Administration In administration suits legal demands are decided entirely on legal 9 Geo. 4, c. 14. grounds. (See per Lord Romilly, M. R., in Fuller v. Redman, 26 Beav. 619.) Executors in administration suits are not bound to plead the statute. suits. (Ex parte Dewdney, 15 Ves. 498; Norton v. Frecker, 1 Átk. 526; Castle- Who may set up ton v. Fanshaw, Prec. Ch. 100.) If a decree has been obtained, the statute statute. may be set up in the proceedings under the decree by one creditor against another (Fuller v. Redman, 26 Beav. 614), and by a residuary legatee or other party interested in the estate against a creditor (Moodie v. Bannister, 4 Drew. 432; Shewen v. Vanderhorst, 1 Russ. & M. 347; Beeching v. Morphew, 8 Hare, 129); but the statute cannot be set up against the plaintiff whose debt is the foundation of the decree. (Adams v. Waller, 14 W. R. 789.) As to this question in the administration of real estate, see Briggs v. Wilson, 5 D., M. & G. 21. It seems the court is not bound to set up the statute on behalf of absent parties. (Alston v. Trollope, L. R., 2 Eq. 205.) A residuary legatee has been held to be precluded by his own acts from setting up the statute as against a pecuniary legatee. (Prowse v. Spurgin, L. R., 5 Eq. 99.) After a decree in an administration suit, an acknowledgment by an executor will not revive a debt barred by the statute. (Phillips v. Beale, 32 Beav. 26.) Where a judgment has been recovered against executors for a debt due from their testator, which they paid, the executors are entitled to be allowed such payment, although the Statute of Limitations might have been set up against the creditor who recovered the judgment. (Hunter v. Baxter, 3 Giff. 214.) An executor may pay a debt justly due to a Executor may stranger, although barred in testator's lifetime (Stahlschmidt v. Lett, pay and retain 1 Sm. & Giff. 415), and may retain his own debt under same circumstances. (Hill v. Walker, 4 K. & J. 166. See Coombs v. Coombs, L. R., 1 P. & M. 288; Morley v. Saunders, L. R., 8 Eq. 599.) He may also set off a legacy against a debt owing by the legatee to the testator, though such debt is barred by the statute. (Coates v. Coates, 33 Beav. 249; Courtney v. Williams, 3 Hare, 539.) Where one of several executors owed the testator 3007. on a promissory note, and the other executors proved at once, but the debtor did not prove for more than six years, it was held that he could not then set up the statute, that the act of proving had relation to the testator's death, and he was considered as having 3007. in his hands as assets. (Ingle v. Richards, 28 Beav. 366.) Where a testator bequeathed property to his children subject to a condition that any debts appearing in his ledger as due from them should be deducted from their shares, it was held, that a debt appearing in the ledger though barred ought to be deducted. (Rose v. Gould, 15 Beav. 189.) A testator gave property to his wife for life, and after her death equally between his children, with a proviso that his trustees should deduct from the share of his daughter M. 2007. which he had advanced to her, and add it to his personal estate; and that if at the period of distribution M. should be indebted to any of her brothers or sisters in respect of advances made to her, the trustees should be empowered to deduct such debts or advances from her share, and pay the same to the brother or sister to whom the same might be owing. Held, that the trustees were authorized to deduct from M.'s share all such debts though barred by the statute, but that (the intention of the testator being to put advances by brothers and sisters on the same footing as advances by himself) no interest ought to be deducted. (Poole v. Poole, L. R., 7 Ch. 17.) Lapse of time will not of itself bar an executor of an executor of his right to have an account of the original testator's estate taken, with a view to ascertain such executor's liabilities as an accounting party. (Smith v. O'Grady, L. R., 3 P. C. 311.) In the case of direct trusts, the expiration of the statutory periods will not bar the rights of the cestui que trust in a court of equity. The case of constructive trusts, however, is different. (Beckford v. Wade, 17 Ves. 97; Townsend v. Townsend, 1 Bro. C. C. 550.) Between cestui que trust and trustee no lapse of time will preclude the account from the commencement of the trust, in a case in which the relation of trustee and cestui que trust S. U debts barred. Right of executor of executor to ac count of estate of original testator. Time no bar in case of direct trusts. 9 Geo. 4, c. 14. continues, the transactions between them are not closed, and the delay of the claim is attributable to the trustee not having given to the cestui que trust that information to which he was entitled, and accounted with him in such manner as he ought. (Wedderburn v. Wedderburn, 4 M. & Cr. 41; 2 Keen, 722.) But time may be a bar where there has been a direct and in-. dependent dealing between the trustee and the cestui que trust after the relation has terminated. (2 Keen, 749.) Devise in trust to pay debts. Mistake. Where a trustee lends out trust money in breach of the trust, and the borrower with notice of the trust applies the money to his own use, he cannot be permitted to separate the loan from the trust, and insist that the loan being barred by the statute the trust is barred also. (Ernest v. Croysdill, 2 De G., F. & J. 198. See Butler v. Carter, L. R., 5 Eq. 276; Coxwell v. Franklinski, 12 W. R. 1072.) Where a settlor had constituted himself a trustee of a covenant, the specialty debt was held not to be barred by lapse of time. (Stone v. Stone, L. R., 5 Ch. 74.) Where an obligor, by a voluntary settlement executed in 1813, gave certain funds to trustees in trust to pay the principal and interest due on the bond as and when the obligor should be required to pay the same, and the obligees did not claim on the bond until 1870, being up to that time ignorant of their title, it was held that no trust had been created, and that the claim of the obligees was barred. (Henriquez v. Bensusan, 20 W. R. 350.) No lapse of time will bar the right to obtain an account of moneys received by a person standing in a fiduciary relation. (Teed v. Beere, 7 W. R. 394; James v. Holmes, 10 W. R. 634; and see the cases as to solicitor and client quoted ante, p. 266.) And where a breach of trust has been committed by a deceased trustee, his executor cannot set up the statutes in answer to a claim arising from such breach of trust. (Brittlebank v. Goodwin, L. R., 5 Eq. 545; and see further p. 267, ante.) Where a creditor proceeds against the separate estate of a married woman as a trust fund, it has been held that the Statutes of Limitation do not apply. (Vaughan v. Walker, 8 Ir. Ch. R. 458. See Hartford v. Power, 16 W. R. 822). A devise of real estates in trust for payment of the testator's debts will not revive a debt barred by the statute at the time of the testator's death. (Burke v. Jones, 2 Ves. & B. 275.) But as to such debts as are not barred, time will cease to run at the death of the testator. (Hughes v. Wynne, T. & R. 307. See note to 3 & 4 Will. 4, c. 27, s. 25, ante, p. 203.) A direction for the payment of debts in a will of personal estate will not stop the running of the Statute of Limitations. (Scott v. Jones, 4 Cl. & F. 382; Cadbury v. Smith, L. R., 9 Eq. 42.) But a testator may, by express directions in his will, revive debts which have been barred. (Williamson v. Nayler, 3 Y. & Coll., Exch. 208; Philips v. Philips, 3 Hare, 281.) When a man makes a provision for his debts, he makes a provision for those debts which are not barred by the Statute of Limitations, that is to say, for those which can be deemed, and in law are deemed, debts, because he has the benefit which the legislature has given to him as a protection against stale demands. They are not debts which are recoverable, therefore they are not debts. The law has barred them. But if a man chooses voluntarily to make a provision for his father's debts to which he was not liable, this statute has no operation with respect to such debts. (O'Connor v. Haslam, 5 H. L. C. 170; see p. 181.) Trustees had by mistake paid to one of the cestui que trusts a portion of the trust funds, to which he was not entitled. In a suit by another party interested against the cestui que trust to make him refund, it was held, that the Statute of Limitations was inapplicable: that he was bound to repay, though more than six years had elapsed, and that all his interest in the trust fund was liable to make good the amount. (Harris v. Harris, 29 Beav. 110.) Where a trust fund had been paid by mistake to one who was not a cestui que trust, it was held that the trustees could compel him to refund at any time within six years after the discovery of the mistake. (Brooksbank v. Smith, 2 Y. & C., Ex. 58.) Where property has been long enjoyed by a family in certain shares under a mistake, it is said that the court will presume a grant or family arrangement. (Re Peat's Trusts, L. R., 7 Eq. 9 Geo. 4, c. 14. 302.) In cases of fraud, courts of equity grant relief notwithstanding the lapse Fraud. of the statutory period. Thus, accounts were opened on the ground of fraud, notwithstanding the lapse of seventeen years. (Allfrey v. Allfrey, 1 Hall & T. 179; 1 Mac. & G. 87.) A. and B., having for many years been partners in business as solicitors, dissolved their partnership in 1834, and the business continued to be carried on by A. alone until 1841, when he became bankrupt; and it was then discovered that a sum of money which had been paid by a client into the joint account of the firm at their bankers in 1829, for the purpose of investment, and which A. had shortly afterwards represented to have been invested accordingly, and on which he had regularly paid interest on that footing, had, instead of being invested, been appropriated by him to his own use. Upon a bill filed by the client against B. to make him liable for the money, it was held, that in equity the effect of the misrepresentation, so far as regarded the Statute of Limitations, was the same as if it had been made on the day the fraud was discovered, notwithstanding the partnership had been dissolved more than six years before. (Blair v. Bromley, 2 Ph. C. C. 354; 11 Jur. 617; 16 Law J., Ch. 495.) Where a bill was filed for an account of coal abstracted from plaintiff's mine, it was said that the account would not have been limited to six years, if the coal had been abstracted intentionally, and steps had been taken to conceal the fact and prevent discovery. (Dean v. Thwaite, 21 Beav. 621.) As to relief in the case of a fraudulent conversion of a trust fund, see Rolfe v. Gregory, 13 W. R. 355. Independently of the statutes, time in equity will bar stale demands in Acquiescence and cases of acquiescence. (Harcourt v. White, 28 Beav. 303; Smallcombe's laclies. Case, L. R., 3 Eq. 769.) As to acquiescence in breaches of trust, see Lewin on Trusts, 661, 5th ed.; Butler v. Carter, L. R., 5 Eq. 276; Sleeman v. Wilson, L. R., 13 Eq. 36; see also Archbold v. Scully, 9 H. L. C. 383, where Lord Wensleydale distinguishes between laches and acquiescence. Even where the Statutes of Limitations do not apply, the court will not entertain a suit by a cestui que trust instituted for the purpose of challenging the accounts settled by his trustees, when the accounts and matters had been investigated twenty years before, and he had every opportunity of going into them. Lapse of time alone will be sufficient bar to such a suit. (Bright v. Legerton, 2 De G., F. & J. 606.) Though the rule as to limitation by time does not apply in cases of express trust, yet as to them in equity the general rule is that stale demands are not to be encouraged. (M'Donnell v. White, 11 H. L. C. 570.) Where, according to the terms of a deed of trust, no proceedings are to be taken by creditors for the recovery of the debt otherwise than out of appropriated property, the debtor or his representatives cannot, under such circumstances, afterwards set up such abstinence of suit in pursuance of the contract as a bar to the claim of the creditor. (O'Brien v. Osborne, 10 Hare, 92; 16 Jur. 960.) acts. The stat. 5 & 6 Vict. c. 97, after reciting that divers acts, commonly called General limitation public, local and personal, or local and personal acts, and divers other acts of actions under of a local and personal nature, contain clauses limiting the time within local and personal which actions may be brought for any thing done in pursuance of the said acts respectively, and that the periods of such limitations vary very much, and it is expedient that there should be one period of limitation only, enacts, "That from and after the 10th August, 1842, the period within which any action may be brought for any thing done under the authority or in pursuance of any such act or acts shall be two years; or in case of continuing damage, then within one year after such damage shall have ceased; and that so much of any clause, provision or enactment by which any other time or period of limitation is appointed or enacted, shall be, and the same is hereby repealed." But this act does not extend to actions brought before the passing of it. (See Moore v. Shepherd, 10 Exch. 424, as to the Ramsgate Harbour Act.) On the 8th May, 1801, there was a resolution of the House 9 Geo. 4, c. 14. of Commons, agreed to by the House of Lords, that the general statutes, and the "public, local and personal," in each session should be classed in separate volumes. (Richards v. Easto, 15 Mees. & W. 251.) The Metropolitan Police Acts, 10 Geo. 4, c. 44, 2 & 3 Vict. c. 47, and 3 & 4 Vict. c. 84, are not local and personal within the meaning of the stat. 5 & 6 Vict. c. 97; and therefore the times limited by the former statutes respectively for the bringing of actions against justices of a metropolitan district are not altered by the last act. (Barnett v. Cox, 9 Q. B. 617.) See further Darb. & Bos. Stat. Lim. 464–470. MERCANTILE LAW AMENDMENT ACT. 19 & 20 VICTORIA, CAP. 97. An Act to amend the Laws of England and Ireland affecting Limitation of Actions and Suits. Limitation of 9. All actions of account or for not accounting, and suits for 19 & 20 Vict. such accounts, as concern the trade of merchandize between c. 97, s. 9. merchant and merchant (a), their factors or servants, shall be commenced and sued within six years after the cause of such actions for "meractions or suits, or when such cause has already arisen then chants' accounts." within six years after the passing of this act; and no claim in respect of a matter which arose more than six years before the commencement of such action or suit shall be enforceable by action or suit by reason only of some other matter of claim comprised in the same account having arisen within six years next before the commencement of such action or suit. (a) Ante, pp. 265, 267. ment of a creditor ability. 10. No person or persons who shall be entitled to any action Absence beyond or suit with respect to which the period of limitation within seas or imprisonwhich the same shall be brought is fixed by the act of twenty- not to be a disfirst year of the reign of King James the First, chapter sixteen, section three (b), or by the act of the fourth year of the reign of Queen Anne, chapter sixteen, section seventeen, or by the act of the fifty-third year of the reign of King George the Third, chapter one hundred and twenty-seven, section five (c), or by the acts of third and fourth years of the reign of King William the Fourth, chapter twenty-seven, sections forty, fortyone and forty-two (d), and chapter forty-two, section three (e), or by the act of the sixteenth and seventeenth years of the reign of her present Majesty, chapter one hundred and thirteen, section twenty (f), shall be entitled to any time within which to commence and sue such action or suit beyond the period so fixed for the same by the enactments aforesaid, by reason only of such person, or some one or more of such persons, being at the time of such cause of action or suit accrued beyond the seas, or in the cases in which by virtue of any of the aforesaid enactments imprisonment is now a disability, by reason of such person or some one or more of such persons, being imprisoned at the time of such cause of action or suit accrued. (b) Ante, p. 265. (c) Ante, p. 250. (d) Ante, pp. 236, 249. (e) Ante, p. 258. (f) Ante, p. 259. |