CH. I.

PART I. standing the statute (1). The executor has no right to retain a specific legacy as against a debt due from the legatee (2). An administrator is entitled to set off against the share of one of the next of kin in the intestate's estate the whole of a debt to the estate, part of which is statute-barred (3). An executor can retain out of a lapsed share of personalty which has come to one of the next of kin a statute-barred debt due to the testator's estate, but he has no power to retain such a debt out of a lapsed share of realty which has come to the heir, even though such realty has been devised to the executor for the purpose of conversion (4).

Set-off.

Crown not bound by

statute.

A creditor whose debt was statute-barred has been allowed to take out administration to his intestate debtor, but in that case the Court required that the administration bond should contain an obligation that the administrator would distribute the assets rateably without any preference of his own debt (5).

The statutes (6) allowing the set-off of mutual debts were subsequent to the statute of James, but the Courts have determined that set-off is within the equity of the statute, and a plaintiff can take advantage of the statute if he replies it to a defence of set-off in the same manner as a defendant pleads it in a defence (7).

The Crown is not affected by the statute of James, and therefore if a debt not barred by statute is vested in the Crown, it will never be barred as against the

(1) Courtenay v. Williams, 3 Hare, 539; 15 L. J. Ch. 204. See Smith v. Smith and Jeavons, 7 Jur. N. S. 1140; 3 Giff. 263; Coates v. Coates, 33 Beav. 249; 33 L. J. Ch. 448; In re Akerman. Akerman v. Akerman (1891), 3 Ch. 212.

(2) In re Akerman. Akerman v. Akerman (1891), 3 Ch. 212.
(3) In re Cordwell's Estate.

644.

White v. Cirdwell, L. R. 20 Eq.

(4) In re Milnes. Milnes v. Sherwin, 53 L. T. 534.

(5) Coombs v. Coombs, L. R. 1 P. & D. 288.

(6) 2 Geo. 11. c. 22, s. 13; 8 Geo. II. c. 24, s. 4. See now R. S. C. 1883, O. XIX., r. 3; R. S. C. Ir. 1891, O. XIX. r. 3.

(7) Remington v. Stevens, 2 Strange, 1271; Rawley v. Rawley, 1 Q. B. D. 460.

Crown, but a debt already barred will not be revived by PART I. becoming vested in the Crown (1).

CH. I.

begins

When the time has once begun to run, it will continue If time to do so, even should subsequent events occur which running, it render it an impossibility that an action should be continues. brought. This rule holds good alike of all the Statutes of Limitations (2). It was even decided in Prideaux v. Webber (3) that a plaintiff was barred by the statute, although during the latter part of the six years the Courts were closed in consequence of the rebellion. One exception has been grafted on this rule-namely, where Exception. the administration of the estate of a person liable to be sued has been granted to the person in whom the right of action is vested; this, being an act of law, suspends the remedy, and therefore the operation of the statute (4).

(1) Lambert v. Taylor, 4 B. & C. 138. See post, Part VII. Ch. I. (2) Homfray v. Scroope, 13 Q. B. 509, 512; Hill v. Smith, 1 Wils. 134; Doe d. Duroure v. Jones, 4 T. R. 300; Rhodes v. Smethurst, 4 M. & W. 42; Howlett v. Lambert, 2 Ir. Eq. R. 254. See Skeffington v. Whitehurst, 3 Y. & C. Exch. 34, 35; Doe v. Shane, 4 T. R. 306 n. b; Stowel v. Zouch, Plowd. 366; Cotterell v. Dutton, 4 Taunt. 826; Gray v. Mendez, 1 Strange, 556; Wilcox v. Huggins, 1 Barnardiston, 335, 2 do. 5; Copley v. Dorkmincque, 2 Lev. 166.

(3) 1 Lev. 31; and see 17 Ves. 93, and Bynton's Cuse cited in Hall v. Wybourn, 2 Salk. 420.

(4) Seagram v. Knight, L. R. 2 Ch. 628.

PART I.

CH. II.

When the

time begins to

run.

Breach of executory promises.

CHAPTER II.

WHEN THE TIME BEGINS TO RUN.

THE statute of James requires an action to be brought
" within so many "years after the cause of action or
suit," except in the case of slander, where the action
must be brought "within two years after the words
spoken." For the purpose, therefore, of ascertaining the
time when the statute begins to run, we must consider
when the cause of action arises in each case.
In assump-
sit upon an executory promise, the cause of action is the
breach and not the promise (1). If, therefore, the
promise is to do anything at a future time, or upon the
happening of a contingency, the cause of action arises at
the time specified or upon the event happening (2).
Thus a promise being to pay a debt, "whensoever my
circumstances enable me to do so, and I may be called
on for that purpose," it was held that no demand was
necessary, and that the statute ran from the time of the
debtor being able to pay, although the plaintiff had
made no demand, and had no knowledge or notice of the
defendant's ability (3). So in the case of a promise to
do anything upon request, the time runs from the
request (4), except where the request is immaterial, as in

(1) Gould v. Johnson, 2 Salk. 422; 2 Ld. Raym. 838; East India Co. v. Paul, 7 Moore P. C. C. 85.

(2) Fenton v. Emblers, 3 Burr. 1278; S. C. 1 Wm. Bl. 353; Waters v. Earl Thanet, 2 Q. B. 757; Hammond v. Smith, 33 Beav. 452. (3) Waters v. Earl Thanet, 2 Q. B. 757.

(4) Webb v. Martin, 1 Lev. 48; Shutford v. Borough, Godbolt, 437; S. C. Shutford v. Penow, Cro. Car. 139; Bill v. Luke, Hetley,

CH. II.

lent.

the case of a promise to pay a debt on demand (1). PART I. Where the plaintiff having agreed to lend the defendant a sum of money sent to him on the 14th June a cheque Money payable to the defendant's order, and through the defendant's mistake the cheque was presented at the plaintiff's bank without being endorsed, and in consequence was not paid by the plaintiff's bankers till the 21st June, it was held that an action commenced on the 21st June six years afterwards was in time, as the loan was made not on the day when the cheque was handed over, but on the day when the money was paid (2). If a sub-tenant voluntarily pays to the head landlord rent due by the landlord of the sub-tenant, the sub-tenant's right to recover from the mesne landlord the sum so paid does not arise unless and until the payment is adopted by the mesne landlord, and the statute does not run against the sub-tenant's right until such adoption (3). Where, in an agreement for the repayment of an existing debt by instalments, there is a proviso that on default of payment of any instalment the whole debt should be immediately recoverable, then, inasmuch as upon the first default the creditor has an immediate right of action. for the whole debt, the statute runs not as to each instalment from the time at which it ought to have been paid, but as to the whole debt from the time of the first default (4). On the same principle, if goods are sold on Goods sold credit, the time runs not from the delivery of the goods, but from the time when the credit expires. Where a contract for the sale of goods was for six months' credit, the payment then to be made by a bill at two or three months, at the purchaser's option, it was held that an action for the price would not lie at the expiration of six months, and that time began to run from the

(1) See below, p. 30.

(2) Garden v. Bruce, L. R. 3 C. P. 300; 37 L. J. C. P. 112. (3) Ahearne v. McSwiney, 8 Ir. R. C. L. 568.

(4) Hemp v. Garland, 4 Q. B. 519; Reeves v. Butcher (1891) 2 Q. B. 509. See Irving v. Veitch, 3 M. & W. 90.

on credit.

PART I.
CH. II.

Work done.

expiration of eight or nine months, it being unnecessary to decide which. It was intimated that the only action that would lie after the expiration of the six months, and before the expiration of the eight or nine months, would be an action for breach of contract in not giving the bill (1).

So on a general contract for work to be done, the cause of action for the price accrues when the work is done (2). But where the special Act of a railway company incorporated the Companies Clauses Act (3), s. 65 of which enacts that "all the money raised by the company shall be applied, firstly, in paying the costs and expenses incurred in obtaining this special Act," and a solicitor sued the company for such costs fourteen years after the work was done, but within six years of the company's first having assets, it was held that the statute did not begin to run till the company had assets (4). And where the solicitor of a Joint Stock Company, after an order to wind up the company, delivered up documents to the official manager on the undertaking that the solicitor should be paid out of the first funds that should come to the hands of the official manager, and the solicitor delivered his bill nine years afterwards, no funds having till then come into the hands of the official manager, it was held that the claim was not barred by the statute (5). In an action against a factor for account, the time runs from demand only, the implied promise being to account on demand (6). So, in the case of a exchange. bill or note payable at a fixed time after date, the statute runs only from the time at which the bill or note becomes due, even although the action is for money lent

Bills of

(1) Helps v. Winterbottom, 2 B. & Ad. 431.

(2) Per Parke, B. Emery v. Day, 1 C. M. & R. 245. See Hyde v. Partridge, 2 Ld. Raym. 1204.

(3) 8 & 9 Vict. c. 16.

(4) In re Kensington Station Act, L. R. 20 Eq. 197.

(5) In re Gloucester, &c., Railway Co, 2 Giff. 47.

(6) Topham v. Braddick, 1 Taunt. 572.