No. 5-1861. Certain tacit hypothecations abolished. Hypothecation of Government on estate of auctioneers and postmasters. On estates of contractors. Of minors on estates of protutors and agents. Of public bodies on estates of colleetors. Hypothecations for Rosts of building ships and houses. passed, nor to impair or affect the validity of any debt considered as a concurrent debt which may be due to any person who shall by virtue of this Act have ceased to possess a tacit hypothecation in security for such debt. 8. All and singular the tacit hypothecations following, or such of them as now by law exist, shall be and the same are hereby abolished, that is to say: 1. The tacit hypothecation of the local Executive Government of this Colony upon the estates of auctioneers and deputy postmasters considered as collectors or receivers of the public revenue, in security of any debts or demands due by them in their said capacities to the said Government. 2. The tacit hypothecation of the said Government upon the estates of persons who shall have entered into contracts with the said Government in security for the performance of such contracts or for any damages sustained by the non-performance thereof: Provided that no person liable for any rent or other periodical payment issuing out of land as in the second section of this Act mentioned shall be deemed to be a contractor within the meaning of this. clause. 3. The tacit hypothecation of minors upon the estates of their 4. The tacit hypothecation possessed by municipalities, any property whatsoever which shall be in his actual No. 5-1861. 6. The tacit hypothecation possessed by persons who have For money lent in lent money for the purpose of being expended in the repairs of houses. repair of houses and other property, in security for the money so lent. 7. The tacit hypothecation which certain classes of servants of servants on es- tates of masters for arrear wages. supplying ships with certain 8. The tacit hypothecation possessed by persons supplying For perty extinguished 9. No house, farm, or other fixed property shall, after transfer Tacit hypothecathereof to a purchaser who purchased the same by a true and bond tion on fixed profide bargain for valuable consideration, be subject to any tacit by sale. hypothecation to which it might have been subject in the hands of some former owner of the said property: Provided that no bargain shall for the purpose of this section be deemed to be true and bonâ fide in regard to which it shall be made to appear by the person claiming such tacit hypothecation that the purchaser, when he so purchased, acted in collusion with the person selling the same and for the purpose of defeating wholly or in part the claim of the person entitled to such tacit hypothecation, or purchased with notice that a certain or probable consequence of his so purchasing would be that the said claim would be so defeated: Provided that no mortgagee shall for the purpose of this section be deemed to be a purchaser. This Act not to affect securities for 10. Nothing in this Act contained shall extend to or affect any right of tacit hypothecation in security of any debt or claim existing debts. already at the time of the taking effect of this Act due by any person or estate, and which shall be demanded within twelve months next after the taking effect of this Act, which right shall be judged of in all respects as if this Act had not been passed. 11. This Act may be cited for all purposes as "The Tacit Short title of Act. Hypothec Amendment Act, 1861," and shall commence and take effect at the expiration of twelve months from and after the promulgation of the same. No. 6-1861.] [August 14, 1861. ACT Preamble. Repugnant and usages repealed. For Amending the Law regarding the Period of Time by the lapse of which certain Suits and Actions become barred by Prescription.(1) WHEREAS Certain debts and demands of such a nature that they ought, if just and true, to have been recovered without any unreasonable delay, do not by law become barred by prescription until after the expiration of thirty years or upwards from the date when they became due: And whereas it is expedient to amend the law in this respect so as to protect the public, and especially the heirs of deceased persons, against such debts and demands as aforesaid, when set up at a date so remote as to lead to a presumption that they must have been settled and satisfied, although from accident or inadvertence no positive evidence of that fact has been preserved: Be it enacted by the Governor of the Cape of Good Hope, with the advice and consent of the Legislative Council and House of Assembly thereof, as follows: laws 1. All former laws and usages in so far as they may be repugnant to or inconsistent with any of the provisions of this Act shall be and the same are hereby repealed. Action for liquid scription of eight years. 2. Except as hereinafter is excepted, no suit or action upon any derpurred by prt bill of exchange, promissory note, or other liquid document of debt of such a nature as to be capable of sustaining a claim for the sort of interlocutory judgment commonly called a "provisional sentence" shall be capable of being brought at any time after the expiration of eight years from the time when the cause of action upon such liquid document first accrued, or in case any such cause of action shall have already accrued, then after the expiration of eight years from the time of the taking effect of this Act: Provided that nothing in this Act contained shall extend to or affect any mortgage bond general or special or any judgment of any Court in this Colony or elsewhere. Suits and actions to which preceding section applies. 3. The provisions of the last preceding section shall extend and apply to the respective suits and actions following, that is to say: to suits and actions for money due for goods sold and delivered,— for money lent by the plaintiff to the defendant, for money paid by the plaintiff for the use of the defendant,-for money had and received by the defendant for the use of the plaintiff (including the "condictio indebiti "),—for rent upon any lease or contract for hire,-for money claimed upon or by virtue of an admission of an 1 Extended by Proclamation No. 80 of 1890 to all the Native Territories. As to the period of prescription in regard to immovable property and servitudes connected therewith. See Act 7, 1865 § 106. amount due upon an account stated as settled, for money due upon an award of arbitrators,-for money due as the purchase money of fixed property,-for money claimed for work and labour done and materials for the same provided,-and for money claimed upon or by virtue of any policy of assurance. No. 6-1861. pealed. 4. The one hundred and sixty-fifth article of the Placaat of the Placaat of 1540 reEmperor Charles the V., of the 4th October, 1540, establishing in certain cases a prescription of two years, is hereby repealed, to the end that the substance thereof, with certain amendments, may be re-enacted by this Act. of lished in certain 5. No suit or action for the fees or for the fees and disbursements Prescription of advocates, attorneys, public notaries, conveyancers, land three years estabsurveyors, or persons practising any branch of the medical cases. profession, or for the amount of any baker's, or butcher's, or tailor's, or dressmaker's, or boot and shoemaker's bill or account,nor any suit or action for the salary or wages of any merchant's clerk or other persons employed in any merchant's or dealer's store, counting-house, or shop,-nor any suit or action for the wages as a servant of any person coming under the definition of the term "servant" given in the Masters and Servants Act, No. 15 of 1856, shall (except as hereinafter is excepted) be capable of being brought at any time after the expiration of three years from the time when the cause of action in any such case as aforesaid first accrued or in case such cause of action shall have already accrued, then after the expiration of three years from the time of the taking effect of this Act: Provided that as often as any acknowledgment of or promise in writing to pay any such debt as is in this section mentioned, shall have been made or given at any time before the expiration of such term of three years, then such debt may be sued for at any time within eight years from the date of such acknowledgment or promise, or in case such acknowledgment or promise shall specify some future time for the payment of the debt, then within eight years from the date at which the said debt became, by or according to the tenor or effect of such acknowledgment or promise due and payable. And provided that nothing in this section contained shall prevent the application to any such debt as is in this section mentioned of any of the provisions of the eighth section of this Act. minors or persons lity. 6. If at the time when any such cause of action as is in the How in regard to second, third, and fifth sections of this Act mentioned, first accrued, under legal disabithe person to whom the same accrued shall have been a minor, or under coverture, or of unsound mind, or absent from the Colony, then such person, or the person claiming through him may, notwithstanding that the period of prescription herein before limited in regard to such cause of action shall have expired, bring a suit or action upon such cause of action at any time within eight years or three years (as the case may be) next after the time at No. 6--1861. prevent a judicial Questions as to the ledgment of debt in of the operation of this Act. which the person to whom such cause of action first accrued shall have ceased to be under any such disability as aforesaid, or shall have died, whichever of these two events shall have first happened. This Act not to 7. Nothing in this Act contained shall extend to alter the interruption of term existing law relative to the effect of a judicial interpellation by the of prescription. creditor of his debtor in staying or interrupting the course of any incompleted term of period of prescription, which law shall apply in all respects to any term of prescription by this Act established precisely as if such term were the term now by law established. 8. In any suit or action in this Colony in which any question effect of an acknow shall arise concerning the effect, if any, of any acknowledgment of taking the case out debt or any promise to pay any debt or any payment of interest on any debt, or any part payment of the principal of any debt made by any person whomsoever, whether the person sought to be charged in such suit or action or not, in taking any cause of action out of the operation of this Act, such question shall be judged of and determined in this Colony in like manner and by the same rules and principles as it would be judged of and determined in any of Her Majesty's Courts of Record at Westminster, in case the effect of the same acknowledgment, promise or payment were in question at the same time in any of such last-mentioned Courts. Simple endorse 9. No endorsement of memorandum of any payment written or sufficient to take the made upon any promissory note, bill of exchange, or other liquid case out of the opera- document, by or on behalf of the party to whom such payment shall be made, shall be deemed to be sufficient proof of such payment, so as to take the case out of the operation of this Act. tion of this Act. Prescription may of claim and not the others. 10. If any suit or action shall be brought for the amount or affect certain items balance of an account containing any number of items or matters of claim more than one of such a nature as are in this Act mentioned, no claim in respect of an item or matter which arose at a date beyond the period of prescription by this Act established, shall be claimable by reason only of some other matter of claim comprised in the same account, having first arisen within the said period. How when person of action has arisen Colony. 11. If at the time when any such cause of action as is in this against whom cause Act mentioned first accrued, the person against whom such cause of is absent from the action had arisen shall be absent from this Colony, then the person to whom such cause of action so accrued shall have the same time after the return of such other person to this Colony, within which to bring his action as by this Act he would have had after such cause of action first accrued, in case the person against whom the same had arisen had then been within this Colony: Provided, also, that in case any such cause of action as aforesaid shail have already arisen against any person who shall be absent from this |