Where Equityadopts of Limita tions. or successors, or have or shall have stood insuper of record, within the said space of 60 years." 63. The statutes of limitation only fix certain the Doctrine periods within which different real and personal actions may be brought, in the courts of common law; and therefore do not extend to suits in equity. But the limitation of suits being founded in public convenience, B.3.c. 1.07. 15 Ves. 496. and attended with so much utility, the courts of equity 10-466. have adopted the principles established by these statutes, as positive rules for their conduct. Treat of Eq. Tit. 15. c. 3. § 56. or 64. Thus it has been long settled, that where a mortgagee has been in possession for 20 years, without claim, that circumstance may be pleaded to a bill for redemption; unless there be an excuse by reason of imprisonment, infancy, coverture, absence. For as 20 years possession barred an vol. 3. 755. entry and ejectment, there was the same reason for allowing it to bar a redemption. It follows that 20 years possession constitutes a good title in equity; because the only remedy there, is by bill. Anst. Rep. vol. 1. 138. Smith v. 65. Upon a bill of review brought between 30 and 40 years after the decree pronounced, Lord Camden said, that as often as parliament had limited the time of actions and remedies to a certain period, in legal proceedings, the Court of Chancery had adopted that rule, and applied it to similar cases in equity. For when the legislature had fixed the time at law, it would have been preposterous for equity, which by its own proper authority always maintained a limitation, to countenance laches beyond the period to which they were confined by parliament. Therefore in all cases where the legal right had been barred by parliament, the equitable right to the same Edwards v. thing had been concluded by the same bar. The House of Lords had therefore determined, that 20 Carrol, 2 Bro. Parl. Ca. 98. years should bar a bill of revivor, because the statute Vide Tit. 35. of Will. III. had barred all writs of error after that period. Mackworth, 66. There are, however, several cases in which courts of equity have refused to adopt the principles of the statutes of limitation. Thus it is generally said, that a trust is not within the statutes of limitation; but this proposition only applies to cases arising between a cestui que trust and his trustee, where there is no adverse possession. And Lord Hardwicke has said, that this rule does not hold Llewellin v. between the cestui que trust and trustee on the one 15 Vin. Ab. side, and strangers on the other: for that would 125. be to make the statute of no force at all; because there was hardly any estate of consequence without such trust; and so the act would never take place. Therefore, where a cestui que trust and his trustee, were both out of possession for the time limited, the party in possession had a good bar against both of them. 67. Where fraud is charged, the defendant cannot plead the statute of limitations to the discovery of his title, but must answer to the fraud. 68. A bill was brought for a discovery of the Bicknell v. Gough, defendant's title, charging fraud in the defendant, 3 Atk. 558. and praying to be let into possession of the estate; the defendant pleaded the statute of limitations, both to the discovery and relief. Lord Hardwicke was of opinion that the defendant 'could not plead the statute of limitations to the discovery; but must answer the fraud: that as the defendant had pleaded it, it was in the nature of a demurrer; for the defendant not averring any fact to which the plaintiff might reply, but resting it on facts of the plaintiff's own showing; if he was to 15 Vin. Ab. 125. pl. 8. 1 Vern. 256. Fotherby v. Hartridge, 2 Vern. 21. Jones v. 2 Ves. Jun. allow the plea, the plaintiff could not take exceptions to the answer, and therefore overruled the plea. 69. In another case Lord Hardwicke is reported to have said "There may be a case where the circumstance of concealing a deed shall prevent the statute's barring; but there it must be a voluntary and fraudulent detaining; for to say that merely having an old deed in one's possession, shall deprive a man of the benefit of the act, is going too far; and would be a hard construction of a statute for quieting possessions: it must therefore be an intentional concealment." 70. A legacy given out of real property is only recoverable in a court of equity, and therefore is not within the statutes of limitation; from which it follows, that length of time alone will not bar it; but it will raise a presumption of payment, which, unless repelled by evidence of particular circumstances, will be conclusive. 71. In a modern case, where a bill was brought for the payment of a legacy, which was resisted on the ground of presumed payment, arising from the length of time that had elapsed without any demand, which was above 40 years; and because the representatives both real and personal, and all the persons who could throw any light on the subject, were dead; Lord Commissioner Eyre said-" It is a presump. tion of fact in legal proceedings before juries, that claims, the most solemnly established on the face of them, will be presumed to be satisfied, after a certain length of time. Courts of equity would do very ill by not adopting that rule, so essential is it to general justice, that though the presumption has often happened to be against the truth of the fact, yet it is ΙΟ better for the ends of general justice, that the presumption should be made and favoured, and not be easily rebutted, than to let in evidence of demands of this nature, from which infinite mischief and injustice might arise. The Court presumed that the legacy was paid, and dismissed the bill. Emerton, Powis, Ca. 282. 72. It is said, that if a person sues in Chancery, Gilbert v. and pending the suit there, the statute of limita- 2 Vern. 503. tions attaches on his demand, and his bill is afterwards dismissed, the matter being properly determine Mackenzie v. able at law, the Court will preserve the plaintiff's right, 7 Bro. Parl. and will direct that the defendant shall not plead the statute of limitations in bar to the demand. But in another case it was said that the Court of Chancery would allow the statute of limitations to be pleaded, Anon. 2 Cha. unless the party in such suit was stayed by act of the Court, as by an injunction. Ca. 217. END OF THE THIRD VOLUME, Printed by A. Strahan, Law-Printer to His Majesty, |