CHAPTER had lost his remedy against the antecedent parties (a). Where the fault is not entirely on the side of the party paying, he may still recover. Certain bills of exchange, purporting to bear, amongst others, the indorsement of A., were refused payment; the notary took them to the plaintiff, the London correspondent of A., and asked him to take up the bills for A.'s honour. The plaintiff, accordingly, paid the money to the defendants, holders of the bills, and struck out all the indorsements subsequent to A.'s. The same morning it was discovered that the respective signatures of A., the drawer, and acceptor, were forged. Plaintiff immediately sent notice to the defendants, in time for them to advise their indorser. The Court held, that the plaintiff was entitled to recover his money back, and said, "A bill is carried for payment to the person whose name appears as acceptor entirely as a matter of course. But it is by no means a matter of course to call upon a person to pay a bill for the honour of an indorser; and such a call, therefore, imports, on the part of the person making it, that the name of a correspondent, for whose honour payment is asked, is actually on the bill. The person thus called upon ought, certainly, to satisfy himself that the name of his correspondent is really on the bill; but still, his intention may reasonably be lessened by the assertion that the call itself makes to him in fact, though no assertion may be made in words. And the fault, if he pays on a forged signature, is not wholly and entirely his own, but begins, at least, with the person who thus calls upon him. And though, where all the negligence is on one side, it may, perhaps, be unfit to inquire into the quantum; yet, where there is any fault in the other party, and that other party cannot be said to be wholly innocent, he ought not, in our opinion, to profit by the mistake into which he may, by his own prior mistake, have led the other; at least, if the mistake be discovered. before any alteration in the situation of any of the other parties; that is, whilst the remedies of all parties entitled to remedy are left entire, and no one is discharged by laches. We think the payment, in this case, was a payment by mistake, and without consideration, to a person not wholly free from blame. The striking out an indorsement by mistake cannot, in our opinion, discharge the indorser "(b). Where bankers who had paid a forged bill gave notice of the forgery, and demanded the money by one o'clock in (a) Smith v. Mercer, 6 Taunt. 76; 1 Marsh. 453; 16 R. R. 576. See, as to delay, Pooley v. Browne, 11 C. B., N. S. 566. (b) Wilkinson v. Johnson, 3 B. & C. 428; 5 D. & Ry. 404; 27 R. R. 393. XXI. the afternoon of the following day, the Court took time CHAPTER to consider, and at length unanimously held, that the money could not be recovered back. "In this case," they say, "we give no opinion upon the point, whether the plaintiff's would have been entitled to recover if notice of the forgery had been given to the defendants on the very day on which the bill was paid, so as to enable the defendants on that day to have sent notice to other parties on the bill. But we are all of opinion that the holder of a bill is entitled to know on the day when it became due, whether it is an honoured or dishonoured bill (c); and that if he receives the money, and is suffered to retain it during the whole of that day, the parties who paid it cannot recover it. The holder, indeed, is not bound by law (if the bill be dishonoured by the acceptor) to take any other steps (except protest, or noting if the bill be a foreign bill) against the other parties to the bill till the day after the dishonour. But he is entitled to do so if he think fit; and the parties, who pay the bill, ought not by their negligence to deprive the holder of any right to take steps against the parties to the bill on the day when it becomes due" (d). In an action on a bill alleged to be forged, the defendant may, without filing any affidavit, apply to the Court or a judge for a discovery on oath, or during the trial the judge may order the production, of any document to be dealt with as shall appear just (e). (c) Cocks v. Masterman, 9 B. & C. 908; 33 R. R. 365. But if a banker, on whom a cheque is drawn, be also the banker of the holder, who pays in the cheque without any intimation of the character in which he desires the banker to receive it, whether as drawee, or as his, the holder's agent, it will be presumed that the banker took it as the agent of the holder, and therefore the banker may, in the course of the next day, inform the holder that there are no effects, and that the cheque will not be paid. Boyd v. Emmerson, 2 Ad. & Ell. 184; 4 N. & M. 99; Er parte Richdale, L. R., 19 Ch. D. 409; Kilsby v. Williams, 5 B. & Ald. 815; 1 D. & C. 476 ; 24 R. R. 564; Pollard v. Ogden, (d) Cocks v. Masterman, 9 (e) Ord. XXXI. rr. 12 and 14. Formerly an affidavit was generally required, Thomas v. Dunn, 6 M. & G. 274; though not invariably, Woolner v. Derereux, 9 Dowl. 672. In Lewis V. Londesboro, [1893] 2 Q. B. 191, the Court allowed the alleged forgeries to be photographed. B.B.E. 23 WITHOUT a limitation of actions no man can be secure in CHAPTER XXII. the enjoyment of his property. After the lapse of years, evidence is weakened or destroyed. And a claimant who Policy of the has long slept on his demand has no right to complain, if, law. for the public advantage, it is at length taken from him. In practice it is found that no statutes are so useful as those of limitation, compelling, as they do, investigation, whilst the means of investigation subsist, and supplying the loss of those means, by a general act of settlement, applicable to each man's case. Though an act of limitation, in respect of real property, When introwas passed in this country in the year 1270, yet, partly duced. from the comparatively inconsiderable amount of personal property, partly from the frequency of the sales in market overt, and partly from the circumstance that debts above 40s. were commonly secured by bond or single bill, and debts below that amount were not tried in the superior Courts, no limitation to personal actions was introduced till the year 1623, when the present Statute of Limitations, The present the 21 Jac. 1, c. 16 (supplemented by 3 & 4 Will. 4, c. 42), statute. was passed. The enactments of that statute, so far as they are applicable to our present purpose, are as follows (a): By sect. 3, all actions on the case (other than such accounts as concern the trade of merchandise between merchant and merchant, their factors and servants), and all actions of debt, grounded on any lending or contract without specialty, must be brought within six years of the cause of such actions, and not after. By sect. 4, if judgment for the plaintiff be arrested or reversed, or the defendant be outlawed and afterwards reverse the outlawry, the plaintiff, or his executor, may commence a new action within a year. Sect. 7 provides, that if any person entitled to the action shall, at the time of the cause of action accrued, be, first, an (a) The 3 & 4 Ann. c. 9, which by sect. 2 enacted that actions on notes must be brought within six years, is repealed by the Code. As, however, the Code has, so far as practicable, placed bills and notes and parties suing thereon on precisely the same footing, ss. 38 & 89, it seems hardly open to doubt that notes as well as bills, whether or not they did so before, fall within s. 3 of the 21 Jac. I. c. 16. The exception of merchants' accounts was re- CHAPTER XXII. Division of the subject. GENERAL OF THE Does not destroy the debt. infant; secondly, feme covert; thirdly, non compos mentis; fourthly, imprisoned; or, fifthly, beyond the seas, then such person may bring the action within six years after their full age, discoverture, sound memory, enlargement, or return from beyond the seas. In treating of the effect of this statute in its relation to bills and notes, we shall consider, 1, its general operation, and whether it destroys the debt or only bars the remedy; 2, what actions or legal proceedings on those instruments it limits; 3, from what period the statute begins to run; 4, to what period the time of limitation is computed; 5, how the statute may be avoided by issuing a writ and continuing it down; 6, the proviso as to persons labouring under disabilities; 7, what promises, acknowledgments, or payments will take a bill or note out of the statute; 8, how the statute is to be taken advantage of; and lastly, when, independently of the statute, lapse of time will be a bar to an action on a bill or note. First, as to the general operation of the statute. The Statute of Limitations is a good plea in equity as well as at law. It is also an answer to proof under a petition for adjudication in bankruptcy (b), and to a suit for seamen's wages (c). The Statute of Limitations does not destroy a debt, but only bars the remedy (d). Therefore, it must in all cases be pleaded, and could not be given in evidence, even under the plea of nil debet, or the replication of nil debet to a setoff (e). Therefore, also, a promissory note more than six years old, though not a good petitioning creditor's debt, as against the bankrupt (who may object that the remedy by a petition in bankruptcy as well as by action is taken away), is nevertheless a good petitioning creditor's debt as against strangers (f). "It is settled," said Lord Mansfield, "that the Statute of Limitations does not destroy the debt; it only takes away the remedy; the objection lies in the mouth of the bankrupt himself, but not in the mouth of (b) Ex parte Dewdney, 15 Ves. 479. (c) Ewer v. Jones, 6 Mod. 25; 4 Anne, c. 16, s. 17. (d) As to an agreement not to rely on the statute, see East India Company v. Paul, 14 Jur. 253; 7 Moo. P. C. C. 85; Lade v. Trill, 6 Jur. 272; Waters v. Thanes, 2 Q. B. 757. (e) Chapple v. Durston, 1 C. & J. 1, overruling the opinion of Lord Holt at Hertford Assizes, 1690; Anon., 1 Salk. 278; Draper v. Glassop, 1 Ld. Raym. 153. Ord. XIX. r. 15. (f) Swaine v. Wallinger, 2 Stra. 746. |