existence of a whom claim may be en Circumstances, however, sometimes arise which ope- But may be, rate a suspension of the period of limitation. Thus, by nonwhere the period of limitation has commenced, but person against before it has expired, no person against whom the claim can be enforced exists by reason of a suspension of the remedy (x) against, and as respects the person liable, a suspension of the period of limitation, co-extensive with the period of such suspension of the remedy, will take place in favour of the claimant (y). In Hyde v. Dallaway, a mortgagee claiming under a mortgage made by a tenant for life and a remainderman entered into possession of the land in 1817 as mortgagee, and in 1823 purchased the life interest in the equity of redemption. The 3 & 4 Will. 4, c. 27, came into operation on the 1st of January, 1834. The mortgagee and his devisees continued the possession until 1839, and neither he nor they appear to have made at any time after the possession commenced any acknowledgment of any title in any of the mortgagors, and the existence or the non-existence of the tenant for life did not appear. The court, notwithstanding the period of limitation had commenced, held, in effect, that it would be suspended by the subsequent purchase of the life estate by the mortgagee. The case Hyde v. Dallaway, like Browne v. The Bishop of Cork (z), turned upon the section 28 of the 3 & 4 Will. 4, c. 27, and is opposed to the latter case, which, under similar circumstances, was held to be concluded by that section. These cases, as to some of the facts common to both, were differently circumstanced. In the former case the mortgage was created by the tenant for life and the remainderman, and the possession was taken by the mortgagee under his mortgage title; (r) Nedham's case, 8 Co. 135; Wankford v. Wankford, 1 Salk. 299; Holt's Rep. 366, S. C. (y) Hyde v. Dallaway, 2 Hare, 528; Kirkwood v. Lloyd, 12 Ir. E. R. 585; Steward v. Marq. Conyng- (2) 1 Dru. & Wal. 700, forced; -by abatement of proceedings on death of the person liable; and in the latter case the mortgage was created by the person from whom the tenant for life and the remainderman claimed, and the possession was taken by the mortgagee, not in that character, but in his character of purchaser of the life estate in the equity of redemption, having taken for his protection, as such purchaser, contemporaneously with his purchase, an assignment of the mortgage, but that distinction was held to be immaterial since the statute. It may also be observed that in Hyde v. Dallaway, the question arose indirectly in a suit by the persons claiming through the mortgagee against a purchaser for the specific performance of a contract for the sale of the mortgaged property; whilst in Browne v. The Bishop of Cork, the question arose directly in a suit by persons claiming through the mortgagor for the redemption of the property against the persons claiming through the mortgagee. In Hyde v. Dallaway, also, the possession of the mortgagee commenced, and the fact which would produce the suspension, that is, the purchase of the life estate in the equity of redemption, occurred before, and that the possession continued after, the 3 & 4 Will. 4, c. 27 had passed. But the possession so commencing, and the purchase being so made were immaterial, for the statute is, and has been held to be (a), retrospective. So where proceedings are commenced within the prescribed period, but afterwards abate by the death of the person against whom they are commenced, and for want of a representative of the deceased until long after the expiration of that period the claimant is prevented from following up the proceedings, the operation of the statute is suspended until a personal representative has been fully constituted, and a reasonable time, a year at least, has elapsed (b). Actus Dei nemini facit injuriam. (a) Browne v. The Bishop of Cork, 1 Dru. & Wal. 700; Bat chelor v. Middleton, 6 Hare, 75. (b) Curlewis v. Earl of Mor For it would be a great hardship and unreasonableness in holding that time runs against a person who can do nothing to prevent it, and saying, that, though there is no person in existence whom he can sue, yet because the statute has run for a day or a month, during which there was a person whom he sued, it still continues to run. or omission, of The period of limitation having commenced may be by the act, entirely suspended by the act, or the omission of the the person person liable; as by a devise of a real estate (c) for the liable; payment of debts, either primarily or in aid of the personal estate. For such a devise is an acknowledgment of such of the debts as, at the death of the testator, are not barred by the Statute of Limitations, and, as respects them, suspends, from his death, the time of limitation (d), but will not revive-a word implying that they were previously gone-those actually barred at his death (e); and the relation of trustee and cestui que trust, between the devisee in trust and the creditor, is created, and consequently the Statute of Limitation ceases to have any effect (f). A bequest of personal estate, however, for the payment of debts will not operate such suspension (g). Again, where a mortgagee in possession becomes the purchaser of the life interest in the equity of redemption, a suspension of the period of limitation during the existence of the life interest will take place (h). Occasions frequently arise in equity calling for the interposition of the court for the protection of suitors in nington, 7 E. & B. 283, affirmed in Ex. Ch., 27 L. J., Q. B. 439, 4 Jur., N. S. 1102, 6 W. R. 682, S. C.; Sturgis v. Darell, 4 Ex., N. S. 622, affirmed in Ex. Ch., 6 Ib. 120. (c) Fergus v. Gore, 1 Sch. & L. 107; Burke v. Jones, 2 Ves. & B. 275; Hughes v. Wynne, Turn. & R. 307; Hargreaves v. Michell, Mad. & G. 326; Jones v. Scott, 1 by the interposition of equity for protection of the suitor; the prosecution of their claims by suspending, in effect, the period of limitation. But whether a court of equity will interfere to take from one in favour of another, that which would be a defence at law, depends upon what is called a good conscience (i). In cases not provided for in terms by the Statutes of Limitation, and where courts of equity in deciding such cases either adopt, or proceed by analogy to, those statutes (k), those courts, where the equitable title is not barred by lapse of time, although the legal title is so barred (1), and in some cases even after the lapse of more than twenty years (m), are not prevented from doing justice according to good conscience, and for that purpose will remove the bar arising from those statutes. On this principle, where pending a suit a fine has been levied (n), the court will restrain the setting up the fine in bar to an action of ejectment. So, where between the filing of a bill for an account and a general administration of assets, and the decree therein, the Statute of Limitations would at law become available against a claim, to allow the statute to have effect would be in the highest degree unjust, and contrary to all the practice of the court and to the merits of the case (o). So, where the possession is protected by the court as a lawful possession by force of instruments, afterwards condemned by the court as fraudulent, it will not suffer length of time to prejudice a title, and will not (i) 1 Sch. & L. 430. (1) Bond v. Hopkins, 1 Sch. & (m) See Att.-Gen.v. Lord Dudley, G. Coop. 146; Charter v. Trevelyan, 11 Cl. & F. 714; Aylward v. Kearney, 2 Ball & B. 463; Roche v. O'Brien, 1 Ib. 330. (n) M'Kenzie v. Powis, 4 Bro. C. R. 328; Pincke v. Thorncroft, 4 B. P. C. 92; 1 Sch. & L. 432 (0) Anon., 1 Vern. 73; Sirdefield v. Price, 2 You. & J. 73. permit the possession to be used whilst it was so protected (p). Again, where by the interposition of the court to prevent an act rightfully or wrongfully intended the defendant has lost a remedy at law, the court will give him a remedy equivalent to that from which the interposition of the court of equity has debarred him (7). Surviving partners may both in law and equity plead the Statute of Limitations in bar of the claim of a creditor of the firm, and that whether the partnership accounts have or have not been settled between themselves and a retired partner, or the estate of a deceased partner, and the estate of a deceased partner will be entitled to the same defence, although the partnership accounts have not been taken (r). But the simple question, whether the estate of a deceased partner will, notwithstanding the Statute of Limitations, continue liable, so long as the remedy is not barred against the surviving partner, and the estate of the deceased partner continues liable to contribution at the suit of the surviving partner, has not been decided (s). A modern writer considers the several liability of the deceased partner's estate to be within the direct operation of the statute, whether the legal liability of the surviving partners be or be not barred (t). when. There might be an agreement that in consideration —by contract. of an inquiry into the merits of a disputed claim, ad- Not at law, vantage should not be taken of the Statute of Limitations in respect of the time employed in the inquiry, and an action might be brought for breach of such an agreement; but if to an action for the original cause of (p) Bond v. Hopkins, 1 Sch. & L. 413. (4) See Pulteney v. Warren, 6 Ves. 73; Morgan v. Morgan, 2 Dick. 643; 2 Ch. Ca. 217; Bond v. Hopkins, 1 Sch. & L. 413; Brown v. Newall, 2 Myl. & C. 558; O'Donel v. Browne, 1 Ball & B. 262. (r) See Way v. Bassett, 5 Hare, 55, 68. (s) See Braithwaite v. Britain, 1 Keen, 206; Winter v. Innes, 4 Myl. & C. 101. (t) Lindley on Partnership, 1012. |