Gambar halaman
PDF
ePub

interest on the legacy to six years before the filing of the PART IV. bill (1).

Where a cestui que trust filed a bill for an account against a trustee on an express trust, and the defendant and his father who were entitled to a share of the trust property had received the whole of the proceeds for their own benefit for fifty-seven years, it was held that owing to the great delay in taking proceedings the account should not go further back than the filing of the bill (2).

In the case of proceedings for foreclosure of a mortgage of a reversionary interest in personalty on which no interest had been paid, Kay, J., allowed interest for fourteen years, no Statute of Limitations applying to such arrears and no delay being proved (3).

ship

CH. I.

Suits for account between partners or between a sur- Partnerviving partner and the executors of a deceased partner accounts. were held to be within the rules applicable to actions. relating to merchants' accounts at common law; and, if the accounts had not been finally settled between the parties, but were in any way left open, the case was treated as within the exception provided by the Statute of James I. in favour of merchants' accounts and therefore governed by no positive limitations (4). But this exception was abolished by the 9th section of the Mercantile Law Amendment Act, 1856 (5), and all actions for accounts between merchants must be brought within six years from the accrual of the cause of action, and the right of action in respect of an old claim is not saved by the existence of items less than six years old in the same account. But, as has been suggested above (6), it may

(1) Thomson v. Eastwood, 2 App. Ca. 215.

(2) Smith v. Smith, 1 L. R. Ir. 206.

(3) Mellersh v. Brown, 45 Ch. D. 225.

(4) Robinson v. Alexander, 2 Cl. & F. 717; 8 Bli. N. R. 352. See Tatam v. Williams, 3 Hare, 347.

(5) 19 & 20 Vict. c. 97.

(6) See p. 6.

R

CH. I.

PART IV. be necessary to look into the accounts previous to the six years in order to ascertain whether particular sums placed to the credit of either party within that period are to be treated as fresh advances or in discharge of a balance due from the person making the payment. The cause of action for an account between partners cannot accrue till the partnership is determined (1).

Contracts

binding the

separate

estate of a feme covert.

Relief against mistake.

[ocr errors]

It was at one time doubted whether the Statutes of Limitations applied to proceedings in equity to enforce payment by a married woman of debts which bind her separate estate, but it has now been decided that the statutes do apply (2), and the decisions to the contrary effect (3) cannot now be treated as authorities. The general principle governing the rights and remedies of creditors against the separate estates of married women was laid down by Turner, L.J., in the case of Johnson v. Gallagher (4), and has been adopted by the Privy Council (5), and the Court of Appeal (6). According to these authorities the general engagements of a married woman, made on the credit of her separate estate, do not, as was formerly held, operate as appointments under powers or as creating liens or charges on the estate, but by such engagements she contracts debts in respect of her separate property, and the remedy given for the enforcing of such debts is execution against her separate property.

Where, under a mistake of fact, trustees transferred a trust fund to a person not entitled as cestui que trust, it was held that the trustees might file a bill to compel

(1) Noyes v. Crawley, 10 Ch. D. 31; Knox v. Gye, L. R. 5. H. L. See Lindley on l'artnership, 5th ed. 510.

656.

(2) In re Lady Hastings. Hallett v. Hastings, 35 Ch. D. 94. Beck v. Pierce, 23 Q. B. D. 322.

(3) Norton v. Turvill, 2 P. Wms. 144; Hodgson v. Williamson, 15 Ch. D. 87; Vaughan v. Walker, 8 Ir. Ch. R. 458.

(4) 3 De G. F. & J. 494; 30 L. J. Ch. 298.

(5) The London Chartered Bank of Australia v. Lemprïère, L. R.

4 P. C. 572.

(6) In re Hastings. Hallett v. Hastings, 35 Ch. D. 94.

CH. I.

such person to refund what he had received at any time PART IV, within six years after the discovery of the mistake (1), and it was said that mistake was within the same rule as fraud; but this proposition is perhaps too widely stated. Before 3 & 4 Wm. IV. c. 27, it was held in equity that Charities. charities were not bound by the restrictions of any statute of limitations and that laches could not be imputed to them, but it is now clear that actions by or on behalf of charities are within the 24th, 40th and 42nd sections of that Act and the 8th section of 37 & 38 Vict. c. 57 (2). But of course land, or a charge on land, may be so given as to create an express trust in favour of a charity in the same way as in favour of individuals, and such express trust would be excepted from the operation of the statute of Wm. IV. by the provisions of sect. 25 (3); the same exception applies by analogy to proceedings governed by sects. 40 and 42 of 3 & 4 Wm. IV. c. 27, or sect. 8 of 37 & 38 Vict. c. 57 (4).

against

Generally speaking, lunacy is no obstacle to an action Claims being brought against a lunatic (5). Therefore, in lunatics' ordinary cases, the Statutes of Limitations will run against a creditor of the lunatic (6). But if the creditor

of a lunatic has in any way been brought within the jurisdiction in lunacy, he may be restrained from proceeding to enforce his claim (7), and in such a case the statute will not run against the creditor during the lunacy. The solicitors who had acted in the prosecution

(1) Brooksbank v. Smith, 2 Y. & C. Exch. 58; and see Denys v. Shuckburgh, 4 Y. & C. Exch. 42; and Harris v. Harris, 29 Beav. 110. (2) See cases below.

(3) Commissioners of Charitable Donations v. Wybrants, 7 Ir. Eq. R. 580, 2 J. & Lat. 182; Magdalen College v. Attorney General, 6 H. L. 189, 26 L. J. Ch. 620. Governors of Magdalen Hospital v. Knotts, 8 Ch. D. 709; 4 App. Cas. 324. See below, Part V. Ch. XIX.

(4) Burrowes v. Gore, 6 H. L. 907; 4 Jur. N. S. 1245; Sug. Prop. Stat. 103; and see below, l'art V. Ch. XIX.

(5) Brockwell v. Bullock, 22 Q. B. D. 567. Sce Pope's Lunacy, p. 93.

(6) See Boldero v. Halpin, 19 W. R. 320.

(7) Pope's Lunacy, p. 94.

estates.

CH. I.

PART IV. of a commission of lunacy and also for the committees in lunacy filed a bill to obtain payment of the costs out of the lunatic's estate within six years after the lunatic's death, but more than six years after the debt became due; it was held that an order in lunacy directing the taxation of the costs and an inquiry whether the costs should be raised out of the lunatic's real estate did not constitute the costs a judgment debt, but that the Court would take judicial notice of the fact that the Lord Chancellor would not have allowed the plaintiffs to enforce their demands during the life of the lunatic and would treat the claims as one on which the statute did not operate till the death of the lunatic (1).

The bringing forward a claim in lunacy proceedings after the death of the lunatic is not enough to prevent the claim being barred by the statute. Where the committee of a lunatic had a claim against the lunatic's estate on account of expenses for the lunatic's maintenance, it was held that a petition presented in lunacy after the lunatic's death, though followed by a report in favour of the claim, was not a demand of such a nature as to stop the statute running, and a suit to enforce such claim brought within six years of the report, but more than six years after the lunatic's death, was barred by the statute (2). And where a claim has been made in lunacy during the lunatic's lifetime and disallowed, his representatives will not thereby be prevented from taking the benefit of the statute after his decease (3).

It would seem that the committee of a lunatic, in passing his accounts, will not be allowed a debt from the lunatic to himself which is barred by statute (4).

(1) Stedman v. Hart, Kay, 607.

(2) Wilkinson v. Wilkinson, 9 Hare, 204.
(3) Rock v. Cooke, 1 De G. & Sm. 675.
(4) Congreve v. Power, 1 Moll. 122.

CHAPTER II.

CASES IN WHICH EQUITY IS NOT BOUND BY THE

STATUTES.

CH. II.

COURTS of Equity, though acknowledging the general PART IV. principle that a party was barred of his equitable remedy in the same manner and at the same time as he would be of his right to maintain an action at law in an analogous case, always refused the benefit of the Statutes of Limitations to those in whom it would be against good faith or the general policy of the Court to take advantage of those statutes. The ordinary cases in which this exception was made were those of trust and fraud. These cases are, as far as regards real property, provided for by special provisions in the statute 3 & 4 Wm. IV. c. 27, and though the law there enacted will be found to be for the most part identical with that which Courts of Equity had laid down for their own guidance, yet, as it is now a matter of positive enactment and not dependent on the general principles of Equity, it will be considered in connection with the sections of the statute bearing on the subject (1).

from the

If the relation of trustee and cestui que trust was once Trusts actually constituted, so long as it subsisted lapse of time excepted was never allowed by Courts of Equity to affect the rights statutes. of the cestui que trust. The law on this subject, as recognised and administered in Courts of Equity (2), has now been expressly declared by statute and made

(1) See Part V.
(2) In re Cross.

Harston v. Tenison, 20 Ch. D. 121.

« SebelumnyaLanjutkan »