law of bankruptcy; or, if there are pending administration pro- Ch. XVIII. ceedings in any Court, that Court may, on proof that the estate of the deceased is insufficient to pay his debts, transfer the proceedings to the Court exercising jurisdiction in bankruptcy, and the latter Court may then make the order for administration in bankruptcy.1 This does not, however, import into the administration of the estate of a deceased insolvent all the provisions of the Act, e.g., the provisions of s. 45 as to executions, and of s. 47 as to the avoidance of voluntary settlements, are not imported.3 A receiving order cannot be made against a corporation or against a company registered under the Companies Act, 1862.* 1 E.g., to a County Court; Re York, 36 Ch. D. 233. Hasluck v. Clark, [1899] 1 Q. B. 699; Watkins v. Barnard, [1897]2 Q. B. 521. Ante, p. 335. 3 Re Gould, 19 Q. B. D. 92; ante, p. 336. 4 Act of 1883, s. 123; ante, p. 287. Corporations and companies. Chap. XIX. Policy of the statutes. CHAPTER XIX STATUTES OF LIMITATION. AT common law, apart from statute, a personal action could be maintained at any distance of time after the cause of action arose; but various periods within which rights of action must be asserted have been limited by statutes, commonly called the Statutes of Limitation. The foundation of such limitations of time is, it has been observed, twofold: "In the first place, it is thought right that a period should be assigned beyond which actions should not be brought, on the ground of probable loss of vouchers and probable loss of evidence on the part of the persons who might be attacked by others by the act of bringing stale demands against them. The Legislature thought it right, if I may so express it, by enacting the Statute of Limitations, to presume the payment of that which had remained so long unclaimed, because the payment might have taken place, and the evidence of it might be lost by reason of the persons not pursuing their rights. But there is also another ground which may be referred to as a sound reason for imposing a limit, and requiring that parties should pursue their rights with diligence, namely, the change of position between the parties who are sought to be affected by any such stale demands." Thus, in the case in which the observations just cited were made, a demand was set up for payment of 54 years' interest, amounting to a sum largely exceeding the principal money in question; it was set up after the parties against whom it was set up had been living on the property upon which the principal was charged and spending the income of it, and applying it in various ways, in ignorance or without expectation of any such demand being made against them. In this work we shall consider the Statutes of Limitation so far only as they relate to actions for the recovery of debts (whether 1 Coke, 2nd Instit. 96. 2 Per Ld. Hatherley in Thomson v. Eastwood, 2 App. Cas. 215, 248. See also, as to the objects and policy of the Statutes, M. L. R. P. 422. on simple contract or by specialty), and for the recovery of specific Chap. XIX. personal chattels, or damages for the conversion or detention thereof.1 right. These statutes, it is important to observe, merely bar the remedy Statutes do and do not extinguish the debt or obligation. They do not protect not extinguish the debtor unless he expressly claims their protection. It is optional to a defendant to set up the defence of the statutory bar, and if he does not set it up, the law will enforce the obligation.3 Where, therefore, a defendant intends to raise the defence of lapse of time, he must expressly plead the statute.1 c. 16. The earliest Statute of Limitation as to personal actions was 21 Jac. 1, passed in the reign of James I.5 As to debts on simple contract and torts, it provides that All actions of detinue, action sur trover,7 and replevin for taking Actions of away of goods and cattle; all actions of account, and upon the detinue, case, other than such accounts as concern the trade of merchandize trover, replevin, account, between merchant and merchant, their factors or servants; all debt, rentactions of debt grounded upon any lending or contract without six years. specialty; all actions of debt for arrearages of rent, . . . . or any of them, . . . . shall be commenced and sued within the time and limitation hereafter expressed, and not after (that is to say) the said actions upon the case (other than for slander) and the said actions for account, and the said actions for . . . . debt, detinue, and replevin for goods or cattle, . . . . within six years next after the cause of such actions or suit, and not after." 8 within this An action for arrears of rent reserved on a lease by deed,10 or for Debts not a rentcharge,11 or for debt founded on a statute,12 is not within the Act. Act; Actions for a debt on a foreign judgment, or to recover a within this simple contract debt which is charged on land, or money 14 Act. Chap. XIX. advanced on the deposit of deeds,1 or in respect of the liability of the equitable assignee of leaseholds to perform the covenants in the lease, or for a debt for necessaries supplied to a lunatic, or in respect of the liability of a banker to his customers, or for a dividend declared by a company,5 are within the Act. Merchants' accounts. 19 & 20 Vict. c. 97, s. 9. The statutes bar remedy, but do not extinguish the right. 6 At one time doubts were entertained on the meaning of the exception as to "merchants' accounts," but at length it was determined that the exception applied only to an open or current account, not to one which was stated or concluded, the object of the exception being to prevent the dividing of an account still running, where part of it falls within the six years and part before.8 The provisions of the 21 Jac. I, c. 16, were extended to merchants' accounts by the Mercantile Law Amendment Act, 1856, which enacted :—9 All actions of account or for not accounting, and suits for such accounts as concern the trade of merchandize between merchant and merchant, their factors or servants, shall be commenced and sued within six years after the cause of such actions or suits; and no claim in respect of a matter which arose more than six years before the commencement of such action or suit shall be enforceable by action or suit by reason only of some other matter of claim comprised in the same account having arisen within six years next before the commencement of such action or suit. As we have before observed, the statutes above cited do not destroy the right, but only bar the remedy.10 It follows that the lien of a solicitor may be enforced after the six years; that a person having an equitable charge upon personal property to secure a simple contract debt may enforce his security after the debt is barred; 12 that an executor or administrator does not 1 Brocklehurst v. Jessop, 7 Sim. 438; 2 Sanders v. Benson, 4 Beav. 350. 4 Foley v. Hill, 2 H. L. C. 28. 5 Le Severn & Wye Co., [1896] 1 Ch. 559 6 Sandys v. Blodwell, W. Jones, 401; 7 Martin v. Heathcote, 2 Eden, 169. 9 19 & 20 Vict. c. 97, s. 9. See Knox v. Gye, L. R. 5 H. L. 672. 10 Wainford v. Barker, 1 Ld. Raym. 232, and per Wigram, V.-C., Courtenay v. Williams, 3 Hare, 551; Pollock on Contr. 643. It will be remembered that as to real estate the title of the person barred is extinguished. See M. L. R. P. 423. 11 Re Broomhead, 5 D. & L.52; Higgins v. Scott, 2 B. & Ad. 413; 36 R. R. 607. 12 London & Mid. Bank v. Mitchell, [1899] 2 Ch. 161. 2 commit a devastavit (i.e., a misapplication of assets) by paying a Chap. XIX. debt barred by statute,1 though he may not pay such a debt after administration proceedings if the residuary legatee insists on the statute being set up, or if it has been judicially determined that it is barred by the statute; and that an executor may retain (i.e., pay to himself as creditor) a debt barred by statute, and may set off as against a pecuniary legatee a debt due by him to the 3 5 testator which is barred by statute. 4 The period limited by the statute begins to run from the time Time runs when the cause of action arose.7 8 In the case of an ante-nuptial debt of a married woman, for which her husband is liable, time runs in favour of the husband from the time when the cause of action accrued against the wife. To constitute a cause of action there must be a person capable of suing and a person capable of being sued ; but the statute does not require that there should be a continuing cause of action capable of being enforced during the whole of the six years, 10 and, if once there has been a cause of action, time will not stop running merely because during a portion of the period of six years there may be no person who can sue or no person who can be sued.11 Therefore where both creditor and debtor are living at the time when the cause of action arises, the statute continues to operate notwithstanding the death of either creditor or debtor, and the non-existence of any executor or administrator of the deceased.12 On the other hand, where the cause of action does not arise until after the death of one of the parties, there is no complete 1 Norton v. Frecker, 1 Atk. 526; Castleton v. Fanshaw, Prec. Ch. 99; Hill v. Walker, 4 K. & J. 166; Lowis v. Rumney, 4 Eq. 451; Re Rownson, 29 Ch. D. 358, 362. See, as to pleading the statute in administration actions, Darby & Bos. 20 et seq. Re Wenham, [1892] 3 Ch. 59. 3 Midgley v. Midgley, [1893]3 Ch. 282. + Stahlschmidt v. Lett, 1 Sm. & G. 415; Hill v. Walker, 4 K. & J. 166; Re Rownson, sup. Re Taylor, [1894]1 Ch. 671. Re Cordwell, 20 Eq. 644; Re Akerman, [1891]3 Ch. 212. 7 Per Alderson, B., Rhodes v. Smethurst, 4 M. & W. 63; 51 R. R. 461. Beck v. Pierce, 23 Q. B. D. 316. 9 Per Best, C. J., Douglas v. Forrest, 4 Bing. 704; 29 R. R. 695; Musurus Bey 10 Per Ld. Denman, C. J., Rhodes v. 11 Per Ld. Abinger, C. B., Rhodes v. Smethurst, 4 M. & W. 59; 51 R. R. 461. 12 As to death of the creditor after the cause of action arose, see Hickman v. Walker, Willes, 27; 2 Wms. Saund. 63 k; Freake v. Cranefeldt, 3 My. & Cr. 499; as to death of the debtor, Rhodes v. Smethurst, 6 M. & W. 351; 55 R. R. 655. from accruer action. "Cause of When time stop. Cause of after death of action arising testator or intestate. |