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CH. II.

defendant

action

sued, as no action could be brought while the bankruptcy Part I. was in force, the statute did not begin to run till after the annulment of the bankruptcy (1). And the same principle would probably be still applied under the Bankruptcy Act, 1883 (2), at all events as regards any debt proveable in the bankruptcy (3).

If a person brings an action within six years of the Death of accrual of the cause of action and dies, a fresh action plaintiff or brought by his personal representatives within a reason- after able time of the proof of the will or of the grant of

brought. administration will not be barred by the statute, although at the time that the second action is brought, more than six years may have elapsed since the cause of action accrued to the person deceased. The Courts have so held on the equitable construction of sect. 4 of the statute of James, and have laid down that a year by analogy with that section is a reasonable time (4). So where an action abated by the death of the defendant, and the plaintiff commenced a fresh action after the expiration of the six years, but within four months of the grant of administration, it was held that the action was in time (5). Where a statute for allotting waste lands in a manor directed that all disputed claims should be brought within six months, and an action brought within the six months against a copyholder abated by his death, it was held that the action must be revived within six months after the plaintiff had notice of the descent (6). But where an action by a termor for injury to his premises by a riotous assembly was brought under the statute 7 & 8 Geo. IV. c. 31, which directed that no

(1) In re Crosley. Munns v. Burn, 35 Ch. D. 266.
(2) 46 & 47 Vict. c. 52.
(3) See s. 9, subs. (1), and s. 37, subs. (3).

Kinsey v. Hayward, 1 Ld. Raym. 432; 12 Mod. 568; Wilcox v. Huggins, 2 Str. 907; Fitzg. 170, 289; Hodsden v. Harridge, 2 Wms. Saund. 173.

(5) Curlewis v. Earl of Mornington, 7 E. & B. 283; 26 L. J. Q. B. 181; 27 L. J. Q. B. 439. (6) Knight v. Bate, Cowp. 738.

PART I.
CH. II.

person should bring such an action “unless he shall commence the same within three calendar months after the commission of the offence," and the plaintiff died, and his personal representatives brought a fresh action within seven days of his death, but after the expiration of the three months, it was held that their action was too late, for there was nothing in the statute enabling the Court to put an equitable construction on it, and, as the action could only be brought by virtue of the statute, the time of commencing it was a condition precedent (1).

But now by R. S. C. 1883, Ord. xvII. (2), if the cause of action survives, there is no abatement of an action by the death either of plaintiff or defendant, and the proceedings may be carried on by or against the personal representatives of the plaintiff or defendant. But the remedy thus provided has not affected the previously existing remedy, and in the case of the death of a defendant after the issue of a writ, the plaintiff may commence a fresh action against the personal representatives of the defendant within a year of the proof of the will or of the grant of administration, although the statutory period has elapsed (3). The same principle would apply to the death of a plaintiff, in which case his personal representatives might, instead of adopting the remedies of Ord. xvII., bring a fresh action, and if the action of the deceased person was in time, the fresh action would not be statute-barred if brought within a year of the proof of the will or of the grant of administration. But the remedies of Ord. XVII. must be resorted to in cases analogous to that of Adam v. The Inhabitants of Bristol (4), where the statutory period has elapsed and a fresh action cannot be brought. In equity before the Judicature Act, 1873, a bill of revivor might have

(1) Adam v. The Inhabitants of Bristol, 2 A. & E. 389.
(2) R. S. C. Ir. 1891, 0. XVII.
(3) Swindell v. Bulkeley, 18 Q. B. D. 250.

2 A. & E. 389.

CH. II.

been filed within six years of the date of the letters of PART I. administration, whatever time had elapsed since the accrual of the cause of action (1). Bills of revivor are now abolished, and the procedure relating to revivor is now regulated by R. S. C. 1883, Ord. XVII. As the statute might have been pleaded to a bill of revivor (2), it would appear that an order giving leave to carry on an action by or against the personal representatives of a deceased person would not now be made after the expiration of six years from the proof of the will or the grant of administration (3).

The operation of the statute, when it has once begun Administo run, may be suspended when the administration of the tration of

goods of goods of a creditor is granted to the debtor, for this, being creditor the act of law, does not extinguish the debt, but suspends debtor.

granted to the remedy (4). Thus, where a tenant for life committed legal waste, and afterwards on the death of the remainderman became his administrator, it was held by Chelmsford, L.C., that the operation of the statute which had begun to run from the time of the commission of the waste was suspended by the grant of administration till after the death of the tenant for life (5).

(1) Perry v. Jenkins, 1 M. & C. 118. (2) Hollingshead's Case, 1 P. Wms. 742. (3) But see Micklethwaite v. Vavasour, 37 Sol. J.386. (4) Nedham's Case, 8 Rep. 135a; Wankford v. Wankford, 1 Salk. 299.

(6) Seagram v. Knight, L. R. 2 Ch. 628; 36 L. J. Ch. 918.

CHAPTER III.

DISABILITIES.

PART I. THE 7th section of the statute of James provides for CH. III.

cases where the persons entitled to commence an action are under disabilities at the time when the cause of

action accrues. The section is as follows :21 Jac. I.

* If

any person or persons that is or shall be entitled C:16, :7: to any such action of trespass, detinue, action sur trover, Disability of plaintiff. replevin, actions of accounts, actions of debts, action of

trespass for assault, menace, battery, wounding or imprisonment, actions upon the case for words be or shall be at the time of any such cause of action given or accrued, fallen or come, within the age of twenty-one years, feme covert, non compos mentis, imprisoned or beyond the seas, then such person shall be at liberty to bring the same actions so as they take the same within such times as are before limited after their coming to or being of full age, discovert, of sane 'memory, at large, and returned from beyond seas, as other persons having

no such impediment should have done.” Assumpsit.

The action of assumpsit is omitted in this clause, but it has been held that both indebitatus assumpsit and assumpsit for unliquidated damages are within the

equity of it (1). Suits in The provisions of sect. 7 of the statute of James were the

expressly extended to actions and suits for seamen's Admiralty

(1) Roche v. Hepman, 1 Barnardiston, 172; Chandler v. Vilett, 2 Wms. Saund. 395; Crosier v. Tomlinson, 2 Mod. 71; Piggott v. Rush, 4 A. & E. 912.

Court.

CH. III.

Law

seas.

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wages in the Admiralty Court by 4 & 5 Anne, c. 3 (1), Part I. s. 18.

By sect. 10 of the Mercantile Law Amendment Act, Mercantile 1856 (2), the provisions of these statutes so far as they Amendrelated to disabilities of plaintiffs from being beyond ment Act,

1856, s. 10. seas or in prison were repealed. The section is as follows:

“No person or persons who shall be entitled to any Imprisonaction or suit with respect to which the period of limita- ment and tion within which the same shall be brought, is fixed by beyond the Act 21 Jac. I. c. 16, s. 3, or by the Act 4 Anne, c. 16 (3), s. 17; or by the Act 53 Geo. III. c. 127, s. 5; or by the Acts 3 & 4 Wm. IV. c. 27, ss. 40, 41, and 42, and c. 42, s. 3; or by the Act 16 & 17 Vict. c. 113, s. 20, shall be entitled to any time within which to commence and sue such action or suit beyond the period so fixed for the same by the enactments aforesaid, by reason only of such person or some one or more of such persons being at the time of such cause of action or suit accrued beyond the seas, or in the cases in which by virtue of any of the aforesaid enactments, imprisonment is now a disability, by reason of such person or some one or more of such persons being imprisoned at the time of such cause of action or suit accrued.”

The case of a defendant's absence beyond the seas was Absence of held not to be within the equity of the statute of

beyond James (4), but was provided for by section 19 of the scas. statute of Anne above referred to. The section is as follows:

“If any person or persons against whom there is or 4 & 5 shall be any such cause of suit or action for seamen's Anne, c. 3, wages, or against whom there shall be any cause of action of trespass, detinue, action sur trover or replevin

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s. 19.

(1) Also called 4 Anne, c. 16.
(2) 19 & 20 Vict. c. 97.
(3) Also called 4 & 5 Anne, c. 3.

Hall v. Wybourn, 2 Salk. 420.

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