Cf. post, Cap. CHAP. V. Further, in any action or legal proceeding to which the bank is not a party, the bank cannot be compelled to produce its books, nor its officers compelled to appear as witnesses, except upon an order of a Judge of the Supreme Court made for special cause. Arnott v. The purpose of this enactment was, in the first instance, to do away with the need for production in court of banker's books, where they might be detained for some time, to the great personal inconvenience of many of the bank's other customers whose accounts might be in the same book, and of the bank itself; and in addition, to facilitate the proof of transactions recorded in banker's books. Pass Books. Entries in pass-books supplied to customers are, of course, not included in the Evidence Act (not being bank books). But, being entries made. by the bank, are evidence against it that the moneys therein mentioned have been duly paid to or by it; but prima facie evidence only, and not conclusive; and therefore, if erroneously made and the error is capable of satisfactory proof, an incorrect entry may be explained and put right, even after the pass-book has been issued Cf. post, Cap. to the customer. And the customer would not be allowed to fraudulently extort more than was due to him. XVII. After the pass-book has been to the customer and returned by him to the bank without objection, it becomes prima facie evidence for the bank, and against the customer, of the entries therein contained. In "Hamilton on Banking" the pass-book is described as "a copy of the customer's account in the ledger, but with the sides of that account reversed." Thus the credit side of the ledger account is the debit page of the account in the pass-book, and vice versa. The reason assigned for this in Gilbart's work on banking is "that the ledger is the bank's account against the customer, and the pass-book the customer's account against the bank." This is, however, no longer correct, as the plan of arrang- CHAP V. ing pass-books as an exact copy of the ledger account, with the debit and credit columns shown as in the ledger, is now becoming general. Statute of Limitations. When dealing with debt, it is necessary to refer to the Statute of Limitations. The liability to an action in respect of a debt, or an outstanding obligation under a contract is not one that continues everlastingly, but is limited by statute. There are really several Statutes of Limitation. When dealing with personal property, the first and most important is one of the reign of James I., which is in force here. Like a great many other old laws, it has never been expressly adopted Adoption of or enacted here, but is in force because the first English English Law colonists who came here are supposed to have brought with them and transplanted here all the English law applicable to the new country. Besides, English laws in force on the 25th July, 1828, were by statute 9 Geo. IV., c. 83, prescribed to be applied in Van Diemen's Land and New South Wales, so far as applicable to the circumstances of the colonies; and New South Wales at that time included South Australia (separated 1836), New Zealand (separated 1840), Victoria (separated 1851), and Queensland (separated 1859). A similar provision was separately made for Western Australia. Statute. The Statute of Limitations does not extingush the Effect of debt or discharge the outstanding contractual rights, but enacts that actions brought to enforce them shall be commenced within six years of the cause of action. If any such action is commenced after the lapse of a longer period, it becomes open to the defendant to set up the statute as a defence, but he need not do so; and if the defendant be dead, his executors or administrators are not bound to avail themselves of the statute for the benefit of the estate: it is in their discretion to act as they think CHAP. V. When not run. fit. When a debt is statute-barred, it very seldom happens that the debtor does not take advantage, of the statute. By the statute it is provided that when there is a Statute does legal or, in some cases, even a practical disability in the plaintiff, such as prevents him bringing the action when the cause of it arises, then time only commences to run against the plaintiff from the date when disqualification is removed. The disabilities provided for by statute are: minority, coverture, absence beyond the seas, imprisonment, and being non compos mentis. When time has once commenced to run, it runs continuously till the limit is reached. Even the death of a defendant does not interrupt it, but it continues to run during the interval between the dates of death and of grant of probate to the executor or grant of letters of administration. The disabilities mentioned above are such as might prevent the plaintiff taking action, but he might also be hampered by a difficulty in reaching the defendant. Therefore a later Act, 4 Anne, c. 16, provides that in cases where the defendant is beyond the seas when the right of action accrues, then time runs from his return only. A debt or contractual obligation that would otherwise be statute-barred may be taken out of the operation of the statute by an acknowledgment or promise given by the debtor, but by Lord Tenterden's Act such a promise must be in writing and be signed by the party to be charged. In such cases a fresh term of six years would commence to run from the date of the promise. Writing indorsed on a bill or promissory note by the party to whom payment is made, is not sufficient to take the case out of the statute. A customer's bank balance is a simple contract debt CHAP. V. due by the bank to the customer, and therefore in respect Applied to of all such balances the Statute of Limitations runs in banking. favour of the bank. Unclaimed balances which are six years stale are therefore incapable of being enforced by action by customers against the bank. It is not, however, the practice of respectable banks to avail themselves of the statute, except in cases where they have reason to believe that they are exposed to an unfair or fraudulent demand which has already been satisfied. Even when items very small and stale have been transferred, in order to save book-keeping, to an unclaimed balances account, there is no doubt that a good bank would very willingly pay each and any of those balances to claimants upon satisfactory proof of ownership. In Hamilton's book on banking, the following note is printed at page 21. In connection with the subject of unclaimed balances and the Statute of Limitations, the following extract from the Banking and Insurance Record of 19th June, 1893, will be read with interest:-"In our January issue we alluded to a deposit receipt of the Bank of New South Wales, thirty-nine years old, as having come to light, and having been presented at the head office in Sydney for payment, and having been paid without question. We have to record another instance of the adage 'Safe as the bank.' During the last few days several bank-notes have been presented at the head office in Sydney for payment. These notes, bearing the 'image and superscription' of the Bank of New South Wales, and dated 1st January, 1824, for twenty Spanish dollars, have come to light from other parts of the world, and have been duly cashed on a gold basis of £5 each on presentation. We have seen these notes, and their state of preservation is marvellous, considering their age and the experiences they have gone through. Few among the residents in other colonies know CHAP. V. that in the parent colony, New South Wales, at one time the currency was Spanish dollars-then, as now, the currency of China and the Philippine Islands." Cf. post, Cap. Quære as to bank notes. Specialty debts. Bank-notes are in form the same as promissory-notes payable on demand. Such a promissory-note is payable immediately, and the statute begins to operate from the date of the document. It may be possible, however, to differentiate bank-notes from ordinary promissory-notes for the purposes of the Statute of Limitations. I notice that in the Journal of the Institute for 1902, at page 276, a question and answer is published, reprinted from the London journal, to the effect that the Statute of Limitations does not apply either to country bank-notes or to Bank of England notes, and Grant's "Law of Banking" is quoted as authority for the answer. Upon referring to Grant, I find his opinion is based on Acts of Parliament which are not in force here, and is, therefore, inapplicable to this country. Upon the opinion of another writer, Mr. Morse, quoted in Grant, it seems probable, however, that the statute would be held not to apply upon more general grounds, particularly in the case of banks which re-issue their own notes. In the case of a loan of money for which the debtor received a cheque, the date from which the statute began to run would be the date on which the cheque was cashed. Debts referred to in the preceding paragraphs have all been supposed to arise on simple contracts. Those debts, however, which are evidenced by documents under seal, or are secured upon real estate, were not dealt with by the Legislature until a much later period; a large class of them is governed in New South Wales by the Act 8 William IV., No. 3, which enacts that actions and suits for recovery of money secured by any mortgage, judg |