exception whenever it occurs to the general law expressed in the maxim Ubi jus 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.

Statutes of

1. Under the first head we have to notice the operation of 1. Remedy the Statutes of Limitation, so far as it illustrates the present lostsubject (). The statute of limitation of James I. (21 Jac. 1, Limitac. 16, s. 3) enacts that the actions therein enumerated-which, tion. with an exception since repealed, comprise all actions on simple contracts (c)" shall be commenced and sued" within six years after the cause of action, and not after.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 satisfaction after the lapse of twenty years which already obtained in practice (e), it is enacted that (inter alia) all actions of covenant or debt upon any bond or other specialty "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

(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. 153.

(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 on

this point.
But an infant's con-
tract is in its inception not of
imperfect obligation, but simply
voidable.

(c) As to the extent to which
the statute applies to suits in equity
see Knox v. Gye, L. R. 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 12 years: 37 & 38 Vict. c. 57, ss. 1, 8.

(e) Bac. Abr. 5. 226 (Limitation D. 1); Roddam v. Morley, 1 De G. & J. 17.

The right not gone.

Results.

Incidental rights of creditor preserved.

under what condition the laws under considerations apply, when that is abundantly done in other treatises, but to observe the general results which follow when they do apply.

Now there is nothing in these statutes to extinguish an 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" (a). 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 debt after the loss of the remedy by action may have other important effects. Although the creditor cannot enforce payment by direct process of law, he is not the less entitled to use any other means of obtaining it which 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 (b). And any lien or express security he may have for the particular debt remains valid (c).

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 (d): much more is he entitled to keep the

(a) 2 Wms.. Saund. 163; cp. Scarpellini v. Atcheson, 7 Q. B. at p. 878, 14 L. J. Q. B. at p. 338, on the technical effect of a plea of the statute. It is presumed that the rule will continue under the new practice.

(b) Spears v. Hartly, 3 Esp. 81.

(e) Higgins v. Scott, 2 B. & Ad. 413; Seager v. Aston, 26 L. J. Ch. 809 (on the statute of 3 & 4 Wm. 4).

(d) Mills v. Fowkes, 5 Bing. N. C. 455, Nash v. Hodgson, 6 D. M. G. 474.

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 (a). 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 (b): and this even if the personal estate is'
insufficient (c). 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 (i.e. if the defence of
set-off be specially met by replying the statute of limitation,
see 1 Wms. Saund. 431): 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.
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 jus gentium.

This reason

1

Again, the creditor's lost remedy may be revived by the act of Acknowthe debtor. The decisions on the statute of James I. have ledgment by debtor. 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 (d). The rule may be 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 (e). But in the case of a barred

(a) Courtenay v. Williams, 3 Ha. 539, cp. Rose v. Gould, 15 Beav. 189. (b) Hill v. Walker, 4 K. & J. 166, Stahlschmidt v. Lett, 1 Sm. & G. 415.

(c) Lowis v. Rumney, 4 Eq. 451.

() 2 Wms. Saund. 183, 184.

(e) Hopkins v. Logan, 5 M. & W. 24; for another instance see Deacon v. Gridley, 15 C. B. 295, 24 L. J. C. P. 17.

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 (a).

What is The modern law has been concisely stated by Mellish, L.J. sufficient. "There must be one of three things to take the case out of the statute. Either there must be an acknowledgment 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 " (b). When the promise is implied, it must be as an inference of fact, not of law; the payment of interest under compulsion of law does not imply any promise to pay the principal (c).

Statutory

for ac

ment of

The acknowledgment or promise, if express, must be in writing and signed by the debtor (9 Geo. 4, c. 14, s. 1) or his agent duly authorized (Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c. 97, s. 13). But an acknowledgment may still be implied from the payment of interest, or of part of the principal on account of the whole, without any admission in writing (d).

The more recent statute limiting the time for suing on conprovision tracts by specialty contains an express proviso as to acknowknowledg ledgment and part payment (3 & 4 Wm. 4, c. 42, s. 5) (e). 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

specialty

debts.

(a) Bateman v. Pinder, 3 Q. B. 574, 11 L. J. Q. B. 281.

(b) Mitchell's claim, 6 Ch. at p. 828. And see Wilby v. Elgce, L. R. 10 C. P. 497; Chasemore v. Turner, (Ex. Ch.) L. R. 10 Q. B. 500, 506, 510, 520, which also shows how much difficulty there may be in determining in a particular case whether there

has been an unconditional promise. (c) Morgan v. Rowlands, L. R. 7 Q. B. 493, 498.

(d) 2 Wms. Saund. 181, 187, see also the notes to Whitcomb v. Whi ting, 1 Sm. L. C. 574, sqq.

(e) See Leake on Contracts, 542; Pears v. Laing, 12 Eq. 41.

to be operative must be founded on the original obligation alone (a).

Limitation

as to Real

The Act for the Limitation of Actions and Suits relating to Stat. of Real Property (3 & 4 Wm. 4, c. 27) does not only bar the remedy, but extinguishes the right at the end of the period of Property : limitation (s. 34, see Dart V. & P. 370). It is therefore unconnected with our present subject.

right as well as remedy taken

are statutes of

limitation, the and Hence analogous foreign

part of

We have seen that by the operation of the statutes away. of limitation applicable to contracts the right itself is English not destroyed, but only the conditions of enforcing it affected. The law of limitation is a law relating not to substance of the cause of action, but to procedure. follows a consequence which is important in private interna- laws tional law, namely that these enactments belong to the lex fori, affecting the remedy not to the lex contractus, and are binding on all persons who only, seek their remedy in the courts of this country. A suitor in an treated as English court must sue within the time limited by the English lex fori, statute, though the cause of action may have arisen in a country where a longer time is allowed (b). Conversely, an action brought in an English court within the English period of limitation is maintainable although a shorter period limited by the law of the place where the contract was made has elapsed, even if a competent court of that place has given judgment in favour of the defendant on the ground of such period having expired (c).

The House of Lords, as a Scotch court of appeal, has had to decide a similar question as between the law of Scotland and the law of France. It was held that the Scottish law of prescription applied to an action brought in Scotland on a bill of exchange drawn and accepted in France, the right of action on which in France had been saved by judicial proceedings there (d). In the case where the shorter of the two periods of limitation is that allowed by the foreign law governing the substance of the

(a) Roddam v. Morley, 1 De G. & J. 1, opinion of Williams and Crowder, JJ. at p. 15.

(b) British Linen Co. v. Drummond, 10 B. & C. 903.

(c) Huber v. Steiner, 2 Bing. N.C. 202 (debt barred by French law); Harris v. Quine, L. R. 4 Q. B. 653 (debt barred by Manx law): in the

latter case Cockburn, C. J. expressed
some doubt as to the principle, ad-
mitting however that the rule was
settled by authority: Savigny too
(Syst. 8. 273) is for applying that
law which governs the substance of
the contract.

(d) Don v. Lippmann, 5 Cl. & F. 1.
See also 2 Wms. Saund, 399,