NOTE:-Under the English Statute of limitations, the commencement of the action for the purpose of of limitation is the date of issuing the original writ of summons, and the writ bears date on the day on which it is issued.(a)

The original writ of summons continues in force for twelve months from the day of the date thereof, including the day of the date. But before the expiration of the twelve months it may be renewed by leave of the court, for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed writ. "And a writ of summons so renewed shall remain in force and be awailable to prevent the operation of any statute whereby the time for the commencement of the action may be limited and for all other purposes, from the date of the issuing of the original writ of summons.(b)

The renewed writ prevents the operation of the statute in that action, but not in any other action or proceeding; as in the case of the plaintiff bringing an administration suit to recover the same debt.(c)

And the court will not amend the writ by adding causes of action which have become barred since issuing the writ.(d)

Nor will the court, except perhaps under exceptional circumstances, renew the writ after it has expired and the right of action has become barred.(e)

(a.) Order II. rr 1, 8.

(b.) Order VIII; Hume v. Somerton. L. R. 25.

Q. B. D. 239.

(c.) Memby v. Manley L. R. 3 C. D. 101.

(d.) Weldon v. Neal L. R. 19. S. B. D. 394.

(e.) Doyle v. Kaufman, L. R. 3. Q. B. D. 340

1

Hypothecary action against

one of the heirs of a debtor

interrupts prescription against that person only.

Where debt is indivisible interpellation of

one of the debtors interrupts prescription against the others and their heirs.

A hypothecary action against one of the Loirs of a debtor interrupts the prescription only as to the rights of hypothecation in the share of that one, and not in the shares of others(a)

When the debt is of an indivisible thing;

(1.) The judicial interpellation of one of the debtors in solido interrupts the prescription not only against the other debtors, but also against their heirs.(b)

(2.) In like manner, the judicial interpellation, of the heir of one of the debtors in solido, interrupts the prescription against all the other debtors.

In case of a divisible debt, the interpellation of one of the heirs of one of the debtors in solido, only interrupts the prescription againsthe other debtors SO

In such a case far as that heir is liable for the debt. Suppose, for interpellation of the heir of instance, I have two debtors in solido, one of whom one of the deb- Las left four heirs, an interpellation of one of these

tors interrupts prescription against all the achtors.

Extra judicial interruption how effected.

heirs only interrupts the prescription against the other debtor in solido, to the amount of the fourth, for which the heir interpellated was liable, for by such interpellation I only use my right as to one fourth, and consequently the prescription is acquired by the other debtor in solido for the remainder; and it is acquired by the other heirs of the deceased debtor in toto, as I have not on any wise used my right with respect to the shares for which they were liable.(c)

SECTION ΧΙ.

EXTRA JUDICIAL INTERRUPTION.

Extra judicial interruption under Ordinance No. 22 of 1871 is effected by one of two means viz by an acknowledgment or by part payment.(d)

(a.) Pothier Ob. p. 354.

(b.) Pothier Ob. p. 354.

(c.) Pothier Ob p. 355.

(d.) Ord. No. 22 of 1871 s. 1.3

Under the Civil Law and Roman Dutch Law, extra judicial interruption is effected by any act whereby the debtor acknowledges the debt.(a)

Extra judiciar interruption

under the Civil
Law and the

Law.
Partial pay-

An implied (extra judicial) interruption may take Roman Dutch place by partial payment, of principal or payment of interest, evincing that the debt is neither paid nor ment. abandoned.

SECTION IV.

ACKNOWLEDGMENT.

Under our law an acknowledgment in order to interrupt prescription must be contained in some writing, signed by the party chargeable or by some agent duly authorized to enter into such contract on his behalf.

Acknowledga written one, signed by party

ment must be

or agent.

Section 13 of Ord. No. 22 of

Sec. 13 of Ord. No. 22 of 1871 says:- "In any of the forms of action referred to in sections, 6, 7, 8, 9, 11, and 12 of this Ordinance, no acknowledgment or pro- 1871. mise by words only, shall be deemed evidence of a new or continuing contract, whereby to take the case out of the operation of the enactments contained in the said sections, or any of them, or to deprive any party of the benefit thereof, unless such acknowledgment shall be made, or contained by, or in some writing to be signed by the party chargeable or by some agent duly authorised to enter into such contract on his behalf."

When there are several debtors in solido acknowledgment of any one of them or a judicial interpellation to any one of them, interrupts the prescription, with respect to all the others.(b)

(a.) C. 7. 39. Voet. 45. 2. 6.
(b.) C. 8, 40.

Pothier Ob. p. 352. Voet 45. 2. 6.

Acknowledgment by one of several debtors in solido or judicially interpellation to one of them.

Acknowledgment by one of

the heirs of a debtor.

An acknow

ledgment under

Ord. 22 of 1871 to prevent the statuory bar from attaching must comprise

an express or implied promise.

Imitation of English precedents

Carolis Perera v. Paulo Appu.

What amounts

It is otherwise with respect to several heirs of the same debtor; an acknowledgment by one, or an interpellation of one only, interrupts the time of prescription with respect to the part for which he is personally the debtor, and does not prevent the prescription of the part due from the other, who has neither acknowledged the debt nor received any judicial interpellation; for, a debt may be prescribed as well as extinguished in part.

Following the decisions of English Courts on this subject, it has been held by the Supreme Court that, an acknowledgment under Ordinance No. 22 of 1871 in order to prevent the operation of the statutory 1. must comprise an express or implied promise to pij. (a) But under Ord. No. 8 of 1834, no implied promise was necessary because, the statutory bar there was expressly founded on a presumption of payment.(b)

A defendant who was sued on a mortgage bond, admitted in the answer that he owed the amount claim ed but pleaded prescription. The District Judge gave judgment for the plaintiff on the strength of the acknowledgment contained in the answer of the defendant. Mr. Justice Clarence, in affirming the judgment, observed, that if the plaintiff's case fell under Ord. No. 22 of 1871, the admission contained in this answer could not prevent the statutory bar from attaching. But as this case fell under Ord. No. 8 of 1834 the admission in the answer took the case out of the operation of the statute.

In another case plaintiff made a claim against defento an acknow- dant for the price of goods sold and delivered.(c) Deledgment.

(a.) Tanner vs. Smart 6, B. & C. 603.

(b.) 5 S. C. С, р. 78.

(c.) 5. S. C. C. p. 159. "Broun vs. Brabazon

fendant wrote to plaintiff as follows. "I thought that all accounts between us had been finally settled. Please let me have a memo of plants sold by you." Plaintiff sued, and defendant pleaded prescription under Sec 9 of Ord. No. 22 of 1871. In appeal, on the Brabazon.

authority of Quincey V. Sharp (L. R. 1. Ex. 72.) it was contended, this was sufficient acknowledgment. Sir Bruce Burnside in affirming the judgment said "In Quincey V. Sharp there was a recognition of an existing debt with an implied promise to pay. In the present case the inference from the defendant's letter would seem to be that he did not think anything was due from him, and his asking for an account of another transaction implied, that he wished to have materials to show that all matters of account between him and the plaintiff had been finally settled."

Brown v.

Acknow

tion is accom

In the Civil Law and the Roman Dutch Law, it is a point of much importance whether the acknowledgment made le ment of the debt by the debtor is made before or after fore prescripthe time when the prescription is accomplished. In plished. the former case, its only effect is that of interrupting the prescription, and such acknowledgment might be made not only by the debtor himself, but also by a tutor, curator, or person having a general procuration and even by the minor himself.

But if the acknowledgment be made after the time of prescription is accomplished, and the debt be revived, it can only be made by the debtor himself, who must be of full age. The reason assigned is, that an acknowledgment made after the prescription is accomplished for the purpose of destroying it, involves a gratuitious alienation of the fin de non recevoir, (bar) acquired by the completion of the time, and the gra

Acknowledgment made after prescription accomplished.