CHAPTER actually on the bill. The person thus called upon ought, certainly, to satisfy himself that the name of his correspondent is really on the bill; but still, his attention may reasonably be lessened by the assertion that the call itself makes to him in fact, though no assertion may be made in words. And the fault, if he pays on a forged signature, is not wholly and entirely his own, but begins, at least, with the person who thus calls upon him. And though, where all the negligence is on one side, it may, perhaps, be unfit to inquire into the quantum; yet, where there is any fault in the other party, and that other party cannot be said to be wholly innocent, he ought not, in our opinion, to profit by the mistake into which he may, by his own prior mistake, have led the other; at least, if the mistake be discovered before any alteration in the situation of any of the other parties; that is, whilst the remedies of all parties entitled to remedy are left entire, and no one is discharged by laches. We think the payment, in this case, was a payment by mistake, and without consideration, to a person not wholly free from blame. The striking out an indorsement by mistake cannot, in our opinion, discharge the indorser" (k). Where bankers who had paid a forged bill gave notice of the forgery, and demanded the money by one o'clock in the afternoon of the following day, the Court took time to consider, and at length unanimously held, that the money could not be recovered back. "In this case," they say, "we give no opinion upon the point, whether the plaintiffs would have been entitled to recover if notice of the forgery had been given to the defendants on the very day on which the bill was paid, so as to enable the defendants on that day to have sent notice to other parties on the bill. But we are all of opinion that the holder of a bill is entitled to know, on the day when it became due, whether it is an honoured or dishonoured bill (1); and that if he receives the money, and is suffered to retain it during the whole of that day, the parties who paid it cannot recover it back. The holder, indeed, is not bound by law (if the bill be dishonoured by (k) Wilkinson v. Johnson, 3 B. & C. 428; 5 D. & Ry. 403, S. C. (1) But if a banker, on whom a check is drawn, be also the banker of the holder, who pays in the check without any intimation of the character in which he desires the banker to receive it, whether as drawee, or as his, the holder's, agent, it will be presumed that the banker took it as the agent of the holder, and therefore the banker may, in the course of the next day, inform the holder that there are no effects, and that the check will not be paid. Boyd v. Emmerson, 2 Ad. & Ell. 184; 4 N. & M. 99, S. C.; and see Kilsby v. Williams, 5 B. & Ald. 815; 1 D. & C. 476, S. C.; Pollard v. Ogden, 2 E. & B. 459. the acceptor) to take any other steps against the other parties to the bill till the day after it is dishonoured. But he is entitled so to do if he think fit; and the parties who pay the bill ought not, by their negligence, to deprive the holder of any right to take steps against the parties to the bill on the day when it becomes due" (m). CHAPTER In an action on a forged bill, a Judge, on an affidavit of Inspection of a the forgery, will order that the defendant and his witnesses forged bill. may inspect it, the defendant giving to the plaintiff a list of the witnesses to whom he proposes to exhibit it (n). (m) Cocks v. Masterman, 9 B. & C. 902; 4 M. & Ry. 676; Dans. & Ll. 329, S. C.; and see Mather v. Lord Maidstone, 18 C. B. 273; 25 L. J., C. P. 311, S. C.; Bollard v. Ogden, 2 E. & B. 459. (n) Post, Chapter on ACTIONS, and see Thomas v. Dunn, 6 M. & G. 274. It may even be done without an affidavit. Woolner v. Devereux, 9 Dow. 672. CHAPTER XXVI. OF THE STATUTE OF LIMITATIONS IN ITS APPLI- Policy of the law. WITHOUT a limitation of actions no man can be secure in the enjoyment of his property. Prescription is the original source of all title. After the lapse of years, evidence is weakened or destroyed. And a claimant who has long slept on his demand has no right to complain, if, for the public advantage, it is at length taken from him. In practice it is found that no statutes are so useful as those of limitation, compelling, as they do, investigation, whilst the means of investigation subsist, and supplying the loss of those means, by a general act of settlement, applicable to each man's case. CHAPTER duced. Though an act of limitation, in respect of real property, When introwas passed in this country in the year 1270, yet, partly from the comparatively inconsiderable amount of personal property, partly from the frequency of the sales in market overt, and partly from the circumstance, that debts above 40s. were commonly secured by bond or single bill, and debts below that amount were not tried in the superior Courts, no limitation to personal actions was introduced till the year 1623, when the present Statute of Limitations of The present personal actions (the 21 Jac. 1, c. 16) was passed. The enactments of that statute, so far as they are applicable to our present purpose, are as follows: By s. 3, all actions on the case (other than such accounts (a), as concern the trade of merchandise between merchant and merchant, their factors and servants), and all actions of debt, grounded on any lending or contract without specialty, must be brought within six years of the cause of such actions, and not after. By s. 4, if judgment for the plaintiff be arrested or reversed, or the defendant be outlawed and afterwards reverse the outlawry, the plaintiff, or his executor, may commence a new action within a year. Section 7 provides, that if any person entitled to the action shall, at the time of the cause of action accrued, be, first, an infant, secondly, feme covert, thirdly, non compos mentis, fourthly, imprisoned, or, fifthly, beyond the seas, then such person may bring the action within six years after their full age, discoverture, sound memory, enlargement, or return from beyond the seas. statute. In treating of the effect of this statute in its relation to Division of the bills and notes, we shall consider, 1, its general operation, subject. and whether it destroys the debt or only bars the remedy; 2, what actions or legal proceedings on those instruments it (a) The exception of merchants' accounts is repealed by 19 & 20 Vict. c. 97, s. 9. CHAPTER XXVI. GENERAL OPERATION OF limits; 3, from what period the statute begins to run; 4, to what period the time of limitation is computed; 5, how the statute may be avoided by issuing a writ and continuing it down; 6, the proviso as to persons labouring under disabilities; 7, what promises, acknowledgments, or payments, will take a bill or note out of the statute; 8, how the statute is to be taken advantage of; and, lastly, when, independently of the statute, lapse of time will be a bar to an action on a bill or note. First, as to the general operation of the statute. The Statute of Limitations is a good plea in equity as THE STATUTE. well as at law. It is also an answer to proof under a petition for adjudication in bankruptcy (b). It was formerly a doubt whether the statute was a bar in the Admiralty Courts to a suit for seamen's wages (c). But that doubt was removed by 4 Anne, c. 16, s. 17, which enacts, that all suits and actions in the Court of Admiralty for seamen's wages shall be commenced and sued within six years next after the cause of such suits or actions shall accrue, and not after. Does not destroy the debt. The Statute of Limitations does not destroy a debt, but only bars the remedy (d). Therefore, it must in all cases be pleaded, and cannot be given in evidence, even under the plea of nil debet, or the replication of nil debet to a setoff (e). Therefore, also a promissory note more than six years old, though not a good petitioning creditor's debt as against the bankrupt (who may object that the remedy by a petition in bankruptcy, as well as by action, is taken away), is nevertheless a good petltioning creditor's debt ast against strangers (f). "It is settled," says Lord Mansfield, "that the Statute of Limitations does not destroy the debt, it only takes away the remedy; the objection lies in the mouth of the bankrupt himself, but not in the mouth of a third person" (g). Therefore, again, a lien may be en (b) Ex parte Dewdney, 15 Ves. 479. (c) Ewer v. Jones, 6 Mod. 25. (e) Chapple v. Durston, 1 C. & Glassop, 1 Ld. Raym. 153. (f) Swaine v. Wallinger, 2 Stra. 746. (g) Quantock v. England, 5 Burr. 2628; 2 W. Bl. 703, S. C. See the same doctrine laid down by Lord Ellenborough and Bayley, J., in Williams v. Jones, 13 East, 450; and by the Court of Exchequer, in Chapple v. Durston, 1 C. & J. 1; Mavor v. Pyne, 2 C. & P. 91. |