CH. II. Same rules applicable as under of James. CHAPTER II. WHEN THE TIME BEGINS TO RUN. PART II. THE point from which the time limited by 3 & 4 Wm. IV. c. 42 is to be calculated is the same as that fixed by the statute of James I. with respect to actions thereby limited, namely, the accrual of "the cause of action or suit," the statute and the same rules must therefore be applied to ascertain the commencement of the time in each particular case under both statutes (1). Thus in the case of a covenant or a bond the time runs, not from the date of the instrument, but from the breach of the covenant or of the condition of the bond; for instance, in the case of a post obit bond, the time does not begin to run till the death occurs upon which the money becomes payable (2). Where a surety covenanted jointly with the mortgagor and also separately to pay on demand the mortgage debt with interest, Chitty, J., held that in the case of the surety a demand was necessary, and that time did not run in his favour till after demand made (3). Where there are successive breaches, as, for instance, in the case of non-payment of an annuity secured by bond or covenant, a fresh cause of action arises upon each breach, so that time may be a bar to the remedy on earlier breaches without affecting the remedy See Part I. Chap. II. (2) Tuckey v. Hawkins, 4 C. B. 655; Barber v. Shore, 1 Jebb & S. 610; Gilman v. Chute, 11 Ir. L. R. 442; Kennedy v. Whaley, 12 Ir. L. R. 54. (3) In re Brown. Brown v. Brown, 37 Sol. Jo. 354. CH. II. on subsequent ones (1); and where the breach is a con- PART II. tinuing breach, a fresh cause of action arises at every moment of the time during which the breach continues (2). Where, therefore, a tenant covenants to keep premises in repair and neglects to do so, the lessor will have a right of action on which the statute is not operating as long as the premises continue out of repair, however long that period may be; and this will be the case even though the original breach is the entire destruction of the premises the subject-matter of the covenant, so that the lessor thereupon becomes entitled to recover damages for the total amount of injury sustainable by the breach of the covenant (3). When on the sale of property the vendor covenants that he has a good title to transfer, while in fact he has not a good title, there is a breach of such covenant at the time of the sale; and there is no fresh or continuing breach when the purchaser is damaged by the title proving to be defective, or while he holds the property under such defective title (4). When transferors of shares were, under the company's deed of settlement, released from all liabilities subsequently to the transfer, but remained liable for their proportion of losses sustained by the company up to the time of transfer, it was contended that time began to run from the date of the winding-up order on the ground that no loss, had been previously ascertained, and that therefore no liability to contribute had before arisen ; but it was held that time began to run from the date of the transfer (5). (1) Sanders v. Coward, 15 M. & W. 48; Amott v. Holden, 18 Q. B. 593. And see Manning v. Phelps, 10 Ex. 59; Blair v. Ormond, 17 Q. B. 423. (2) Maddock v. Mallett, 12 Ir. C. L. R. 173; in error, 193, ib. ; Spoor v. Green, L. R. 9 Exch. 99; 43 L. J. Exch. 57. (3) Maddock v. Mallett, 12 Ir. C. L. R. 173; in error, 193, ib.; Morrogh v. Alleyne, 7 Ir. R. Eq. 487. (4) Spoor v. Green, L. R. 9 Exch. 99; 43 L. J. Exch. 57. (5) Re Portsmouth Banking Co., Helby's, Stokes', and Horsey's Cases, L. R. 2 Eq. 167. PART II. 3&4 W. IV. The 6th section of 3 & 4 Wm. IV. c. 42 (1) provides that "if in any of the said actions judgment be given for the plaintiff, and the same be reversed in error, or a c. 42, s. 6. verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff that he take nothing by his plaint, writ or bill ... then in all such cases the party plaintiff, his executors or administrators, as the case shall require, may commence a new action or suit from time to time within a year after such judgment reversed or such judgment given against the plaintiff . . . and not after." The equitable construction put upon the corresponding section of the statute of James (2) has been extended to this section. Thus where an action on a bond abated with the death of the defendant, and no personal representative was appointed for twenty years, it was held that a fresh action on the bond might be maintained against the administrator if commenced within a reasonable time after his appointment (3). And although now (4) an action does not abate by the death either of plaintiff or defendant, if the cause of action survives, yet a fresh action can still be commenced after the death of a plaintiff or defendant by or against his personal representatives, and it is not necessary (5) to resort to the remedies provided by R. S. C., 1883, O. XVII. (1) See 51 & 52 Vict. c. 57 (2) 21 Jac. I. c. 16, s. 4. (3) Sturgis v. Darell, 4 H. & N. 622; 28 L. J. Exch. 366; 6 H. & N. 120; 29 L. J. Exch. 472. See ante, p. 51. (4) R. S. C. 1883, O. XVII. (5) Swindell v. Bulkeley, 18 Q. B. D. 250. 149) CHAPTER III. DISABILITY. PART II CH. III. 3&4 W. IV. It is enacted by sect. 4 of 3 & 4 Wm. IV. c. 42 as follows:"If any person or persons that is or are or shall be entitled to any such action or suit, or to such scire facias is or are or shall be at the time of any such cause of c. 42, s. 4. action accrued within the age of twenty-one years, feme covert, non compos mentis, or beyond the seas, then such person or persons shall be at liberty to bring the same actions, so as they commence the same within such times after their coming to or being of full age, discovert, of sound memory, or returned from beyond the seas, as other persons having no such impediment should, aecording to the provisions of this Act, have done; and if any person or persons against whom there shall be any such cause of action is or are or shall be at the time such cause of action accrued beyond the seas, then the person or persons entitled to any such cause of action shall be at liberty to bring the same against such person or persons, within such times as are before limited, after the return of such person or persons from beyond the seas." On comparing this section with the 7th section of the statute of 21 James I. c. 16, and the 19th section of 4 & 5 Anne, c. 3 (1), it appears that it provides for the same cases of disability as those two sections, except that no allowance is made for the imprisonment No saving of the person entitled to the action; this allowance (1) Also called c. 16. for imprisonment of plaintiff. CH. III. Same rules applicable as under the statute of James. PART II. under the statute of James, as well as the allowance under both the statute of James and 3 & 4 Wm. IV. c. 42 for absence beyond seas of the person entitled to the action, has, as seen above, been taken away by the Mercantile Law Amendment Act (1), so that the law with respect to disabilities stands on the same footing with regard to the classes of actions comprised in both the statutes; and the principles laid down in a former chapter (2) respecting the disabilities under the statute of James apply equally to disabilities under the statute of 3 & 4 Wm. IV. c. 42. It will therefore be sufficient to recapitulate, without discussion, the conclusions arrived at in that chapter. These are as follows:(a) The plaintiff during the disability can none the less bring his action. (b) The plaintiff's ignorance of the defendant's return from beyond seas does not prevent the time running. (c) The provision made for the person liable being beyond seas applies to the case of a foreigner who has never been in England, and also (d) to the case of cause of action arising abroad even between two foreigners, although the remedy may be barred in the country where the cause of action arose, provided the liability be not actually extinguished by the law of that country. (e) In the event of one of several persons entitled to an action being under disability, and it being impossible for the rest to sue in his name, time would probably be held not to run against any until the disability had ceased. (f) By the 11th section of the Mercantile Law Amendment Act the absence beyond seas of one of several co-debtors does not prevent the time running in favour of the others; but (g) where the cause of action is not a debt it would seem that until the return of the party liable from beyond seas, time would not run in favour of the other (1) See p. 55. |