that, although the bill was not brought until thirty-five years after the cause of her complaint accrued, her demand was not stale.1 Lapse of time, in equity, is permitted to defeat an acknowledged right only on the ground of raising a presumption that the right has been abandoned, and this presumption will never prevail against opposing facts and circumstances outweighing it.

SEC. 61. Effect of Acquiescence. Courts of equity will also refuse to grant relief where a person has acquiesced in the exercise of a right by another, under such circumstances that he cannot equitably dispute the right, although his acquiescence has not existed for the statutory period. LORD ELDON' gives expression to the rule in such cases thus: "This court," says he, "will not permit a man knowingly, though but passively, to encourage another to lay out money under an erroneous opinion of title; and the circumstance of looking on is in many cases as strong as using terms of encouragement, a lessor knowing and permitting those acts which the lessee would not have done, and the other must conceive he would not have done, but upon an expectation that the lessor would not throw any objection in the way of his enjoyment." * In another case," LORD COTTENHAM said: "If a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the right is in progress, he cannot afterwards complain. This," says he, "is the proper sense of the word acquiescence.'" But a person who has not complete knowledge of the facts cannot be said to acquiesce. "I do not see," says TURNER, L. J.,'"how a man can be said to have ac

1 Tate v. Greenlee, 2 Hawks (N. C.), 486. See also Falls v. Torrence, id. 490.

2 Nelson v. Carrington, 4 Munf. (Va.) 332; Reardon v. Leary, 1 Litt. (Ky.) 53; Burkhead v. Coulson, 2 D. & B. (N. C.) Ch. 77. The poverty of the plaintiff is not an excuse for delay. Locke v. Armstrong, id. 147; Perry v. Craig, 3 Mo. 316. But see Mason v. Crosby, 1 W. & M. (U. S. C. C.) 341.

Dann v. Spurrier, 7 Ves. 231. The delay of a party, apprised of his right, and of its infringement, to assert it, for a period sufficient to bar an action at law, founded on the same right, will preclude him from relief in equity, especially if by such delay he has avoided a risk which otherwise he must have shared with the adverse party. Therefore, where a corporation for manufacturing purposes, being greatly embarrassed, in 1818, voted to sell, and in fact sold, its property to relieve itself from such embarrassment, but the sale, though without actual fraud, was so

made as not to be valid, the plaintiff, a stockholder of the corporation, apprised of what had taken place, and informed that he might be admitted into a new association, embracing most of the members of the corporation, and possessing its property, under such sale, upon the same terms as they had been; after this, the plaintiff made no claim until 1826, and brought no suit until 1828, when he sought relief by a bill in chancery, it was held that he had outstaid his time; and the bill was dismissed, but without costs. Banks v Judah, 8 Conn. 145.

See Youst v. Martin, 3 S. & R. (Penn.) 423.

5 Duke of Leeds v. Amherst, 2 Phillips, 123.

Marker v. Marker, 9 Hare, 16.

Cooper v. Greene, 3 D. G., F. & J. 58. See also Hall v. Noyes, cited 3 Ves. 748; Lord Selsey v. Rhoades, 1 Bligh, N. s. 1; Anonymous, cited 6 Ves. 632; Rudd v. Sewell, 4 Jur. 882.

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. 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.

8

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.5 And in instances where a court of equity can consistently do

1 Rochdale Canal Co. v. King, 2 Sim. N. 8. 89.

2 These remarks are erroneously attributed to LORD CRANWORTH by LORD CHELMSFORD, in Archbold v. Scully, 9 H. L. Cas. 360.

8 Green's Case, L. R. 18 Eq. 428.
4 Brown v. Radford, W. N. 1874,
See also Campbell v. Graham, 1

p. 124.

R. & My. 453; Pitt v. Lord Dacre, L. R. 3 Ch. D. 295.

Pultney v. Warren, 6 Ves. 73; Bond v. Hopkins, 2 Sch. & Lef. 630; Grant v. Grant, 2 Russ. 598; East India Co. v. Campion, 11 Bligh, 158. Where a defendant in a suit at law has unjustly pleaded the statute of limitations, equity may, on that ground, refuse to the de

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 have 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 benefit of the statute. Lunn v. Johnson, 3 Ired. (N. C.) Ch. 70. But in Walker v. Smith, 8 Yerg. (Tenn.) 238, it was held that, where a purely legal demand has been barred by lapse of time, a court of equity

has not power, on account of any supposed inequity, to enjoin the party from insisting on the statute of limitations in any action which may be brought for its recovery.

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 acknowledgment 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 have 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,