Courts of Equity and the Statutes of Limitation. Who may set up statute. Judgment in administration action. (4) Pendency of administration action. Berrington v. Sterndale v. tration actions are not bound to plead the statute (Ex p. Dewdney, 15 Ves. 498; Norton v. Frecker, 1 Atk. 526; Custleton v. Fanshaw, Prec. Ch. 100; Re Baker, Nicholls v. Baker, 44 Ch. Div. 270; see Re Wenham, Hunt v. Wenham, 1892, 3 Ch. 59). Nor is the court bound to set up the statute on behalf of absent parties (Alston v. Trollope, 2 Eq. 205). But the statute may, where a decree has been obtained, be set up in the proceedings under the decree, by one creditor against another (Fuller v. Redman, 26 Beav. 614), and by a residuary legatee or other party interested in the estate against a creditor (Moodie v. Bannister, 4 Drew. 432; Shewen v. Vanderhorst, 1 Russ. & M. 347; Beeching v. Morphew, 8 Hare, 129). A residuary legatee was entitled to insist on this right where there was no administration judgment, but the executors had issued a summons to determine whether a defendant was a creditor of the estate (Re Wenham, Hunt v. Wenham, 1892, 3 Ch. 59). The statute, however, cannot be set up against the plaintiff whose debt is the foundation of the decree (Adams v. Waller, 14 W. R. 789; Fuller v. Redman, sup. ; see Re Baker, Nicholls v. Baker, 44 Ch. Div. 262). As to this question in the administration of real estate, see Briggs v. Wilson (5 D. M. & G. 21). A residuary legatee has been held to be precluded by his own acts from setting up the statute as against a pecuniary legatee (Prowse v. Spurgin, 5 Eq. 99). As to proof in an English action by a creditor who had attached French assets as security for two debts, one of which was barred in England but not in France, see Re Bowes, Strathmore v. Vane (1889, W. N. 53); and by a creditor who had recovered judgment in Scotland for a debt barred in England, see Re Low, Bland v. Low (1894, 1 Ch. 147). It has been held that judgment in an administration action commenced by a legatee, and which contained the usual direction for payment of debts, operated in favour of such creditors of the testator as could then substantiate their claims, so as to prevent time running (Finch v. Finch, 35 L. T. 235, where the judgment was within the statutory period from the incurring of the debt; Re Crossley, Munns v. Burn, 35 Ch. Div. 266). Compare the effect of a winding-up order (Re General Rolling Stock Co., 7 Ch. 646). An administration judgment also operates in favour of the estate in regard to a set-off against a creditor's demand (Re Ballard, Lovell v. Forester, 1890, W. N. 64). The existence of a creditor's administration suit was held not to prevent the barring of a debt in respect of which no claim was made under the decree (Tutam v. Williams, 3 Hare, 347). And where a judgment creditor had allowed twenty years to elapse without taking steps to recover his debt, and then ascertained that during the twenty years a suit had been instituted for the benefit of the specialty creditors of his debtor, and that under a decree in the suit they had received part payment of their debts, and that there was money in court available for payment of the remainder, he was not allowed to prove his debt (Berrington v. Evans, 1 Y. & Coll. 434; see also O'Kelly v. Bodkin, 3 Ir. Eq. R. 390; Hutchins v. O'Sullivan, 11 Ir. Eq. R. 443). Before R. P. Lim. Act, 1833, it was held that although a creditor's demand was in strictness barred by the rule of equity and by analogy to the old statute, yet that rule would not be applied against him if he had delayed his suit, relying on the prosecution of an existing suit by another creditor on behalf of himself and other creditors (Sterndale v. Hankinson, 1 Sim. 393; followed in Brown v. Lynch, 4 Ir. Eq. R. 316; Carroll v. Darcy, 10 Ir. Eq. R. 321; and approved by Lord St. Leonards in Bermingham v. Burke, 2 J. & Lat. 714; R. P. Stat. 126; see Foster v. Mackenzie, 17 Beav. 414; Finch v. Finch, 35 L. T. 235). As to the effect of a petition for sale in the Irish Landed Estates Court, see Re Ebbs (31 L. R. Ir. 95). Since the Judicature Acts, however, the reasons on which Sterndale v. Hankinson was founded no longer apply (Re Greaves, Bray v. Tofield, 18 Ch. D. 551, where the action was commenced within the statutory period from the incurring of the debt, but the judgment was made after the expiration of that period). Compare Williams v. Williams, 1900, 1 Ch. 152. Courts of proceedings. The institution of a suit to execute the trusts of a will did not preserve the rights of the heir who claimed adversely to the will (Simmons v. Equity and Rudall, 1 Sim. N. S. 115). The right of a vendor to enforce his lien was the Statutes not preserved by the existence of a suit by the creditors of the devisor of of Limitation. the estate, under whose will the sale took place, to administer his estate; Pendency of nor by suits by the residuary devisees and legatees of the purchaser, for the administration of his estate (Toft v. Stephenson, 7 Hare, 1). A mortgagee's suit for foreclosure and sale instituted during the debtor's life, did not prevent time running against a judgment creditor of that debtor (Bennett v. Bernard, 12 Ir. Eq. R. 229). For the case where a creditor or incumbrancer is made a defendant to the suit, see Watson v. Birch (15 Sim. 523), and Humble v. Humble (24 Beav. 535). As to relief where time has run pending improper litigation, see Pultney v. Warren (6 Ves. 3); East India Co. v. Campion (11 Bligh. 158, 186, 187); Furnival v. Boyle (4 Russ. 142); Sirdefield v. Price (2 Y. & C. 73). As to the application of the Statutes of Limitation to an order to carry Orders to on proceedings made before judgment, see Perry v. Jenkins (1 M. & Cr. carry on pro118, 121); Bland v. Davison (21 Beav. 312); and after judgment, see ceedings. Alsop v. Bell (24 Beav. 451); Parkinson v. Lucas (28 Beav. 627, 630); see also Bampton Although the appointment of a receiver by the court does not prevent Effect of the bar under the statute against a stranger, yet it will prevent time appointment running in favour of a stranger to the suit (Wrixon v. Vize, 3 Dr. & War. of a receiver. 101, see p. 123; Parkinson v. Lucas, 28 Beav. 627). But under special circumstances the possession of a receiver prevented time running against a stranger to the action (Penney v. Todd, 26 W. R. 502). The possession of the receiver in a cause in which a trustee of the legal estate is made a party as such, may fairly be treated as the possession of the trustee. For many purposes the possession of the receiver is the possession of the party entitled to the lands, and time will not run against a person in possession (Gresley v. Adderley, 1 Swans. 579; Boehm v. Wood, T. & R. Wrixon v. Vize, 3 Dr. & War. 104; see Groome v. Blake, 8 Ir. L. R. 428; Re Butler, 13 Ir. Ch. R. 453; Dixon v. Gayfere, 17 Beav. 421). The appointment of receiver in the matter of an infant will not prevent the operation of the statute on a claim affecting the minor's estate, notwithstanding the fact that the master, in a report ascertaining the nature of the minor's property, has expressly found that the minor's subject to that incumbrance (Harrison v. Duignan, 2 Dr. & War. 295; see Greenway v. Bromfield, 9 Hare, 203). 345 ; esta te was See as to the relief granted by courts of equity where time had run Injunction. pending an injunction, Brown v. Newall (2 M. & Cr. 572); Anon. (2 Cas. Ch. 217); Fyson v. Pole (3 Y. & C. 273); Morgan v. Morgan (2 Dick. 643); Grant V. Grant (3 Sim. 364; 3 Russ. 607); Duval v. Terry (Show. P. C. 15); O'Donel v. Browne (1 Ball & B. 262). (5) The claim of an equitable incumbrancer was kept alive by the exist- Funds in ence of a fund in court the rights in which had not been ascertained court; Lancaster v. Evans, 10 Beav. 154). Where in an incumbrancer's suit against a tenant for life rents belonging to the defendant were paid into court by a receiver and so remained 1815-1870, the claim of the remainderman to be recouped out of such rents payments which had subsequently fallen upon him was not barred (Howlin v. Sheppard, 6 Ir. Eq. Rep. 38). And when lands on which an annuity was charged were sold by the Court, the claim of the annuitant to resort for arrears to the Corpus of the proceeds which were in court was not barred (Re Belton, 1894, 1I. R. 537). So where to annul a bankruptcy money is paid into court to provide for undisputed debts, time does not run against the creditors Re Dennis, 1895, 2 Q. B. 630). Compare the case of money Courts of Equity and the Statutes of Limitation. funds paid into court under the provided under a scheme to satisfy unascertained bondholders (Collingham v. Sloper, 1901, 1 Ch. 779). But payment into court under the Trustee Relief Act of a fund on which an annuity was charged did not make the court a trustee or prevent a bar (Re Nugent, 19 L. R. Ir. 140; where, however, the annuity was also charged on real estate the remedy against which was held barred). Where land in the occupation of a trespasser was compulsorily taken under the Lands Clauses Act and the purchase-money paid into court, the trespasser was, after the expiration of the full statutory period (the L. C. C. Act. true owner not claiming), held entitled to the money, although at the date of the purchase his adverse possession had only lasted eighteen years (Re Evans, 42 L. J. Ch. 357), or nineteen years and a half (Ex p. Winder, 6 Ch. D. 696; see Ex p. Chamberlain, 14 Ch. D. 323). It seems that a less period of adverse possession would be sufficient (Gedye v. Commrs. of Works, 1891, 2 Ch. 636). And where, at the purchase, land was in occupation of a person who originally entered claiming in respect of a long term of years, but had continued in occupation after the expiration of the term, the fund in court was invested and the dividends ordered to be paid to such occupant until the lapse of twelve years from the end of the term (Re Harris, 1901, 1 Ch. 931; see Ex p. Chamberlain, 14 Ch. D. 323). But where at the date of the purchase the land was in the possession of a person claiming in respect of a term of years which subsequently expired, and twelve years after the expiration of the term the termor claimed payment of a fund which had been paid into court as representing the reversion the claim was dismissed (Gedye v. Commrs. of Works, 1891, 2 Ch. 636). Where the land taken was in mortgage, the mortgagee was only allowed six years' interest out of the purchase-money in court (Re Stead, 2 Ch. D. 713). (6) Lunacy. Where a creditor cannot recover by reason of the lunacy of the debtor, time will not run (Stedman v. Hart, Kay, 607). But where an executor was found lunatic after time had commenced to run against a legatee, time ran during the lunacy (Boldero v. Halpin, 19 W. R. 320). Proceedings in lunacy were held not to exclude the operation of the statute on a promissory note (Roch v. Cooke, 1 De G. & Sm. 675). A petition in lunacy, after the death of the lunatic, by his committee, and a reference, followed by a report that a sum of money had been expended by the committee in the maintenance of the lunatic, will not take the claim of the committee out of the statute, as against the heir-at-law, who was not a party (Wilkinson v. Wilkinson, 9 Hare, 204). Where funds in the hands of a lunatic executrix were under an order transferred to the credit of the lunacy to an account in the names of herself and other persons interested, and the income was paid to her, the order preserved the right of the parties interested, but arrears of income could only be recovered for six years (Re Walker, 7 Ch. 120). An order for repayment to executors of advances made by their testator for maintenance of a lady found lunatic after his death was limited to six years before the death (Re Weaver, 21 Ch. Div. 615). Guardians could only recover six years' arrears in respect of the maintenance of a pauper lunatic (Re Newbegin, Eggleton v. Newbegin, 36 Ch. D. 477; Re Watson, Stamford Union v. Bartlett, 1899, 1 Ch. 72; Re Taylor, Edmonton Union v. Deely, 1901, 1 Ch. 480). IX.-MISCELLANEOUS LIMITATIONS. Limitations in the case of actions brought for acts done in pursuance of divers local and personal acts are imposed by 5 & 6 Vict. c. 97, s. 5; and in the case of actions against persons acting in the execution of statutory and other public duties by the Public Authorities' Protection Act, 1893. See further, Darb. & Bos., 2nd ed. p. 577; and Supplement, p. 24. X-PLEADING AND PRACTICE AS TO THE STATUTES OF LIMITATION. Pleading and Practice as to the Statutes of Limitation. By R. S. C. Ord. 19, r. 15, a party must raise by his pleading all such Raising the grounds of defence or reply as, if not raised, would take the opposite statute: party by surprise or would raise issues of fact not arising out of the preceding pleadings, as, for instance, Statute of Limitations. In Dawkins v. Penrhyn (4 App. Cas. 59; an action commenced in 1877, by pleading. when demurrer was permitted), Earl Cairns held that in personal actions the statute must be pleaded; but that in the case of real property, where it was a question of title, the statute might be raised by demurrer (see further, Re Burge, Gillard v. Lawrenson, 57 L. T. 364; Noyes v. Crawley, 10 Ch. D. 31; and see as to the previous rule at common law, De Beansoir v. Owen, 5 Exch. 166; Owen v. De Beauvoir, 16 M. & W. 547). Since Dawkins v. Penrhyn demurrer has been abolished, but in lieu thereof a party can raise by his pleading a point of law (R. S. C. Ord. 25). Where an action is brought to recover land of which the defendant is in possession, the statute is often pleaded expressly (Lyell v. Kennedy, 18 Q. B. Div. 796; Pedder v. Hunt, ib. 565). În Heath v. Pugh (6 Q. B. Div. 353), it was said that in such a case the defence of the statute might be raised under the plea of possession in a general form (Ord. 21, r. 21). As to the effect of such a plea, see Danford v. McAnulty, 8 App. Cas. 456. Under the old practice in equity a plea of adverse possession was overruled because it did not state the particular facts constituting the adverse possession on which the defendant relied (Hardman v. Ellames, 5 Sim. 640; 2 M. & K. 732). Ord. 8, r. 1, provides that no original writ of summons shall be in force Renewal of for more than twelve months from the date thereof. Ord. 6, r. 1, pro- writ to save vides for the issue of concurrent writs, such writs only to be in force for statute. the period during which the original writ is in force. Under Ord. 8, r. 1, however, upon application before the expiration of the twelve months, the writ or concurrent writ may for good reason be renewed for six months, and so from time to time. Under Ord. 64, r. 7, times may be enlarged. Where the plaintiff's claim would, in the absence of renewal, be barred by statute, the time for renewing a writ will not usually be enlarged, but the court has a discretion (Doyle v. Kaufmann, 3 Q. B. Div. 7, 340; Hewett v. Barr, 1891, 1 Q. B. 98; see Magee v. Hastings, 28 L. R. Ir. 288). Where, however, the original writ was issued and renewed in proper time, the time for issuing a concurrent writ was enlarged, although the operation of the statute was thereby affected (Smalpage v. Tonge, 17 Q. B. Div. 644). Where a writ was issued in due time in the Common Pleas to recover a debt, which writ was never served; and six months later (when, unless saved by the writ, the debt was barred) the plaintiff took out an administration summons in chancery; such summons was held barred, the writ not keeping the debt alive for the purpose of proceedings in another court Manby v. Manby, 3 Ch. D. 101. Compare Hurst v. Hurst, 21 Ch. Div. 291, 295). In the case of pleadings, a party cannot by amendment set up fresh Amendments. claims which since the writ have become barred by statute (Weldon v. Neal, 19 Q. B. Div. 394; see Steward v. North Metropolitan Co., 16 Q. B. Div. 556; Hudson v. Fernyhough, 61 L. T. 722). As to raising by amendment a case of concealed fraud to meet the statute, see Lawrance v. Norreys (39 Ch. Div. 235). 3 & 4 Will. 4, and expres- THE FINES AND RECOVERIES ACT, 1833. 3 & 4 WILL. IV. c. 74, ss. 1—76, 92. An Act for the Abolition of Fines and Recoveries, and for the 1. Interpretation clause, s. 1...262. [28th August, 1833.] 2. Fines and recoveries abolished, ss. 2, 3...266. 3. The tenure of ancient demesne, ss. 4-6.. 268. 4. The amendment and validating of fines and recoveries, ss. 7- 5. The custody of the records of fines and recoveries, s. 13...273. 6. Estates tail not barrable by warranty, s. 14...274. 7. Disposition of lands entailed, ss. 15-21...274. 8. Definition of the protector, s8. 22-33...283. 9. Powers of the protector, ss. 34-37...289. 10. Confirmation of voidable estates created by tenant in tail, 8. 38...291. 11. Enlargement of base fees, s. 39...292. 12. Modes in which dispositions of land under this act by tenants in tail are to be effected, ss. 40-49...293. 13. Estates tail in copyholds, 88. 50-54...298. 14. Bankrupts' estates tail, ss. 55-69...302. 15. Money to be laid out in lands to be entailed, 88. 70-72...309. 17. Inland, s. 92...312. 1.-Interpretation Clause. 1. Be it enacted, that in the construction of this act the word "lands" shall extend to manors, advowsons, rectories, messuages, lands, tenements, tithes, rents and hereditaments of any tenure (except copy of court roll), and whether corporeal or incorporeal, and any undivided share thereof, but when accompanied by some expression including or denoting the tenure * This act does not extend to Ireland, but on the 15th August, 1834, the statute 4 & 5 Will. 4, c. 92, was passed, which corresponds in most particulars with the English statute, and came into operation on the 31st October, 1834, instead of 31st December, 1833. |