this purpose. These provisions are not affected by the fact that Chap. XIX. a plaintiff can now issue a writ for service upon a defendant out of the jurisdiction.2 It follows that if a defendant who is beyond the seas when the cause of action arises returns to England for a very short time, and even without the plaintiff's knowledge, time begins to run against the plaintiff from the time of such return.3 A foreigner who has never been in England is within the exception.* Formerly, if one or more of several joint debtors were beyond Joint debtors. the seas when the cause of action arose, time did not begin to run in favour of any of them till the return or death of the former.5 But in this case it is now provided by the Mercantile Law Amendment Act, 1856,6 that a plaintiff shall not be entitled to any time within which to commence an action against one joint debtor because the other is beyond the seas at the time when the cause of action accrued. The person entitled to sue can commence an action against the joint debtor who is not beyond the seas alone;7 and he is not barred from suing the other upon his return, although he may have recovered judgment against the joint debtor who was not beyond the seas.6 ambassador. An ambassador accredited to the sovereign cannot be sued in Foreign. the Courts of this country; and this immunity extends to such a reasonable period after he has presented his letters of recall as is necessary to enable him to wind-up his official business and prepare for his return to his own country; and the Statute of Limitations does not run against his creditors during the whole of such period.8 disabilities. Where a person, under disability when the cause of action Successive arises, becomes affected by a disability of another nature before the first disability ceases, time does not begin to run until the determination of the second disability." If a person is under disability when the cause of action accrues to him, and so continues till his death, his personal representatives have a right of action though the period of limitation elapsed 119 & 20 Vict. c. 97, s. 12. 2 Musurus Bey v. Gadban, [1894] 2 Q. B. 352. 3 Gregory v. Hurrill, 5 B. & C. 341. 4 Lafond v. Ruddock, 13 C. B. 813; Strithorst v. Græme, 3 Wils. 145. Fannin v. Anderson, 7 Q. B. 811; Towns v. Mead, 16 C. B. 123. 619 & 20 Vict. c. 97, s. 11. 7 Wilson v. Balcarres Co., [1893] 1 Q. B. 422. 8 Musurus Bey v. Gadban, [1894] 2 Q. B. 352. 9 See Musurus Bey v. Gadban, sup. See Darby & Bos. 61. Right of executor of person dying under disability. Chap. XIX. in his life. There appears to be some doubt whether the personal representatives of such a person are bound by the statute, that is, whether time begins to run against them as from the death of the person whom they represent. Probably, as it is only by an equitable construction of the statute that their right to maintain an action is preserved, so by the same equitable construction the limitation of time ought to be extended as against them. If this be so, where the person under disability dies, having appointed executors, time would begin to run against them from his death; where he dies intestate, there is a question whether time would begin to run against his administrator from the date of his appointment or from the death.2 New promise to pay acknowledg ment-part payment. Acknowledg The effect of the statute 21 Jac. I, c. 16, being to bar the remedy, not to extinguish the debt, a debtor may, by a new promise to pay, revive his liability, even after the period of limitation has expired. Such promise may be express, or implied from an acknowledgment of the debt or payment of any principal or interest. Prior to Lord Tenterden's Act (9 Geo. IV, c. 14.), a verbal promise or acknowledgment was sufficient; but that Act, ment to be in after reciting that various questions had arisen in actions founded on simple contracts as to the proof and effect of acknowledgments and promises offered in evidence for the purpose of taking cases out of the operation of the statute, provides that an acknowledg ment or promise, to be sufficient to take a debt out of the operation of the statute, must be in writing signed by the party chargeable." writing. Acknowledg debtor; It further provides that a written acknowledgment by one of ment by joint several joint contractors, or executors or administrators of a contractor, shall not deprive the others of the benefit of the statutes; and that a plaintiff may recover against those of them who have given an acknowledgment or promise." by co-exe-cutor. With regard to co-executors of a contractor, it has been decided that the effect of this section is only to prevent the one from being made personally liable by an acknowledgment given by the other; 1 See the opinions of Parke, B., and Rolfe, B., differing on this point, in Townsend v. Deacon, 3 Ex. 706. 2 See these questions discussed, Darby & Bos. 62. 3 See per Ld. Tenterden, C. J., in Tanner v. Smart, 6 B. & C. 606; 30 R. R. 461; Pollock on Contract, 645. 4 Re Lane, 23 Q. B. D. 74. Secus, as to claims to real estate. See M. L. R. P. 431. 59 Geo. 4, c. 14, s. 1. lingshead, 37 Ch. D. 57. See Re Hol and that an acknowledgment by one only, given in his character Chap. XIX. of executor only, will bind the testator's personal estate.1 The effect of any payment of principal or interest made by any person is, however, preserved.2 By the Mercantile Law Amendment Act, 1856, a written Signature by acknowledgment, signed by a duly authorised agent, is made agent. sufficient.3 4 By the last-mentioned Act, it is provided that payment of any Payment by a joint debtor. principal or interest by one of several co-debtors, co-contractors, or executors or administrators of a contractor, shall not of itself deprive the others of the benefit of the statutes. If, however, the payment is made by one co-debtor under such circumstances that the payment was made by him as agent for, or at the request of, another co-debtor, the liability of the latter will be kept alive.5 The effect of Lord Tenterden's Act, which did not make any alteration in the legal construction to be put upon promises or acknowledgments, but merely required a different mode of proof,7 was thus stated by Mellish, L. J.:-8 promise, or (2) acknowledgment from which promise can "There must be a proof of some writing signed by himself, either There must containing an express promise to pay the debt, or being in terms from bewhich an unconditional promise to pay it is necessarily to be implied. (1) express If, therefore, the writer, although he admits the existence of a debt, refuses to pay it or reserves the matter for future consideration, or refers the creditor to some third person for payment, or the like, this will not be sufficient to prevent the operation of the statute. That being the rule, there must be one of these three things to take the case out of the statute. Either there must be an acknowledgment of the debt, from which a promise to pay is to be implied; or, secondly, there must be an unconditional promise to pay the debt; or, thirdly, there must be a conditional promise to pay the debt, and evidence that the condition has been performed." be inferred. An absolute acknowledgment of the debt is sufficient, because To whom it an unconditional promise to pay may be inferred from it; the 1 Re Macdonald, [1897] 2 Ch. 181. 29 Geo. 4, c. 14, s. 1. See Re Hollingshead, 37 Ch. D. 657. 19 & 20 Vict. c. 97, s. 13. 4 S. 14. See Watson v. Woodman, 20 Eq. 721. 5 Tucker v. Tucker, [1894] 3 Ch. 429. 69 Geo. 4, c. 14, s. 1. See, on this Act, the notes to Whitcomb v. Whiting, 1 Sm. L. C. 579. Per Tindal, C. J., in Haydon v. Williams, 7 Bing. 166; 33 R. R. 415. 9 8 Re River Steamer Co., 6 Ch. 828. See Green v. Humphreys, 26 Ch. D. 474 ; Meyerhoff v. Froehlich, 4 C. P. D. 63; Curwen v. Milburn, 42 Ch. D. 424; Bourdin v. Greenwood, 13 Eq. 281; Quincey v. Sharpe, 1 Ex. D. 72; Banner v. Berridge, 18 Ch. D. 273; Langrish v. Watts, [1903] 1 K. B. 636. The cases as to promise or acknowledgment are collected in Darby & Bos. pp. 69-91. 9 Tanner v. Smart, 6 B. & C. 603; 30 R. R. 461; Skeet v. Lindsay, 2 Ex. D. must be made. Chap. XIX. acknowledgment therefore "must be to the creditor1 or his agent, to someone who was entitled to receive payment of the debt, and to whom you could presume a promise to pay it." 2 Acknowledg ment by payment. Payment to or by agents. What is a payment. A part payment of principal, or a payment of interest, may also take a case out of the operation of the statute, if from such payment an acknowledgment and a promise to pay the residue can be inferred. This, as has been already pointed out, is excepted from the provisions of section 1 of Lord Tenterden's Act. Parke, B., explains this as follows:-5 "In order to take a case out of the Statute of Limitations by a part payment, it must appear, in the first place, that the payment was made on account of a debt; secondly, it must appear that the payment was made on account of the debt for which the action is brought. But the case must go farther, for it is necessary, in the third place, to show that the payment was made as part payment of a greater debt, because the principle upon which a part payment takes the case out of the statute is that it admits a greater debt to be due at the time of payment. Unless it amounts to an admission that more is due, it cannot operate as an admission of any still existing debt." The payment must be made to the creditor or to an agent of the creditor, and for this purpose the cestui que trust is agent for the trustee; it may be made by the agent of the debtor; and a payment by the debtor to a third person may be sufficient if made at the creditor's request, express or implied, in part payment of the debt.10 11 The payment need not actually be made in money; acceptance 314. Notes to Whitcomb v. Whiting, 1 1 Fuller v. Redman, 26 Beav. 619; 2 Per Ld. Herschell, Stamford Bank v. Smith, [1892] 1 Q. B. 769. 3 Tanner v. Smart, 6 B. & C. 603; 30 R. R. 461. Notes to Whitcomb v. Whiting, 1 Sm. L. C. 579. 4 Ante, p. 350. 5 Tippets v. Heane, 1 C. M. & R- 253; 40 R. R. 549. 6 This may be implied from circumstances; Burn v. Boulton, 2 C. B. 476; The Evans v. Davies, 4 A. & E. 840. payment must have been made on account and not as payment in full; Burn v. Boulton, sup. 7 Evans v. Davies, 4 A. & E. 840; Hart v. Stephens, 6 Q. B. 937 ; Stamford Bank v. Smith, [1892] 1 Q. B. 765. 8 Megginson v. Harper, 2 Cr. & M. 322; 39 R. R. 784. 9 Jones v. Hughes, 5 Ex. 104; Newbould v. Smith, 33 Ch. D. 127; Thorne v. Heard, [1895] A. C. 495. Payment by a devisee for life of interest on a simple contract debt of the testator keeps alive the creditor's right to obtain payment out of the real estate of the testator as against the remaindermen: Re Hollingshead, 37 Ch. D. 651. 10 Worthington v. Grimsditch, 7 Q. B. 479. 11 See Re Dixon, [1900] 2 Ch. 561. of goods in part payment or any arrangement which has the effect Chap. XIX. of partially discharging the debtor is sufficient.1 Where there are two or more debts owing by the debtor to the Appropriation same creditor and some are barred by the statute and some not, of payments. the creditor can appropriate to the barred debts a general payment, not appropriated by the debtor, yet such payment will not revive the barred debts. But the appropriation by the creditor of a general payment to the debt which is not statute barred will take that debt out of the statute. The law as to the appropriation of any payment to a particular debt or item is that the debtor may, in the first instance, appropriate the payment-solvitur in modo solventis; if he omits to do so, the creditor may make the appropriation-recipitur in modo recipientis; but if neither make any appropriation, the law appropriates the payment to the debt which is not barred." 4 Where there has been an acknowledgment, or part payment, or payment of interest, the statute begins to run from the last acknowledgment or payment. Specialty Debts-Penalties-Judgment Debts-Legacies-Personal Estate of Intestates. debts. 3 & 4 Will. 4, c. 42, s. 3 20 years. It was enacted in 18336 that actions for debt for rent upon an Specialty indenture of demise, and actions of covenant or debt upon any bond or other specialty, must be commenced within twenty years after the cause of action; or, in the case of a person who is under disability (i.e., an infant, a married woman, or a person non compos) at the time when the cause of action accrues, within twenty years from such disability ceasing." Being in prison was 1 As to acceptance of goods, Hooper v. Stephens, 4 A. & E. 71; 43 R. R. 306; Hart v. Nash, 2 C. M. & R. 337; 41 R. R. 732. As to other instances, see Moore v. Strong, 1 B. N. C. 441; Pearce v. Selby, 6 Jur. 896; Bodger v. Arch, 10 Ex. 333; Maber v. Maber, L. R. 2 Ex. 153; Burchell v. Hawes, 62 L. J. Ch. 463. 2 Mills v. Fowkes, 5 B. N. C. 455; 50 R. R. 750. 3 Nash v. Hodgson, 6 De G. M. & G. 474. This may be proved by his declarations either before or after payment or G.P.P. 8 by other circumstances: Waters v. Tomp- 5 See Clayton's Case, 1 Mer. 585; 15 317. 63 & 4 Will. 4, c. 42, s. 3. 7 M. L. R. P. 437. 8 As to the effect of the provisions of the Married Women's Property Act, 1882, ante, p. 348. 93 & 4 Will. 4, c. 42, s. 4. 23 |