CHAPTER Policy of the law. When introduced. The present statute. WITHOUT a limitation of actions no man can be secure in the enjoyment of his property. 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. Though an act of limitation, in respect of real property, was 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, the 21 Jac. 1, c. 16 (supplemented by 3 & 4 Will. 4, c. 42), was passed. The enactments of that statute, so far as they are applicable to our present purpose, are as follows (a): By sect. 3, all actions on the case (other than such accounts 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 sect. 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. Sect. 7 provides, that if any person entitled to the action shall, at the time of the cause of action accrued, be, first, an (a) The 3 & 4 Ann. c. 9, which by sec. 2 enacted that actions on notes must be brought within six years, is repealed by the Code. As, however, the Code has, so far as practicable, placed bills and notes and parties suing thereon on precisely the same footing, ss. 38 & 89, it seems hardly open to doubt that notes as well as bills, whether or not they did so before, fall within s. 3 of the 21 Jac. I. c. 16. The exception of merchants' accounts was repealed by s. 9 of the 19 & 20 Vict. c. 97, and that of the plaintiff's absence beyond the seas or imprisonment by s. 10. Since the passing of the Married Woman's Property Act, a married woman would now probably be held discovert as to any property or contract in respect of which she could sue as a feme so XXII. infant; secondly, feme covert; thirdly, non compos mentis; CHAPTER 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. In treating of the effect of this statute in its relation to Division of bills and notes, we shall consider, 1, its general operation, the subject, and whether it destroys the debt or only bars the remedy; 2, what actions or legal proceedings on those instruments it 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 well as at law. It is also an answer to proof under a petition for adjudication in bankruptcy (b), and to a suit for seamen's wages (c). GENERAL OPERATION OF THE STATUTE. stroy the debt. The Statute of Limitations does not destroy a debt, but Does not deonly bars the remedy (d). Therefore, it must in all cases be pleaded, and could not 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 petitioning creditor's debt as against strangers (f). "It is settled," said 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 (b) Ex parte Dewdney, 15 Ves. 479. (c) Ewer v. Jones, 6 Mod. 25; 4 Anne, c. 16, s. 17. (d) As to an agreement not to rely on the statute, see East India Company v. Paul, 14 Jur. 253; 7 Moo. P. C. C. 85; Lade v. Trill, 6 Jur. 272; Waters v. Thanes, 2 B.B.E. Q. B. 757. (e) Chapple v. Durston, 1 C. & J. 1, overruling the opinion of Lord Holt at Hertford Assizes, 1690; Anon., 1 Salk. 278; Draper v. Glassop, 1 Ld. Raym. 153. (f) Swaine v. Wallinger, 2 Stra. 746. A A CHAPTER of a third person" (g). XXII. Foreign WHAT LEGAL Therefore, again, a lien may be enforced (h), where an action for its amount would be barred by the statute. A foreign Statute of Limitations is no defence to an action on a foreign contract in the English Courts, unless it have the effect of extinguishing the contract, and the parties are living in the foreign country at the time of the extinction. For a Statute of Limitations usually affects the remedy merely, and not the construction of the contract (i). Secondly, as to the actions and legal proceedings which PROCEEDINGS the statute limits. THE STATUTE Effect of the It will be sufficient for the present purpose to remark that actions of debt and of assumpsit are limited to six years (k). Although the statute did not in terms apply to a proceeding in equity, Courts of equity adopted its provisions as a rule (1). "With regard to that statute," says Sir William Grant, "though it does not apply to any equitable demand, yet equity adopts it, or at least takes the same limitation, in cases that are analogous to those in which it applies in law" (m). And now that equitable proceedings are commenced by action there is not even this verbal distinction. But the statute did not (prior to the Trustee Act, 1888, 51 & 52 Vict. c. 59, s. 8), bar a trust (n); nor prior to 3 & 4 Will. 4, c. 27, s. 40, did it bar a legacy (6). We have already seen that the statute is a bar in bankruptcy. It is conceived, that if the statute have run out against statute on the the holder of a bill or note, payable at a day certain, and title of a sub- he then transfers it, the transferee's right of action is sequent transferee. barred. For he, as transferee of an overdue bill, can stand (g) Quantock v. England, 5 Burr. 2628; 2 W. Bl. 703. See the same doctrine laid down by Lord Ellenborough and Bayley, J., in Williams v. Jones, 13 East, 450; and by the Court of Exche quer, in Chapple v. Durston, 1 C. & J. 1; Mavor v. Pyne, 2 C. & P. 91. 81. (h) Spears v. Hurtley, 3 Esp. (i) Huber v. Steiner, 2 Bing. N. C. 202; 2 Scott, 304; Harris v. Quine, L. R., 4 Q. B. 653. See the Chapter on FOREIGN LAW. (k) Sect. 3. (1) Johnson v. Smith, 2 Burr. 961; Prince v. Heylin, 1 Atk. 493. (m) Starhouse v. Barnston, 10 Ves. 466. (n) Heath v. Hanley, L. R., 1 Ch. Ca. 20. (0) Anon., 2 Freem. 22. By that statute twenty years was the limit, now reduced to twelve years by the Real Property Limitation Act, 1874, 37 & 38 Vict. c. 57, s. 8. XXII. in no better situation than his transferor. He, like his CHAPTER transferor, has a debt due to him, but has lost the right of action, and has notice of the loss of it (p). And, perhaps, as to the Statute of Limitations, the holder for the time being is a trustee of the action, so that prior or subsequent indorsees are, as between themselves and earlier parties, prejudiced by his laches (q). Thirdly, as to the time from which the statute runs. WHEN IT The Statute of Limitations begins to run on a bill or BEGINS TO note, as well as on any other contract, from the time that RUN. the right of action (7) first accrued to the party. Therefore, on a bill payable at a certain date, the statute runs, not from the time drawn, but from the time when it fell due (s). so also as to the account stated, of which the evidence (1). So, where the maker of a note gave it to a third person, Payable on a to be delivered to the payee after certain events should contingency. happen, the statute was held to run, not from the date of the note, but from the time of its delivery to the payee (u). It is conceived that if a note be payable by instalments, Payable by and contain a provision that, if default be made in payment instalments. of one instalment, the whole shall be due, the statute runs from the first default against the, whole amount of the note (x). And so in an action on a bill by an administrator, who Against an had not taken out administration till after the bill became administra due, it was decided that the statute ran, not from the time tor. the bill fell due, but from the time of granting letters of administration, for there can be no action till there is a party capable of suing (y). (p) See Scarpelini v. Atcheson, 7 Q. B. 864. (q) See Webster v. Kirke, 17 Q. B. 947. (r) Though at that time an action and judgment would have been fruitless. Emery v. Day, 1 C., M. & R. 245; 4 Tyr. 695. (s) Wittersheim v. Lady Carlisle, 1 H. Bl. 631. (t) Fryer v. Roe, 12 C. B. 437. (u) Savage v. Aldren, 2 Stark. 232. (x) See Hemp v. Garland, 4 Q. B. 519. (y) Murray v. East India Company, 5 B. & Al. 204. But this interval is now to be computed where the administrator claims a chattel real; 3 & 4 Will. 4, c. 27, s. 6. The statute runs against an executor from the time the bill falls due, for he can commence an action before probate. CHAPTER On a bill after sight. On demand. As upon a bill drawn payable after sight, there is no right of action till presentment; so without such presentment the statute does not begin to run (2). If a note be payable at a certain period after sight (a), the statute runs from the expiration of that period, after the exhibition of the note to the maker. But we have seen, that if a bill or note be payable "at sight" or "on demand," those words are held not to constitute a condition precedent, but merely to import that the debt is due and payable immediately (b); or, at any rate, an action is sufficient demand. Therefore on a bill or note payable on demand, unless the note be accompanied by some writing restraining or postponing the right of action, the statute runs from the date of the instrument, and not from the time of the demand (c). Where a note payable on demand was given to a bank, accompanied by an agreement that the note should be held as a security for advances, the Court of Exchequer decided, in a modern case, that the statute did not begin to run against the note till after advances made, and a claim made as for a debt. The learned judge, however (Mr. Baron Martin), who tried the case, appears to have thought otherwise, or, at least, to have doubted. Where a loan was made by a cheque, the statute was held to run, not from the date of the cheque, but from the time the cheque was cashed (d). (z) Holmes v. Kerrison, 2Taunt. 323. (a) Sturdy v. Henderson, 4 B. (b) Capp v. Lancaster, Cro. (c) Christie v. Fonsick, Sel. N. payable on demand. Quære tamen, if the note be a re-issuable one, and re-issued, or if it be payable at a particular place; and see p. 286. (d) Garden v. Bruce, L. R., 3 Ex. 300; 37 L. J. 112. It was formerly thought that all parties alike to an instrument payable on demand, drawer or indorser, as well as acceptor or maker, were liable thereon as of the date; but the tendency of modern cases seems to apply a different rule to drawers and indorsers. In Er parte Boyse, 33 Ch. D. 612; 56 L. J. 135; it was held that the statute on a bill at sight did not begin to run in favour of the drawer till presentment; and in the case of a cheque where a letter notifying countermand of payment had been sent (presentment being therefore excused) the statute was held to run in favour of |