deemed an actual tenant in tail, although the estate tail may have been divested or turned to a right (d); and the expression "tenant in tail" shall mean not only an actual tenant in tail, but also a person who, where an estate tail shall have been barred and converted into a base fee, would have been tenant of such estate tail if the same had not been barred; and the expression "tenant in tail entitled to a base fee" shall mean a person entitled to a base fee, or to the ultimate beneficial interest in a base fee, and who, if the base fee had not been created, would have been actual tenant in tail; and the expression "money subject to be invested in the purchase of lands" shall include money, whether raised or to be raised, and whether the amount thereof be or be not ascertained, and shall extend to stocks and funds, and real and other securities, the produce of which is directed to be invested in the purchase of lands, and the lands to be purchased with such money or produce shall extend to lands held by copy of court roll, and also to lands of any tenure, in Ireland or elsewhere out of England, where such lands or any of them are within the scope or meaning of the trust or power directing or authorizing the purchase; and the word "person" shall extend to a body politic, corporate or collegiate, as well as an individual; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the plural number shall extend and be applied to one person or thing as well as several persons or things; and every word importing the masculine gender only shall extend and be applied to a female as well as a male; and every assurance already made or hereafter to be made, whether by deed, will, private act of parliament or otherwise, by which lands are or shall be entailed, or agreed or directed to be entailed, shall be deemed a settlement; and every appointment made in exercise of any power contained in any settlement, or of any other power arising out of the power contained in any settlement, shall be considered as part of such settlement, and the estate created by such appointment shall be considered as having been created by such settlement (e); and where any such settlement is or shall be made by will, the time of the

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