CH. II. PART I. nuptial debt which accrued due against the wife more than six years before the action against the husband, the statute is a good defence to him as well as to her (1). Partner ship. Consequential damage. On the dissolution of a partnership, the statute begins to run against a claim brought by one of the former partners against another from the time of the dissolution (2). As between a surviving partner and the representatives of a deceased partner, the statute begins to run at the date when the partnership estate is vested in the surviving partner (3). In all actions on promises, as we have seen, the statute runs not from the making of the promise, but from the breach, the breach being the cause of action, or the gist of the action, as it has been called. Consequential damage arising from the breach gives no new cause of action; it is admissible in evidence on the question of damages, but in an action for breach of contract, even if no consequential damages are proved at all, the plaintiff would still be entitled to a verdict. This appears clearly from the decision in Battley v. Faulkner (4). In that case the plaintiffs contracted to purchase spring wheat from the defendants, who, in 1810, delivered winter wheat instead. The plaintiffs re-sold the wheat as spring wheat, and in 1811 were sued by the persons who bought from them, and after an action which lasted seven years, had, in 1818, to pay damages. The plaintiffs at the commencement of the action gave notice to the defendants of what had happened, and in 1818, after they had been compelled to pay damages, sued the defendants, contending that the statute began to run from the time when the damages were paid, but it was held that it began to run from the time of the delivery of the wheat. And this principle holds good, even if the plaintiffs are ignorant of the (1) Beck v. Pierce, 23 Q. B. D. 316. CH. II. of cause by fraud. breach, till after the expiration of the statutory period (1). PART I. Where the discovery of the cause of action is prevented by the fraud of the defendants, the case is different. Discovery Before the Judicature Act, 1873, there was a variance in of action this respect between courts of law and courts of equity. prevented After some difference of opinion (2), the courts of common law decided that no such fraud on the part of the defendants would form an exception to the general principle that the statute runs from the time when the cause of action accrues (3). But in equity, if the bill charged fraud, and that it was not discovered till within the prescribed period, the statute was held to run from the time of discovery only; and the fact of a plaintiff being so deprived of his remedy at law, through the fraud of the defendant, of itself, as it appears, gave jurisdiction to a court of equity to enforce a claim as to which the remedy would otherwise have been at common law only (4). Now by the 11th subs. of s. 25 of the Judicature Act, 1873, "Generally in all matters, not herein before particularly mentioned in which there is any conflict or variance between the rules of equity and the rules of common law, with reference to the same matter, the rules of equity shall prevail." The effect of this section would appear to be that in all cases, as to which, before the Judicature Act, 1873, there was a concurrent remedy, both in law and equity, the equitable rule will prevail; and in all such cases, but, it seems, only in such (1) Bree v. Holbech, 2 Dougl. 654 a; Whitehead v. Ioward, 2 Bro. & B. 372; Short v. M'Carthy, 3 B. & Ald. 626; Howell v. Young, 5 B. & C. 259; Hughes v. Twisden, 55 L. J. Ch. 481; and see Smith v. Fox, 6 Hare, 386; Brown v. Howard, 2 Bro. & B. 73. See also Sims v. Brutton, 5 Exch. 802; 20 L. J. Exch. 41; Wood v. Jones, 61 L. T. 551; Bean v. Wade, Cab. & E. 519. (2) Clark v. Hougham, 2 B. & C. 149; Bree v. Holbech, 2 Dougl. 654 a. (3) Imperial Gas Co. v. London Gas Co., 10 Exch. 39; 23 L. J. Exch. 303; Hunter v. Gibbons, 1 H. & N. 459; 26 L. J. Exch. 1. (4) Booth v. Lord Warrington, 4 Bro. P. C. 163; South Sea Co. v. Wymondsell, 3 P. Wms. 143; Hovenden v. Annesley, 2 Sch. & Lefr. 634; Blair v. Bromley, 5 Hare, 542; 2 Phill. 354. And see Ex parte Bolton, 1 Mon. & Ayr. 60. PART I. CH. II. Where an annuity purchased is set aside. Action for 'solicitor's costs. cases, a reply to a plea of the statute that the cause of action was fraudulently concealed by the defendant until within six years of action brought would now be held good in all courts (1). When the grantor of an annuity which had been set aside was sued by the purchaser, the cause of action being the failure of consideration by the setting aside of the annuity, the statute was held to run not from the time of the granting of the annuity or from the last payment in respect of it, but from the time at which it was set aside (2). The question is left open from what time the statute would run if the annuity were not merely voidable, but void ab initio. When a solicitor is retained to carry on an action or a particular business, he contracts to carry it on to its termination; so that if a solicitor discontinue an action or refuse to proceed with it, without notice to the client, unless under peculiar circumstances which would justify such a course, the solicitor would have no right of action for his costs (3), nor can the solicitor at common law bring an action for any part of the costs during the continuance of the business. Whatever, therefore, may be the date of the items in the bill, the statute begins to run against all from the date of the termination of the action or the continuous business, or of the same. being properly discontinued by the solicitor (4). The solicitor's right to sue for costs in an action accrues generally when final judgment is given, if he prosecutes the action to judgment; but, if there is an appeal from the judgment, the solicitor cannot sue for his costs till the appeal is decided, and the statute does not (1) Gibbs v. Guild, 8 Q. B. D. 296; 9 Q. B. D. 59. And see Barber v. Houston, 14 L. R. Ir. 273; 18 L. R. Ir. 475; Armstrong v. Millburn, 54 L. T. 247, 723, and post, Part VIII. Ch. İ. (2) Cowper v. Godmond, 9 Bingh. 748; Huggins v. Coates, 5 Q. B. 432. (3) Nicholls v. Wilson, 11 M. & W. 106. (4) Harris v. Osbourn, 2 C. & M. 629; Martindale v. Falkner, 2 C. B. 706; Whitehead v. Lord, 7 Exch. 691; 21 L. J. Exch. 239. begin to run against him till then (1). But when judgment has been given and there is no appeal, the statúte begins to run, and subsequent items within the six years incidental to the business of the action will not take the earlier items in the bill out of the statute (2). It has been decided that the common law rule is not applicable to long and complicated proceedings in the Chancery Division or in Bankruptcy; and both Jessel, M.R., and the Court of Appeal have held that in such actions a solicitor may during the course of an action deliver separate bills, and that an application to tax a bill delivered more than twelve months before the application will not be granted even though a bill in the same business has been delivered within the twelve months (3). It would seem that in such cases the statute would run against the solicitor from the time when he delivered his bill, but that he might at his option treat the whole business, however long, as one contract (4), and that in such a case the statute would not run against him until the final termination of the business. In Baile v. Baile (5), which related to the costs of a solicitor in a suit (inter alia) for the appointment of a receiver, it was held by Wickens, V.-C., that the statute did not run against the solicitor while proceedings were going on with the solicitor's name on the record and while the receiver was in possession, although the solicitor himself had taken no steps within six years. Where the plaintiff was employed in several transactions and inter alia to procure a transfer of a mortgage, some items relating to that matter were before and some within the six years; there was no evidence to show that all these items (1) Harris v. Quine, L. R. 4 Q. B. 653; 10 B. & S. 644; 38 L. J. Q. B. 331. (2) Rothery v. Munnings, 1 B. & Ad. 15. (3) In re Hall and Barker, 9 Ch. D. 538. In re Nelson, Son and Hastings, 30 Ch. D. 1. (4) In re Cartwright, L. R. 16 Eq. 469. (5) L. R. 13 Eq. 497. PART I. CH. II. PART 1. 'CH. II. Action against solicitor for negligence. Loss of ship by barratry. Action for use and were under one contract, except the bill itself, and the language of the bill was against it. It was held that the items dated more than six years from the beginning of the action were barred (1). In an action against a solicitor for negligence where there is no fraud, the statute runs from the date of the negligent act being completed, and not from the discovery or from the occurring of the damage (2). In an action on a policy of assurance by the owners of a ship against the underwriters for loss occasioned by barratry on the part of the captain in having taken the ship out of her course and procured her to be condemned and sold, it was held that the barratry was not complete until the delivery to the purchaser, and that the statute would not begin to run till then (3). The statute is a good defence to an action for use and Occupation. Occupation, and for breach of agreement to repair brought by a landlord against a person who has once been his tenant from year to year, but who has not within the last six years occupied the premises, paid rent or done any act from which a tenancy could be inferred, although the tenancy has not been determined by a notice to quit (4). In the case last referred to, the action was brought against the executor of the original or supposed original tenant, and the executor had actually gone into occupation and paid rent since the death of his testator; but it would seem that nothing really turned upon this, and that the case would have been decided in the same way had the original tenant been the person who had abandoned the tenancy and who had been sued. Agreement not to sue It was held in equity that where there was a provision for a time. made by a debtor for the payment of his debts out of (1) Phillips v. Broadley, 9 Q. B. 744. (2) Howell v. Young, 5 B. & C. 259; Short v. McCarthy, 3 B. & Ald. 626; Smith v. Fox, 6 Hare, 386; Hughes v. Twisden, 55 L. J. Ch. 481; Bean v. Wade, Cab. & E. 519; Wood v. Jones, 61 L. T. 551. (3) Hibbert v. Martin, 1 Camp. 538. (4) Leigh v. Thornton, 1 B. & Ald. 625. |