CH. III. persons jointly liable; and (h) in the case of such party PART II. dying abroad, the time would probably be held to run in favour of the survivors from his death. (2) In the case of successive disabilities in the same person-one supervening before the other is removed-time does not begin to run till the last disability is removed. (j) If a person entitled to an action dies under disability, his representatives have a right of action, although the period of limitation has elapsed during his life; and (k) the better opinion seems to be that such right is also limited by the statute. If the representatives are executors, the time would run against them from the death of the testator; but if administrators, it is an open question whether the time would run from the death of the intestate or the grant of administration; but (1) where the disability of an executor supervenes upon the disability of the testator, the better opinion would seem to be that time would not run till the cessation of the executor's disability. (m) If a person liable to an action dies beyond the seas, his representatives are liable, although the period of limitation has elapsed during his life, and (n) time runs in their favour not from his death but from the grant of administration or the time when the executor proves or acts before proving. (0) If, however, at the time of the death the executor is absent beyond the seas, time will not run until he has both returned home and either acted in England or proved the will. The meaning of "beyond seas" both in the statute of What James and in 3 & 4 Wm. IV. c. 42, is, as before men- beyond places are tioned (1), defined by the 7th section of the latter seas. statute, so that now Ireland, the Isle of Man, and the Channel Islands are not reckoned as beyond seas. Coverture, since the 1st January, 1883, when the Coverture. Married Women's Property Act, 1882, came into opera (1) Page 57. CH. III. PART II. tion, is no longer a disability, and time will run against a married woman from the accrual of the cause of action (1); in the case of women married before the 1st January, 1883, if the cause of action accrued before the 1st January, 1883, time will run from that date. (1) 45 & 46 Vict. c. 75, s. 1, sub-s. 2. Lowe v. Fox, 15 Q. B. D. 667; Weldon v. Neal, 51 L. T. 289; 32 W. R 828. CHAPTER IV. ACKNOWLEDGMENTS (3 & 4 WM. IV. c. 42, s. 5). PART II. CH. IV. It will be remembered that, in interpreting the statute 21 Jac. I. c. 16, the Courts introduced an exception in those cases where the party entitled to the benefit of the statute had acknowledged the debt or paid interest or part of the principal. A similar exception was introduced by the legislature itself into the statute 3 & 4 Wm. IV. 3&4 c. 42, the 5th section of which enacts as follows:- 'If any acknowledgment shall have been made either by writing signed by the party liable by virtue of such indenture, specialty or recognizance, or his agent, or by part payment, or part satisfaction, on account of any principal or interest being then due thereon, it shall and may be lawful for the person or persons entitled to such actions, to bring his or their action for the money remaining unpaid, and so acknowledged to be due, within twenty years after such acknowledgment by writing or part payment or part satisfaction as aforesaid, or in case the person or persons entitled to such action shall, at the time of such acknowledgment, be under such disability as aforesaid, or the party making such acknowledgment be at the time of making the same beyond the seas, then within twenty years after such disability shall have ceased as aforesaid, or the party shall have returned from beyond seas, as the case may be; and the plaintiff or plaintiffs in any such action on any indenture, specialty or recognizance may by way of replication state such acknowledgment, and that such W. IV. c. 42, s. 5. PART II. action was brought within the time aforesaid, in answer to a plea of this statute." CH. IV. Cases within this section. Acknowledgment by agent. This section does not give effect to an acknowledgment or part payment in all cases for which a limitation is provided by the third section, as it is in terms limited to the cases of actions brought on indentures of demise, specialties or recognizances, being those actions to which the limitation of twenty years is attached. Nor does any other statute provide for the cases omitted; and in all such cases, therefore, it seems that an acknowledgment can have no effect in keeping alive the right of action, unless, by the principle adopted in the construction of the statute of James, it should be held in the case of an action for a copyhold fine or an award when the submission is not under seal, that from an acknowledg ment such a promise could be implied as would be a new cause of action. It does not follow that in every case where a right of action exists founded on an indenture, specialty or recognizance, the time for bringing such actions will be extended by the making of an acknow• ledgment, as under the fifth section a sum must be acknowledged to be due, and this can only be the case where the sum to be recovered is a definite sum, and not where it is to be recovered by way of unliquidated damages. Thus where a bond was conditioned for the replacing by a certain time of stock which the plaintiff had sold out for the defendant's benefit, and for the payment in the meantime of such sums as would be equal to the dividends of the stock, a payment on account of such last-mentioned sum was held not to have the effect of keeping alive the right of action for not replacing the stock, as the damages recoverable for such breach were unliquidated (1). The fifth section puts an acknowledgment by an agent on the same footing with one made by the party liable (1) Blair v. Ormond, 17 Q. B. 423, 436; and see above, p. 105. CH. IV. himself, and in Forsyth v. Bristowe (1) it was held that PART II. where a mortgagor assigned the equity of redemption and the assignee paid interest on the mortgage, the latter was an agent of the mortgagor to save the limitation of the statute. It has never been seriously doubted (2) but that an Payment. acknowledgment by payment must, like an acknowledgment in writing, be made by the party liable, or his agent. Where in a suit (3) for partnership accounts a receiver was appointed, and made payments to the plaintiff's on account of a debt due to them from one of the defendants under a covenant in a partnership deed, but such payments were not authorised by the terms of his appointment, nor was it proved that the defendant sanctioned their being made, it was held that the receiver was not the agent of the defendant for the purpose of making the payments, and that the payments did not prevent the operation of the statute. Nothing was said as to what would have been the effect in case the receiver had been authorised by the Court to make the payments relied on. It has been decided, as before seen (4), that an acknowledgment, in order to be sufficient to take a debt out of the statute of James, must be such as would amount to a new promise to pay, and the question naturally arose on the construction of the present section, whether the acknowledgment required by it must be of the same nature, or whether any admission of the existence of the debt was sufficient, and whether it was necessary that such admission should be made to the party entitled or his agent. These questions, after being raised but not (1) 8 Exch. 716; 22 L. J. Exch. 255; see Dibb v. Walker, 37 Sol. Jo. 355; 94 L. T. (newspaper) 484. (2) See Forsyth v. Bristowe, 8 Exch. 722; Roddam v. Morley, 1 De G. & J. 6; Coope v. Cresswell, L. R. 2 Ch. 124. (3) Whitley v. Lowe, 25 Beav. 421; 2 De G. & J. 704. (4) See p. 68. |