Chap. XIX. not a disability under this statute, and the disability mentioned in it of being beyond the seas was done away with by the Mercantile Law Amendment Act. The result is that at the present day the rules as to disabilities are the same in the case of specialty as in that of simple contract debts.2 Statutory liability to pay money. Penalties. When cause of action arises. Continuing breaches. Acknowledgment or part payment. A statutory liability to pay money is a specialty debt within the meaning of the Act of 1833, as, for example, the liability to pay calls incurred by a member of a company under the Companies Clauses Act, 1845;3 and the liability of a company to pay interest upon debentures under sect. 27 of the Companies Clauses Act, 1863. Moneys payable by a member of a company under the Companies Act, 1862, to the company, or on the winding up of the company, are specialty debts, independently of the general law, by the express provisions of that Act.5 All actions for penalties, damages, or sums of money given to the party grieved, by any statute, must be brought within two years from the cause of action.6 The instant from which time begins to run under the statute is that at which the " cause of action" arises. Thus, in the case of a covenant, time begins to run from breach of the covenant; and where there are successive breaches, a fresh cause of action arises on each breach, so that the statute may bar the remedy on the earlier though not on the later breaches; and where the breach is continuous, a fresh cause of action continuously arises so long as the breach continues. Thus a covenant for title is continuously broken so long as an adverse title exists in another person.10 8 If there has been any acknowledgment by writing signed by the party liable or his agent, or by payment on account of principal or interest, the person entitled may sue within twenty years after such acknowledgment; or, if the person entitled is under disability at the time of such acknowledgment, or the party making such acknowledgment is at the time beyond the seas, the person Chap. XIX. entitled may sue within twenty years after the ceasing of the disability or the return of the party from beyond the seas.'1 ment. An acknowledgment under this section is different in its nature Acknowledg from an acknowledgment sufficient under the Statute of James. In the latter case the acknowledgment operates, as we have seen, as a new promise to pay, of the same nature as the original contract; in the former case it has no such effect, for a promise not by specialty cannot operate as a renewal of a contract by specialty, but the acknowledgment merely operates so as to give further time during which the action on the specialty may be brought. It follows that it is not necessary that the acknowledgment should be made to the person entitled to payment or to his agent.3 5 The Real Property Limitation Act, 1874, provides that proceedings to recover any money secured by a "mortgage, judgment or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy," must be brought within twelve years next after a present right to receive the same has accrued to some person capable of giving a discharge or release for the same; "unless in the meantime some part of the principal money, or some interest thereon, shall have been paid" or some acknowledgment in writing shall have been given, in which case the action must be brought within twelve years after the last payment or acknowledgment. 6 Real Property Limitation Act, 1874. debt; Under this Act the personal remedy on the covenant in a Mortgage mortgage deed, as well as the remedy against the land, is barred;7 and so also is the remedy upon a collateral bond of the mortgagor collateral given to further secure a mortgage debt.8 covenant, and bond; The liability of a surety who has entered into a joint covenant surety; with the mortgagor is within this Act; and payment of interest by the mortgagor prevents the statute running in favour of the surety. The provisions of sect. 1410 of the Mercantile Law joint debtors; Amendment Act, 1856, do not apply to this Act.9 1 3 & 4 Will. 4, c. 42, s. 5. 2 Ante, p. 350. 3 Moodie v. Bannister, 4 Drew. 432. 4 37 & 38 Vict. c. 57, s. S. See, generally, on this section, M. L. R. P. 435. 5 Hornsey v. Monarch Soc., 24 Q. B. D. 1. 7 Sutton v. Sutton, 22 Ch. D. 511; Kirkland v. Peatfield, [1903] 1 K. B. 756; Re England, [1895] Ch. 820; Re Allen, [1898] 2 Ch. 499. See Barnes v. Glenton, [1899] 1 Q. B. 885. Re Clifden, [1900] 1 Ch. 774. 8 Fearnside v. Flint, 22 Ch. D. 579. Chap. XIX. Collateral bond by surety. Payment, by whom. Judgments. Legacies. Personal estate of intestate. A collateral bond given by a surety is not, however, within this Act, and the period of limitation is twenty years under the Act of 1833.1 The payment of principal or interest must be made by a person who is bound to pay, either as between himself and the person entitled to receive payment or as between himself and the person liable to pay. Payment of interest by an assignee 3 or tenant for life of the equity of redemption, where there is a mortgage, is sufficient to prevent the remedy upon the covenant being barred. The "judgment" mentioned in this Act is not restricted to judgments which operate as charges upon land, but refers to judgments generally.5 An action to recover a legacy, payable out of personal estate, from an executor is within this enactment, unless the legacy is vested in the executor upon an express trust; a mere constructive trust will not prevent the statute from being a bar. By the Real Property Limitation Act, 1833, no arrears of interest in respect of a legacy can be recovered after six years or an acknowledgment in writing; but arrears of an annuity, bequeathed payable out of personal estate, are not arrears of "interest" in respect of a legacy.9 8 An action to recover the personal estate, or a share thereof, of an intestate, possessed by the personal representative, must be brought within twenty years after a present right to receive the same has accrued to a person capable of giving a discharge or release for the same, or after some part of the estate or share, or interest in respect thereof, has been accounted for or paid, or a written acknowledgment has been given.10 A claim in respect of assets not received by the personal representative until within twenty years before action is not barred, though the claim in respect of all assets received by him before that time is barred; "1 and part payment out of assets received within twenty years will 1 Re Powers, 30 Ch. D. 291. 2 Re Clifden, [1900] 1 Ch. 774; Brad- 124. 6 37 & 38 Vict. c. 57, s. 8. 7 Erans v. Moore, [1891] 3 Ch. 119: Re Barker, [1892] 2 Ch. 491. 8 3 & 4 Will. 4, c. 27, s. 42. 9 Re Ashwell, Joh. 112. nerman, 21 Ch. D. 105. See Re Ban 10 23 & 24 Vict. c. 38, s. 13. not operate as an acknowledgment of the right to assets received Chap. XIX. more than twenty years before.1 ment in The acknowledgment in writing in the cases within the Real Acknowledg Property Limitation Act, 1874, and the Law of Property Amend- writing. ment Act, 1860,3 must be signed by the person liable or his agent, and must be given to the person entitled or his agent. ment. The rules as to whether payments of principal or interest amount Part payto an acknowledgment that more is due within the meaning of the Statute of James apply to cases falling under 3 & 4 Will. IV., c. 42, 23 & 24 Vict. c. 38, and 37 & 38 Vict. c. 57, s. 8.4 Actions in Equity. The Acts of 21 Jac. I. c. 16, and 3 & 4 Will. IV., c. 42, did not in terms apply to suits in equity; but these statutes. "must be taken virtually to include Courts of Equity; for when the legislature by statute limited the proceedings at law in certain cases, and provided no express limitations for proceedings in Equity, it must be taken to have contemplated that Equity followed the law and therefore it must be taken to have virtually enacted in the same cases a limitation for Courts of Equity also."" : It follows that where there is both an equitable and a legal remedy, Courts exercising equitable jurisdiction are bound to the exact periods named in the statutes and to give effect to all the exceptions in the statutes as to disabilities, part payment and acknowledgments.7 On the other hand, where the claim is not founded on a legal right, but is purely equitable and the remedy is equitable only, the Court is not in any sense bound by the provisions of the statutes. Thus, as a general rule, time does not run between. trustee and cestui que trust where the trust is express, i.e., a trust which has been expressed by writing or word of mouth," or has arisen because a person has assumed to act as trustee,1 1 Sly v. Blake, 29 Ch. D. 964. 237 & 38 Vict. c. 57, s. 8. 3 23 & 24 Vict. c. 38, s. 13. Ante, p. 352. 5 Per Lord Redesdale, Hovenden v. Annesley, 2 Sch. & Lef. 631; 9 R. R. 119. See per Ld. Coleridge, C.J., Gibbs v. Guild, 9 Q. B. D. 64; and per Jessel, M.R., Re Greaves, 18 Ch. D. 551. See Re Hastings, 35 Ch. D. 94; Knox v. Gye, L. R. 5 H. L. 656; Bulli Co. v. Osborne, [1899] A. C. 351. 6 See per Jessel, M. R., in Rc Greaves, sup. 7 White v. Ewer, 2 Vent. 340. The then existing law was re-enacted by the Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25 (2). 9 Burdick v. Garrick, 5 Ch. 233; Re Bell, 34 Ch. D. 462. 10 Soar v. Ashwell, [1893] 2 Q. B. 390. Chap. XIX. or which the parties intended to create,1 as distinguished from a resulting, implied, or constructive trust, i.e., one arising from the acts of the parties or by operation of law. Debts of married woman in respect of separate estate. Agent in fiduciary capacity. Trustee Act, 1888. Before the Married Women's Property Act, 1882, when a married woman had contracted in respect of her separate estate, the proceedings in Equity to obtain payment out of her separate estate were held to be barred by analogy to the Statute of Limitations.3 Where an agent is sued on the ground of his being in a fiduciary capacity, the statute has no application unless the claim be for an account; and where the duty of persons is to receive property and hold it for another, or to keep it until it is called for, they cannot discharge themselves from that trust by appealing to the lapse of time.5 The law as to trustees has been partially altered by the Trustee Act, 1888, which by s. 8 provides that: 6 1. In any action or other proceeding against a trustee or any person claiming through him, except where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property or the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use, the following provisions shall apply:-- (a) All rights and privileges conferred by any Statute of Limitations shall be enjoyed in the like manner and to the like extent as they would have been enjoyed in such action or other proceeding if the trustee or person claiming through him had not been a trustee or person claiming through him. (b.) If the action or other proceeding is brought to recover money or other property, and is one to which no existing Statute of Limitations applies, the trustee or person claiming through him shall be entitled to the benefit of and be at liberty to plead the lapse of time as a bar to such action or other proceeding in the like manner 1 Rochefoucauld v. Boustead, [1897] 1 Ch. 196, 208. 2 Townshend v. Townshend, 1 Bro. Ch. 3 Hallett v. Hastings, 35 Ch. D. 94 5 Burdick v. Garrick, 5 Ch. 240, 243, per Ld. Hatherley, C., and Giffard, L.J.; Banner v. Berridge, 18 Ch. D. 264; Lyell v. Kennedy, 14 App. Cas. 437, 454, 457, 463; and per Lindley, L.J., Re Sharpe, [1892] 1 Ch. 166; Soar v. Ashwell, [1893] 2 Q. B. 390. 6 51 & 52 Vict. c. 59. 7 Thorne v. Heard, [1895] A. C. 495. 8 Re Gurney, [1893] 1 Ch. 590; Re Timmis, [1902] 1 Ch. 176. |