Imperial Act Adoption Act 1834 No 5a (NSW)

No. XVII.

An Act for adopting and applying a certain Act of Parliament for rendering a written Memo­ randum necessary to the validity of certain Promises and Engagements. [13th June, 1834.]

th i s Ac t or Ordinance .

WH E R E A S year of t he re ign of H i s la te Majesty K i n g George t he F o u r t h

a cer ta in Ac t of Pa r l i amen t was passed in t he n i n t h

in t i tu led " An Act for rendering a written Memorandum necessary

to the validity of certain Promises and Engagements" and t h e same

was m a d e to commence and t ake effect on t h e first day of J a n u a r y

one t housand e ight h u n d r e d and twen ty-n ine A n d whereas i t is expedient t o adopt and apply t h e said recited Ac t of Pa r l i amen t in t he Admin is t ra t ion of J u s t i c e in New South W a l e s Be i t therefore enacted by H i s Excel lency the Governor of New South W a l e s w i th t h e advice of t he Legislat ive Council thereof Tha t t h e said reci ted Ac t of Pa r l i amen t and every clause provis ion and enac tmen t the re in contained shall be and the same is and are hereby adopted and directed to be applied in t he Admin is t ra t ion of Jus t i ce in t he said Colony and its Dependencies in like m a n n e r as other Laws of E n g l a n d are there in applied and as if t he same and every pa r t thereof had been repeated and re-enacted in

A N N O N O N O G E O R G H I V . R E G I S .

C A P . X I V .

An Act for r ende r ing a w r i t t e n M e m o r a n d u m necessary to t h e

validity of cer ta in Promises	and	Engagemen t s .	[9th	May,
1828.]

WH E R E A S by an Act passed in England in the twenty-first year things enacted That all actions of account and upon the case other of the reign of King James the First it was among other

than such accounts as concern the trade of merchandise between mer­ chant and merchant their factors or servants all actions of debt grounded upon any lending or contract without specialty and all actions of debt for arrearages of rent should be commenced within three years after the end of the then present Session of Parliament or within six years next after the cause of such actions or suit and not after And whereas a similar enactment is contained in an Act passed in Ireland in the tenth year of the reign of King Charles the First And whereas various questions have arisen in actions founded on simple contract as to the proof and effect of acknowledgments and promises offered in evidence for the purpose of taking cases out of the operation of the said enactments And it is expedient to prevent such questions and to make provision for giving effect to the said enact­ ments and to the intention thereof Be it therefore enacted by the King's Most Excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parlia­ ment assembled and by the authority of the same That in actions of debt or upon the case grounded upon any simple contract no acknow­ ledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract whereby to take any case out of the operation of the said enactments or either of them or to deprive any party of the benefit thereof unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby and that where there shall be two or more joint contractors or executors or administrators of any contractor no such joint contractor executor or administrator shall lose the benefit of the said enactments or either of them so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them Provided always that nothing herein contained shall alter or take away or lessen the

whatsoever Provided also that in actions to be commenced against two	effect of any payment of any principal or interest made by any person
or more such joint contractors or executors or administrators if it shall appear at the trial or otherwise that the plaintiff though barred by cither of the said recited Acts or this Act as to one or more of such joint contractors or executors or administrators shall nevertheless be entitled to recover against any other or others of the defendants by virtue of a new acknowledgment or promise or otherwise judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom be shall recover and for the other defendant or defend­ ants against the plaintiff.
2. And be it further enacted That if any defendant or defen­ dants in any action on any simple contract shall plead any matter in abatement to the effect that any other person or persons ought to be jointly sued and issue be joined on such plea and it shall appear at the trial that the action could not by reason of the said recited Acts or this Act or of either of them be maintained against the other person or persons named in such plea or any of them the issue joined on such plea shall be found against the party pleading the same.

3. A n d be it fur ther enacted Tha t no indorsement or memoran­

d u m of any p a y m e n t wr i t t en or m a d e after t h e t ime appointed for th i s Ac t t o t a k e effect upon any promissory note bil l of exchange or other wr i t i ng by or on t h e behalf of t h e p a r t y to w h o m such p a y m e n t shall be m a d e shal l be deemed sufficient proof of such paymen t so as to t ake

t h e case out of t h e operat ion of e i ther of t h e said S ta tu tes .

4.    A n d be it fur ther enacted Tha t t h e said reci ted Ac t s and this

Ac t shall be deemed and t aken to apply to t h e case of any debt on simple contract alleged by way of set-off on t h e p a r t of any defendant e i ther by pica notice or otherwise.

5.    A n d be it fur ther enacted Tha t no act ion shall be ma in ta ined

whereby to charge any person upon any promise m a d e after full age to pay any debt cont rac ted du r ing infancy or upon any ratification after full age of any promise or s imple contract m a d e du r ing infancy unless such promise or ratification shall be made by some wr i t ing

signed by t h e p a r t y to be charged therewi th .

6. A n d be i t fur ther enacted Tha t no action shall be b r o u g h t

whereby to charge any person upon or by reason of any represen ta t ion or assurance made or given concerning or r e la t ing to t he charac ter conduct credit abil i ty t r ade or dealings of any other person to t h e in t en t or purpose t h a t such other person m a y obta in credit money or goods upon unless such representa t ion or assurance be made in

wr i t i ng s igned by t h e p a r t y to be charged the rewi th .

7. A n d whereas by an Act passed in E n g l a n d in t he twenty-

n i n t h year of t h e re ign of K i n g Charles t he Second in t i tu led " An Act

for the prevention of Frauds and Perjuries" i t is a m o n g other t h ings enacted t h a t from and after t h e twenty- four th day of J u n e one t h o u s a n d six h u n d r e d and seventy-seven no cont rac t for t h e sale of any goods wares and merchandises for t he price of t en pounds s ter l ing or upwards shal l be allowed to be good except t he buye r shall accept p a r t of t he goods so sold and ac tual ly receive t he same or give some­

t h i n g in earnest to b ind the ba rga in or in pa r t of paymen t or t h a t

some no te or m e m o r a n d u m in wr i t i ng of t h e said ba rga in be made and signed by t h e par t ies to be charged by such contract or the i r agents t he reun to lawfully author ized A n d whereas a s imilar enact­

m e n t	is conta ined in an A c t passed in I r e l a n d in t h e	seventh
year of t h e re ign of K i n g Wi l l i am the Thi rd A n d whereas it has been held t h a t t he said recited enac tmen t s do not ex tend to certain executory contracts for t he sale of goods which nevertheless a rc wi th in t he mischief thereby in tended to be remedied and it is expedient to	extend t h e said enac tmen t s to such executory cont rac ts	Be i t enacted

T h a t t h e said enac tmen t s shal l ex tend to all cont rac ts for t h e sale of

goods of t h e va lue of t e n pounds s ter l ing and upwards no twi ths t and ing the goods m a y be in tended to be delivered a t some fu ture t ime or m a y not a t t he t i m e of such contract be ac tual ly m a d e procured or provided or fit or ready for delivery or some act m a y be requis i te for the m a k i n g or complet ing thereof or r ender ing t h e same fit for delivery.

8. A n d be it fu r ther enacted Tha t no m e m o r a n d u m or other

wr i t ing m a d e necessary by th i s Ac t shall be deemed to be a n agree­ m e n t wi th in t he m e a n i n g of any s t a tu t e re la t ing to t h e duties of s t amps .

9. A n d be i t fur ther enacted Tha t n o t h i n g in th i s A c t con-

ta ined shall ex tend to Scotland.

10. A n d be it fu r ther enacted T h a t th is Act shall commence

a n d t ake effect on t he first day of J a n u a r y one thousand eight h u n d r e d

and twenty-n ine .