PART I.

CH. II.

Action of deceit.

Actions on the case where con

of action.

lodged against him by defendant on behalf of R. E. and remained sixteen months in prison. More than six years had elapsed from the date of the opposition and detainer, but less than six years from the end of the imprisonment. It was held that the cause of action was the procuring the commissioner to make the order, and that there was no fresh cause of action arising from day to day, as in the exercise of his judicial duty he might, upon the same representation, have ordered a shorter imprisonment, and the detention was the act of the Court, not of the defendant (1).

In an action of deceit the statute will run from the date of the fraudulent act complained of, unless such fraud has been actively concealed by the defendant, when the statute will run from the date of the discovery of the fraud (2).

In all actions on the case founded upon tort where the consequential damage is the ground of action and the sequential act complained of is not in itself a wrongful act, the damage is the ground statute runs from the date of the damage, and not from the date of the act which causes the damage (3). Thus, where the defendant, the lessee of minerals under land, the surface of which belonged to the plaintiff, worked the minerals and left insufficient support for the plaintiff's land, and more than six years after the working damage occurred to the plaintiff's land, it was decided by the House of Lords that the statute ran from the occurrence of the damage, and not from the working of the mine or the leaving insufficient support (4). Where there has been a continuance of the wrongful act causing damage,

(1) Violett v. Sympson, 8 E. & B. 344; 27 L. J. Q. B. 138.

(2) Gibbs v. Guild, 8 Q. B. D. 296; 9 Q. B. D. 59; Barber v. Houston, 14 L. R. Ir. 273; 18 L. R. Ir. 475.

(3) Bonomi v. Backhouse, E. B. & E. 622; 9 H. L. Cas. 503; 34 L. J. Q. B. 181. See Whitehouse v. Fellowes, 10 C. B. N. S. 765; 30 L. J. C. P. 305; Hodsden v. Harridge, 2 Wms. Saund. 166, note q; Lloyd v. Wigney, 6 Bingh. 489; Wordsworth v. Harley, 1 B. & Ad. 391; Roberts v. Read, 16 East, 215; Gillon v. Boddington, Ry. & Mood. 161; Howell v. Young, 5 B. & C. 259.

(4) Bonomi v. Backhouse, ubi supra.

a fresh cause of action arises from time to time (1). Where a lessee of mines under the plaintiff's land worked out the coal without leaving support and so caused damage to plaintiff's surface more than six years before action, and within six years of action a fresh subsidence causing fresh damage occurred without any fresh working by the defendant, it was decided by the House of Lords that an action in respect of the fresh damages so accruing was not barred, as the fresh subsidence causing fresh injury gave a fresh cause of action (2). Where the subsidence causing damage in such a case is continuous, there is a continuing cause of action, as long as the subsidence lasts (3).

PART I.

CH. II.

must be a

It is laid down (4) that a cause of action cannot There exist" unless there be also a person in existence capable person who of suing." Hence, if a person to whom a cause of action can sue. would have accrued if he were living die intestate before the cause of action accrues, the statute does not begin to run till administration has been taken out. This was first held in Stanford's case (5), which, although decided on the Statute of Fines, 4 Hen. VII. c. 24, applies in principle to the statute of James; it was approved of in Cary v. Stephenson (6), and ultimately established in Murray v. East India Company (7). In that case certain bills drawn in favour of a testator were accepted and became payable after his decease; no executor was appointed, and administration with the will annexed was granted

(1) Whitehouse v. Fellowes, 10 C. B. N. S. 765; 30 L. J. C. P. 305; Battishill v. Reed, 18 C. B. 696; Devery v. Grand Canal Co., 9 Ir. R. C. L. 194.

(2) Darley Main Colliery Co. v. Mitchell, 11 App. Cas. 127.

Crumbie v. Wallsend Local Board (1891), 1 Q. B. 503; Fairbrother v. Bury, &c., Authority, 37 W. R. 544.

(4) Murray v. East India Co., 5 B. & Ald. 214.

(5) Cited in Saffyn v. Adams, Cro. Jac. 61.

(6) 2 Salk. 421; S. C. sub nom. Curry v. Stephenson, 4 Mod. 372. (7) 5 B. & Ald. 204. See Pratt v. Swaine, 8 B. & C. 285; Hyde v. Price, 1 Cooper, C. C. 193: Burdick v. Garrick, L. R. 5 Ch. 233, 241; Atkinson v. Bradford Third Equitable Benefit Building Society, 25 Q. B. D. 377.

PART I.

CH. II.

Executor may sue before

proving.

after the bills became payable; the first administrator died and administration de bonis non, with the will annexed, was granted to the plaintiff. More than six years had elapsed since the bills became payable, but not since the time of the grant of the first letters of administration. It was decided by the Court of Queen's Bench, on the principle laid down above, that time did not begin to run till the first grant. A common case to which the principle would apply is where an administrator brings an action on a life policy effected by the intestate.

It has been said that if a creditor dies intestate on the day that a debt becomes payable to him, and there is no evidence to show whether he died before or after the moment when the debt became payable, the statute does not begin to run against the creditor's administrator until letters of administration have been taken out (1).

The rule above laid down does not apply where an executor is appointed and after the accrual of the cause of action proves the will, for the right of an executor to sue vests in him by virtue of the will, and he may commence the action before proving, and therefore it cannot be said that there was not a person in existence capable of suing. On the other hand, if he ultimately renounces, it may be (although it is believed that the point has never been decided) that, as the renunciation. relates back to the death of the testator, it will be in effect as if there never had been an executor, and the time will not begin to run against an administrator until administration with the will annexed is granted. If this is so, the result would be curious; for if an executor is appointed and does not act till after the six years have elapsed, then, if he proves, the claim will be barred; but if he renounces and administration is taken out, the administrator can recover.

(1) Per Lord Esher, M.R., Atkinson v. Bradford Third Equitable Benefit Building Society, 25 Q. B. D. at p. 381.

If the cause of action accrues before the death of a testator or intestate, then on the general principle that when the time has once begun to run no subsequent event other than the bringing of an action or an analogous proceeding can stop it (1), the fact of there being an interval between the death of the testator or intestate and the grant of administration, will have no effect if the time has begun to run in the lifetime of the deceased person, which will not be the case if he was under disability at the time of the action accruing, and remained so up to the time of his death (2). In Richards v. Richards (3) a feme covert administratrix lent part of her intestate's estate to her husband on the security of a joint and several promissory note given by him and two others as sureties; the husband died in her lifetime, and she then sued the surviving promisors more than six years after the making of the note. It was held that the time began to run from the death of the husband. This was decided partly on the ground of the disability of the wife, but, as the husband was one of the promisors, he could not have joined with his wife in an action on the note, and there was, therefore, in fact, no one in his lifetime competent to bring the action, and this brings the case within the principle laid down above. Now by sect. 18 of the Married Women's Property Act, 1882 (4), a feme covert administratrix or executrix may sue in that character as if she were a feme sole, and therefore it would seem that the principle of the lastmentioned case is no longer applicable.

There

As a cause of action, or, more strictly speaking, a complete cause of action cannot exist unless there is a must be a person in existence capable of suing, so, on the other person who hand, a complete cause of action being the right to sued.

(1) See ante, p. 24.

Cusack v. Fury, Wallis ed. by Lyne, 330. (2) Penny v. Brice, 18 C. B. N. S. 393; Fergusson v. Fyffe, 8 C. &

F. 121, 140.

(3) 2 B. & Ad. 447.

(4) 45 & 46 Vict. c. 75.

can be

E

PART I.
CH. II.

Cause of action accruing during bank

ruptcy.

prosecute an action with effect, "no one has a complete cause of action until there is somebody that he can sue (1). If, therefore, a cause of action accrues to a plaintiff after the death of the person against whom the action would have been brought, had he lived, time does not begin to run against the plaintiff until there is a personal representative in existence who can be sued. This principle was clearly laid down in Douglas v. Forrest (2). In that case, when the cause of action accrued, the debtor was abroad, and remained so till his decease; and it was held that the plaintiff had six years within which to bring his action after the executor had proved the will, and of course, in the case of an intestacy or the executor renouncing, the plaintiff would have six years from the date of the letters of administration. If, however, an executor has acted before proving, as he thereby renders himself liable to be sued, the time would run from his acting, and not from his proving the will (3). In Webster v. Webster (4), in which this point was first decided, it seems to have been overlooked that the testator might have been sued in his own lifetime. It is, however, perfectly clear that the time having begun to run against a plaintiff during the life of a person against whom he has a right of action, the want of a personal representative to be sued will not prevent the time continuing to run (5).

In a case which arose under the Bankruptcy Act of 1869 (6) it was decided that where the cause of action accrued during the bankruptcy of the person liable to be

See per Best, C.J., Douglas v. Forrest, 4 Bingh. 704. (2) 4 Bingh. 686; 1 M. & P. 663, and see Joliffe v. Pitt, 2 Vern. 694; Story v. Fry, 1 Y. & C. Ch. C. 603.

(3) See Douglas v. Forrest, 4 Bingh. 704; Flood v. Patterson, 29 Beav. 295; 30 L. J. Ch. 486.

(4) 10 Ves. 93.

(5) Rhodes v. Smethurst, 4 M. & W. 42, and 6 M. & W. 351; Freake v. Cranefeldt, 3 M. & C. 499; Howlett v. Lambert, 2 Ir. Eq. R. 254; Boatwright v. Boatwright, L. R. 17 Eq. 71.

(6) 32 & 33 Vict. c. 71.