gard to the declarations aforesaid ought to be paid out of the funds belonging to the said widow and next of kin as aforesaid. 18. Let the said annuity of 500l. to the Defendant Maria Parry Archbold be from time to time, until further order paid out of the dividends of the sum of 1., in Court in trust in the said causes or out of the residue thereof after payment of the costs hereinbefore directed to be paid (such residue to be verified by affidavit) without prejudice to the funds out of which the same is ultimately to be borne and paid according to the declarations herein before contained And let such annuity be paid by two equal half-yearly payments on &c. the first payment to be made on &c. 19. Let the Receiver appointed by &c. be discharged so far as regards the testator's real estates. 20. And the Defendant John Taylor Stephens by his counsel undertaking to keep the same in proper repair let the said Defendant John Taylor Stephens be let into possession of the real estates of the said testator except the real estate by his will specifically devised to the said Defendant Maria Parry Archbold for her life. 21. And it is ordered, that the sum of 201. deposited with the Registrar on setting down the said Petition of re hearing be repaid to the said Defendant John Taylor Stephens or to Mr. John Thomas White his solicitor Let this Order be without prejudice to any question as to the period for which the said accumulation was directed except as herein before declared. 22. Adjourn further consideration and subsequent costs. 23. Liberty to apply. 1855. TENCH v. CHEESE. 1855. June 1. July 7. Before The cellor LORD THIS NASH v. HODGSON. HIS was an appeal by the Plaintiffs against an order of Vice-Chancellor Wood allowing an exception CRANWORTH taken by the Defendants to a finding of the Master on an inquiry directed at the hearing of the cause. The point to be decided was the effect of a payment made by a debtor to his creditor in preventing the operation of the Statute of Limitations 9 Geo. 4 c. 14 upon the debt. The question was raised in the following manner. and The LORDS on three pro missory notes was applied to by B. for pay ment on account of interest but without referring to any debt in particular: in consequence of this application A. paid 51.: at the time of this payment two of the notes were barred by the Statute of Limitations and one was not barred: Held, that the payment must be attributed as made exclusively in respect of the note not barred and that the effect was as to it to prevent the operation of the Statute. The Plaintiffs, A. D. Nash and Eliza his wife, on the 16th September 1850, filed their Claim against Robert Hodgson A. S. Stevenson J. Appleton and H. T. Appleton stating, that Hanna Maria Smith widow deceased was at the time of her death, and that her estate still was justly indebted to the Plaintiff Eliza Nash, or to the Plaintiffs A. D. Nash and Eliza his wife in her right, in the sum of 130l. 2s. 5d. for principal money and interest due on a joint and several promissory note dated the 12th June 1841 and made by H. M. Smith and the Defendant John Appleton whereby H. M. Smith and John Appleton on demand jointly and severally promised to pay to the said Eliza Nash by the name and description of "Miss Eliza Moore" the sum of 2001. with lawful interest for the same; that H. M. Smith died on the 21st June 1848; that the Defendants were her executors and that the debt had not been paid. The Plaintiff Eliza Nash therefore claimed, or the Plaintiffs A. D. Nash and Eliza his wife in her right claimed, to be paid the debt or sum of 1301. 2s. 5d. with subsequent interest with their costs of the suit or in default to have the personal estate of H. M. Smith administered. By By an order made at the hearing of the cause, dated the 7th November 1851, a reference was directed to the Master to inquire and state, whether at any and what time within six years before the filing of the Plaintiffs' Claim any and if any what sum of money as and for interest on the promissory note for 2001. was paid by the Defendant John Appleton or on his account and if so when and under what circumstances; and the Master was to be at liberty to state any circumstances specially. In pursuance of this Order the Master made his report, dated the 20th February 1854, by which he found, that in June 1841 Eliza Nash then Eliza Moore spinster, being then staying at Birmingham, received from John Appleton by the post the promissory note for 2007., and that in the letter containing the promissory note he requested her to lend him 2007. on the security of the promissory note, but that in answer to such application Eliza Nash then Eliza Moore replied she could only spare 1007. And he found that Eliza Nash then Eliza Moore accordingly enclosed 100l. to John Appleton on the security of the promissory note and retained the note in her possession: And he found that in December 1846 there were other sums of money due and owing from John Appleton to Eliza Nash then Eliza Moore for principal and interest on two other promissory notes for 1001. each dated respectively the 29th September 1839 and the 27th January 1840 made by John Appleton and Joseph Moore a brother of Eliza Nash exclusive of the 1007. secured by the promissory note for 2007. the whole of which sum of 100l. together with interest from the date thereof also then remained due and owing to Eliza Nash then Eliza Moore no sum whatsoever either for principal or interest having previously to the 16th December 1846 been paid on account of the lastmentioned promissory note: And he also found that in December 1855. NASH v. HODGSON. 1855. NASH V. HODGSON. December 1846 Eliza Nash then Eliza Moore who was then residing with John Appleton in the neighbourhood of London applied to him for a payment on account of the interest then due to her from him, and that thereupon and on the 16th December 1846 John Appleton paid to her the sum of 51. on account of interest generally : And he found that, the promissory note for 2007. not being at the time she so received the sum of 51. in her own possession but together with other securities of the like nature belonging to her in the possession of the Rev. Edward Madeley of Birmingham her confidential friend, Eliza Nash then Eliza Moore was unable to endorse such payment on the note until the 25th December when she was at Birmingham and she then endorsed the same on the note in the words and figures following (that is to say)" December 25th 1846 Received from Mr. J. Appleton £5 on account of interest due on this note Eliza Moore": And he therefore found that within six years before the filing of the Plaintiffs' Claim, namely on the 16th December 1846, the sum of 51. was paid by the Defendant John Appleton as and for interest on the promissory note for 2007. in the manner and under the circumstances before mentioned. The Defendants took three exceptions to the finding of the Master: they came on to be argued before ViceChancellor Wood on the 4th July 1854 when his Honor overruled two of them but allowed the third, which was to the finding, that on the 16th of December 1846 the sum of 51. was paid by the Defendant John Appleton as and for interest on the promissory note for 2007. in the manner and under the circumstances in the report mentioned, the Defendants insisting that the Master ought not so to have certified, but ought to have certified that no money was at any time within six years before the filing filing of the Claim paid by John Appleton or on his account as and for interest on the said promissory note. The Order giving effect to this decision of the ViceChancellor ordered the Plaintiffs' Claim to stand dismissed with costs, except the costs of the first and second exceptions and of so much of the affidavits used before the Master as related to the matters referred to in those two exceptions. A report of the case as heard before the Vice-Chancellor will be found in the 1st Volume of Mr. Kay's Reports, page 650. The Plaintiffs appealed from the order of the ViceChancellor as above mentioned; and the case was in the first instance argued before the Lords Justices. It was however subsequently directed to be argued by one counsel on each side before the full Court of Appeal, and it now came on for that purpose accordingly. Mr. Serjeant Atkinson (Mr. Greene was with him) for the Plaintiffs. The payment made in this case was according to the evidence sufficient to prevent the operation of the Statute of Limitations as to the note in question. It is submitted that in a case where there are as here several distinct debts and a payment is made by the debtor, it is a question of fact whether the payment is made in respect of all or of any one in particular, and that if a jury found the payment was made in respect of all or any one, it would take either all or the one out of the operation of the Statute: the case of Waters v. Tompkins (a), is precisely in point, and supports our present contention. He cited the following passage from the Civil Law (Cod. lib. VIII. tit. XLIII. De Solutionibus, L. 1), “In potestate (a) 2 C. M. & R. 723. 1855. NASH v. HODGSON. |