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PART I.
CH. I.

was a simple contract debt for which the ordinary remedy by action was barred by the statute of James would probably be a sufficient answer to the claim for a mandamus, the granting of which is to a certain extent within the discretion of the Court (1).

By the 210th section of the Public Health Act, 1875 (2), an urban sanitary authority has no power to make general district rates retrospectively, except for expenses incurred within six months before the making of the rate. And it seems that the Court will not grant a mandamus to make a rate for the payment of a debt, if the party to whom the debt is due does not apply till more than six months from the time when the debt was incurred (3). But where the claim of the plaintiff was for compensation for damage done by the works of the board, it was held that the six months should be reckoned from the time the amount payable for such damage was settled by arbitration (4).

A suit for seaman's wages in the Admiralty Court seems to have been considered within the equity of the statute of James (5), but this was expressly provided for by 4 & 5 Anne, c. 3, s. 17 (also called 4 Anne, c. 16), by which such suits are limited to six years after the cause of action accrues.

An action in rem for damages to a ship by collision is not within the statute of James or within any Statute of Limitations (6).

Seamen's wages.

Action in теп.

(1) See Ward v. Lowndes, u. s., and per Byles, J., 15 C. B. N. S. 199; 33 L. J. C. P. 31.

(2) 38 & 39 Vict. c. 55.

(3) Ward v. Lowndes, 1 E. & E. 940; 28 L. J. Q. B. 265; S. C. in error, 1 E. & E. 956; 29 L. J. Q. B. 40; Ringland v. Lowndes, 15 C. B. N. S. 173; 33 L. J. C. P. 25 (reversed on another point, 17 C. B. N. S. 514). (4) Ringland

v. Lowndes, u. s. (5) Hide v. Partridge, 2 Salk. 424; 3 Salk. 227; 2 Ld. Raym 1204; Ewers v. Jones, 3 Salk. 227.

(6) The Kong Magnus (1891), P. 223.

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CH. 1.

Before the Indian Limitation Act, 1859, the statute of Part I. James applied to India (1).

Where a contract is made in one country and an action Lex loci. is brought on it in another, all questions concerning the remedy, including the question as to the period within which the remedy can be enforced, must be decided by the law of the country where the action is brought (2).

The statute does not destroy the right, it only bars the Remedy by remedy (3). Hence, if a creditor has any means of action only

. enforcing his claim other than by action, the statute will not prevent him from recovering by such means. Where Lien. a defendant in an action of trover brought in 1800 was entitled to a lien on the goods sought to be recovered for a sum due in 1790, it was held by Lord Eldon that, although the remedy of the defendant by action was barred, the debt was not discharged and the lien was valid and subsisting (4). So where a judgment was obtained in an action in 1823, but no proceedings were taken by the plaintiff's attorney either in that action or to recover his own bill of costs, after Easter Term 1824, and in June 1830, a fieri facias issued at the suit of the plaintiff against the defendant for the amount of damages and costs, and the attorney claimed a lien on the judgment for his bill of costs, it was held that, although an action by the attorney against the plaintiff for his bill of costs would have been barred by the statute, yet he had

(1) Ruckmaboyev. Lulloobhoy Mottichund, 8 Moore P. C. C. 4; East India Co. v. Paul, 7 Moore P. C. C. 85.

(2) Don v. Lippmann, 5 Cl. & F. 1; Fergusson v. Fyffe, 8 Cl. & F. 140; Huber v. Steiner, 2 Bingh. N. C. 202, 210; S. C. 2 Scott, 304; Cooper v. Waldegrave, 2 Beav. 284; British Linen Co. v. Drummond, 10 B. & C. 903; Bury v. Goldner, 1 D. & L. 834; Harris v. Quine, L. R. 4 Q. B. 653; 10 B. & S. 644; 38 L. J. Q. B. 331; The Alliance Bank of Simla v. Carey, 5 C. P. D. 429; Finch v. Finch, 45 L. J. Ch. 816.

(3) Wainford v. Barker, 1 Ld. Raym. 232. See Courtenay v. Williams, 3 Hare, 551 ; Poole v. Poole, L. R. 7 Ch. 17; In re Milnes, 53 L. T. 534.

(4) Spears v. Hartly, 3 Esp. 81; and see Richards v. Curlewis, 3 Eq. Rep. 278.

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PART 1. сн. І.

Summary jurisdiction of Court over solicitors.

a subsisting lien on the judgment (1).

The same principle applies to the lien of a solicitor on deeds in his possession (2).

Where an order was made for the delivery to the client by a solicitor of a “bill of his fees and disbursements in all suits, causes, or other matters of business in which he has been employed as the attorney or solicitor for the applicant," and for a reference to the taxing-master to tax “the said bill,” and for payment of the sum certified to be “due" from the client to the solicitor, or from the solicitor to the client, it was held that the taxing-master ought to tax all the items of the bill, without regard to the Statute of Limitations (3). So, where a client has a claim upon a solicitor for moneys recovered in an action, and received by the solicitor on his behalf, more than six years before the application to the Court, the statute is no bar to the recovery of the money by the client from the solicitor by means of the summary jurisdiction of the Court (4). But where a client voluntarily paid money to an attorney under an agreement in itself void for champerty, and an application was made to the Court after a lapse of thirteen years to compel the attorney to refund or deliver his bill, the Court refused to interfere, there being no explanation of the delay in applying (5). The Court will not in the exercise of its summary jurisdiction interfere so as to prevent a solicitor pleading the statute in an action brought against him by the client (6). Nor will the Court interfere where the client has already sued the solicitor and the action has failed on the ground that the claim was barred by statute (7). And no order

(1) Higgins v. Scott, 2 B. & Ad. 413.
(2) In re Broomhead, 5 D. & L. 52.
(3) Curwen v. Milburn, 42 Ch. D. 424.
(4) Ex parte Sharp, 1 Jur. 405; 5 Dowl. 717.
(5) Ex parte Yeatman, 4 Dowl. 304; 1 H. & W. 510.
(6) In re Triston, 1 L. M. & P. 74.

(7) Sittingbourne and Sheerness Railway Co. v. Lawson, W. N. (1886) 76; 80 L. T. newspaper, 24 Apr. 1886, p. 448.

CH. I.

can be made under sect. 28 of the Solicitors' Act, 1860 (1), making a solicitor's costs in a suit a charge on the property recovered or preserved in any case in which the right to recover payment of such costs is barred by any Statute of Limitations. The right of action against a surety will generally arise Creditor

and surety at the same time as the right of action against the principal debtor; and the surety will therefore be entitled to the protection of the statute at the same time as the principal debtor. But the liability of the surety is not discharged by the neglect of the creditor to sue the principal debtor till the statute has run (2). Where the creditor had in his hands securities of the surety for the guaranteed debt, it was held that he was entitled to hold them though time had run in favour of the principal debtor (3)

In Rose v. Gould (4), where a testator bequeathed his Debts still property to his children equally, but subject to the condition that if it appeared by his ledger that any one of his children was indebted to him, the amount of the debt should be deducted from such child's share, it was held that a debt appearing in the ledger, though barred by statute, ought to be deducted.

In the case of Ingle v. Richards (5), one of the executors Debt due named in a will was indebted to the testator on a pro- executor. missory note; the other executors proved at once, but the executor indebted did not prove till after the death of the other executors, and more than six years after the testator's death. It was held in an administration suit that although, if the executor so indebted had never proved at all, no person could have recovered from him the money due on the note, yet the proving by him related

due.

a

from

(1) 23 & 24 Vict. c. 127.
(2) Per Lindley, L.J., Carter v. White, 25 Ch. D. at p. 672.
(3) Carter v. White, 25 Ch. D. 666.
(4) 15 Beav. 189.
(5) 28 Beav. 366.

C

PART I.
CH. I.

Debts in bankruptcy.

back to the testator's death, and therefore the executor was held liable to account for the sum due on the note as assets in his hands. Lord Romilly, M.R., went on to order the payment of interest on the sum from the date of proof, and said he treated it as a case of revivor of a debt barred by the statute; but it is hard to see how the proof by the executor could in any sense revive the debt.

On the same principle, namely, that a statute-barred debt is still a subsisting debt, if the debtor does not claim the benefit of the statute, it is for the most part not competent to any other person to set it up. Thus before the Bankruptcy Act, 1861 (1), if a petitioning creditor's debt was barred by the statute at the time of the petition, the bankrupt might oppose the adjudication on that ground; but if he did not, a debtor of the bankrupt could not, in an action by the assignees, object on that ground to the validity of the adjudication, nor could any of the other creditors afterwards dispute the debt (2); but any creditor as well as the assignees could

2 oppose the proof of any other creditor's debt under the bankruptcy, on the ground that it was barred by the statute at the time of adjudication (3); and Macan, J., in the Irish case of In re Clendinning (4), seems to have thought that it was the duty of the assignees as trustees for the creditors to claim the benefit of the statute. In England, by the 97th section of the Bankruptcy Act, 1861 (5), no debts barred by any Statute of Limitations could be reckoned as debts for the purposes of any petition under that Act. The Bankruptcy Act, 1861,

(1) 24 & 25 Vict. c. 134.

(2) Quantock v. England, 5 Burr. 2628; Ex parte Dewdney, 15 Ves. 479; Ex parte Roffey, 19 Ves. 468; Mavor v. Pyne, 3 Bingh. 285; Gregory v. Hurrill, 5 B. & C. 341 ; S. C. 8 D. & R. 270; Jellis v. Mountford, 4 B. & Ald. 256; In re Clendinning, 9 Ir. Ch. R. 284. See Smallcombe v. Bruges, McCleland, 45; Midilleton v. Mucklow, 10 Bingh. 401; Cooke's Bankruptcy Law, 15, 6th ed. (3) Smallcombe v. Bruges, McCleland, 45. (4) 9 Ir. Ch. R. 284. (5) 24 & 25 Vict. c. 134.

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