19 & 20 Vict. c. 97, s. 10. Absence beyond seas or imprisonment of a creditor not to be a disability. Period of limitation to run as to joint debtors in the kingdom, though some are beyond seas. 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 Third, chapter one hundred and twenty-seven, section five (c), 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. 208. (c) Ante, p. 186. (d) Ante, pp. 176, 185. (e) Ante, p. 202. 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). 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 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 against joint 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). Judgment recovered debtors in the against others (g) Ante, p. 216. Definition of 12. No part of the United Kingdom of Great Britain and "beyond seas, within Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, 4 & 5 Anne, and Sark, nor any islands adjacent to any of them, being part c. 16, and this act. 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. 145; 3 & 4 Will. 4, c. 42, s. 7, ante, p. 207. 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 (Ib.) 19 & 20 Vict. c. 97, 8. 12. c. 14, ss. 1 13. In reference to the provisions of the acts of the ninth Provisions of year of the reign of King George the Fourth, chapter fourteen, 9 Geo. 4, sections one and eight (), and the sixteenth and seventeenth and 8, and years of the reign of her present Majesty, chapter one hundred 16 & 17 Vict. and thirteen, sections twenty-four and twenty-seven (k), an ac- c. 113, 88. 24 knowledgment or promise made or contained by or in a writing tended to signed by an agent of the party chargeable thereby, duly autho- acknowledgrized to make such acknowledgment or promise, shall have the ments by same effect as if such writing had been signed by such party himself. (i) Ante, pp. 217, 220. and 27, ex agents. tractor, &c. Limitations 14. In reference to the provisions of the acts of the twenty- Part payment first year of the reign of King James the First, chapter sixteen, by one consection three (), and of the act of the third and fourth years of not to prevent the reign of King William the Fourth, chapter forty-two, sec- bar by certain tion three (m), and of the act of the sixteenth and seventeenth Statutes of years of the reign of her present Majesty, chapter one hundred in favour of and thirteen, section twenty (n), when there shall be two or another conmore co-contractors or co-debtors, whether bound or liable tractor, &c. 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. 208. (m) Ante, p. 202. (n) Ante, p. 203. Before this act, it was held that payment of interest by one of the Old law as to makers of a joint and several promissory note was sufficient to take the payments by case out of the Statute of Limitations as against the other maker (Whit- one of several comb v. Whiting, 2 Doug. 652), although such payment was made after joint conthe 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. tractors. 19 & 20 Vict. c. 97, s. 14. Payments after death of one of several joint contractors. Partners: Payments after death of one of several. Executors. Short title. Extent of act. Robertson, 4 M. & R. 140; see also cases cited 5 M. & W. 498, n.) 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, 8 Bing. 309); but it was limited to cases where a joint liability existed, and was never applied where the liability arose from promises which were several only (Re Woolmershausen, 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). So also 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). See the doubts previously expressed as to this, Winter v. Innes (4 M. & Cr. 111); Braithwaite v. Britain (1 Keen, 221). 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). Where all the partners survive, it has been decided, since 19 & 20 Vict. c. 97, that the above section does not apply to a payment made during the continuance of a partnership, by one partner on account of a debt due by the 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 after a dissolution, part payment by a continuing partner cannot be set up against a retiring partner as an answer to the statute (Watson v. Woodman, 20 Eq. 721). For the effect before 19 & 20 Vict. c. 97, of a payment by 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). Under the above section (which was held not retrospective as regards the date of the payment, Jackson v. Woolley, 8 E. & B. 784), part payment 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 37 & 38 Vict. c. 57, s. 8, ante, p. 198 (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 Woolmershausen (62 L. T. 541, a separate promissory note). 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. V. LIMITATION OF TIME IN ACTIONS AGAINST TRUSTEES. 51 & 52 VICTORIA, CAP. 59.-An Act to amend the Law relating to the Duties, Powers, and Liability of Trustees. [24th December, 1888.] 51 & 52 Vict. c. 59, s. 1. Short title, extent, and 1.-(1.) This act may be cited as the Trustee Act, 1888. (2.) This act shall not extend to Scotland. (3.) For the purposes of this act, the expression "trustee❞ definition. shall be deemed to include an executor or administrator, and a trustee whose trust arises by construction or implication of law, as well as an express trustee, but not the official trustee of charitable funds. (4.) The provisions of this act relating to a trustee shall apply as well to several joint trustees as to a sole trustee. 8.-(1.) In any action or other proceeding against a trustee or Statute of any person claiming through him, except where the claim is Limitations founded upon any fraud or fraudulent breach of trust to which may be pleaded by the trustee was party or privy, or is to recover trust property, or trustees. the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use, the following provisions shall apply: (a.) All rights and privileges conferred by any statute of limitations shall be enjoyed in the like manner and to the like extent as they would have been enjoyed in such action or other proceeding if the trustee or person claiming through him had not been a trustee or person claiming through him: (b.) If the action or other proceeding is brought to recover money or other property, and is one to which no existing statute of limitations applies, the trustee or person claiming through him shall be entitled to the benefit of and be at liberty to plead the lapse of time as a bar to such action or other proceeding in the like manner and to the like extent as if the claim had been against him in an action of debt for money had and received, but so nevertheless that the statute shall run against a married woman entitled in possession for her separate use, whether with or without a restraint upon anticipation, but shall not begin to run against any beneficiary unless and until the interest of such beneficiary shall be an interest in possession (a). (2.) No beneficiary, as against whom there would be a good defence by virtue of this section, shall derive any greater or other benefit from a judgment or order obtained by another beneficiary than he could have obtained if he had brought such action or other proceeding and this section had been pleaded. (3.) This section shall apply only to actions or other proceedings commenced after the first day of January one thousand eight hundred and ninety, and shall not deprive any executor or 51 & 52 Vict. c. 59, s. 8. Application of act. administrator of any right or defence to which he is entitled (a) Sub-sect. (1) (b) was held to bar an action by a new trustee to com- As to the exceptions in sub-sect. (1), see Moore v. Knight (1891, 1 Ch. 553). In the last-mentioned case it was also laid down that the principle of the decision in Blair v. Bromley (2 Phil. 354, post, p. 233) is unaffected by the above section. Kere be action was commeard before of many (2.) Provided always, that save as in this Act expressly pro- 148) Land, money charged on land, &c. Specialty and simple contract debts. VI.-COURTS OF EQUITY AND THE STATUTES OF LIMITATION. In the case of suits in courts of equity (before the Judicature Acts) relating to land, rent-charges, church property, advowsons, money charged on land or rent-charges, legacies, and the estates of intestates, provisions in terms affecting such suits occurred in 3 & 4 Will. 4, c. 27 (sects. 24—34, 40-43); 1 Vict. c. 28; 23 & 24 Vict. c. 38 (sect. 13). See these sections, ante. Sects. 2-5, 7-9, 14-22 of 3 & 4 Will. 4, c. 27, applied in terms only to actions at law. All the provisions, however, of 37 & 38 Vict. c. 57 (ante, p. 194), were so framed as to apply in terms to courts of equity as well as courts of law. In the case of trusts, proceedings in all courts are also affected by Jud. Act, 1873, sect. 25 (2); Trustee Act, 1888, sect. 8. In the case of specialty and simple contract debts the statutes which prescribed the periods of limitation for the recovery of such debts did not apply in terms to courts of equity. But it was said before the Judicature Acts that in the case of legal demands those courts acted in obedience to the statutes (Foley v. Hill, 1 Ph. 399). Since the Judicature Acts, it has been said that 21 Jac. 1, c. 16, s. 3, is binding upon the High Court, and applies to every action properly described by it (Re Greaves, Bray v. Tofield, 18 Ch. D. 554; see Gibbs v. Guild, 9 Q. B. Div. 67; Re Sharpe, Masonic Co. v. Sharpe, 1892, 1 Ch. 154). Again, it has been laid down that in the case of a legal right a court of equity will not refuse relief on the ground of delay unless sufficient to create a statutory bar (Re Maddever, Three Towns' Co. v. Maddever, 27 Ch. Div. 532; Moore v. Marriott, 7 Ch. D. 546). Thus a less delay did not deprive a plaintiff of his right to an injunction in aid of an action of deceit (Fullwood v. Fullwood, 9 Ch. D. 176). So also a deed was set aside under 13 Eliz. c. 5, ten years after the death of the grantor (Three Towns' Co. v. Maddever, sup.) And a specialty creditor recovered his debt more than eighteen years after the |