CH. 11.

PART IV. circumstances, therefore, a Court of Equity may say he is not entitled to enforce" (1). It may be stated as a general rule that, where there is a statutory period of limitation, delay for any length of time short of that will not be an absolute bar to the plaintiff's right to relief, except where by reason of such delay innocent persons have been allowed to acquire interests which would be prejudiced by such relief being granted (2). The distinction between the defence grounded on mere laches and that of acquiescence cannot perhaps be better stated generally than in the words of Lord Wensleydale. His lordship says in the case of Archbold v. Scully (3): "I take it that, where there is a Statute of Limitations, the objection of simple laches does not apply until the expiration of the time allowed by the statute. But acquiescence is a different thing; it means more than laches. If a party, who could object, lies by and knowingly permits another to incur an expense in doing an act under a belief that it would not be objected to, and so a kind of permission may be said to be given to another to alter his condition, he may be said to acquiesce; but the fact of simply neglecting to enforce a claim for the period which the law permits him to delay without losing his right, I conceive cannot be any equitable bar."

It is clear from all the cases referred to, that neither laches nor acquiescence can be imputed to one who is ignorant of the facts; it would seem to be a question of some doubt how far the same rule applies to ignorance of or mistake in law only (4). It is also clear from the

(1) Per Chelmsford, L. C. Clarke v. Hart, 6 H. L. 655. See Rule v. Jewell, 18 Ch. D. 660; Garden Gully United Quartz Mining Co. v. McLister, 1 App. Cas. 39; Erlanger v. New Sombrero Phosphate Co. 3 App. Cas. 1218.

(2) Pickering v. Stamford, 2 Ves. 272, 280; Blake v. Gale, 31 Ch. D. 196.

(3) 9 H. L. 383.

(4) Cockerell v. Cholmeley, 1 Russ. & M. 424; McCarthy v. Decaix, 2 Russ. & M. 614; Marker v. Marker, 9 Hare, 1, 16; Stone v. Godfrey,

CHI. II.

cases referred to, that laches cannot be imputed to PART IV. persons under disability as infants or lunatics (1). A feme covert before the Married Women's Property Act, 1882 (2), was as to separate estate treated as a feme sole, except perhaps where she was restrained from anticipation (3). But now, apart from the provisions of the Married Women's Property Act, 1882, it is expressly enacted by the Trustee Act, 1888 (4), s. 8. subs. 1 (b), that "the statute (sic) shall run against a married woman entitled in possession for her separate use, whether with or without a restraint upon anticipation."

not

Before the Judicature Act, 1873, in those cases in which a Court of Equity disregarded lapse of time, only did it do so where it gave a direct remedy by its own decree, but also, where it put a question in a train of discussion at law by directing a trial to ascertain facts, and the law arising on those facts, it prevented the defendant taking advantage of lapse of time to defeat the plaintiff's claim in the same way as it prevented an outstanding term being set up against conscience for the same purpose (5). It is a principle of equity that a person will be relieved from injustice caused by the act or oversight of the Court, when the Court has been led into such act or oversight at the instance of the opposite side; therefore, before the Judicature Act, 1873, if a person was prevented by a Court of Equity from proceeding to establish his right at law, the Court took care that no injury arose to him in consequence of its interference; and if the period had elapsed within which such

5 De G. M. & G. 76; Burrows v. Walls, 5 De G. M. & G. 233, 254; Stafford v. Stafford, 1 De G. & J. 202; In re Saxon Life Assurance Society, 2 J. & H. 412.

(1) See Young v. Harris, 65 L. T. 45.

(2) 45 & 46 Vict. c. 75.

(3) Jones v. Higgins, L. R. 2 Eq. 538; Derbishire v. Ilome, 3 De G. M. & G. 80; and see Wilton v. Hill, 25 L. J. Ch. 156; Heath v. Wickham, 5 L. R. Ir. 285.

(4) 51 & 52 Vict. c. 59.

(5) Bond v. Hopkins, 1 Sch. & Lef. 413.

Indirect

action of

Courts of Equity in

disregard

ing lapse of time.

CH. II.

PART IV. right must have been prosecuted, so that the remedy at law was lost, the Court gave him a remedy equivalent to that from which its interposition had debarred him (1). And the Court of Equity supplied any defect of title which had arisen in consequence of an injunction or other order of the Court (2). Nor was a party allowed to suffer injustice from the delay of the Court in exercising its jurisdiction. If a person within the statutory period of limitation instituted a suit in a Court of Equity, his right being properly enforceable there, and afterwards, when the statutory period had run out, was obliged in the course of the suit to bring an action or try an issue at law, the Court of Equity restrained the defendant from setting up a plea of the statute (3); and it was a good equitable replication to such a plea in such an action, that the suit had been commenced within the statutable period (4).

But a Court of Equity did not restrain a defendant from pleading the statute in an action at law, merely on the ground that the plaintiff had attempted to enforce the same claim in equity before his right of action was barred. If a plaintiff, who was in no way prevented from prosecuting his right by action at law, forbore to commence such action and tried instead to establish his claim by a suit in equity, and his bill was dismissed on the merits, equity, in the absence of special circumstances, did not interfere in his favour to prevent the statute being set up as a defence to his action at law (5).

But if persons fraudulently possessed themselves of documents on which was founded the title of the party

(1) Per Cottenham, L.C. Brown v. Newall, 2 Myl. & Cr. 571, 572; Pulteney v. Warren, 6 Ves. 73; O'Donel v. Browne, 1 Ball & B. 262; see East India Co. v. Campion, 11 Bligh. N. R. 187.

73.

(2) Fyson v. Pole, 3 Y. & C. Exch. 266.

(3) Sturt v. Mellish, 2 Atk. 610, 615; Sirdefield v. Price, 2 Y. & J.

(4) Supple v. Cann, 9 Ir. C. L. R. 1.

(5) Craddock v. Marsh, 1 Ch. R. 205; Hurdret v. Calladon, Ib. 214; Lake v. Hayes, 1 Atk. 281; sec Anon. 1 Vern. 73, contra.

CH. II.

claiming against such persons, and he was therefore PART IV. compelled to file a bill for discovery, equity did not allow the right of the party so kept in the dark to be prejudiced by the lapse of time while he was seeking discovery in equity (1). Where a suit in equity was brought to recover possession of property and the Court decided the question of title between two parties in favour of the one out of possession, a new right accrued at the date of the decree, although such decree did not provide for the transfer of possession to the party rightly entitled (2). And it has been held since the Judicature Act, 1873, that now, in law as in equity, an order of foreclosure absolute vests the ownership and beneficial title to the mortgaged land for the first time in the mortgagee, and that an action to recover possession of the mortgaged land will be in time if brought within twenty (now, since 37 & 38 Vict. c. 57, twelve) years of the foreclosure order (3).

defences.

The power of restraining an action in the High Court Equitable by injunction was taken away by the Judicature Act, 1873, s. 24, subs. 5, but every matter of equity on which an injunction might have been obtained before the Act may be relied on by way of defence to the action. As the Chancery Division of the High Court of Justice has now jurisdiction to entertain almost any kind of action which might, before the Judicature Act, 1873, be brought in Courts of Common Law (4), many of the observations given above are now only of importance as illustrating the principles on which in the Queen's Bench Division of the High Court equitable defences or replies may be framed. Where creditors have entered into a binding agreement not to sue a debtor for a certain time, such an agreement could now be pleaded as an equitable defence

(1) Bond v. Hopkins, 1 Sch. & Lef. 424.

(2) Ib. 436.

(3) Pugh v. Heath, 7 Ap. Cas. 235.

See per James, L.J. Warner v. Murdoch, 4 Ch. D. at p. 752.

PART IV

CH. II.

to an action by the creditors, and the Statute of Limitations will not run during the pendency of the agreement. Thus where a deed between a debtor and his creditors provided that, in consideration of the debtor's life interest in property being given up for the payment of his debts, licence should be given to the debtor to carry on his business without suit or molestation to his person or property, and that if any of the creditors took proceedings to enforce their claims, their debts should be forfeited, it was held in a creditor's suit in equity before the Judicature Act, 1873, that the representative of the debtor could not take advantage under the statute of the creditors abstaining from suing during the debtor's life (1). So now, if a similar claim were brought, a defence of the statute would be well answered by a reply that there had been an agreement not to sue for a certain time, and that the action was commenced within the statutory period of limitation after the deferred time had expired.

(1) O'Brien v. Osborne, 10 Hare, 92; 16 Jur. 960. See Iven v. Elwes, 3 Drew. 25, and see ante, Part I. Ch. II, p. 40.