PART I. Action may be brought during disability. Promissory note to feme covert. for taking away goods or cattle, or of action of account, or upon the case, of debt grounded upon any lending or contract without specialty, or of debt for arrearages of rent, or assault, menace, battery, wounding and imprisonment, or any of them, be or shall be at the time of any such cause of suit or action given or accrued, fallen or come, beyond the seas, then such person or persons who is or shall be entitled to any such suit or action shall be at liberty to bring the said actions against such person and persons, after their return from beyond the seas, so as they take the same after their return from beyond the seas, within such times as are respectively limited for the bringing of the said actions before by this Act, and by the said other Act made in the one and twentieth year of the reign of King James I." The 7th section of the statute of James is a saving clause, and of itself imposes no disability, and the plaintiff is at liberty to bring his action during the disability, in any way he might have done if the Act had not passed, and that whether the six years have elapsed or not, and has in addition six years after the disability ended, and the same construction must be put on the proviso in the statute of Anne (1). Before the Married Women's Property Act, 1882 (2), if a promissory note was made to a married woman, time ran against the husband from the time when the note became due, and therefore if the wife died in his lifetime after the six years had elapsed, the remedy was gone; if, however, she survived him, she had six years from his death to bring her action (3). The effect of the Married Women's Property Act, 1882, is that coverture is no longer a disability, and the statute runs against married women as against other plaintiffs, from the time when (1) Forbes v. Smith, 11 Exch. 161. (2) 45 & 46 Vict. c. 75. (3) Richards v. Richards, 2 B. & Ad. 447; Scarpellini v. Atcheson, 7 Q. B. 864. the cause of action accrues (1). PART I. CH. III. countries Beyond seas, at common law, means beyond the seas What actually surrounding Great Britain; therefore, in the are beyond statute of James, and also in the statute of Anne, Ireland the seas. was beyond the seas (2), but not Scotland (3). By the 3 & 4 Wm. IV. c. 42, s. 7, "no part of the United Kingdom of Great Britain and Ireland, nor the islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any islands adjacent to any of them, being part of the dominions of his Majesty, shall be deemed to be beyond the seas within the meaning of this Act, or of the Act passed in the 21st year of King James the First intituled 'An Act for Limitation of Actions and for avoiding of Suits in Law.'" This section did not extend to the statute of Anne, but was extended to that statute by the Mercantile Law Amendment Act, 1856 (4). This provision was decided not to apply when the cause of action arose before the passing of the Mercantile Law Amendment Act (5). In the case of Ruckmaboye v. Lulloobhoy Mottichund (6), it was held that in applying the statute to India, when the statute was applicable to India, "beyond the seas meant "out of the territories," that is to say, out of the British dominions in India. Scotland, although out of the jurisdiction of the English courts, was never held to be beyond seas within the meaning of the statutes (7). (1) See Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 1, subs. 2. Lowe v. Fox, 15 Q. B. D. 667; Weldon v. Neal, 51 L. T. 289; 32 W. R. 828. (2) Anon. 1 Show. 91, per Holt, C.J.; Lane v. Bennett, 1 M. & W. 70. (3) King v. Walker, 1 W. Bl. 286. (4) 19 & 20 Vict. c. 97, s. 12. Flood v. Patterson, 29 Beav. 295; 30 L. J. Ch. 486. (6) 8 Moore P. C. 4. (7) King v. Walker, 1 W. Bl. 286. PART I. If a defendant, who is beyond seas when the cause of action arises, returns to England for ever so short a time, even without the plaintiff's knowledge, the time begins to run (1). A foreigner, who has never been in England, is as much within the exception as an Englishman (2). The exception also applies where the cause of action arises abroad, although the remedy may be barred in the country where the cause of action arose, provided the liability be not extinguished by the laws of that country (3). In Williams v. Jones (4) the cause of action arose within the jurisdiction of the Supreme Court of Calcutta, where the plaintiff and the defendant were then both resident. The plaintiff soon afterwards returned to England; the defendant remained in India for more than six years, and then returned to England. The plaintiff commenced his action within six years of the defendant's return; it was held that he was not barred of his remedy here, although his remedy would have been barred in Calcutta by the statute of James, which was then in force there. The result of these cases is, that if a cause of action arises in a foreign country between two persons, even though one or both of them be foreigners, the plaintiff may sue the defendant in our courts within six years of the defendant's first coming to England after the cause of action arose. If by the lex loci contractus the right under a contract is itself extinguished, instead of the remedy merely being barred, and both parties have resided in the country where the contract was entered into during the whole of the prescribed time, then, since the right is determined by the lex loci contractus and the remedy only by the lex fori, (1) Gregory v. Hurrill, 5 B. & C. 341. (2) Strithorst v. Graeme, 2 W. Bl. 723; 3 Wils. 145; Lafond v. Ruddock, 13 C. B. 813; Pardo v. Bingham, L. R. 4 Ch. at p. 738. (3) Williams v. Jones, 13 East, 450; Huber v. Steiner, 2 Bingh. N. C. 202; 2 Scott, 304; Harris v. Quine, L. R. 4 Q. B. 653; 38 L. J. Q. B. 331; 10 B. & S. 644; Alliance Bank of Simla v. Carey, 5 C. P. D. 429. (4) 13 East, 439. there is no right of action, although under the circumstances of the case the English Statutes of Limitation would not prevent an action being maintained as where the defendant has first come into England within the last six years (1). And the non-residence of either of the parties in the country where the contract is made during any part of the prescribed time would, it seems, make no difference, provided that the debt was equally extinguished (2). PART I. CH. III. of one co plaintiff. Before the Mercantile Law Amendment Act (3) abo- Disability lished the disability of the absence of plaintiffs beyond seas, it was held in Perry v. Jackson (4) that if one or more of several co-plaintiffs were within the seas when the cause of action arose, the time ran equally against all. The 10th section of the Mercantile Law Amendment Act, 1856, above referred to, was held to apply where the cause of action arose before as well as where it arose after the passing of the Act (5). The decision in Perry v. Jackson is therefore now quite unimportant, unless it applies to cases of disability arising from causes other than absence beyond seas or imprisonment. The reason of the decision in Perry v. Jackson was that the case was not within the words of the proviso in the 7th section of the statute of James, and, as the plaintiffs in England might have sued and used the name of their co-plaintiff who was abroad, it would have been against the policy of the statute to extend the grammatical meaning of the words to a case which did not require it. (1) Huber v. Steiner, 2 Bingh. N. C. 202 and 211; 2 Scott, 304; Story's Conflict of Laws, Ch. XIV., § 582; Shelby v. Guy, 11 Wheaton's Rep. 361, 371, 372; Harris v. Quine, L. R. 4 Q. B. 653; 38 L. J. Q. B. 331; 10 B. & S. 644; Alliance Bank of Simla v. Carey, 5 C. P. D. 429; Finch v. Finch, 45 L. J. Ch. 816. (2) See 1 Smith's L. C. notes to Mostyn v. Fabrigas, 5th ed. 642; 9th ed. 678. (3) 19 & 20 Vict. c. 97, s. 10. (4) 4 T. R. 516. (5) Cornill v. Hudson, 8 E. & B. 429; 27 L. J. Q. B. 8; Pardo v. Bingham, L. R. 4 Ch. 735. PART I. Disability of one co defendant. 19 & 20 Vict. c. 97, s. 11. Before the Mercantile Law Amendment Act, 1856, it was held that if any one or more of several joint debtors were beyond the seas when the cause of action arose, the time did not begin to run either in favour of those abroad (1) or those at home (2), until the return of the former. The ground of those decisions was not that there was any difference in the grammatical construction of the proviso in the statute of Anne from that in the statute of James, but that, by holding otherwise, an injustice would be done to the plaintiff which it was manifestly the intention of the statute of Anne to prevent. The 11th section of the Mercantile Law Amendment Act, 1856, enacts as follows: -: "Where such cause of action or suit with respect to which the period of limitation is fixed by the enactments aforesaid, or any of them, lies against two or more joint debtors, the person or persons who shall be entitled to the same shall not be entitled to any time within which to commence and sue any such action or suit against any one or more of such joint debtors who shall not be beyond the seas at the time such cause of action or suit accrued, by reason only that some other one or more of such joint debtors was or were at the time such cause of action accrued beyond the seas, and such person or persons so entitled as aforesaid shall not be barred from commencing and suing any action or suit against the joint debtor or joint debtors who was or were beyond the seas at the time the cause of action or suit accrued after his or their return from beyond seas, by reason only that judgment was already recovered against any one or more of such joint debtors who was not, or were not beyond seas at the time aforesaid." It should be observed that in this section "joint debtors" is the only word used, and not " co-contractors or co-debtors," as in the 14th section; it therefore would (1) Fannin v. Anderson, 7 Q. B. 811. Towns v. Meud, 16 C. B. 123; 24 L. J. C. P. 89. |