PART Í.

CH. V.

or by reason only of payment of any principal, interest, or other money by any other or others of such cocontractors or co-debtors, executors or administrators." A husband and wife are not co-contractors in respect of an ante-nuptial debt of the wife's (1), and this enactment would not apply to them.

Where a dividend under a composition deed made by a principal debtor was paid to a creditor, and the surety, in a letter to the creditor, consented that the dividend should be received without prejudice to the creditor's claim against himself, it was decided that the payment of the dividend, coupled with the letter, did not amount to more than a "payment only" by the co-debtor; and the surety was therefore entitled to the benefit of the statute of James (2). This section was held not to be retrospective, and to have no effect in cases where the payment was made before the passing of the Act (3). It seems clear, however, both on the general principles of construction and from cases decided on the 13th section of the same statute (4), that its provisions apply to all cases of payments made since the passing of the Act, though the debt was contracted before that date. Before the passing of the statute the general effect of the cases was: First, that payment of interest or part payment by one of several co-contractors during the life of all took the case out of the statute against the rest (5) or their

(1) Beck v. Pierce, 23 Q. B. D. 322.

(2) Cockrill v. Sparkes, 1 H. & C. 699; 32 L. J. Exch. 118. See In re Wolmerhausen. Wolmerhausen v. Wolmerhausen, 62 L. T. 541. (3) Jackson v. Woolley, 8 E. & B. 778, 784; 27 L. J. Q. B. 448, overruling on this point Thompson v. Waithman, 3 Drew. 628; Cockrill v. Sparkes, 1 H. & C. 699; 32 L. J. Exch. 118. See Pardo v. Bingham, L. R. 4 Ch. 735.

(4) Archer v. Leonard, 15 Ir. Ch. R. 267; Leland v. Murphy, 16 Ir. Ch. R. 500.

(5) Whitcomb v. Whiting, 2 Dougl. 652; 1 Smith's L. C. 9th ed. 618; Jackson v. Fairbank, 2 H. Bl. 340; Pease v. Hirst, 10 B. & C. 122; Chippendale v. Thurston, 4 C. & P. 98; Wyatt v. Hodson, 8 Bing. 309; Channell v. Ditchburn, 5 M. & W. 494; Goddard v. Ingram, 3 Q. B. 839; Manderston v. Robertson, 4 M. & Ry. 440.

representatives (1). And the same rule prevailed with respect to acknowledgments till the passing of Lord Tenterden's Act (2). Secondly, that in the case of joint or of joint and several debts, the death of any one of the debtors determined the joint contract, so far as he was concerned, and therefore part payment by one of the survivors did not affect his estate; nor, on the other hand, did payment by his personal representatives affect the survivors (3). Thirdly, it was doubtful whether a payment by one of several executors in his representative capacity bound his co-executors or not (4).

PART I.

CH. V.

Partnership debts, though joint debts, stand, during Partnerthe continuance of the partnership, on a somewhat diffe- ship debts. rent footing from other joint debts, because, as long as the partnership exists, one partner, in making payments on account of partnership debts, may be presumed to do so as agent of the firm, and therefore to bind the firm (5); but on the dissolution of partnership by death or otherwise the agency determines, and therefore no payments made after that time can affect any other party than the person who makes them (6).

tractor

executor.

Where one co-contractor becomes the executor of a Co-condeceased co-contractor and makes payments, questions becoming have frequently arisen, especially in the case of partner- also ships, and will probably constantly arise whether such payments were made in the capacity of executor or co-contractor. The cases on this point on this point before the Mercantile Law Amendment Act (7) are still of import

(1) Burleigh v. Stott, 8 B. & C. 36.

(2) Perham v. Raynal, 2 Bing. 306; and see Wood v. Braddick, 1 Taunt. 104.

(3) Atkins v. Tredgold, 2 B. & C. 23; 3 D. & R. 200; Slater v. Lawson, 1 B. & Ad. 396; Ault v. Goodrich, 4 Russ. 430; Way v. Bassett, 5 Hare, 55.

(4) Atkins v. Tredgold, 2 B. & C. 23; Scholey v. Walton, 12 M. & W. 510.

(5) Goodwin v. Parton, 41 L. T. 91.

(6) Thompson v.

Waithman, 3 Drew. 628; Bristow v. Miller, 11 Ir. L. Rep. 461; Watson v. Woodman, L. R. 20 Eq. 721. (7) 19 & 20 Vict. c. 97.

PART I.
CH. V.

Payment of dividend under a bankruptcy.

Payments

ance, because the effect of payments by a surviving cocontractor or the representative of a deceased co-contractor seems to have been the same before as since the Act. The capacity in which the payments are made is to be decided according to the circumstances of each case, and is, at law, a question for the jury. It would seem from the cases that prima facie the payments must be considered as made in the capacity of surviving cocontractor and not of executor (1). Cresswell, J., in a case at Nisi Prius (2) where a question on this point arose, refused to admit evidence as to the capacity in which the payments were made, and directed a verdict for the plaintiff. It does not appear from the report whether he considered that the payment must be taken conclusively to have been made in the capacity of co-contractor, or that the payment by the executor of a deceased co-contractor as such would bind the survivor. In either case, it is submitted that the ruling is inconsistent with the other cases on the subject.

The payment of a dividend on a debt under a bankruptcy or under an inspectorship deed is not such a part payment as to imply a promise to pay the remainder (3). Jackson v. Fairbank (4), which was to the contrary effect, cannot now be considered law; but, as a payment by the bankrupt or insolvent can have no effect now against a co-debtor, the question can hardly arise except in the case of a bankruptcy being annulled.

Another question presents itself closely analogous to tors, heirs, those last discussed, namely, whether payment of interest

by execu

and de

visees.

(1) Atkins v. Tredgold, 2 B. & C. 23; Braithwaite v. Britain, 1 Keen, 206, 221; Scholey v. Walton, 12 M. & W. 510; Way v. Bassett, 5 Hare, 55; Fordham v. Wallis, 10 Hare, 217; Brown v. Gordon, 16 Beav. 302; 22 L. J. Ch. 65; Thompson v. Waithman, 3 Drew. 628; and see Winter v. Innes, 4 My. & C. 101.

(2) Griffin v. Ashby, 2 C. & K. 139.

(3) Davies v. Edwards, 7 Exch. 22; Ex parte Topping, 34 L. J. Bktcy. 44.

(4) 2 H. Bl. 340.

on a debt by an executor keeps up the right of the creditor to compel legatees to refund. This has been decided in the affirmative (1), but such payment would not, it is apprehended, keep up the right if there had been otherwise such laches, acquiescence or other conduct on the part of the creditor as to make the assertion of it inequitable. Similar questions also arise where a simple contract-creditor seeks payment out of the real estate of a deceased debtor under 3 & 4 Wm. IV. c. 104, viz. :as to the effect of acknowledgments in writing, or part payments or payments of interest by the executor, heir or devisee, or one of several devisees in keeping the debt alive against the others. It was decided as to payments before the Mercantile Law Amendment Act that payment by the personal representative would not bind the heirs or devisees or vice versa, that if the executor was also beneficial devisee the character in which he made the payment could not be distinguished, and therefore the personal estate and the land devised to him would be bound; but that if the executor were also a devisee in trust, it would be a matter of evidence in what capacity he made the payment, the presumption, it seems, being that he made it as executor, and therefore that even if the payment by a trustee could bind the cestui que trust, the land was not bound. And it seems to have been assumed that the payment by one of several specific devisees did not bind the others (2). One of the cases (3) arose under 47 Geo. III. sess. 2, c. 74, which first made the real estate of traders subject to their simple contract debts; but that statute is for this purpose the same as the statute of Wm. IV. (4). Acknowledgments would of course be governed by the same principles. The provi

(1) Fordham v. Wallis, 10 Hare, 217; 22 L. J. Ch. 548.

(2) Putnam v. Bates, 3 Russ. 188; Fordham v. Wallis, 10 Hare, 217; 22 L. J. Ch. 548; and see judgment of Kindersley, V.-C., in Coope v. Cresswell, L. R. 2 Eq. 119; 35 L. J. Ch. 506.

(3) Putnam v. Bates, 3 Russ. 188.

(4) 3 & 4 Wm. IV. c. 104.

PART I.

CH. V.

K

PART I.
CH. V.

Is right of marshalling kept alive by payment by

sions of Lord Tenterden's Act (1) as to the effect of acknowledgments, and of the Mercantile Law Amendment Act (2) as to the effect of payments, would seem not to affect this question. The actual point has been decided by Chitty, J., in a recent case (3), where he held that payment of interest on a simple contract debt of the testator by an executrix who was also beneficial devisee for life took the debt out of the statute against all parties interested in remainder (4).

Turner, V.-C., in Fordham v. Wallis, seems to have decided in effect that, even when the right of a simple contract creditor against the personalty was kept alive executors? by payment of interest by the executors, the creditor retained no indirect right against the land by means of the equity of marshalling after the direct right against it was barred. The case seems, however, to have been argued on the ground that the right of the simple contract creditors to marshal put them in the place of the specialty creditors, for the purposes of the Statutes of Limitations, as had been held in one case in Ireland (5), and therefore that the limit was twenty years and not six; and the view of Turner, V.-C., in Fordham v. Wallis, seems to have been that such a contention was wrong, that the cases cited did not support it, but that even if they did, now that the simple contract creditors have a direct right against the land which is clearly barred in six years, they could not be permitted to have an indirect right which would last for twenty. But in Fordham v. Wallis, the simple contract debts were kept alive against the personalty by payments of interest by the executor; and it does not

(1) 9 G. IV. c. 14.

(2) 19 & 20 Vict. c. 97.

(3) In re Hollingshead. Hollingshead v. Webster, 37 Ch. D. 651. (4) And see Roddam v. Morley, 2 K. & J. 336, 341; 25 L. J. Ch. 329; on appeal, 1 De G. & J. 1; 26 L. J. Ch. 438; Morley v. Morley, 5 De G. M. & G. 621; Coope v. Cresswell, L. R. 2 Ch. 123; 36 L. J. Ch. 118.

(5) Ellard v. Cooper, 1 Ir. Ch. R. 376.