cannot, at the day appointed, pay a less sum in satisfaction of the whole, yet if the obligee then receive a part and give his acquittance under seal for the whole, this will be a good discharge, according to the maxim eodem ligamine quo ligatum est dissolvitur.1

Lastly, the maxim which has been here considered has been held to apply in some cases which do not fall within the law of contracts: thus, a donative is a benefice merely given and collated by the patron to a man, without either presentation to, or institution by, the ordinary, or induction by his order. In this case, resignation of the donative by the incumbent must be made to the patron; for a donative begins only by the erection and foundation of the donor, and he has the sole visitation and correction, the ordinary having nothing to do therewith; and, as the incumbent comes in by the patron, so he may restore to him that which he conferred, for unumquodque eodem modo quo colligatum est dissolvitur.2

*VIGILANTIBUS, NON DORMIENTIBUS, JURA SUBVENIUNT. [*692] (2 Inst. 690.)

The laws assist those who are vigilant, not those who sleep over their rights.3 We have already, under the maxim caveat emptor, considered cases illustrative of the proposition that courts of justice require and expect that each party to a contract or bargain shall exercise a due degree of vigilance and caution; we shall, therefore, in the following remarks, confine our attention to the important subject of the limitation of actions, which will serve to exemplify that general policy of the law, in pursuance of which "the using of legal diligence is always favoured, and shall never turn to the disadvantage of the creditor." It may, however, be desirable, in the first place, to give a few instances of this principle, which is one well

153.(*) See, also, Maillard v. Duke of Argyll, 6 Scott, N. R. 938; Baillie v. Moore, 15 L. J., Q. B. 169; per Parke, B., 15 M. & W. 387;(*) Fearne v. Cochrane, 16 L. J., C. P., 161; Price v. Price, 16 M. & W. 232.(*)

1 Co. Litt. 212, b; per Parke, B., 15 M. & W. 34.(*)

2 Per Littledale, J., Rennell v. The Bishop of Lincoln, 7 B. & C. 160; E. C. L. R. 14; (affirmed in Dom. Proc., 8 Bing. 490; E. C. L. R. 21), citing Fairchild v. Gaire, Yelv. 60; S. C., Cro. Jac. 65; 3 Burn. Eccles. Law, 9th ed. 541.

3 See Wing. Max., p. 672; Hobart, R. 347, cited, ante, p. 46.

Ante, p. 605. See, also, the maxim prior tempore potior jure, ante, p. 260.

5 Per Heath, J., Cox v. Morgan, 2 B. & P. 412.

2

known' and of very extensive applicability. Thus, it was held, under the statute 1 Jac. 1, c. 15, s. 14, that, where A. bought goods of a trader who had previously committed an act of bankruptcy, and paid for them bonâ fide, without knowing of the bankruptcy, the assignees, under a commission issued against the seller, could not maintain trover for the goods; for when an act of bankruptcy, has been committed, the creditors should, as soon as possible, sue out a commission; but if they might take away goods afterwards sold by the bankrupt, and paid for, and so obtain both the goods and the money, it would be their interest to postpone their proceedings. *And in The [*693] Case of Bankrupts which was decided shortly after the statute 13 Eliz. c. 7, it was resolved that a commission of bankrupt was matter of record whereof every one may take cognizance, and that the above act was intended to benefit those who would inquire and come in as creditors, and not those who, either out of obstinacy refuse, or through carelessness neglect, to come before the commissioners and pray the benefit of the statute; for vigilantibus, &c.; and, otherwise, a debt might be concealed, or a creditor might absent himself, and so avoid all the proceedings of the commissioners by force of the said act. Further, every creditor may take notice of the commission, being matter of record, and so no inconvenience can happen to any creditor who will be vigilant; but great inconvenience would follow, and the whole effect of the act be overthrown if any other construction were made.3 Again, where the right to claim compensation is given by any act of Parliament, as an inclosure act, which also directs that the claim shall be made within a certain specified time, this right will be forfeited by an omission to assert it within the given time, and in such a case the maxim under consideration has been held forcibly to apply; and without multiplying instances of this rule, we may observe generally, that it ap

1 In 2 B. & P. 412, Heath, J., observes, that this is one of the maxims which we learn on our earliest attendance in Westminster Hall.

2 Cash v. Young, 2 B. & C. 413, 419; E. C. L. R. 9. See Kay v. Goodwin, 6 Bing. 576, 585; E. C. L. R. 19; Payne v. Drewe, 4 East, 523; 6 Geo. 4, c. 16, s. 82. Where a fiat for an extent was granted on the 22d of February, 1832, the Court refused, in Hilary Term, 1834, to grant a rule that an extent might issue, tested of the date of the fiat, observing that the general rule applied to such a case, even against the crown: Rex v. Maberley, 2 Cr. & M. 537.(*)

32 Rep. 26. See Sowerby v. Brooks (in error), 4 B. & Ald. 523;(*) and the stats. 6 Geo. 4, c. 16, s. 95, and 2 & 3 Vict. c. 29.

* Doe d. Watson v. Jefferson, 2 Bing. 118, 125; E. C. L. R. 9.

plies whenever a party debars himself *of a legal right or remedy by his own negligence or laches.'

113

[*694]

Relative to the doctrine of limitation of actions, Mr. Justice Story has observed, "It has often been matter of regret in modern times that in the construction of the Statute of Limitations, the decisions had not proceeded upon principles better adapted to carry into effect the real objects of the statute; that, instead of being viewed in an unfavourable light as an unjust and discreditable defence, it had not received such support as would have made it what it was intended to be, emphatically a statute of repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of the transaction may have been forgotten, or be incapable of explanation by reason of the death or removal of witnesses. Sir Wm. Blackstone also remarks, that, in all possessory actions, there is a time of limitation settled, beyond which no man shall avail himself of the possession of himself or his ancestors, or take advantage of the wrongful possession of his adversary; for, if he be negligent for a long and unreasonable time, the law refuses afterwards to lend him any assistance to recover the possession, both with a view to punish his neglect, nam leges vigilantibus, non dormientibus, subveniunt, and also because it is presumed that the supposed wrong-doer has in such a length of time procured a legal title, otherwise he would *sooner have been sued. It is proposed accordingly to refer [*695] very briefly to those statutes respecting the limitation of actions which are of practical importance at the present day. Under statute 21 Jac. 1, c. 16, s. 1, the plaintiff in ejectment must have proved either actual possession or a right of entry within twenty years, or have accounted for the want of it; for, by force of that statute, an uninterrupted adverse possession for that period operated

I See Camidge v. Allenby, 3 B. & C. 373; E. C. L. R. 10; Robson v. Oliver, 16 L. J., Q. B. 437. This maxim also applies forcibly with reference to the conduct of a petitioner for a divorce bill. See Martin's Divorce, 1 Ho. L. Cas. 79, and cases cited, Id. 80, note.

2 Which may also be referred to the maxim, interest reipublicæ ut sit finis litium ; 3 Bla. Com. 308; ante, p. 244.

3 Bell v. Morrison, 1 Peters, R. (U. S.) 360.

43 Bla. Com. 188. As to the doctrine of Prescription in the Roman Law, see Mackeld, Civ. Law, 290. Usucapio constituta est ut aliquis litium finis esset, D. 41, 10, 5; Wood, Civ. Law, 3d ed. 123.

5 Respecting the doctrine of adverse possession before the stat. 3 & 4 Will. 4, c. 27, see Taylor d. Atkyns v. Horde, 1 Burr. 60. And as to the same doctrine since that statute, see Nepean v. Doe (in error), 2 M. & W. 894; (*) and also the note to

as a complete bar except in those cases of disability which fell within section 2, viz. infancy, coverture, unsoundness of mind, imprisonment, and absence beyond seas, in which cases the party who was suffering under the disability at the time when the right of entry first accrued was allowed to bring his action at any time within ten years after its removal; and now, by statute 3 & 4 Will. 4, c. 27, s. 2, no person shall make an entry or distress, or bring an action to recover any land or rent,' but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims; or, if such right shall not have accrued to any person through whom he claims, then within twenty years *next after [*696] the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same. By section 16 of the same act, it is provided, that persons under disability of infancy, lunacy, or coverture, or beyond seas, and their representatives, shall be allowed ten years from the termination of their disability or death; provided, nevertheless,* that no action shall be brought beyond forty years after the right of action accrued.

3

Again, by statute 3 & 4 Will. 4, c. 42, s. 3, it is enacted, that all actions of debt for rent upon an indenture of demise, all actions of covenants these cases, 2 Smith, L. C. 396 et seq. The latter case decides that the doctrine of non-adverse possession is done away with by the above act.

1 As to an annuity being barred under this act, see James v. Salter, 3 Bing., N. C. 544, 552; E. C. L. R. 32. As to tithes, see Dean and Chapter of Ely v. Cash, 15 M. & W. 617.(*)

2 Section 3 declares when the right shall be deemed first to have accrued; as to which, see 2 Selw., N. P., 10th ed. 733 et seq.; Doe d. Davy v. Oxenham, 7 M. & W. 181.(*)

3 The stat. 3 & 4 Will. 4, c. 27, s. 2, does not apply to rent reserved on a demise: Grant v. Ellis, 9 M. & W. 113. (*) As to barring a term to attend the inheritance, under 3 & 4 Will. 4, c. 27, ss. 2, 3, see Doe d. Jacobs v. Phillips, 16 L. J., Q. B. 269.

4 Sect. 17. As to sect. 7 of this act, see Doe d. Dayman v. Moore, 15 L. J., Q. B. 324. As to section 8, see Doe d. Earl Spencer v. Beckett, 4 Q. B. 601; E. C. L. R. 45; Doe v. Sumner, 14 M. & W. 39. (*) As to sections 9 and 15, see Doe d. Angell v. Angell, 15 L. J., Q. B. 193. As to section 14, see Doe d. Groves v. Groves, 16 L. J., Q. B. 297. As to 3 & 4 Will. 4, c. 27, s. 5, and 8 & 9 Vict. c. 112, see Doe d. Hall v. Moulsdale, 16 L. J., Exch. 169.

5 See Kent v. Gibbons, 16 L. J., Q. B. 120. Covenant for rent in arrear may be brought within the time prescribed by this section, and is not limited to six years by 3 & 4 Will. 4, c. 27, s. 42. (Paget v. Foley, 2 Bing., N. C. 679; E. C. L. R. 29; admitted, argument, Hartshorne v. Watson, 4 Bing., N. C. 182; E. C. L. R. 33;

or debt upon any bond' or other specialty, and all actions of debt or sci. fa.2 upon any recognisance, and also all actions of debt upon any award where the submission is not by specialty, or for any fine due in respect of any copyhold estate, or for an *escape, or for money levied on any fi. fa., and all actions for [*697] penalties, damages, or sums of money given to the party grieved by any statute then or thereafter to be in force, that shall be sued or brought at any time after the end of the then session of Parliament, shall be commenced and sued within the time and limitation following; (that is to say), the said actions of debt for rent upon an indenture of demise, or covenant or debt upon any bond or other specialty, or actions of debt or sci. fa. upon recognisances, within ten years after the end of the then session of Parliament, or within twenty years after the cause of such actions or suits, but not after; the said actions by the party grieved, one year3 after the end of the then session, or within two years after the cause of such actions or suits, but not after; and the said other actions, within three years after the end of the then session, or within six years after the cause of such actions or suits, but not after. It is, however, further provided, that nothing in this act shall extend to any action given by any statute, where the time for bringing such action is or shall be by any statute specially limited.

By section 4 of the same statute, it is further enacted, that, if any person, entitled to any such action or suit as above mentioned, shall, at the time of such cause of action accruing, be within the age of twenty-one years, feme covert, non compos mentis, or beyond the seas, then such person shall be at liberty to bring the same, provided it be commenced within the specified time after coming to, or being of full age, discovert, of sound memory, or returned from beyond the seas; and a provision is inserted in the same section, which applies to the case of a defendant similarly circumstanced.

*The doctrine of limitation in the case of simple contracts

is founded upon a presumption of payment or release arising [*698]

recognised, 12 Ad. & E. 558; E. C. L. R. 40.) As to a bond for the payment of an annuity, see Sims v. Thomas and Strachan v. Thomas, 12 Ad. & E. 536; E. C. L. R. 40.

1 See Tuckey v. Hawkins, 16 L. J., C. P. 201; Sanders v. Coward, 13 M. & W. 65;(*) and 15 M. & W. 48.(*)

2 A scire facias on a judgment is not a mere continuation of a former suit, but creates a new right: Farrell v. Gleeson, 11 Cl. & Fin. 702, where the defendant pleaded under stat. 3 & 4 Will. 4, c. 27, s. 40.

3 See stat. 21 Jac. 1, c. 4, s. 1.