of A. (who had died seventeen years before) to set aside the latter 3 & 4 Will. 4, conveyance, and to have an account. It was held, that the circum- c. 27, s. 26. stances of the transaction were of a fraudulent nature, and therefore furnished an answer to the objection arising upon the length of time during which the transaction had remained unimpeached. It was held also, that the bill was sustainable, though disputes which had arisen between A. and B. as to their mutual accounts had been referred in A.'s lifetime to a barrister, who was empowered to inquire into all matters in difference between them; and who, after awarding the payment of a certain sum by A. to B., had directed the execution of mutual releases of all matters in difference, and such releases had been executed. (Charter v. Trevelyan, 11 Cl. & Fin. 714.) Accounts were opened on the ground of fraud, notwithstanding the lapse of seventeen years. (Allfrey v. Allfrey, 1 Hall & T. 179; 1 Mac. & G. 87.) A. and B., having for many years been partners in business as solicitors, dissolved their partnership in 1834, and the business continued to be carried on by A. alone until 1841, when he became bankrupt; and it was then discovered that a sum of money which had been paid by a client into the joint account of the firm at their bankers in 1829, for the purpose of investment, and which A. had shortly afterwards represented to have been invested accordingly, and on which he had regularly paid interest on that footing, had, instead of being invested, been appropriated by him to his own use. Upon a bill filed by the client against B. to make him liable for the money, it was held, that in equity the effect of the misrepresentation, so far as regarded the Statute of Limitations, was the same as if it had been made on the day the fraud was discovered, notwithstanding the partnership had been dissolved more than six years before. (Blair v. Bromley, 2 Ph. C. C. 354; 11 Jur. 617; 16 Law J., Ch., 495.) A court of equity will not impeach a transaction on the ground of fraud, where the fact of the alleged fraud had been within the knowledge of the party many years; but held that every new right of action in equity which accrued to the party must be acted on at the utmost within twenty years, except in the case of a trustee whose possession was consistent with the title of the claimant. (2 Sch. & Lef. 637.) Where a party is to be constituted a trustee by the decree of a court of equity, founded on fraud or the like, his possession is adverse, and the Statute of Limitations will run from the time the circumstances of the fraud were discovered. (2 Sch. & Lef. 633; 2 Ball & B. 129; Brooksbank v. Smith, 2 Y. & Coll. 58.) Thus where the facts constituting the fraud had been in the knowledge of the party, and he had laid by for twenty-five years, relief was refused (Blennerhasset v. Day, 2 Ball & B. 118.) But a party who had received money under a misapprehension of his rights was held not bound by it, as in the case of a contract for a disputed title, or the compromise of a litigated right. (Ib. 128.) The filing a bill within twenty years, although there has been some delay in prosecuting it, prevents time operating as a bar. (Cas. temp. Talbot, 63.) The procuring instruments of conveyance and devise to be executed by a person of unsound mind is a fraud within this section of the act. (Lewis v. Thomas, 3 Hare, 26.) mitations Where by the interposition of a court of equity to prevent an act When equity rightfully or wrongfully intended, the defendant has lost a remedy at will prevent law, a court of equity will give him a remedy equivalent to that from Statute of Liwhich the interposition of such court has debarred him. Thus where being used as the Statute of Limitations has run pending an injunction, the court bar. will restrain a debtor from taking advantage of the statute. (Anon., 2 Cas. Ch. 217; Brown v. Newall, 2 M. & Cr. 572.) And a court of equity will supply a defect in any title which has been prejudiced by 3&4 Will.4, an order of the court. If, for instance, an injunction has been conc. 27, s. 26. tinued so long as to deprive a party of his legal remedy, who has a clear right to recover at law, a court of equity would restrain the party who obtained the injunction from pleading the Statute of Limitations. (Fyson v. Pole, 3 Y. & Coll. 273.) So equity will give interest on the arrears of an annuity, (Morgan v. Morgan, 2 Dick. 643; see Grant v. Grant, 3 Sim. 340, see p. 364; 3 Russ. 598, and see p. 607,) where the annuitant, with a term of years and a power of entry and distress, had by means of the injunction been prevented from proceeding with an action of ejectment, which had been commenced for recovery of such arrears. So a party who has been restrained in equity from proceeding at law, while the debt was under the penalty of the bond, will be entitled to the principal and interest beyond the penalty. (Duval v. Terry, Show. P. C. 15, cited in Grant v. Grant, 3 Russ. 607; see O'Donel v. Browne, 1 Ball. & B. 262.) Where a party applies to a court of equity, and carries on an unfounded litigation, protracted under circumstances, and for a length of time, which deprives his adversary of his legal rights, a court of equity will supply and administer, within its own jurisdiction, a substitute for that legal right, of which the party so prosecuting an unfounded claim has deprived his adversary. (Pultney v. Warren, 6 Ves. 73; The East India Company v. Campion, 11 Bligh, 158, 186, 187; see Furnival v. Boyle, 4 Russ. 142; Morgan v. Morgan, 2 Dick. 643; Grant v. Grant, 3 Sim. 863; Sirdefield v. Price, 2 Y. & C. 73; Brown v. Newall, 2 M. & Cr. 572, 573.) In order to prevent the operation of the Statute of Limitations in a court of equity in a matter of simple contract, it was sufficient if the bill was filed within six years after the accruer of the right to sue, although the subpoena was not sued out till after the expiration of that period. (Coppin v. Gray, 1 Y. & Coll. C. C. 205; Purcell v. Blennerhassett, 3 Jones & L. 24.) With reference to the Statute of Limitations, an amended bill will date from the day of the filing of the original bill, and not from the day of the amendment. (Blair v. Ormond, 1 De G. & S. 428; Byron v. Cooper, 11 Cl. & Fin. 556; Plowden v. Thorpe, 7 Cl. & Fin. 164; Attorney General v. Hall, 11 Price, 760.) Although the mere filing of a bill will operate by itself to save the bar of the statute, yet the court will know how to deal with any improper delay, by not giving the benefit of the statute to the plaintiff, if there was anything in his conduct to disentitle him to its assistance. (Forster v. Thompson, 4 Dru. & War. 318; Coppin v. Gray, 1 Yo. & Coll. C. C. 205; Boyd v. Higginson, Flan. & K. 603.) When a defendant is out of the jurisdiction, and the bill prays process against him when he shall come within it, the operation of the Statute of Limitations is suspended, though he has neither been served nor appeared in the suit. (Hele v. Lord Bexley, 20 Beav. 127.) A plaintiff was required to account for the delay of nineteen years in filing his bill, where the circumstances of the parties had changed by deaths; and the foundation of the suit being a legal demand, the court, after such delay, declined to act, unless the demand was established in an action. (Blair v. Ormond, 1 De G. & S. 428.) Where the maker of a note became lunatic, and the plaintiff did not take any active proceedings, it was held, that he was not entitled to be relieved from the effect of the statute. In 1825 the holder of a promissory note brought an action against the maker, who became lunatic; whereupon the lunatic and his committee filed a biil to restrain proceedings in the action, on the ground of alleged insufficiency of consideration for the note; and upon the motion for an injunction, an order was made by consent, staying proceedings in the action and the suit, with liberty for the holder of the note to go in and establish his claim in the lunacy. He accordingly took proceed ings to support his claim before the master in lunacy, who, however, 3 & 4 Will. 4, A petition in lunacy, after the death of the lunatic, by his committee, and a reference to the master thereon, followed by a report finding that a sum of money had been expended by the committee in the maintenance of the lunatic, is not a proceeding which will take the claim of the committee out of the Statute of Limitations, as against the heir at law of the lunatic, who was not a party to the application. (Wilkinson v. Wilkinson, 9 Hare, 204.) An order in lunacy directing the taxation of the costs, charges and expenses incurred by the solicitors employed in prosecuting the commission in lunacy and subsequently as the solicitors of the committees, and directing an inquiry whether it would be fit and proper to raise these costs, &c. by sale or mortgage of the lunatic's real estate, did not constitute them a judgment debt, nor make them a charge in equity upon such real estate, but such costs, &c. were considered as a simple contract debt due by the lunatic for necessaries. The lapse of six years during the lunatic's life will not bar a debt of this description, for the Court of Chancery will take judicial notice in a suit to obtain payment out of his assets after his death, that any action against the lunatic for the recovery of the claim would have been restrained by the lord chancellor on petition in lunacy. An action of debt for necessaries supplied will lie against a lunatic. (Stedman v. Hart, 1 Kay, 607.) Where a claim and an affidavit in support of it were carried into the master's office, under a winding-up order on behalf of a creditor whose debt was not barred at the time by the statute, and a year elapsed without the creditor making any further attempt to establish the debt before the master or to enforce payment of it, and in the meantime six years had elapsed from the time when the debt accrued due: it was held, that the claim ought not to have been disallowed by the master as being barred by the statute. (Wryghte's case, 5 De G. & S. 244; 16 Jur. 812. See S. C., on appeal, 16 Jur. 715; 21 Law J., Chanc., 807, L. J.) A plaintiff brought an action of ejectment against a person in possession, and afterwards filed a bill of discovery in aid of the action, and to restrain the defendant from setting up outstanding terms. By the death of the defendant the suit abated, and the benefit of the action at law became lost. After twenty years' adverse possession, the plaintiff having filed a bill of revivor, a demurrer thereto was allowed, on the ground that no effectual proceeding could now be had at law, and that the discovery and relief sought would therefore be useless. (Bampton v. Birchall, 11 Beav. 38; 1 Phill. C. C. 568.) Where, according to the terms of a deed of trust, no proceedings are to be taken by creditors for the recovery of the debt otherwise than out of appropriated property, the debtor or his representatives cannot, under such circumstances, afterwards set up such abstinence of suit in pursuance of the contract as a bar to the claim of the creditor. A debtor conveyed his life interest in certain property in trust for creditors, parties to the deed, and the creditors, in consideration thereof, granted to the debtor licence to reside and attend to his affairs in any place he might think proper, without suit or molestation of his person or his goods, chattels and effects by any such creditors, and that in case of any suit or molestation by any of such L 3 & 4 Will. 4, creditors, contrary to the true intent and meaning of such licence, c. 27, s. 26. the debtor should be wholly released and acquitted of the debt, and the deed might be pleaded in bar: it was held, that this amounted only to a licence by a creditor to the debtor to live unmolested, and did not operate as a release of the debt or a discharge of the debtor's estate, and that neither a suit by creditors against the trustees and the debtor to enforce the trusts of the deed,- -nor an administration suit by the creditor against the estate of the debtor after his decease, for payment of so much of the debt as the trust property was insufficient to pay, was barred by the trust deed or amounted to an acquittance of the debt; it was held, also, that the existence of the trust deed, and the covenant and licence therein contained, prevented the operation of the Statute of Limitations during the life of the debtor in respect of the debts for the payment of which the trust was created. (O'Brien v. Osborne, 10 Hare, 92; 16 Jur. 960.) Saving the of equity on Acquiescence. XXVII. Provided always, and be it further enacted, jurisdiction that nothing in this act contained shall be deemed to inthe ground of terfere with any rule or jurisdiction of courts of equity in or otherwise, refusing relief, on the ground of acquiescence or otherwise, to any person whose right to bring a suit may not be barred by virtue of this act (s). acquiescence When acquiescence bars relief in equity. (s) If a party, having a right, stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence. (Duke of Leeds v. Earl of Amherst, 2 Phill. C. C. 123.) Parties cannot be said to acquiesce in the claims of others, unless they are fully cognizant of their right to dispute them. (Marker v. Marker, 9 Hare, 16.) Acquiescence may have the same effect as an original agreement, and may bar the right of the party to relief in equity. But to fix acquiescence upon a party, it should unequivocally appear that he knew the fact upon which the supposed acquiescence is founded, and to which it refers. The doctrine of acquiescence does not apply where all the parties are under the influence of a common mistake. (2 Mer. 362.) In the case of a trustee's purchasing the trust property, the question of acquiescence cannot arise until it is previously ascertained that the cestui que trust knew that his trustee had become the purchaser, for while the cestui que trust continues ignorant of that fact there can be no laches in not quarrelling with the sale upon that ground. (Randall v. Errington, 10 Ves. 427, 428; Morse v. Royal, 12 Ves. 335.) Lord Chancellor Eldon said, "It is established by all the cases, that if the cestui que trust joins with the trustees in that which is a breach of trust, knowing the circumstances, such a cestui que trust can never complain of such a breach of trust, and either concurrence in the act, or acquiescence without original concurrence, will release the trustees; but that is only a general rule, and the court must inquire into the circumstances which induced concurrence or acquiescence; recollecting in the conduct of that inquiry, how important it is on the one hand to secure the property of the cestui que trust, and on the other not to deter men from undertaking trusts." (3 Swanst. 64.) All cestuis que trust, who (being of age and under no incapacity) have had full information of the conduct of their trustees, which was liable to objection, and openly or tacitly 3 & 4 Will.4, acquiesced in it during a considerable time, are held to have au- c. 27, s. 27. thorized or adopted such conduct, and precluded themselves from all remedy in that respect. (Brice v. Stokes, 11 Ves. 319; Walker v. Symonds, 3 Swanst. 64; Ryder v. Bickerton, Ib. 83, n.; Underwood v. Stevens, 1 Mer. 712; Trafford v. Boehm, 3 Atk. 444.) Every presumption that can be fairly made will be raised against a stale demand. It may arise from the acts of the parties, or the very forbearance to make the demand affords a presumption either that the claimant is conscious it is satisfied, or intended to relinquish it. (Pickering v. Lord Stamford, 2 Ves. jun. 583.) Acquiescence for nearly fifty years in a mortgage transaction, liable to have been impeached, was held a bar to relief. (Hicks v. Cooke, 4 Dow. 17.) Long acquiescence by a party acquainted with the facts is a bar to equitable relief for setting aside a lease, upon the ground of fraud or mistake, although it might have been otherwise if the parties interested had questioned the lease recently after the transaction. (Selsey v. Rhodes, 2 Sim. & Stu. 41; S. C. 1 Bligh, N. S. 1.) An heir at law has also been held not entitled to an issue devisavit vel non after twenty years' acquiescence in his ancestor's will. (Tucker and others v. Sanger, M'Clel. 424; S. C., 13 Price, 119.) An acquiescence of twenty-three years, with a knowledge of the will, is a good bar to a claim by a residuary legatee against an executor for an account, on the ground of neglect or misfeasance, and that independently of the stat. 3 & 4 Will. 4, c. 27. (Portlock v. Gardner, 11 Law J. (N. S.) Ch. 313.) A testator bequeathed to his widow a pecuniary legacy and a life annuity. She survived him twenty-eight years, and after her death her executrix filed a bill for their recovery. No explanation was given of the circumstances, and no proof of any intermediate payment. The bill was dismissed on the ground of great laches. (Pattison v. Hawkesworth, 10 Beav. 375. See Sibbering v. Earl of Balcarras, 19 Law J., Ch., 252, where the court refused to entertain a suit for setting aside the sale of a reversionary interest after the lapse of several years.) A wife was held to be bound by the declaration of her husband alone, of the uses of a fine levied of her lands after having acquiesced fifteen years from his death. (Swanton v. Raven, 3 Atk. 105.) Where the shareholders of a canal had acquiesced for forty-seven years in an agreement for letting tolls not warranted by an act of parliament, it was held, that it was not competent for the shareholders to impeach such agreement in respect of the public interest. (Gray v. Chaplin, 2 Russ. 126.) Acquiescence will not be held to have taken place, so long as the same circumstances of undue influence on one side, and distress on the other, in which the oppression commenced, continue to operate. (Purcell v. Macnamara, 14 Ves. 106, 121, 122.) Where executors took upon themselves to distribute the personal property of a testator, in thirds, without consulting a legatee, and the shares were paid without her authority, upon her supposition that their construction of the will was right, it was held, that the legatee was not precluded from relief on the discovery of the mistake of the executors. (Newton v. Ayscough, 19 Ves. 539; Brooksbank v. Smith, 2 Y. & C. 59. See Knatchbull v. Fearnhead, 3 My. & Cr. 122.) |