tion. by which the authority of a competent court can be set in motion to enforce the right. Where there is an imperfect obligation, there is a right without a remedy. This is an abnormal state of things, making an exception whenever it occurs to the general law expressed in the maxim Ubi ius ibi remedium. And it can be produced only by the operation of some special rule of positive law (a). Such rules may operate in the following ways to produce an imperfect obligation : 1. By way of condition subsequent, taking away a remedy which once existed. 2. By imposing special conditions as precedent to the existence of the remedy. 3. By excluding any remedy altogether. We shall now endeavour to show what are the effects of an imperfect obligation in these three classes of cases. 1. Remedy 1. Under the first head we have to notice the operation lostStatutes of of the Statutes of Limitation, so far as it illustrates the Limita- present subject (b). The statute of limitation of James I. (21 Jac. 1, c. 16, s. 3) enacts that the actions therein enumerated-which, with an exception since repealed, comprise all actions on simple contracts (c)—" shall be commenced and sued" within six years after the cause of action, and not after. By the modern statute 3 & 4 Wm. 4, c. 42, s. 3 (d), following the presumption of satis (a) It was once held that a purely moral obligation might give rise to an inchoate right which could be made binding and enforceable by an express promise. And if this were so the statement in the text would not be correct: but the modern authorities disallow such a doctrine. See 2 Wms. Saund. 428; supra, p. 186. (b) Debts contracted by an infant are often compared to debts barred by the statutes of limitation: and the comparison is just to this extent, that at common law they might be rendered enforceable in much the same manner, and practically the authorities are interchangeable en this point. But an infant's contract is in its inception not of imperfect obligation, but simply voidable. (c) As to the extent to which the statute applies to proceedings in equity see Knox v. Gye, L. B. 5 H. L. 656. (d) This section is not affected by the Real Property Limitation Act, 1874, except that proceedings to recover rent or money charged on land will have to be taken within twelve years: 37 & 38 Vict. c. 57, ss. 1, 8. faction after the lapse of twenty years which already obtained in practice (a), it is enacted that (inter alia) all actions of covenant or debt upon any bond or other speciality "shall be commenced and sued" within twenty years of the cause of action. We need not stop to consider the exceptions for disability, or the rules as to the time from which the statutes begin to run: for the object throughout this chapter will not be to define to what cases and under what conditions the laws under consideration apply, when that is abundantly done in other treatises, but to observe the general results which follow when they do apply. not gone. Now there is nothing in these statutes to extinguish an The right obligation once created. The party who neglects to enforce his right by action cannot insist upon so enforcing it after a certain time. But the right itself is not gone. It is not correct even to say without qualification that there is no right to sue, for the protection given by the statutes is of no avail to a defendant unless he expressly claims it. Serjeant Williams, after noticing the earlier conflicts of opinion on this point, and some unsatisfactory reasons given at different times for the rule which has prevailed, concludes the true reason to be that the Statute of Limitations admits the cause or consideration of the action still existing, and merely discharges the defendant from the remedy" (b). This alone shows that an imperfect obligation subsists between the parties after the time of limitation has run out. In the case of unliquidated demands that obligation is practically inoperative, since an unliquidated demand cannot be rendered certain except by action or an express agreement founded on the relinquishment of an existing remedy. But in the case of a liquidated debt the continued existence of the (a) Bac. Abr. 5. 226 (Limitation D. 1); Roddam v. Morley, 1 De G. & J. 17. (b) 2 Wms. Saund. 163; cp. Scarpellini v. Atcheson, 7 Q. B. at p. 878, 14 L. J. Q. B. at p. 338, on Results. debt after the loss of the remedy by action may have other important effects. Although the creditor cannot Incidental enforce payment by direct process of law, he is not the rights of creditor less entitled to use any other means of obtaining it which preserved. he might lawfully have used before. Thus if he has a lien on goods of the debtor for a general account, he may hold the goods for a debt barred by the statute (a). And any lien or express security he may have for the particular debt remains valid (b). If the debtor pays money to him without directing appropriation of it to any particular debt, he may appropriate it to satisfy a debt of this kind (c): much more is he entitled to keep the money if the debtor pays it on account of the particular debt, but not knowing, whether by ignorance of fact or of law, that the creditor has lost his remedy. So an executor may retain out of a legacy a barred debt owing from the legatee to the testator (d). He may also retain out of the estate such a debt due from the testator to himself: and he may pay the testator's barred debts to other persons (e): and this even if the personal estate is insufficient (ƒ). But though a creditor may retain a barred debt if he can, he may not resist another claim of the debtor against him by a set-off of the barred debt: for the right of set-off is statutory, and introduced merely to prevent cross actions, so that a claim pleaded by way of set-off is subject to be defeated in any way in which it could be defeated if made. by action (g). This reason applies equally to all other cases of imperfect obligations. Herein our law differs from the Roman, in which compensatio did not depend on any positive enactment, but was an equitable right derived from the ius gentium. (a) Spears v. Hartly, 3 Esp. 81. (c) Mills v. Fowkes, 5 Bing. N. C. (d) Courtenay v. Williams, 3 Ha. 539; cp. Rose v. Gould, 15 Beav. 189. (e) Hill v. Walker, 4 K. & J. 166, Stahlschmidt v. Lett, 1 Sm. & G. 415. (f) Lowis v. Rumney, 4 Eq. 451. (g) The defence of set-off must be specially met by replying the statute of limitation, see 1 Wms. Saund. 431. ledgment by debtor. Again, the creditor's lost remedy may be revived by the Acknow act of the debtor. The decisions on the statute of James I. have established that a renewed promise to pay, or an acknowledgment from which a promise can be inferred, excludes the operation of the statute. It was formerly held that the statute rested wholly on a presumption of payment, and therefore that any acknowledgment of the debt being unpaid, even though coupled with a refusal to pay, was sufficient. But this opinion has long since been overruled (a). The rule has been explained thus. It is settled law that a state of facts on which there is an existing and complete legal liability is of itself no ground for a fresh promise to satisfy the same liability: thus an express promise to pay the sum due on an account stated creates no new cause of action, there being already in contemplation of law a promise to pay on request (b). But in the case of a barred debt this reason for a new promise being inoperative does not exist: the original remedy is gone, while the original consideration remains as a sufficient foundation for a subsequent promise. Since the acknowledgment operates, according to the modern view, as a new promise, it is not effectual unless made before the commencement of the action (c). sufficient acknow The modern law has been concisely ssated by Mellish, What is L.J.: "There must be one of three things to take the case out of the statute. Either there must be an acknowledgment. ledgment of the debt, from which a promise to pay is to be implied; or secondly, there must be an unconditional promise to pay the debt; or thirdly, there must be a conditional promise to pay the debt, and evidence that the condition has been performed" (d). The promise must be (a) 2 Wms. Saund. 183, 184. (b) Hopkins v. Logan, 5 M. & W. 24; for another instance see Deacon v. Gridley, 15 C. B. 295, 24 L. J. C. P. 17. (c) Bateman v. Pinder, 3 Q. B. 574, 11 L. J. Q. B. 281. But the explanation is not satisfying, since the consideration for the new promise is wholly past, and therefore insuffi- (d) Mitchell's claim, 6 Ch. at p. Statutory provision for ac ment of debts. to pay The acknowledgment or promise, if express, must be in The more recent statute which limits the time for suing on contracts by specialty contains an express proviso as to knowledg- acknowledgment and part payment (3 & 4 Wm. 4, c. 42, specialty s. 5) (d). The cases as to acknowledgment, &c. under the statute of James, and Lord Tenterden's Act, are not applicable to this proviso. Here the operation of the acknowledgment is independent of any new promise to pay, and the action in which the acknowledgment is to be operative must be founded on the original obligation alone (e). Stat. of The Act for the Limitation of Actions and Suits relating as to real to Real Property (3 & 4 Wm. 4, c. 27) does not only bar property: the remedy, but extinguishes the right at the end of the period of limitation: (s. 34, see Dart V. & P. 402). It is therefore unconnected with our present subject. right as well as remedy taken away. statutes of We have seen that by the operation of the statutes of English limitation applicable to contracts the right itself is not limitation, destroyed, but only the conditions of enforcing it are analogous affected. The law of limitation is a law relating not to the and |