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quiesced in that he does not know; and in cases of this sort I think that acquiescence implies full knowledge, for I take the rule to be quite settled that a cestui que trust cannot be bound by acquiescence, unless he has been fully informed of his rights and of all the material facts and circumstances of the case."

Sec. 62. Distinction between Laches and Acquiescence. - While the words “ laches ” and “ acquiescence” are often used as similar in meaning, the distinction in their import is both great and important. Laches import a merely passive, while acquiescence implies active, assent; and while, where there is no statutory limitation applicable to the case, courts of equity would discourage laches and refuse relief after great and unexplained delay, yet where there is such a statutory limitation they will not anticipate it, as they may where acquiescence has existed.

Laches amount, in fact, only to that inferior species of acquiescence described in the following terms by KINDERSLEY, V. C.:1 “Mere acquiescence (if by acquiescence is to be understood only abstaining from legal proceedings) is unimportant; where one party invades the rights of another, that other does not in general deprive himself of the right of seeking redress merely because he remains passive; unless, indeed, he continues inactive so long as to bring the case within the purview of the statute of limitations." 2 Mere lapse of time may, however, make the reopening of a matter unreasonable.8 Mere acquiescence will not be a bar in cases where there is an express trust. In another case," which seems to be an authority for this proposition, the trust property had been improperly conveyed, but not for value, to the predecessor in title of the defendant upwards of one hundred years before suit, and the plaintiff had discovered the facts eighteen years before taking proceedings; yet, on demurrer, it was held that the statute had no operation.

Sec. 63. When Equity will supply Remedy upon a Claim barred by the Statute. When a party applies to a court of equity and carries on an unfounded litigation, — protracted under circumstances, and for a length of time which deprives his adversary of his legal rights, — a substitute for the legal right of which the party so prosecuting an unfounded charge has deprived him should be supplied and administered. And in instances where a court of equity can consistently do

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1 Rochdale Canal Co. v. King, 2 Sim. R. & My. 453 ; Pitt v. Lord Dacre, L. R. N. 8. 89.

3 Ch. D. 295. 2 These remarks are erroneously attrib- Pultney v. Warren, 6 Ves. 73 ; Bond uted to LORD CRANWORTH by LORD v. Hopkins, 2 Sch. & Lef. 630 ; Grant v. CHELMSFORD, in Archbold v. Scully, 9 H. Grant, 2 Russ. 598; East India Co. v. L. Cas. 360.

Campion, 11 Bligh, 158. Where a de3 Green's Case, L. R. 18 Eq. 428. fendant in a suit at law has unjustly

4 Brown v. Radford, W. N. 1874, pleaded the statute of limitations, equity p. 124. See also Campbell v. Graham, 1 may, on that ground, refuse to the de

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so, it will grant relief. But there are limits even to the powers of a court of equity; and in matters where the party has a remedy at law, it has no more power to set aside the statute than a court of law has. Nor lave such courts the power to enjoin a party from setting up the statute in a case where he is legally entitled to its benefits, and the exercise of such authority would be an usurpation of authority wholly unwarranted.

As to the application of the statute in equity in cases involving trusts, see chapter on Trusts.

fendant, in his defence to the suit, the has not power, on account of any supposed benefit of the statute. Lunn v. Johnson, inequity, to enjoin the party from insist. 3 Ired. (N. C.) Ch. 70. But in Walker v. ing on the statute of limitations in any Smith, 8 Yerg. (Tenn.) 238, it was held action which may be brought for its rethat, where a purely legal demand has been covery. barred by lapse of time, a court of equity

CHAPTER VII.

REMOVAL OF THE STATUTORY BAR.

ACKNOWLEDGMENTS.

Sec. 64. General Reasons for Judicial Ex. Sec. 71. Bare Acknowledgment. ceptions.

72. Promise to settle. 65. Historical View of the Law relat. 73. Failure to deny Liability. Ex. ing to Acknowledgments.

pressions of Regret, &c. 66. Acknowledgments apply only to 74. Effect of Acknowledgment.

Assumpsit. Theory on which 75. Offer to pay in Specific Property: founded.

76. Promise not to plead the Statute. 67. Crucial Test. Rule in A'Court 77. Conditional Acknowledginent. v. Cross.

78. Hope to pay 68. Present Theory.

79. By and to whom must be made. 69. Express or Implied Refusal to 80. Offer to arbitrate, Recital in pay.

Deeds, &c. 70. Essential Requisites of an Ac- 81. When Acknowledgment must be knowledgment.

made.

Sec. 64. General Reasons for Judicial Exceptions. — The statute of James, which is the foundation of all of our statutes of limitations, and which is virtually in force in several of the States, and practically in all of them with some exceptions, did not contain any exception in case of acknowledgments of indebtedness by the debtor, yet at an early day such an exception was read into the statute by the judges, and there is no instance of judicial legislation that is better sustained by both reason and justice than this. The true reason for these exceptions is to be found in the fact that the reason for a statutory bar utterly fails when a debtor from time to time admits the existence and justice of the debt, and the courts, without intending to thwart, but rather to give effect to, the true intention of the statutes, began at an early day to hold that where a debtor expressly promises to pay a pre-existing debt, or acknowledges its existence under such circumstances that a promise to pay it can be implied, the statute is suspended up to that date, and begins to run anew from the date of such new promise or acknowledgment. In other words, that under the circumstances named the debt is revived and put on foot for a new period of life, coextensive with the statutory provision. In all cases, however, where an acknowledg. ment is relied upon to renew a debt, it will be found that these requisites are indispensable:

First. The acknowledgment must be in terms sufficient to warrant the inference of a promise to pay the debt ;

Second. It must be made to the proper person ;

Third. By the proper person ; and,

Fourth. With the proper formalities, where any are required by statute. And in the case of real property, in order to have any effect, it must be shown to bave been made before time has finally run in favor of the person making it.

With these general rules in mind, less difficulty will be experienced in dealing with isolated questions under this head than would otherwise exist.

From the rules stated, it will be seen that, whatever abstruse theories may formerly have existed in reference to the principles upon which these statutes are predicated, or in reference to the presumptions arising therefrom, it is now well settled that no acknowledgment is sufficient to take a case out of the operation of the statute, unless it is of such a character that a new promise sufficient to revive the debt can be fairly drawn therefrom;and the theory upon which the courts proceed is,

1 Barlow v. Bellamy, 7 Vt. 54 ; All- denial. But if a debtor denies the debt, cock v. Gwan, 2 Hill (S. C.), 326 ; Sands but says, • Prove by A. that I had the 6. Gelston, 15 Johns. (N. Y.) 511 ; Cohen timber and I will pay for it;" if it is 6. Aubin, 2 Bailey (S. C.), 283; Smallwood proved by A. that he had the timber, then

Smallwood, 2 D. & B. (N. C.) 330; the statute bar is removed ; but proof of Eckert v. Wilson, 12 S. & R. (Penn.) 393. that fact by other witnesses, but not by It must be distinct, and without question A., will not remove the bar, because there of its being due, or an intimation that it is nothing to support the promise. Robwould not be paid. Berghaus v. Calhoun, bins v. Otis, 1 Pick. (Mass.) 368. So 6 Watts (Penn.), 219; Glein v. Ries, id. where, upon being shown a note, he ad. 44 ; Harrison v. Handley, 1 Bibb (Ky.), mitted its genuineness, but said he "had 443 ; Allen v. Webster, 15 Wend. (N. Y.) not been duly notified and was clear by 284; Head v. Manners, 5 J. J. Mar. (Ky.) law,” it was held not sufficient to remove 255. Therefore, an acknowledgment of the statute bar, although in fact he had the justice of a claim, without anything been duly notified, because there is nothing more, is sufficient to remove the statute upon which a new promise can be predi.

bar;

but if the debtor, in connection there. cated. Miller v. Lancaster, 4 Me. 159. with, says anything to indicate that al. So, where a defendant says, “If I owe you though the claim is just, yet he does not anything I will pay it, but I owe you intend to pay it, as “the debt is an honest nothing,” Perley v. Little, 3 id. 97; so one, but I have paid it," Tichenor v. Col. where, upon being shown a note, the defax, 4 N. J. L. 153; Smith v. Freel, Addis. fendant said, “I don't think father in(Penn.) 291 ; Gray v. Kernahan, 2 Const. tended I should pay the note; I think I Ct. (S. C.) 65, is not sufficient, although have paid it; but I suppose I must pay it, it is proved that the debt had not been if anything is due, and they insist upon it, paid, Bailey v. Bailey, 14 S. & R. (Penn.) as father is dead," Russell v. Copp, 5 N. H. 195, because no promise can be implied 154 ; so where the defendant, after adinit. upon which to revive the debt. But if, ting the debt, said that “it was not in upon being shown a note purporting to his power to pay it at that time, but he have been executed by him, he denies his hoped to see the plaintiff and do something signature thereto, but say, “Prove that I about it,” Hancock v. Bliss, 7 Wend. signed the note and I will pay it ;" if his (N. Y.) 267. But see Olcott v. Scales, 3 signature is proved to be genuine, the Vt. 173, where a contrary doctrine was statute bar is removed, because there is an held. An admission by the defendant express promise to pay upon the perform- after a debt is barred, that “it is just, ance of a condition, notwithstanding his so far as I know, but I left it to F., and

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that the old debt forms a good consideration for a new promise, either express or implied, and that any clear and unqualified admission of the debt as an existing liability carries with it an implied promise to pay, unless such inference is rebutted either by the circumstances or the language used.

SEC. 65. Historical View of the Law relating to Acknowledgments. - When the statute of James I. went into operation, the courts were inclined to construe it strictly, and an acknowledgment to take a case out of the operation of the statute was required to amount virtually to an express promise ;? and in some of the cases it is suggested that not only must there be a new promise, but also that this promise must be founded on a new consideration. Later on, however, greater laxity have kept no account myself,” also adding · Harbold v. Kuntz, 16 Penn. St. 210; that the defendants “were indebted to Yan v. Kerr, 47 id. 333 ; Grant v. Ashley, him,” is not sufficient. Fellet v. Linsley, 12 Ark. 762 ; Calks v. Weeks, 7 Hill 6 J. J. Mar. (Ky.) 337. “I gave the (N. Y.), 45 ; Allison v. James, 9 Watts note, but it is paid," New Orleans, &c. (Penn.), 380; Ash v. Patton, 3 S. & R. Co. v. Harper, 11 La. An. 212; Dickinson (Penn.) 300; Wakeman v. Sherman, 9 v. McCamey, 5 Ga. 486, is not sufficient. N. Y. 88; Porter v. Hill, 4 Me. 41; PeterIn Pray v. Garcellon, 17 Me. 145, a son v. Cobb, 4 Fla. 481; Deshon v. Eaton, mere general admission, as “I owe him 4 Me. 413 ; Hand v. Lee, 4 T. B. Mon. something," without stating how much or (Ky.) 36; Gaucher v. Gondrau, 20 La. An. what for, was held insufficient. See also 156 ; Ferguson v. Taylor, Hayw. (N. C.) Shitler v. Bremer, 23 Peun. St. 413, to the 20. In some of the cases it is said that same effect. To take a case out of the under the statute of limitations a prestatute of limitations, the acknowledgment sumption arises that the defendant, from of indebtedness proved must be shown to the lapse of time, has lost the evidence relate to the particular demand in ques- which would have availed him in his detion. Buckingham v. Smith, 23 Conn. fence if he had been seasonably called upon 453. And a naked admission of indebted- for payment ; but, when this presumption ness, without indicating the amount or is rebutted by an acknowledgment of the nature of the debt, or promise to pay defendant within six years, the contract is something, without any reference to the not within the intent of the statute. Bax. sum to be paid, or what it is to be paid for, ter v. Penniman, 8 Mass. 133 ; Fiske e. is no answer to the plea of the statute of Needham, 11 id. 452 ; Grist v. Newman, limitations. Shitler v. Bremer, 23 Penn. 2 Bailey (S. C.), 92; M'Lean v. Thorp, 3 St. 413. But the question as to whether Mo. 215; Gailer v. Grinnell, 2 Aik. (Vt.) such an admission in a given case is suffi- 349 ; Lyon v. Marclay, 1 Watts (Penn.), cient must depend largely upon the cir- 271; Bullock v. Perry, 2 S. & P. (Ala) cumstances, Lord v. Harvey, 3 Conn. 370; 319 ; Beale v. Edmondson, 3 Call (Va.), and the circumstances attending what was 514. But it will be seen that these cases said must be taken into account, as they were decided when the old theory preform a part of the res gesto, Whitney v. vailed, and before it was regarded as essen: Bigelow, 4 Pick. (Mass.) 110.

tial that the acknowledgment should be An acknowledgment by the defendant such as to raise a new promise to pay the to a stranger that he had received the debt. money of the plaintiff's testator, but that 2 Lacon v. Briggs, 3 Atk. 105; Williams nobody could prove it, with a general v. Gun Fortescue, 177; Bass v. Smith, 12 statement that he would “satisfy" the Vin. Abr. 229. plaintiff, is not such an acknowledgment 8 POLLEXFEN, C. J., in Bland v. Hasel. or promise to pay as will answer the plea rig, 2 Vent. 151. of the statute of limitations. Zacharias v. Zacharias, 23 Penn. St. 452.

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