CH. IV. such absence at the time of the accrual of the cause of PART II. action, it would probably be held to take away the effect of such absence at the time of an acknowledgment being made. Law No provision is made by sect. 5 of 3 & 4 Wm. IV. c. 42 for the case of any person liable other than the one making the acknowledgment being beyond seas at the time such acknowledgment is made (1); such absence can therefore have no effect to prevent the time running; but if the person making the acknowledgment were at the time of making it beyond seas, the effect of the 5th section was that the action was set free altogether, and time would not run till his return either against him or against any of the other persons liable (2). The 11th Mercantile section of the Mercantile Law Amendment Act provides Amendthat in the case of joint debtors the absence of any of ment Act, them beyond seas at the time when the cause of action accrues shall not extend the time for suing any of the others who are not at that time beyond seas; and this section would probably be held to extend to the case where one of several joint debtors is beyond seas at the time when he makes the acknowledgment, as well as to the case in terms mentioned of such absence at the time of the accrual of the cause of action. And, if this be so, the absence abroad of one joint debtor at the time of his making an acknowledgment will not have any effect in prolonging the time for suing any other person liable. Assuming this to be the correct interpretation of the 11th section of the Mercantile Law Amendment Act, and taking that section along with the 5th section of 3 & 4 Wm. IV. c. 42, the result is as follows:- -Supposing A. and B. to be joint debtors. As to acknowledgments in writing. (i.) A. being abroad acknowledges, B being within seas; then time runs in favour of A. from (1) See Roddam v. Morley, 1 De G. & J. 14. s. 11. M CH. IV. PART II. his return, and in favour of B. from the date of the acknowledgment. (ii.) A. being within seas acknowledges, B. being abroad; the time runs in favour of both from the date of the acknowledgment. When all the joint debtors are abroad at the time of the acknowledgment made, the 11th section of the Mercantile Law Amendment Act does not apply, and the case is governed by the 5th section of 3 & 4 Wm. IV. c. 42, as interpreted in Roddam v. Morley (1); and therefore (iii.) if, A. and B. being both abroad, A. acknowledges, time runs in favour of both from A.'s return. (iv.) If A. and B., being both abroad, give a joint acknowledgment, time, it seems, does not run in favour of either till both have returned. The observations which have been made concerning acknowledgments in writing hold good with respect to part payments made before the passing of the Mercantile Law Amendment Act. But the 14th section of that Act has, as we have seen, done away with the effect of a part payment by one joint debtor since that Act in binding any other party jointly liable. If the person liable makes an acknowledgment abroad and dies without returning, the principles laid down in the last chapter (2) will apply. (1) 1 De G. & J. 1; 26 L. J. Ch. 438. PART III. THE RECOVERY OF MONEY CHARGED CHAPTER I. ACTIONS WITHIN 3 & 4 WM. IV. c. 27, s. 40, or 37 & 38 VICT. c. 57, s. 8. CH. I. for money charged on land. BEFORE the passing of the Act 3 & 4 Wm. IV. c. 27, PART III. there was no limit of time to the recovery of money charged upon land, i.e. so far as it was claimed out of the land. The fact of its being charged did not, how- Personal ever, prevent the effect of the statute of James I. in remedies limiting such personal remedies for the same debt as fell within its provisions (1). This would occur, for instance, in the case of money lent upon a simple deposit of title deeds, or on a mortgage without a covenant for payment, or in the case of an action against the executors of a debtor for a simple contract debt charged on his lands by his will. Such actions must be brought within the time limited for recovering simple contract debts. By 3 & 4 Wm. IV. c. 27, s. 40, actions to recover money charged on land were required to be brought within twenty years from the time when the right to receive the same accrued to some persons capable of (1) See Toplis v. Baker, 2 Cox, 118, 123; Brocklehurst v. Jessop, 7 Sim. 438. CH. I. PART III. giving a discharge. And by the 8th section of 37 & 38 Vict. c. 57, which is substituted for sect. 40 of 3 & 4 Wm. IV. c. 27, the period of limitation is reduced to twelve years. The enactment (37 & 38 Vict. c. 57, s. 8) is as follows: 37 & 38 Vict. c. 57, s. 8. Foreclo sure suits. "No action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twelve years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable or his agent to the person entitled thereto or his agent; and in such case no such action or suit or proceeding shall be brought but within twelve years after such payment or acknowledgment, or the last of such payments or acknowledgments if more than one was given." The 40th section of 3 & 4 Wm. IV. c. 27 (now the 8th section of 37 & 38 Vict. c. 57) relates only to the recovery of money, and therefore does not affect any proceeding which a mortgagee has a right to take for obtaining possession of the land itself (1). The question more than once arose whether foreclosure suits were suits for the recovery of money secured by mortgage within 3 & 4 Wm. IV. c. 27, s. 40 (now 37 & 38 Vict. c. 57, s. 8), or suits for the recovery of land within the 2nd section of 3 & 4 Wm. IV. c. 27 (now sect. 1 of 37 & 38 Vict. c. 57) and the 24th section of the same statute (2). But it is (1) Doe v. Williams, 5 A. & E. 291, 296; In re Conlan's Estate, 29 L. R. Ir. 199. (2) Dearman v. Wyche, 9 Sim. 570; Du Vigier v. Lee, 2 Hare, 326; Wrixon v. Vize, 3 D. & War. 104. 1 CH. I. now settled, in accordance with the opinion of Lord St. PART III. Leonards, when Lord Chancellor of Ireland (1), that foreclosure suits are suits to recover land (2). There is a dictum of Littledale, J. (3), that "The 40th section" (i.e. of 3 & 4 Wm. IV. c. 27) "relates to actions brought to recover the money, and those actions, in the case of mortgages, are either on the covenant usually inserted in the mortgage deed or on the bond which commonly accompanies it." The Act 3 & 4 Wm. IV. c. 27, the 40th section of which limited the time for recovering money charged on land, was passed on the 24th July, 1833. In the same session of Parliament, but three weeks later, was passed the Act 3 & 4 Wm. IV. c. 42, the 3rd section of which limited the time for bringing actions on specialties. The period of limitation prescribed by both enactments was twenty years, and therefore it was of no practical importance to consider which of the two sections limited the right to recover. No express provision was made in the 40th section of 3 & 4 Wm. IV. c. 27 for the disability of a person entitled, and therefore in some cases, such as that of the person entitled having been absent beyond seas, it might have been necessary to deal with this question. But it is believed that there is no reported decision on the point. A similar question, however, soon arose as to the right to recover arrears of money charged on land which were also secured by covenant. The 42nd section of 3 & 4 Wm. IV. c. 27 limited the recovery of arrears of money charged on land to six years. The wording of the 40th and 42nd sections is very similar, and the same reasoning would seem to apply in dealing with cases falling within 3 & 4 Wm. IV. e. 42, s. 3, and 3 & 4 Wm. IV. c. 27, s. 42. In the latter class of cases with respect to the right to recover arrears (1) Wrixon v. Vize, 3 D. & War. 104. (2) Heath v. Pugh, 6 Q. B. D. 345; Pugh v. Heath, 7 App. Cas. (3) Doe v. Williams, 5 A. & E. 296. 3 & 4 Wm. IV. c. 27, s. 40, and 3 & 4 Wm. IV. c. 42, s. 3. |