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certain specific life interests, and the creditors covenanted not to sue till the life interests had determined, the creditors could sue at any time within six years after their determination (1); but a mere letter of licence by creditors to their debtor has been held to have no such effect (2). It is believed that this point has never been decided at law, but it may be observed that a covenant not to sue does not extinguish an action at law, and that in general a personal action could not be suspended, because if once suspended it was altogether gone (3). Where, however, a negotiable instrument is taken in payment of a debt, the cause of action is suspended till dishonour (4). And in one case (5) an arrangement between the parties was held to be an agreement that payment would be accepted in a particular way, and that in default the plaintiff should be remitted to his original cause of action, so as to give a fresh right of action upon the original cause when such default was made, so that time did not begin to run till then. A covenant not to sue could not before the Judicature Act, 1873, form the ground of a legal plea in bar to an action, though it might have been made use of by way of a plea on equitable grounds. So it would seem that a covenant not to sue for a limited time could only before the Judicature Act, 1873, have been made available as an answer to a plea of the statute by a replication on equitable grounds.

PART I.

CH. II.

unper

Where, before the Judicature Act, 1873, the declaration Such an in an action brought more than six years after the agreement original cause of action stated that an agreement had formed been made between the plaintiff and defendant that, in defendant. consideration of the forbearance of the plaintiff and of

(1) O'Brien v. Osborne, 10 Hare, 92; Iven v. Elwes, 3 Drew. 25. (2) Fuller v. Redman (No. 2), 26 Beav. 614.

(3) Ford v. Beech, 11 Q. B. 852; Belshaw v. Bush, 11 C. B. 191; 22 L. J. C. P. 24; but see Slater v. Jones, L. R. 8 Exch. at p. 192. (4) 2 Wms. Saund. 351 n. (e); Belshaw v. Bush, 11 C. B. 205; 22 L. J. C. P. 24; Turney v. Dodwell, 3 E. & B. 136, 140; 23 L. J. Q. B. 137.

(5) Irving v. Veitch, 3 M. & W. 90.

by the

PART I.
CH. II.

Conversion.

the defendant being allowed to make some clothes for the plaintiff's servant in part discharge of the debt, the defendant would pay the balance of the original debt in a reasonable time, it was held on demurrer to a plea of the statute that the agreement was nothing more than an agreement for an accord in equity, which would not have prevented the plaintiff from suing on the original cause of action, that the original debt was not extinguished, and that an action to recover it was therefore barred by the statute (1).

In an action of trover the time runs from the conversion, and that although the plaintiff is ignorant of it (2). But the mere taking away or destroying a part of property, the rest of which remains in the hands of a bailee, is not such a conversion that the owner can sue in trover for the whole; much less may the bailee, if sued at a subsequent time, set it up as a conversion of the whole, for the purpose of supporting a plea of the statute (3). Fraudulent If the conversion had been concealed by the fraud of the

conceal

ment.

defendant, time would not run till the discovery of the fraud. Where a defendant is found to have fraudulently encroached on the mines of the plaintiffs, and carried away the minerals, the statute does not run in favour of the wrong-doer until the fraud has been discovered, or might, with reasonable diligence, have been discovered (4); but unless fraud is proved, the statute will run from the time of the wrongful act being committed (5). Where securities have been fraudulently misappropriated, the statute does not run till the discovery of the fraud (6). Where an executor left goods in the heir's house, with the

(1) Reeves v. Hearne, 1 M. & W. 323.

Granger v. George, 5 B. & C. 149; 7 D. & R. 729. See Edwards v. Clay, 28 Beav. 145.

(3) Philpott v. Kelley, 3 A. & E. 106.

(4) Ecclesiastical Commissioners for England v. North-Eastern Railway Co., 4 Ch. D. 845.

(5) Trotter v. Maclean, 13 Ch. D. 574.

(6) In re Crosley. Munns v. Burn, 35 Ch. D. 266; Moore v. Knight (1891), 1 Ch. 547.

heir's consent, and afterwards demanded them, and the heir refused to give them up, it was held that the time ran from the demand, because till then there was no conversion (1). If goods have been converted and afterwards sold, and the plaintiff waives the tort and brings his action for money had and received, the time still runs from the conversion, and not from the receipt of the money (2).

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CH. II.

Where a tenant for life impeachable for waste fells Waste. timber, the statute begins to run against the remainderman from the time of the felling; or at all events, if the person entitled should waive the tort and sue for money had and received, from the time when the timber became money in the hands of the wrong-doer (3). But when the tenant for life is also owner of the first estate of inheritance, the statute would not begin to run till the death of the tenant for life (4).

In detinue the time begins to run from the moment Detinue. when the possession of the defendant becomes unlawful. For instance, in an action to recover possession of titledeeds from a person who had been wrongfully in possession of the land, time was held not to have run so long as he was in the possession of the estate, as well as of the deeds, because the possession of the estate justified the possession of the deeds (5). Where the action of detinue is founded upon a wrongful conversion of the property only, as where there is a bare taking and withholding of the property of another, without any circumstances to show a trust for the owner, or to found an option to sue either for the wrong or for the breach of the terms of a bailment

(1) Montague v. Lord Sandwich, 7 Mod. 99. See per Lord Kenyon in Compton v. Chandless, 4 Esp. 20.

(2) Denys v. Shuckburgh, 4 Y. & C. 42. See Godin v. Ferris, 2 H. Bl. 14; Crook v. McTavish, 1 Bing. 167; Fraser v. Swansea, &c., Co., 1 A. & E. 354.

(3) Higginbotham v. Hawkins, L. R. 7 Ch. 676; 41 L. J. Ch. 828; Seagram v. Knight, L. R. 2 Ch. 628. See post, Part V. Ch. XVIII. (4) Birch-Wolfe v. Birch, L. R. 9 Eq. 683.

(5) Plant v. Cotterill, 5 H. & N. 430; 29 L. J. Exch. 198.

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CH. II.

Forged transfers.

under which the property has been deposited with the defendant, the statute runs from the time when the property is first wrongfully dealt with. But when goods have been entrusted to a person for safe custody, and an action of detinue is brought for a failure to deliver them back on demand, it is no defence that the bailee had parted with them before the demand was made, or more than six years before action. The failure to deliver according to the terms of the bailment is a cause of action for which an action may be brought at any time within six years of the demand, although more than six years have elapsed since the goods were parted with by the bailee (1). Where plaintiff's title-deeds were wrongfully deposited with the defendant by way of pledge, and the defendant so held them in ignorance of the right of the plaintiff, it was held that there was no conversion by the defendant until he refused to deliver them up at the plaintiff's demand, and that the statute did not begin to run before such demand and refusal (2). In such a case, besides the cause of action against the person who wrongfully deals with the title-deeds, there is a cause of action against the person who receives them from him, and if such person is ignorant who is the rightful owner, the cause of action against him does not accrue till the rightful owner has demanded the deeds and the person holding them refuses to deliver them up (3).

Where forged transfers of stock in a company had been made, and the persons entitled applied to the company to be registered as owners of the stock, and the company refused, it was held that a complete cause of action against the company did not accrue until the company had refused to register the persons entitled, and that the statute did not begin to run till then (4).

(1) Wilkinson v. Verity, L. R. 6 C. P. 206.

(2) Spackman v. Foster, 11 Q. B. D. 99; Miller v. Dell (1891), 1 Q. B. 468.

(3) Miller v. Dell, ubi supra.

(4) Barton v. North Staffordshire Railway Co., 38 Ch. D. 458.

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CH. II.

In an action for libel brought in 1848 the statute was pleaded to the first count, which complained of a libel printed and published in the Weekly Dispatch, to wit, Libel. on the 19th September, 1830, and it was held that the plea was negatived by proof of the sale of one copy just before the action commenced (1).

with

In an action for slander, where the words themselves Slander are not actionable without special damage, time will not special run until the cause of action be complete by the accrual damage. of the damage (2).

imprison

prosecu

False imprisonment is a continuing cause of action, or False rather, a fresh cause of action arises from day to day ment. as long as the imprisonment continues; hence, if the imprisonment began more than four years before action, but continued to a time within the four years, an action may be maintained; but the defendant may divide the time, and plead the statute to so much of the imprisonment as took place more than four years from the time of action brought (3). The case is different in actions for Malicious malicious arrest or malicious prosecution, where the arrest or cause of action is the setting the law in motion. A tion. declaration stated that the defendant procured one R. E. to oppose the discharge, under the Insolvent Act, of the plaintiff, who was in custody for debt, and to make an affidavit which the defendant knew to be untrue, and that on the hearing of the plaintiff's petition before the commissioner of the Insolvent Court, the defendant opposed as attorney of R. E. and produced the said affidavit in evidence, in consequence of which the commissioner refused the plaintiff the benefit of the Act till he had been in prison sixteen months, and that the plaintiff was accordingly imprisoned on detainer (1) Duke of Brunswick v. Harmer, 14 Q. B. 185.

(2) Saunders v. Edwards, 1 Sid. 95; Sir T. Raym. 61; Littleboy v. Wright, 1 Lev. 69; S. C. sub nom. Littlebury v. Wright, 1 Sid. 95. See ante, p. 5, and Darley Main Colliery Co. v. Mitchell, 11 App. Cas. 127.

(3) Coventry v. Apsley, 2 Salk. 420. See Massey v. Johnson, 12 East, 67.

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