CH. II. that case the incumbrancer did not get the benefit of the PART VIII. decree or the inquiry, and his petition praying that the Master should ascertain what was due was rightly taken as the commencement of proceedings, just as if the incumbrancer had gone in under inquiries made in pursuance of the decree. If, however, the question of the existence of the charge is decided upon the hearing, it seems on the words of the statutes difficult to see how the plaintiff can set up the defence at all; for, as the debt is not extinguished and the defendant has not instituted any proceedings which can be barred, the statutes would seem not to have any application, whether the statutory period has run before or after the incumbrancer was made defendant; and except that on the ground that when an incumbrancer has been made defendant to a suit in which he may reasonably expect his claim to be adjudicated on, he cannot be considered guilty of laches in not filing a bill of his own, there seems no reason why the plaintiffs should be able to take advantage of the statute in one case more than the other. If this view is right, the question whether time stops running when the party is made a defendant can never arise; but, as it seems doubtful how the Court will deal with such cases, it would be always prudent for a defendant in such a position to counterclaim, if there is any chance of the statutory period running out between the time of his being made a defendant and an order in the suit establishing his charge. An ordinary administration decree made in a legatee's suit operates as a judgment in favour of creditors and prevents time running against them (1). An administration order operates as from its date, not merely in favour of a creditor, but in favour also of the right of setoff against a creditor's demand (2). It has already been pointed out that the appointment Pending litigation. (1) Finch v. Finch, 45 L. J. Ch. 816. In re Ballard. Lovell v. Forester, 1890, W. N. 64. CH. II. PART VIII. of a receiver does not operate to save the rights of any persons but the parties to the suit in which the receiver is appointed (1). It has also been pointed out that a report by the Master establishing a debt in one suit is not an acknowledgment which will take the case out of the statute, if it be set up as a defence to any independent suit by the creditor (2); and, although O'Loghlen, M.R., seems to have expressed a somewhat different opinion (3), it may be considered clear on principle that neither the pendency of any suit in which the claim of any person, whether a party or not, might be or has been decided, nor any order or proceeding in such suit can in any circumstances affect the operation of the statute on the claim of such person in an independent suit instituted by him to enforce his claims (4). It may or may not be that he can get the benefit of some order in the first suit by a proceeding in the same suit, but such order is of no avail in an independent suit (5). There is one case (6) apparently at variance with this view. There the Master found in one suit that an incumbrance existed; the incumbrancer was not a party to the first suit, but he afterwards filed an independent bill to enforce the incumbrance; it was held that he was entitled to arrears of interest calculated from the time when his claim in the first suit was brought before the Master, and not merely from the time when the second suit was commenced; in this case the petition on which the point was decided was presented in both suits, and the variance is more apparent than real (6). In Archdall v. Anderson (7), an action had been brought by a mortgagee to raise the amount due on an equitable mortgage, and lands had been sold under a judgment in (1) See ante, Part V. Ch. XVIII. p. 425. (2) See ante, Part III. Ch. V. p. 223. (3) See Barrett v. Birmingham, 4 Ir. Eq. R. 537, 548. (4) See Manby v. Manby, 3 Ch. D. 101. (5) Toft v. Stephenson, 7 Hare, 1, and Alsop v. Bell, 24 Beav. 451. (6) Greenway v. Bloomfield, 9 Hare, 201. 25 L. R. Ir. 433, pay that action and had realised more than sufficient to PART VIII. CH. II. Petition Incum for sale in bered It has been decided in Ireland that a petition for sale by an incumbrancer in the Incumbered Estates Court is a suit for the benefit of all persons interested in the Estates proceeds of sale, that such persons are exonerated from Court. taking proceedings which might otherwise be necessary, and that for the purpose of all questions of the statute the incumbrancers will, in the distribution of the purchase money, be treated as they stood at the date of the petition (1). If, however, an incumbrancer has taken proceedings to enforce his charge before the petition for sale, and the proceedings are interrupted by the petition, he will, on the distribution of the money, be entitled to all he could have recovered in those proceedings as if they had never been so interrupted (2). Where a petition in the Landed Estates Court has been dismissed, the statute must be taken to have been running all the time as if the petition had not been filed (3). Where an incumbrancer who has proved his claim in an administration action in which he was a defendant presents a petition for sale in the Landed Estates Court in pursuance of the judgment in the administration action, the statute does not run against him after the commencement of the administration action (4). The owner of a tithe rent (1) In re Colclough, 8 Ir. Ch. R. 330; In re Nixon's Estate, 9 Ir. R. Eq. 7; In re Wade's Estate, 13 L. R. Ir. 515; In re Stinson's Estate, 29 L. R. Ir. 490; In re Ebbs' Estate, 31 L. R. Ir. 95. (2) In re Lawder, 6 Ir. Ch. R. 587. (3) Irish Land Commission v. Davies, 27 L. R. Ir. 334. (4) In re Ebbs' Estate, 31 L. R. Ir. 95. CH. II. PART VIII. charge is not a person interested in the proceeds of the sale within the principle of the decision in In re Colclough (1), because of the special provisions of sect. 62 of the Landed Estates Court Act (2); and neither an absolute order for sale nor the appointment of a receiver in the matter of a petition in the Court of the Land Judges prevents the statute from running as against the owner of tithe rent-charge issuing out of the land ordered to be sold, or over which a receiver has been appointed (3). Proceedings in bank An order for sale obtained by an owner and petitioner in the Landed Estates Court is not an action for the recovery of land so as to prevent the running of the statute in favour of the person in possession (4). But the filing in the Landed Estates Court by an incumbrancer of a petition for sale is a proceeding to recover money charged on land within the 8th section of the Real Property Limitation Act, 1874 (5), and prevents the statute from running against the petitioner until the petition has been dismissed (6). When money is paid into Court by a receiver appointed in a suit, the money, until it is appropriated to some particular demand, is held in usum jus habentium, and the statute does not run against the right of a person entitled from the time of the payment in (7). Proceedings in bankruptcy or for the winding up of a company are for the benefit of all creditors and prevent ruptcy and the statute from running (8). The statute does not run in windingthe case of a bankruptcy after the date of the receiving up. (1) 8 Ir. Ch. R. 330; see ante, p. 571. (2) 21 & 22 Vict. c. 72. (3) In re Wade's Estate, 13 L. R. Ir. 515. (5) 37 & 38 Vict. c. 57. (6) In re Stinson's Estate, 29 L. R. Ir. 490. (7) Howlin v. Sheppard, 6 Ir. R. Eq. 38; see In re Nugent's Trusts, 19 L. R. Ir. 140. (8) Buckley on the Companies Acts, 6th ed., pp. 271, 370. CH. II. order (1), and in the case of the winding up of a company PART VIII. under sect. 98 of the Companies Act, 1862, after the date of the winding-up order (2). The decision to the contrary effect in Ex parte Forest (3) is not now an authority. Debts barred by the statute at the date of the receiving or winding-up order cannot be proved in the bankruptcy or winding-up (4). Debts existing at the date of the winding-up order and not then barred are proveable, although no claim in respect of them be made until after the expiration of the time when but for the winding-up order the debts would have been barred. Bankruptcy renders a debt, when proved, a solemn continual legal demand, against which time will not run (5). Proceedings in bankruptcy and in windingup can of course have no effect as regards debts due to the bankrupt or company. A motion in the bankruptcy or in the winding-up proceedings for the payment of a debt due to the bankrupt or company is a process analogous to an action, and, if made after the lapse of the statutory period, is barred just like an action (6). vivor and Before the Judicature Act, 1873, the right to file a bill Bills of reof revivor or supplement after a decree was not barred suppleby any statute or any rule of the Court, but depended ment. entirely upon the discretion of the Court according to the circumstances of the case (7), with this exception, (1) Ex parte Ross. In re Coles, 2 G. & J. 46, 330; Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 37, sub-s. 3; Williams' Bankruptcy Practice, 5th ed. p. 111. (2) Joint Stock Discount Co.'s Claim, L. R. 7 Ch. 646; In re Gloucester, &c., Ry. Co., 2 Giff. 47; 29 L. J. Ch. 383; Wryghte's Case, 5 De G. & Sm. 244; In re Warwick and Worcester Ry. Co., 27 L. J. Ch. 735; and see Ex parte Higgins, 2 Jur. N. S. 178; Lindley on Companies, 5th ed. (3) 2 Giff. 42. 1.723. (4) Lindley on Companies, 5th ed. p. 723; see ante, p. 19. (5) Ex parte Healey, 1 Deac. & Chitt. 361, at p. 369. (6) In re Mansell. Ex parte Norton, 66 L. T. 245. (7) Mitford's Pl., 272; Hollingshead's Case, 1 P. Wms. 742; Hercy v. Dinwoody, 4 Br. C. C. 257; Hovenden v. Lord Annesley, 2 Sch. & Lef. 632-639; Earl of Egremont v. Hamilton, 1 Ball & Beatty, 531; Higgins v. Shaw, 2 D. & War. 356; Alsop v. Bell, 24 Beav. 451; Patch v. Holland, 29 L. T. N. S. 419. |