Where cause of action unknown. period (a). A bill drawn payable at, or after, sight must be presented before a cause of action can arise, and the statute does not begin to run until the bill has been presented and become due (b). In the case of debts arising from contracts giving a fixed period of credit, the statute begins to run against an action for the debt from the time when the credit expires and the money is to be repaid, but not before (c). On a sale of goods, if credit is given for a certain time and payment to be then made by a bill at a further interval of time, a right of action for the price of the goods sold and delivered first accrues at the time appointed for the maturity of the bill, and an action may be brought within six years from that time (d). Where an indefinite credit is given, which the creditor may put an end to at any time by demand of payment, or by commencing an action, the statute begins to run from the time the debt is first due and an action might be brought, although the debtor is not in default so long as the credit is continued, and may discharge himself by tendering payment at any time before it is demanded (e). The Statute of Limitation runs against the claim, notwithstanding that the creditor was not aware of the accrual of his right of action (f). Where an attorney was sued for a breach of his undertaking to search at the Bank of England to ascertain whether stock was standing in a certain name, and the omission to search took place more than six years before the action, but was not discovered by the plaintiff until within six years, it was held that the action was barred by a plea of the Statute of Limitation (g). So, in the case of a right of action accruing against a debtor who is resident abroad, the statute begins to run from the date of his return into England, although the creditor may not be aware (a) Whitehead v. Walker, 9 M. & W. 506. (b) Holmes v. Kerrison, 2 Taunt. 323; Thorpe v. Coombe, 8 D. & R. 347; Dixon v. Nuttall, 1 C. M. & R. 307. (c) See ante, p. 333; Wittersheim v. Lady Carlisle, 1 H. Bl. 631; Helps 7. Winterbottom, 2 B. & Ad. 431. (d) Helps v. Winterbottom, supra. (e) See ante, p. 454. (f) Short v. M'Carthy, 3 B. & Ald. 626; and see Brown v. Howard, 2 B. & B. 73; Granger v. George, 5 B. & C. 149. (g) Short v. M'Carthy, 3 B. & Ald. 626; and see Howell v. Young, 5 B. & C. 259. of his return (a). Where a debtor renewed his liability by a promise to pay when he was able, it was held that the statute began to run against the new promise from the time when the debtor first became able to fulfil it, although the creditor was ignorant of that fact (b). cause of ac tion frau concealed. So, the statute runs, although the cause of action is fraudu- Where lently concealed from the creditor by the debtor (c). Such fraudulent concealment will not support a replication upon dulently equitable grounds to a plea of the statute (d). But a Court of Equity may give relief on the ground of the fraud, and the lapse of time, as a bar to such relief, will run only from the discovery of the fraud (e). The statute runs from the time the breach of contract is Where special damage complete and gives a right of action, although special damage occurs subcaused by such breach of contract may occur subsequently, sequently. and the plaintiff, at the time of the accrual of the cause of action, may not be fully aware of the damage consequent upon it (ƒ). When the statute has once begun to run, it continues to run, and is not stopped by any supervening disability, or other circumstance preventing the creditor from bringing an action (g). tutes of The Statutes of Limitation discharge the right of action Effect of by affording an absolute bar to an action brought beyond the Stathe time prescribed by the statutes. The defence of the Limitation. Statutes of Limitation must be specially pleaded; and the defendant cannot avail himself of it without a plea, although it may appear upon the record, or upon the evidence of the plaintiff, that the action was brought beyond the prescribed limit of time (h). The Statutes of Limitation do not affect 16 L. J. C. 105. As to the accrual of (f) Battley v. Faulkner, 3 B. & (h 2 Wms. Saund. 63 a. Effect in any pledge or lien upon property which the creditor may hold as security for the debt, or for the due performance of the contract (a). Courts of Equity have no jurisdiction to relieve against the operation of the Statutes of Limitation upon legal claims (b). The Statutes of Limitation, in general, do not apply to equitable claims, as trusts and claims for account; though Courts of Equity act sometimes by analogy to the Statutes of Limitation in refusing to entertain equitable claims on the ground of lapse of time and acquiescence (c). Thus, money deposited with a banker constitutes in law a loan to the banker, which cannot be recovered after six years without some renewal of liability (d); but in equity the banker would be held to remain a trustee of the amount for the depositor (e). A devise or charge of real estate for the payment of debts creates a trust for the benefit of the creditors against which the statute does not operate (ƒ); but such devise or charge will not revive a debt previously barred, unless such debt is particularly directed to be paid (y). A general direction in a will of personal estate to pay debts does not prevent the operation of the statute (h). After an adjudication of bankruptcy against a debtor, the effect of which is to transfer all his estate in trust for his creditors, the Statutes of Limitation do not operate upon the right of creditors to prove their debts; they may prove at any time after adjudication, unless the right to recover debts was barred before adjudication (i). A legacy left by the creditor to the debtor may be set-off by his executor against a debt barred by the Statute of Limitation (j). (e) Hollis's case, 2 Vent. 345. (f) Hargreaves v. Michell, 6 Mad. 326. (g) Burke v. Jones, 2 Ves. & B. 275; and see Williamson v. Naylor, 3 Y. & C. Ex. 208, 210 (a). (h) Freake v. Cranefeldt, 3 My. & Cr. 499; Evans v. Tweedy, 1 Beav. 55. (i) Ex p. Ross, 2 Glyn & Jam. 46. (j) Courtenay v. William, 3 Hare, 539; Coates v. Coates, 33 Beav. 249; 33 L. J. C. 448. The liability for a debt may be renewed by the debtor so Renewal of as to take it out of the operation of the Statutes of Limi- simple con tation. tract debts; -by promise or acknow In the case of simple contract debts within the Statute of James, the liability may be renewed by an express acknowledgment. ledgment or promise to pay the debt; and before Lord Tenterden's Act, 9 Geo. IV. c. 14, a mere verbal acknowledgment or promise, without writing, was sufficient for that purpose. By that Act, s. 1, it was enacted, "that in actions of debt, or upon the case, grounded upon any simple contract, no acknowledgment or promise by words only shall be sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the Statutes of Limitation, unless such acknowledgment or promise shall be made in some writing to be signed by the party chargeable thereby." The effect of Lord Tenterden's Act has been explained as follows:- "That statute did not intend to make any alteration in the legal construction to be put upon acknowledgments or promises made by defendants, but merely to require a different mode of proof; substituting the certain evidence of a writing, signed by the party chargeable, instead of the insecure and precarious testimony to be derived from the memory of witnesses. To inquire, therefore, whether in a given case the written document amounts to an acknowledgment or promise is no other inquiry than whether the same words, if proved before the statute to have been spoken by the defendant, would have had a similar operation and effect" (a). Soon after the passing of the Statute of James the Courts held that any admission by the debtor that the debt was unpaid prevented the operation of the statute, and renewed his liability from the date of the admission; so that such an admission, even when accompanied by a repudiation of liability, or a refusal to pay, or a denial of the debt, was held sufficient to defeat the statute (b). Modern decisions have considerably (a) Per Tindal, C.J., Haydon v. Williams, 7 Bing. 163, 166. (b) Per Buller, J., Lloyd v. Maund, 2 T. R. 760, 762; Leaper v. Tatton, 16 East, 420; Hyleing v. Hastings, 1 to pay. Renewal of modified the older ones; and it is now settled that an admissimple contract debt sion by the debtor of the debt remaining unpaid is not suffiby promise cient to renew the liability of the debtor, unless it is accompanied with a promise to pay it, or unless it is so unequivocal and unreserved that a promise can be implied therefrom (a). A promise to pay the debt is necessary in all cases in order to take the debt out of the statute and to revive the liability; but such a promise may in some cases be implied from a simple and absolute acknowledgment of liability (b). The case of Tanner v. Smart may be considered as the leading case on this point; in which Lord Tenterden, C.J., in delivering the judgment of the court, said: “There are, undoubtedly, authorities that the statute is founded on the presumption of payment, that whatever repels that presumption is an answer to the statute, and that any acknowledgment which repels that presumption is, in legal effect, a promise to pay the debt; and that, though such an acknowledgment is accompanied with only a conditional promise or even a refusal to pay, the law considers the condition or refusal void, and considers the acknowledgment of itself an unconditional answer to the statute;" the judgment went on to decide that a new promise to pay is essential to defeat the operation of the statute, and explained the proper effect to be given to a mere acknowledgment thus:-“ Upon a general acknowledgment, where nothing is said to prevent it, a general promise to pay may, and ought to be implied; but where the party guards his acknowledgment, and accompanies it with an express declaration to prevent any such implication, the rule, expressum facit cessare tacitum, applies" (c). In that case the acknowledgment proved was in the terms, "I cannot pay the debt at present, but I will pay it as soon as I can," and it was held not to be sufficient to take the case out of the statute, without proof of the defendant's ability to pay (d). The principles laid down in the case of Tanner v. Smart have been adopted in all subse (a) Per Parke, B., Morrell v. Frith, 3 M. & W. 402, 405; per Parke, B., Williams v. Griffith, 3 Ex. 335, 342. (b) Per Rolfe, B., Hart v. Pren dergast, 14 M. & W.741, 746. (c) Tanner v. Smart, 6 B. & C. 603, 604. (d) Tanner v. Smart, supra. |