603

Limitation, Statutes of. When Statute begins to run. under sects. 16, 75, 76, a debt in the nature of a specialty debt; whereby the heirs are bound. Buck v. Robson, L. R., 10 Eq. 629. So, where an unregistered company is wound up under that act. In re Muggeridge, Id. 443. Where the liability of the members of a non-corporate co-partnership is fixed by a deed of settlement, the liability is a specialty debt. Helby's, Stokes', and Horsey's cases, L. R., 2 Eq. 167. An instrument under seal, executed in India, is here treated as a specialty, although by Indian law specialty debts have no greater efficacy than simple contract debts, and both are barred by the lapse of three years. Alliance Bank of Simla v. Carey, 5 C. P. D. 429.

The stat. 21 Jac. 1, c. 16, s. 3, ante, p. 602, having been construed somewhat strictly so as to exclude cases which were not, when it passed, regarded as contracts, the stat. 3 & 4 Will. 4, c. 42, s. 3, enacted that actions of debt on an award (where the submission is not by specialty), or for copyhold fines, or an escape, or money levied on a fi. fa., should be brought within six years after the cause of action.

As to the application of the Statutes of Limitation in actions by and against executors, vide post, Part III., sub tit., Actions by and against Executors.

The Statutes of Limitation applicable to money charged on, or payable out of land, and also to rent, will be found post, pp. 638, et seq.

By the J. Act, 1873, s. 25 (2), “no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any Statute of Limitations." As to the meaning of "express trust," see Banner v. Berridge, 18 Ch. D. 254, and cases there cited. But where a remedy in equity was correspondent to the remedy at law, the Court of Equity acted by analogy to the Statute of Limitations, and imposed on the remedy it afforded, the same limitation that would be imposed on the proceedings at law. Knox v. Gye, L. R., 5 H. L. 656, 674; Metropolitan Bank v. Heiron, 5 Ex. D. 319, C. A., and the statutes now apply to actions for all such claims as fall within them in whatever divisions of the High Court the action may be brought. Bray v. Tofield, 18 Ch. D. 551, 554; Gibbs v. Guild, 9 Q. B. D. 59, 64, 67. And now see also the Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57), s. 10, cited post, p. 639.

Claims chargeable against the separate estate of a married woman are not barred by the Statute of Limitations. Hodgson v. Williamson, 15 Ch. D. 87.

When the statute begins to run.] The statute begins to run from the time of the breach of promise or contract, and not the discovery of it. Therefore in an action against a solicitor for neglecting his duty six years before, the statute was held a bar, though the omission were only discovered within the six years; Short v. M'Carthy, 3 B. & A. 626; Battley v. Faulkner, Id. 288; Colvin v. Buckle, 8 M. & W. 680; and formerly at law, this was the rule although the defendant had fraudulently concealed the cause of action. Imperial Gas Co. v. London Gas Co., 10 Exch. 39; 23 L. J., Ex. 303. But the rule of equity which now prevails (see J. Act, 1873, s. 25, (11), ante, p. 282), at any rate in a case in which a court of equity would have had concurrent jurisdiction, is that in the case of fraudulent concealment of the cause of action, the statute runs from its discovery only; Brooksbank v. Smith, 2 Y. & C. Ex. 58; Ecclesiastical Commissioners v. N. E. Ry. Co., 4 Ch. D. 845; Metropolitan Bank v. Heiron, supra; Gibbs v. Guild, 9 Q. B. D. 59, C. A.; unless the plaintiff by reasonable diligence might have discovered it sooner. Denys v. Shuckburgh, 4 Y. & C. Ex. 42. See further Story, Eq. Jur. § 1521. Where a contract to deliver goods is once broken, the statute

runs, and a subsequent refusal to deliver after the loss of the goods, during an inquiry touching the first breach will not revive the right. E. India Co. v. Paul, 7 Moo. P. C. 85. Upon promises to indemnify, the statute runs from the time of damnification. Huntley v. Sanderson, 1 Cr. & M. 467; Reynolds v. Doyle, 1 M. & Gr. 753. Where a bill of exchange is drawn, payable at a future time, for a sum of money lent by the payee to the drawer, at the time of drawing the bill, the payee may sue for money lent, at any time within six years from the time when the money was to be repaid; i., when the bill became due, and not from the time of the loan. Wittersheim v. Carlisle, Cs. of, 1 H. Bl. 631; Wheatley v. Williams, 1 M. & W. 533. Where a loan is made by the plaintiff to the defendant by a cheque, the statute does not begin to run till the payment of the cheque by the plaintiff's bankers. Garden v. Bruce, L. R., 3 C. P. 300. Where a bill is not accepted, and the holder gives notice thereof to the drawer, the statute begins to run against him; and he does not acquire a fresh right of action against the drawer on the non-payment when due. Whitehead v. Walker, 9 M. & W. 506. The defendant drew a bill, due in May, 1843, payable to the plaintiff, who indorsed it for the acceptor's accommodation, to C. : C. sued the plaintiff on the dishonoured bill in 1847, and received the amount from him in 1850: the plaintiff then sued the defendant on the bill: it was held that the action was barred. Webster v. Kirk, 17 Q. B. 944: 21 L. J., Q. B. 159. The accommodation acceptor of a bill of exchange was sued upon it by the holder, whereupon he paid it and sued the person for whose accommodation he accepted, for money paid to his use; it was held that he might do this within six years after payment of the bill, though more than six years after the bill became due. Angrove v. Tippett, 11 L. T., N. S. 708; H. T. 1865, Q. B.

A note, payable on demand, is payable immediately, and the statute begins to run from that date. Christie v. Fonsic, 1 Selw. N. P. 13th ed. 301; Norton v. Ellam, 2 M. & W. 461. But, where a note is made payable so many months after demand, the cause of action does not accrue until that number of months after demand made. Thorp v. Booth, Ry. & M. 388. So, where the note is payable after sight, the statute runs only from the time of presentment. Holmes v. Kerrison, 2 Taunt. 323; and see Savage v. Aldren, 2 Stark. 232. Where the cause of action does not arise until after request made, the statute will only run from the time of such request. Gould v. Johnson, 2 Salk. 422; 2 Wms. Saund. 63 c, d, (6). So, where S. gave a promissory note to a bank, payable on demand, together with a written agreement stating that the note was deposited with the bank as security for any balance due to them from C., who was about to open an account with them; it was held that the note and agreement must be construed together, and that the statute did not run on the mere existence of a debt from C. to the bank, without a balance having been struck or a demand made on S. Hartland v. Jukes, 1 H. & C. 667; 32 L. J., Ex. 162. Where the plaintiff, an attorney, was to look primarily for his costs to a fund in court, and if it were insufficient C. was to pay them, the statute was held not to run till the amount of the fund was ascertained. Hunter v. Hunter, I. R., 3 C. L. 138. Where the defendant promised to pay a bill of exchange barred by the statute "when able," the statute was held to run from the time of his being able, though the plaintiff did not know when this was, and made no demand. Waters v. Thanet, El. of, 2 Q. B. 757; Hammond v. Smith, 33 Beav. 452; vide post, p. 614. See also In re Kensington Station Act, L. R. 20 Eq. 197.

Money deposited with a banker is money lent to him, and the statutc runs from the deposit; Pott v. Clegg, 16 M. & W. 321; see Foley v. Hill, H. L. C. 28; but qy. if this is so with money deposited with a private

Limitation, Statutes of.-Disabilities.

605 person; see Poth. Contr. by Evans, vol. 2, p. 126; and an agent who stands in a fiduciary position to his principal connot set up the Statute of Limitations. Burdick v. Garrick, L. R. 5 Ch. 233; Flitcroft's case, 21 Ch. D. 519, C. A. A solicitor is not ordinarily in the position of trustee for his client in respect of moneys received for him. Watson v. Woodman, L. R. 20 Eq. 721; nor does a mortgagee hold the proceeds of the sale of mortgaged property on an express trust for the mortgagor. Banner v. Berridge, 18 Ch. D. 254.

The contract by a solicitor to conduct a suit is entire, so that if the suit has ended within six years, the Statute of Limitations is not a bar to so much of the demand as is for business relating to the suit not actually transacted within the six years; Harris v. Osbourn, 2 Cr. & M. 629; Martindale v. Faulkner, 2 C. B. 706; Harris v. Quine, L. R., 4 Q. B. 653 ; for the solicitor cannot sue for his costs while the suit is progressing, although he may refuse to proceed for want of funds. Whitehead v. Lord, 7 Exch. 691; 21 L. J., Ex. 239. See, however, In re Hall & Barker, 9 Ch. D. 538.

Disabilities.] The act 21 Jac. 1, c. 16, s. 7, provides that, if the plaintiff be an infant, covert, non compos, in prison, or beyond seas (as to which now vide infra), when the action accrues, the six years shall run from the removal of the disability, or from his return from beyond seas, as the case may be. In the case of a defendant beyond seas at the time of action accrued the action may be brought within six years after his return, by stat. 4 & 5 Anne, c. 3, (c. 16 Ruff.), s. 19. In both eases a special reply is necessary.

By 3 & 4 Will. 4, c. 42, s. 4, if a person entitled to any action mentioned in that act [ante, p. 603] is, at the time of the accruing of the cause, under age, covert, non compos, or beyond seas (vide infra), he may bring it within six years after coming of age, &c.; and if a person against whom the action accrues shall then be beyond seas, the action may be brought within six years after his return. By sect. 7, no part of the United Kingdom, the Isle of Man, or the Channel Islands, being dominions of the Queen, shall be deemed beyond seas within the meaning of this act, or of the stat. 21 Jac. 1, c. 16.

But now by the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), s. 10, no person shall be entitled to any further time by reason only that such person, or one or more of such persons, was beyond seas or was in prison when the cause accrued. This section is retrospective, and bars those causes of action falling within its 'provisions, which accrued, but on which no action was commenced, prior to the passing of the act. Pardo v. Bingham, L. R. 4 Ch. 735, following Cornill v. Hudson, 8 E. & B. 429; 27 L. J., Q. B. 8. By sect. 11, in the case of joint debtors, the statutes will now run as to such as are not beyond seas, though some of the debtors may be beyond seas; but a judgment recovered in such cases will not per se be a bar to another action against the absent debtor after his return. It would appear from the terms of this section that the case of a judgment recovered against one of the joint debtors, who was beyond the seas at the time the cause of action accrued, is not within its remedial operation, and that such a judgment would still be a bar to a subsequent action against any other of the joint debtors. Sect. 12 enacts that no part of the United Kindom, nor the Isle of Man, nor the Channel Islands, being dominions of the Queen, shall be deemed beyond seas within either 4 & 5 Anne, c. 3, or of this act. This section is not retroactive. Flood v. Paterson, 29 Beav. 295; 30 L. J., Ch. 486.

The proviso in case of persons beyond seas extends as well to persons

resident abroad as to the natives of England, and the word “return” in the acts does not imply that they must have been in this country before. Lafond v. Ruddock, 13 C. B. 813; 22 L. J., C. P. 217; Pardo.v. Bingham, ante, p. 605.

As to the meaning of "beyond the seas" in 21 Jac. 1, c. 16, s. 7, see Ruckmaboye v. Mottichund, 8 Moo. P. C. 4.

When the statute once begins to run, no subsequent disability will prevent its operation. See Cotterell v. Dutton, 4 Taunt. 826; and Rhodes v. Smethurst, 6 M. & W. 351.

Subsequent acknowledgment.] The effect of the Statute of Limitations may be avoided by proof of an unqualified acknowledgment of the debt within six years, which is evidence of a new promise to pay the debt, and not a mere revival of the original promise. Heyling v. Hastings, 1 Ld. Raym. 421; Hurst v. Parker, 1 B. & A. 93. An oral promise was, before Ld. Tenterden's Act, held sufficient to revive even a written guarantee, not under seal. Gibbons v. M'Casland, 1 B. & A. 690. The rule was that a subsequent promise was admissable, under a denial of the plea, to defeat the statute, when it proved, or was evidence of the promise or other contract of the defendant as stated in the declaration. It seems, however, that if the plaintiff relies on an acknowledgment to rebut a defence of the statute he must state it in his claim or reply, as the omission would be calculated to take the defendant by surprise. See Rules, 1883, O. xix., r. 15, ante, p. 283. By the 9 Geo. 4, c. 14, s. 1, in actions of debt, or upon the case grounded upon any simple contract, no acknowledgment 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 stat. 21 Jac. 1, c. 16, 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, &c., shall lose the benefit of the said enactments, 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 effect of any payment of any principal or interest made by any person whatsoever; provided also, that in actions against two or more such joint contractors, &c., if it shall appear at the trial, or otherwise that the plaintiff though barred by the stat. 21 Jac. 1, c. 16, or this act, as to one or more of such joint contractors, &c., 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 he shall recover, and for the other defendant or defendants against the plaintiff.

By sect. 3, "no indorsement or memorandum of any payment, written or made after the time appointed for this act to take effect, upon any promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of either of the said statutes."

By sect. 4, the stat. 21 Jac. 1, c. 16, "and this act shall be deemed and taken to apply to the case of any debt on simple contract alleged by way of set-off, on the part of any defendant, either by plea, notice, or otherwise."

The most material change in the law made by this act is the requiring of an acknowledgment or promise in writing signed by the party charge

Limitation, Statutes of-Subsequent Acknowledgment.

607 able. No alteration is introduced in the language of the required acknowledgment or promise, or with regard to the party to whom it is to be made. See Haydon v. Williams, 7 Bing. 163, 166. No particular form is specified : a paper signed by the defendant, though without date, address, or amount due, may be sufficient: Hartley v. Wharton, 11 Ad. & E. 934; and although it was formerly held that it must appear what debt is intended; Kennett v. Milbank, 8 Bing. 38; this principle is now disregarded, see Green v. Humphreys, 23 Ch. D. 207, and cases cited post, p. 611. But an acknowledgment, to take the case out of the statute, must still be such as implies a definite promise to pay. Brigstocke v. Smith, 1 Cr. & M. 483.

An oral statement of an account within six years, and a promise to pay the balance, takes the original debt out of the statute by giving a new cause of action on the account stated, provided there are really items of account on both sides. Smith v. Forty, 4 C. & P. 126; Ashby v. James, 5 M. & W. 542. See per Alderson, B., in Hopkins v. Logan, 11 M. & W. 248. But a mere oral statement of an antecedent debt without any new contract or consideration, made within six years, does not constitute a sufficient new cause of action to prevent the operation of the statute. Jones v. Ryder, 4

M. & W. 32.

Acknowledgment by part payment.] Part payment of the debt is an acknowledgment of its existence, and, as such, has always been held to take a case out of the statute, as evidence of a fresh promise to pay the debt; and as Ld. Tenterden's Act leaves the effect of payment as before, the cases relating to part payment are still to be considered as authority. The payment must be such as to warrant the jury in inferring an intention to pay the rest; thus, if the defendant, on paying a part, says that "he owes the money, but will not pay it," this will not entitle the plaintiff to a verdict, unless the jury think that the latter words were spoken in jest. Wainman v. Kynman, 1 Exch. 118. It must appear that the payment was on account of the debt for which the action was brought, and that it was made as part payment of a greater debt. Tippets v. Heane, 1 C. M. & R. 252. Therefore, payment of a dividend by the assignee under the Insolvent Act did not take the debt out of the statute; Davies v. Edwards, 7 Exch. 22; 21 L. J., Ex. 4; nor does such a payment by the inspectors of the debtor's inspectorship deed; Ex pte. Topping, 34 L. J., Bky. 44; nor, payment under a judgment in a defended county court action. Morgan v. Rowlands, L. R. 7 Q. B. 493. But, payment of interest on a mortgage debt by a receiver of the estate appointed by order of the court has been held, under 3 & 4 Will. 4, c. 27, s. 40, to prevent that statute from operating as a bar. Chinnery v. Evans, 11 H. L. C. 115, and see Cronin v. Dennehy, I. R., 3 C. L. 289. See Action on specialty, Statutes of Limitation, post, p. 639. It has been said that a part payment where there are two debts, without any appropriation of it, is insufficient to take either out of the statute. Burn v. Boulton, 2 C. B. 476; Mills v. Fowkes, 5 N. C. 455. But Martin, B., seems to doubt this in Collinson v. Margesson, 27 L. J., Ex. 305. And it is otherwise if the debts consist of supplies of the same nature; and even where the debts are unconnected, it may be proper to leave the payment to the jury as evidence of a payment on account of all of them. Walker v. Butler, 6 E. & B. 506; 25 L. J., Q. B. 377; and see Evans v. Davies, 4 Ad. & E. 840. An appropriation of one payment by the creditor, without the debtor's knowledge or assent, is not per se enough to take any particular debt out of the statute; and it seems that where a debtor on two separate notes pays interest on account generally, after one had been barred by the statute, it ought to be taken prima facie as paid on account of the note not barred,