STATUTE OF LIMITATIONS. In the case of a simple contract debt an action must be commenced within six years from the time when the cause of action arose. In the case of a contract under seal the period is twenty years. But since the passing of the Real Property Limitation Act, 1874 (37 and 38 N'ict. c. 57), which came into force on the 1st January, 1879, the remedy of a mortgagee upon the covenant contained in the mortgage, as well as the remedy against the land, is barred after twelve years.
The principal Acts which fix these limits were passed in 1623, 1833, and 1874.
When part payment of a debt is made, or interest is paid thereon, or an acknow ledgment of the debt is given in writing by the debtor, the debt is thereby kept alive and the six years or twenty years then begin to run from the date of the last payment or acknowledgment. For example, if Brown signed in 1909 a promissory note payable on demand in favour of Jones, and neither pays interest nor repays any part of the principal nor gives any further written acknowledgment of the debt for a period of six years, at the end of that time Brown may plead the Statute of 1 imitations and be entirely released from his liability on the note to Jones. But if Brown in, say, the year 1912 repays part of the money owing, the six years will begin again to run from the year 1912, and so on, the six years com mencing afresh at each payment or acknow ledgment. But a payment by a debtor does not keep the debt alive as against a surety.
In the case of an infant or an insane person, no action can be brought personally either by or against either of them until the infant attains his majority or the insane person recovers. If the defendant is beyond
the seas or out of the jurisdiction, when the cause of action arises, the period of six or twenty years begins to run from the date of his return ; but where the defendant goes out of the jurisdiction after the cause of action arises the running of the statute is not affected.
Where there are several debtors (except in the case of a mortgage of land), the debt must be acknowledged by each one in order to it alive against each, and anyone wh ot acknowledged it may plead the stat e.
A debt of a deceased person which is statute barred may legally be paid by his executor, as in an ordinary contract the statute does not bar the right but only the remedy.
Where a loan is granted against security and the debt has become statute barred, the banker is unable to sue the customer for the debt, but the fact of the banker's claim against the debtor personally having been discharged does not affect his claim upon the security, nor does it affect his claim upon any securities or money belonging to the debtor which may come into his possession as a banker after his right to sue the debtor is statute barred.
A defendant must, if he intends to plead the statute, set up a special plea before the hearing of the action or he will not be allowed to advance it against the plaintiff's claim.