liability of each, for nemo debet bis vexari, pro eadem causâ, yet a judgment obtained against one of them only does not extinguish the separate liability of the others. (h) *In order *452 that this effect may be produced the judgment must be satisfied. (¿)

Further, if several persons are jointly liable, and one of them afterwards gives a separate simple contract security on which judgment is recovered against him, this will not merge the prior joint liability. (k)

Effect of docon securities for

trinesof merger

future advan

ces.

The rule that a bond or judgment merges any simple contract debt in respect of which it may have been given or obtained, only applies if the simple contract debt existed first in order of time, and if the specialty creditor is the same as the simple contract creditor. So that if a bond is given or a judgment is obtained (under a warrant of attorney) as a security for future advances (1); or if a simple contract debtor gives a bond or confesses a judgment to a trustee for his creditor (m), in neither of these cases will there be any merger.

It must also be borne in mind that as regards the liability of the estate of a deceased partner, if a joint bond is given Estates of defor a pre-existing joint and several debt, the bond will ceased partners. itself be treated as joint and several (n); and a judgment recovered against the surviving members of a firm does not preclude the judgment creditor from obtaining payment of his original debt from the estate of the deceased partner. (o)

(h) Ex parte Christie, Mon. & Bl. 352.

A judgment recovered in Missouri, where by the law all contracts are construed as joint and several, against one of three co-partners who had drawn bills upon the plaintiffs, which were accepted in this State, and paid for accommodation without funds, is not a merger of the right of action against the other partners in this State. Reed v. Girty, 6 Bosw. 567.

(i) Higgen's case, 6 Co. 46 a; King v. Hoare, 13 M. & W. 494; and see Drake v. Mitchell, 3 East, 251.

1 And such is believed to be the better opinion also in respect to joint and several obligations arising ex delicto Coo

ley on Torts, 136-139.

(k) Drake v. Mitchell, 3 East, 251. See, too, Ansell v. Baker, 15 Q. B. 20; Re Clarkes, 2. Jo. & Lat. 212; Ex parte Bate, 3 Deac. 358, where a joint and several debt was held not merged, so far as it was joint, by higher separate securities.

(1) Holmes v. Bell, 3 Man. & Gr. 213, and the note there.

(m) Bell v. Banks, 3 Man. & Gr. 258. In such a case equity would probably follow the law, ut res magis valeat quam pereat.

(n) See ante, p. 370; Bishop v. Church, 2 Ves. S. 100 and 371; Simpson v. Vaughan, 2 Atk. 31.

(0) Jacomb v. Harwood, 2 Ves. S.

Merger not an extinct on of the debt.

Further, it is to be observed that merger does not, properly speaking, extinguish a debt; for, notwithstanding the fact that a debt is merged in a higher security, the merged debt is sufficient to support an adjudication of bankruptcy against the debtor. (p)

*453

Proof in bankruptcy.

*Again, proof in bankruptcy against the estate of one partner in respect of a partnership debt does not preclude the proving creditor from afterwards suing the solvent partners, and recovering from them what he may have failed to obtain in the bankruptcy. (2)

Statutes of
Limitation.

4. Lapse of Time.

By a number of well-known enactments, usually referred to as the Statutes of Limitation, a certain definite time has been prescribed, within which, if at all, a person having a demand against another must enforce it. These statutes apply as well to partners as to other persons, and it becomes, therefore, necessary to advert to them in the present work.

The principal statutes are the following (r) :—21 Jac. 1, c. 16; 4 & 5 Anne, c. 16: 3 & 4 Wm. 4, c. 27; 3 & 4 Wm. 4, c. 42; 19 & 20 Vict. c. 97.

Neglecting those provisions of the Statutes of Limitation, which Times limited are of little importance to partners, the times prescribed for the prosecution of actions and suits are as

for bringing

actions, &c.

follows:

Twenty years (8) for the recovery of legacies, of rent, of money charged on lands, of money due on judgments, bonds, Twenty years. and mortgages, and for the redemption of mortgages (3 & 4 Wm. 4, c. 27, §§ 28 and 40; 3 & 4 Wm. 4, c. 42.)

Six

Six years.

years for the recovery of arrears of rent, and of interest on

money charged on land (3 & 4 Wm. 4, c. 27, S$ 41, 42);

and for the recovery of seamen's wages (4 & 5 Anne,

265; Liverpool Borough Bank v. Walker, 4 DeG. & J. 24. See, also, Rawlins v. Wickham, 3 De G. & J. 304.

(p) Re Griffiths, 3 De G. M. & 174, and the cases there cited.

(q) Keay v. Fenwick, L. R. 1 C. P. D. 745; Whitwell v. Perrin, 4 C. B. N. S. 412; Bottomley v. Nuttall, 5 C. B. N.

S. 122.

(r) The statutes relating to shareholders in companies are noticed post, p. 462. The principal act relating to Ireland is 16 &17 Vict. c. 113. See § 26.

(s) Twelve years after 1st Jan. 1879. See 37 & 38 Vict. c. 57.

c. 16, § 17); and of money due on bills of exchange, promissory notes, or in respect of any other contract which is not under seal (21 Jac. 1, c. 16, § 3); and of money due on awards where the submission is not under seal (3 & 4 Wm. 4, c. 42, § 3); and for the institution of actions or suits for an account (21 Jac. 1, c. 16, § 3, and 19 & 20 Vict. c. 97, § 9).

Four years for the recovery of damages in respect of an assault, battery, or false imprisonment (21 Jac. 1, c. Four years. 16, § 3).

*Two years for the recovery of damages for words of *454 themselves defamatory (21 Jac. 1, c. 16, § 3); and for the recovery of penalties, damages, or sums given by statute to the party grieved (3 & 4 Wm. 4, c. 42).

Two years.

There are provisions extending these periods in favor of persons who, when their right to sue accrues, are within the Further time. age of twenty-one, under the disability of coverture, or

of unsound mind (t); and also in favor of those whose demands are against persons beyond the seas. (u) But the absence beyond the seas of one of several joint debtors does not now, as it did formerly, enlarge the time for suing the others. (v)

Account between mer

chants.

By the statute of James, actions "for such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants," were excepted from limitation, but this exception no longer exists (x); and actions for an account, or for not accounting, must be brought within six years. (y)

In applying the Statutes of Limitation to any particular case, it is important to bear in mind one or two principles applicable to them all.

(t) 21 Jac. 1, c. 16, § 7; 3 & 4 Wm. 4, c. 42, § 4; 3 & 4 Wm. 4, c. 27, § 16, &c. The imprisonment or absence beyond the seas of a creditor does not now enlarge his time for suing, 19 and 20 Vict. c. 97, § 10, Cornill v. Hudson, 8 E. & B. 429; Pardo v. Bingham, 4 Ch. 735. The absence beyond the seas of one of several joint creditors did not enlarge their time for suing under the old law. Perry v. Jackson, 4 T. R. 516.

(u) 4 & 5 Anne, c. 16, §19, and 3 & 4 Wm. 4, c. 42, § 4.

General rules applicable to

the Statutes of Limitation.

(v) 19 and 20 Vict. c. 97, § 11. See, as to what is beyond the seas, § 12, and as to the old law, Fannin v. Anderson, 7 Q. B. 811; Towns v. Mead, 16 C. B. 123.

(x) 19 & 20 Vict. c. 97, § 9.

(y) See 19 & 20 Vict. c. 97, § 9, and 21 Jac. 1 c. 16, § 3. This branch of the subject will be examined more at length in that part of the work which treats of accounts between partners. The principal cases on the exception relating to merchants' accounts are, Inglis v. Haigh,

Foreign debts.

1. Although a debt may have been contracted abroad, any person who attempts to enforce it in this country must do so within the time limited by the English statutes; for it is by them, and not by the law of the place where the debt *455 was *contracted, that English courts are governed in a matter of this description. (2)

Continuous 2. When once time has begun to run, no subsequent - disability or inability to sue stops it. (a)

running of time.

3. Time begins to run from the moment the right to sue arises When time be(); but in a case of concealed fraud, from the moment when the person acquiring the right first becomes

gins to run.

aware of it. (c)

Cases of trust.

4. The claim of cestui que trust against his trustee in respect of a breach of an express trust is not barred by mere lapse of time (d); although it is otherwise if the trust is only constructive. (e) In consequence of the first branch of this rule, if a partner dies, having made a will containing a trust for payment of his debts, his estate will be liable to the demands of creditors of the firm much longer than if there were no such trust in the will. (f)

5. After time has begun to run, and even after it has run, a debt may be revived by a written promise to pay it or by an acknowledgment in writing, from which a prom

Revival of debts.

8 M. & W. 769; Cottam v. Partridge, 4 Man. & Gr. 271; Robinson v. Alexander, 8 Bli. N. S. 352; Forbes v. Skelton, 8 Sim. 335. See Webber v. Tyvill, 2 Wms. Saund. 124, and the note there.

(z) See The British Linen Co. v. Drummond, 10 B. & C. 903; Huber v. Steiner, 2 Bing. N. C. 202.

(a) See Rhodes v. Smethurst, 4. M. & W. 43, and 6 ib. 351; Goodall v. Skerratt, 3 Drew. 216; Wych v. East India Co. 3 P. W. 308. There is, however, an exception to this rule, where an action brought in time becomes abated, and another is afterwards commenced. See Sturgis v. Darrel, 4. H. & N. 622, and 6 ib. 120. See, as to how far merely landing at an English port is a return, so as to make time begin to run,

Gregory v. Hurrill, 5 B. & Cr. 341, and 1 Bing. 324.

(b) This was so at law, even in cases of concealed fraud; The Imperial Gas Co. v. The London Gas Co. 10 Ex. 39; Hunter v. Gibbons, 1 H. & N. 459. See Bree v. Holbech, Dougl. 655. But see now, Jud. Act, 1873, § 24; Jud. Act, 1875, § 10, cl. 11, and the cases in the next note.

(c) South Sea Co. v. Wymondsell, 3 P. W. 143; Blair v. Bromley, 2 Ph. 354, and 5 Ha. 542; Petre v. Petre, 1 Drew. 397.

(d) See Jud. Act, 1875, § 10 cl. 2.
(e) Beckford v. Wade, 17 Ves. 87.

(f) See Ault v. Goodrich, 4 Russ. 430; Braithwaite v. Britain, 1 Keen, 206; Brown v. Gordon, 16 Beav. 302.

ise to pay it may be inferred (g), or by a payment on account of the principal *or interest due (h), from which a similar *456 promise may be implied. (¿)

these rules to

In order that the application of these general rules to partners may be fully understood, it becomes necessary to Application of consider the extent to which one partner can affect the partners. other by acknowledging and promising to pay, or by making payments on account of a partnership debt. The law upon this subject has been materially altered by the Mercantile law amendment act, but in order to understand its provisions a short allusion to the law as it previously stood is necessary. Prior to the act in question, it was held that :—

Old law.

Admissions by one partner.

1. An admission by one of several joint debtors that their debt was still due, was not sufficient to take the case out of the statutes as against the others; nor even as against the person making the admission, unless it were in writing signed by him. (k)

2. An actual promise by one of several joint debtors that the debt should be paid, was of no validity against any person except him who made it,' and not even against him unless it were in writing and signed by him. (7)

See, also, Pare v. Clegg, 29 Beav. 589, where a society's property was, on its dissolution, subjected to a trust for the payment of its creditors.

(g) See Tanner v. Smart, 7 B. & C. 603. The cases upon the question, what is a sufficient acknowledgment? are innumerable. The following are selected for reference :-Mitchell's claim, 6 Ch. 822, a letter without prejudice; Bourdin v. Greenwood, 13 Eq. 281, a mem. on a prom. note; Bush v. Martin, 2 H. & C. 311, entry by a committee in their minutes; letter asking for an account, Quincey v. Sharpe, 1 Ex. D. 72; Prance v. Sympson, Kay, 678. A letter from one partner to another will not avail a creditor whose debt is mentioned and recognized in it, Re Hindmarsh. 1 Dr. & Sm. 129.

(h) See Whitcomb v. Whiting, 1 Smith, L. C. and the note there.

Promise by one partner.

(i)See Morgan v. Rowlands, L. R. 7 Q. B. 493.

(k) 9 Geo. 4, c. 14, § 1; Hyde v. Johnson, 2 Bing. N. C. 777; Bristow v. Maxwell, 11 Ir. Law Rep. 461. It was otherwise before the 9 Geo. 4, c. 14. See Manderston v. Robertson, 4 Man. & Ry. 440.

(7) See the last note.

After the dissolution of a partnership, an acknowledgment and promise to pay, made by one of the partners, will not revive a debt against the firm which is barred by the statute of limitations. Van Keuren v. Parmelee, 2 N. Y. 523; Walsh v. Cane, 4 La Ann. 533; Kauffman v. Fisher, 3 Grant Cas. 302; Reppert v. Colvin, 48 Pa. St. 248. See also, Levy v. Cadet, 17 Serg. and K. 126; Yandis v. Lefavour, 2 Blackf. 371: Tate v. Clements, 16 Fla. 339; Folk v. Russell, 63 Tenn. 591.