420

New Statutes.-Mercantile Law.

[LEGAL OBSERVER, appoint, and in default of payment may be re- | case, other than such accounts as concern the covered in a summary manner.

61. District surveyor to see plans carried into execution.

62. Power to Metropolitan Board to appoint superintending architect and clerks.

63. Superintending architect may appoint deputy, with consent.

64. Salaries to architect and clerks.

65. Power of Metropolitan Board to pay

saluries.

66. Moneys received by superintending architect to be paid to the Metropolitan Board. 67. Metropolitan Board may pay salaries out

of rates.

63. All expenses of carrying into execution this Act, not hereby otherwise provided for, shall be deemed to be expenses incurred by the said Metropolitan Board in the execution of the said Act for the better local management of the metropolis, and shall be raised and paid accordingly.

[To be continued.]

MERCANTILE LAW.

SECOND REPORT OF THE COMMISSIONERS.

To the Queen's Most Excellent Majesty in her
High Court of Chancery.
[Concluded from page 402.]

VIII. LIMITATION AND PRESCRIPTION.

The Law of England and Ireland, and the Law of Scotland, on this subject, differ widely from each other; yet there is, perhaps, no branch of Mercantile Law in regard to which uniformity is more desirable; for the conflict which exists gives rise to this special mischief, namely, that as prescription or limitation is a plea belonging to the remedy, and governed by the lex fori, a debtor, by removing from the jurisdiction to which he was subject at the time of the contract, has the power materially to prejudice the rights of his creditors.

Both in England and Ireland, and in Scotland, the law is founded on and regulated by Statute, the principle of the Common Law being the same in all the countries, that a right never dies, and, consequently, that length of time is no bar to proceedings for making it effectual.

Period of Limitation of Prescription. cantile Transactions generally.

trade of merchandise between merchant and merchant, their factors or servants, all actions of debt grounded upon any lending or contract, without specialty; all actions of debt for arrearages of rent, and all actions of assault, menace, battery, wounding, and imprisonment, or any of them, which shall be sued or brought at any time after the end of this present Session of Parliament, shall be commenced and sued within the time and limitation hereafter expressed, and not after (that is to say), the said actions upon the case (other than for slander), and the said actions for account, and the said actions for trespass, debt, detinue, and replevin for goods or cattle, and the said action of trespass quare clausum fregit, within three years next after the end of this present Session of Parliament, or within six years next after the cause of such actions or suit, and not after." By the English Act 4 Anne, c. 16, s. 17, it is enacted, that "all suits and actions in the Court of Admiralty for seamen's wages which shall become due after the said first day of Trinity Term shall be commenced and sued within six years next after the cause of such suits and actions shall accrue, and not after."

Specialty.

The 3rd section of 3 & 4 Wm. 4, c. 42, enacts, that all actions of debt for rent upon any indenture of demise, or covenant, or debt upon any bond or other specialty, and all actions of debt or scire facias upon any reccognisance, shall be commenced and sued within 20 years after the cause of such actions or suits shall accrue, but not after.

This section provides that all actions of debt upon any award where the submission is not by specialty, or for any fine due in respect of any copyhold estate, or for an escape, or for money levied on any scire facias, shall be commenced and sued within six years after the cause of such actions or suits shall accrue, and not after.

It is not necessary to advert to the various Statutes which have been passed for Ireland on this subject, as they have all been consolidated in the recent "Act to amend the Procedure in the Superior Courts of Common Law in Ireland," 16 & 17 Vict. c. 113. The 20th section of that Act incorporates in substance the aboveMer-mentioned provisions of the 21 James 1, c. 16, and 3 & 4 Wm. 4, c. 42, s. 3.

The period of limitation in England and Ireland applicable to simple contract debts is six years, and to debts on specialty 20 years, from the time the cause of action or suit accrues. If this period is suffered to expire, all remedy by action or suit to enforce payment ceases, but the debt is not extinguished.

(England) Simple Contract.

The 21 James 1, e. 16, s. 3 (England), enacts, "That all actions of trespass quare clausum fregit, all actions of trespass, detinu, action sur trover, and replevin for taking away of goods and cattle, all actions of account, and upon the

(Scotland) Long Prescription.

46

Prescription was first introduced into the Law of Scotland by the Act 1469, c. 28, which adopted the præscriptio longissimi temporis of the Roman Law. The Act is in the following terms: Item, as anent obligations, that sall be followed in time cumming, except them that are depend and in law before the making of this Act, it is advised that the partie to quhome the obligation is maid, that has interest therein, sall follow the said obligation within the space of fourtie zeiris, and take document thereupon; and gif he does not, it shall be prescrived, and

SEPT. 29, 1855.]

Mercantile Law-Second Report of the Commissioners.

421

of nain availe the said fourtie zeiris beand run- [ the said bills or notes become exigible." It nin and unpersewed be the partie."

Another Act was passed 1474, c. 54, explanatory of the former :-" Item, anentis the acte maid of before of prescription of obligations: It is ordained to be understandin in this wise; that all auld obligations maid of before, that is elder then the date of fourtie zeiris, not dependant in law in the time of the making of the said actis, shall be prescribed, and of na strength; and in likewise in time to cum, all obligations maid, or to be maid, that beis not followed within fourtie zeiris, sall prescrive and be of nane availe."

These Acts have a very extensive operation. They apply generally to all personal obligations, and their effect is to extinguish the obligation or right. Besides this long prescription there are several shorter prescriptions applicable to mercantile claims, the effect of which generally is, not to extinguish the obligation, nor even to cut off the remedy by action, but merely to affect the legal presumption as to the subsistence of the debt, and to change the mode of proof; so that claims which might be proved by parol or other legal evidence within the years of prescription, can only be established after the years have expired, by the writing

or oath on reference of the debtor.

Triennial.

1st. Triennial Prescription. By the Act 1579, c. 83, it is enacted, "That all actions of debt for house mails (rents), men's ordinaries, servants' fees, merchants' accounts, and other the like debts that are not founded upon written obligations, be pursued within three years; otherwise the creditor sall have nae action except he either prove by writ or by oath of his party."

Quinquennial.

2nd. Quinquennial Prescription. This prescription was introduced by the Act 1669, c. 9, by which it is, among other things, enacted, "That all bargains concerning moveables or sums of money, proveable by witnesses, shall only be proveable by writ or oath of party, if the same be not pursued for within five years after the making of the bargain."

Sexennial.

will be observed, that while the preamble points to a limitation of the endurance of the bill, the enacting part proceeds on the same footing as the English Statute of Limitations; viz, by barring the remedy. But by a provision in a subsequent clause (39) it is made "lawful and competent at any time after the expiration of the said six years, in either of the cases before-mentioned, to prove the debts contained in the said bills and promissory notes, and that the same are resting owing, by the oaths or writs of of the debtor."

The effect of this provision, as expounded by the decision of the Courts in Scotland since the date of the Act, is to give to the sixennial prescription the same operation as the shorter prescriptions generally; i. e., to shift the onus probandi and to change the mode of proof.

66

Vicennial.

4th. Vicennial Prescription. By another clause in the Act 1669, c. 9, it is provided that Holograph missive letters and holograph bonds, and subscriptions in account books without witnesses, not being pursued for within 20 years shall prescribe in all time theredefender's oath the verity of the said holograph after, except the pursuer offer to prove by the bonds and letters and subscriptions in the account books." The effect of this provision is to cut off all evidence of the genuineness of the subscription, excepting the defender's oath on the pursuer's reference.

We are of opinion that one uniform period of six years should be introduced into Scotland as the term of prescription or limitation applicable to all mercantile transactions which at present would fall under any of these Acts.

We are also of opinion that this prescription should have the same operation as the limitation of the Law of England and Ireland to bar the remedy by action or suit after the lapse of the period of prescription.

Period of Limitation or Prescription.--Running

Accounts.

With regard to running accounts, as well where all the items are on one side as where the accounts are mutual, prescription commences by the Law of Scotland from the date of the last item, provided the accounts are continuous, without the interval of three years between any two items; but according to the Law of England and Ireland, in all accounts, with the exception mentioned in 21 James 1, c. 16, s. 3 [England], and 16 & 17 Vict. c. 113, s. 20 [Ireland], of such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants," the remedy is barred as to every item that is more than six years old. Items within six years do not operate to take the previous portion of the account out of the Statute.

3rd. Sexennial Prescription. The Statute which introduced this prescription into the Law of Scotland is the 12 Geo. 3, c. 72, s. 37; whereby, on the preamble that "whereas the not limiting bills and promissory notes to a moderate endurance in that part of Great Britain called Scotland has been found by experience to be attended with great inconveniences, for remedy whereof" it is enacted, "That no bill of exchange or promissory note executed after the 15th day of May, 1772, shall be of force or effectual to produce any diligence or action, in that part of Great We recommend the repeal of the exception Britain called Scotland, unless such diligence as to merchants' accounts. According to the shall be raised and executed, or action com-decisions of the Courts in England, the excepmenced thereon, within the space of six years tion has become practically inoperative, being from and after the terms at which the sums in limited to cases where an action of account or

Mercantile Lau-Second Report of the Commissioners. [LEGAL OBSERVER,

an action on the case for not accounting, would was enacted by 3 & 4 Wm. 4, c. 42, s. 7, "that lie; and we are of opinion that the Law of England and Ireland, as so amended, should be extended to Scotland, so that in current accounts all items more than six years old should be deemed to be prescribed.

Similar provisions are contained in the 4th section of the 3 & 4 Wm. 4, c. 42; and inasmuch as it had been held by the English Courts We recommend that the Law of Scotland that Ireland was to be deemed to be a place and the Law of England and Ireland be assi beyond seas, but that Scotland was not, to re-milated, and that minors be protected against medy the inconvenience of this distinction, it the operation of prescription in all cases, so that

SEPT. 29, 1855.]

Mercantile Law-Second Report of the Commissioners.

it should not run against them during their minority. But this rule should not apply to minors engaged in trade as to debts contracted to or by them in the course of such trade. In regard to such debts, minors should be deemed to be under no disability.

Coverture.

How barred.-Acknowledgment.-Writing.

423

III. Acknowledgment.-By the 9 Geo. 4, c. 14, s. 1 (Lord Tenterden's Act), applicable to England and Ireland, it is enacted that, in actions of debt or upon the case grounded on any simple contract, no acknowledgment or promise by words only shall be deemed suffiIn England and Ireland the period of limi- cient evidence of a new or continuing contract tation does not run against married women whereby to take the case out of the Statute of during coverture. In Scotland, on the other Limitations, "unless such acknowledgment or hand, coverture does not prevent prescription promise shall be made or contained by or in from running against married women in ques-able thereby." This enactment is renewed for some writing to be signed by the party chargetions as to third parties. We abstain from expressing any opinion as Ireland by the 24th section of 16 & 17 Vict. c. to the merits of these conflicting rules; for it 113. The Statute gives no authority to an appears to us that the subject is so much inter-agent to make the acknowledgment. The woven with the general Law of Husband and writing must therefore be signed by the prinWife that no alteration could be recommended cipal-" the party chargeable thereby." And on this difference, without considering the such acknowledgment must be made to the creditor or his agent. subject generally, and that matter is not before

us.

Imprisonment.

In England the imprisonment of the creditor is not a disability in regard to actions of debt on specialties, or other actions of debt governed by the 3rd section of the 3 & 4 Wm. 4, c. 42; but in regard to all other simple contract debts, falling under the 7th section of Jac. 1, c. 16, where the creditor is imprisoned at the time the cause of action accrues, the period of limitation will run only from the time of his being set at large.

In Ireland imprisonment was a disability under the Irish Act of 10 Chas. 1, sess. 2, c. 6, s. 17, which introduced into Ireland the provisions of 21 Jac. 1, c. 16; but in the enumeration of disabilities in the 22nd section of 16 & 17 Vict. c. 113, imprisonment has been

omitted.

In Scotland imprisonment is sufficient to infer the plea of non valens agere, and forms no bar to the currency of the period of prescription; although, where it has taken place abroad, it has been doubted whether the law is not otherwise.

In Scotland a memorandum written by the debtor, though not signed by him, may in some cases be sufficient to bar prescription, and the writing of an agent duly authorised is deemed to be the principal's writing. Further, it is not indispensable that the acknowledgment should be made to the creditor or his agent.

countries should be assimilated, not by the We are of opinion that the laws of the three adoption of either law, but by an enactment for the United Kingdom to the effect that the acknowledgment of a debt by an agent duly authorised, although not authorised by writing, should have the same effect as the acknowledgment of the principal; that the acknowledg ment should in all cases be in writing, and signed by the party, or by his agent duly authorised, and should be made to the creditor or his agent.

How barred.-Acknowledgment.—Promise.

debt for a period of six years from the date of the writing, and that whether the writing was made within or after the original period of limitation.

It is a rule of law in England and Ireland that the writing, to have the effect of barring the limitation, must contain either a promise to pay the debt, or an acknowledgment from We are of opinion that the law of the three which such promise is to be inferred. If the countries ought to be assimilated in this re-writing be of this character it will revive the spect, so that imprisonment of the creditor or of the debtor, in the United Kingdom, Isle of Man, or Channel Islands, should not be a bar to the running of the period of limitation or prescription. Whatever might be the policy In Scotland it is not essential that the acwhich dictated the introduction of this disa- knowledgment should either expressly or by bility into the Law of England and Ireland, we implication contain a promise to pay the debt. do not think that in modern times there is any It is enough if it admits the constitution of the reason for preserving it in such cases. The debt, and that it has not been paid or satisfied; imprisonment of a party within the kingdom but the acknowledgment is of no avail whatcannot be said to deprive him of the oppor-ever if it be made within the original period of tunity or means of communicating with his friends or advisers, or to present any material impediment to the vindication of his rights. But we are of opinion that if, at the time the cause of action accrues, the creditor is imprisoned beyond the above limits, it should be a disability, and that the period should commence running from the time of his being liberated.

prescription, unless the writing is of such a nature as to be itself a voucher of debt.

We recommend that the English and Irish rule on both these points should be extended to Scotland. We think that the waiver of the exemption from liability by the lapse of time, conferred by Statute, should in all cases be so distinct as either to express or imply a promise to pay; and we see no good reason for holding

424

Mercantile Law-Second Report of the Commissioners. [LEGAL OBserver,

that the acknowledgment, if otherwise sufficient, | falling under the long prescription of forty should be of no avail if made before the pre- years only, and to this extent the Statutes scription has run,-that it should be effectual 1469, c. 29, and 1474, c. 55, would be altered. if made the day after the period of prescription, but worthless if made the day before. How barred.—Acknowledgment or Payment by

one of several Co-contractors. Again: in England and Ireland an acknowledgment made by one co-contractor does not preserve the claim as against other co-contractors (9 Geo. 4, c. 14, s. 1, and 16 & 17 Vict. c. 113, s. 24); but part payment by one cocontractor keeps alive the claim against the others. In Scotland part payment has as little effect as an acknowledgment by one co-contractor or joint debtor, and does not keep alive the claim against the other contractors or debtors.

We recommend that the Law for the United Kingdom should be, that neither acknowledg ment nor part payment of any claim by one or more of several joint debtors or co-contractors should operate so as to keep in force the claim against any of the other joint debtors or co

contractors.

How barred.-Acknowledgment.—New Period. When limitation or prescription of a claim is barred by a written acknowledgment the consequence is very different in Scotland from what it is in England and Ireland. In England and Ireland the acknowledgment revives the debt, so that a new course of limitation of six years, or twenty years as the case may be, commences to run from the date of the acknowledgment. But in Scotland, as a general rule, the acknowledgment takes the case out of the shorter prescriptions altogether; and this is consistent with the principle on which the Acts are founded, viz., that they change the mode of proof. After a written acknowledgment, therefore, the debt, whether falling under the triennial or the quinquennial prescription, will endure for forty years, or for the period of prescription applicable to the document containing the acknowledgment, e. g., if the document fall within the last clause of the Act 1669, c. 9 (suprà, p. 22), the acknowledgment will endure for twenty years, and the mode of proof for the remainder of the forty years will be restricted to the debtor's oath on reference. An exception to the general rule, however occurs in the case of the sexennial prescription, it being held by the Scotch Courts, after much fluctuation of opinion, that an acknowledgment of a debt contained in a bill suffers the prescription of six years proper to the bill itself.

In so far as these Acts are not thereby altered, we are of opinion that, in regard to personal rights, the period of prescription should be reduced from forty to twenty years.

vent

prescriptions which we propose should be as-
We have not included among the Scottish
similated the septennial limitation of cautionary
obligations, because this limitation is not pro-
perly of a mercantile character. It was intro-
duced by the Act 1695, c. 5, in order to pre-
befallen many persons and families, and oft-
"the great hurt and prejudice that have
times to their utter ruin and undoing, by
men's facility to engage as cautioners for
others who, afterwards failing, have left a
growing burden on the cautioners without
relief."
binding and engaging for hereafter for and
The Act provides, "that no man
with another, conjunctly and severally, in any
bond or contracts for sums of money, shall be
bound for the said sums for longer than seven
years after the date of the bond; but that from
and after the said seven years the said cau-
tioner shall be eo ipso free of his caution, and
that whoever is bound for another, either as
express cautioner or as principal or co-princi-
pal, shall be understood to be a cautioner to
have the benefit of this Act, providing that he
have either clause of relief in the bond, or a
bond of relief apart, intimated personally to
the creditor at his receiving of the bond.""

The operation of this prescription is very limited, as it applies only to cautioners engag ing expressly as such, or to co-obligants having a bond of relief from the principal intimated at the time of the transaction to the creditor. It is excluded where the cautioner and principal debtor are bound together as full debtors; and if there be a bond of relief, it is necessary that at the time of the transaction it should be formally intimated to the creditor.

The Act has been held not to apply,1st. To co-obligants stipulating by a clause of relief their mutual remedies.

2nd. To a bond of corroboration for a debt already constituted.

3rd. To an engagement, by letter or otherwise, to pay, or see paid, a sum already lent. 4th. To a letter of guarantee in a mercantile transaction.

We humbly offer to your Majesty's gracious consideration this our Final Report.

T. B. CUSACK SMITH.' (L.S.)
C. CRESSWELL.
(L.S.)

We are of opinion that the Law of Scotland The Master of the Rolls in Ireland would should in this matter be assimilated to the Law not concur in the recommendation in this Reof England and Ireland, so that the same pre-port with respect to the introduction of the scription or limitation should be applicable to Scotch Law of summary diligence into Engthe acknowledgment of a debt as to the debt itself before acknowledgment.

These alterations in the Law of Scotland would supersede all the shorter prescriptions to which we have adverted, and would likewise include a numerous class of cases at present

land and Ireland, to enforce payment of bills of exchange and promissory notes, unless some provision was also introduced to prevent fraudulent preference.

Under the proposed alteration of the Law of England and Ireland, bills of exchange and