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Part I
CH. .

clausum fregit within three years next after the end of this present session of parliament or within six years next after the cause of such actions or suit, and not after; and the said actions of trespass, of assault, battery, wounding, imprisonment or any of them, within one year next after the end of this present session of parliament, or within four years next after the cause of such actions or suit, and not after : and the said actions upon the case for words within one year after the end of this present session of parliament, or within two years next after the words spoken and not after."

The effect of this section, as altered by the Mercantile Law Amendment Act (1), is that all actions on the case (except slander), actions of account, of trespass quare clausum fregit, of debt grounded upon any lending or contract without specialty, of debt for arrears of rent, of detinue, of trover and of replevin, must be brought within six years; actions of assault, battery, wounding and imprisonment within four years after the cause of action has arisen; and actions of slander within two years next after the words spoken. Although there are no longer, since the Judicature Act, 1873, actions bearing these names, yet the actions which have taken their place (2) are governed by the same rules, and to all intents and purposes are the same actions.

An action for mesne profits is an action of trespass within this section, and a plea of the statute in such an action would prevent more than six years' arrears being recovered (3).

In the latter part of the section the actions are not enumerated in the same way as in the former part, and trover is omitted in the latter part. But soon after the passing of the statute it was held (4) that trover was

(1) 19 & 20 Vict. c. 97. See p. 5.
(2) Gibbs v. Guild, 9 Q. B. D. 67.

(3) B. N. P. 88; Adams' Ejectment, 3rd ed., p. 386; Reade v. Reade, 5 Ves. 744.

(4) Swayn v. Stephens, Cro. Car. 245; 2 Wms. Saund. 395.

Mesne profits.


CH. I.

included in the words “actions on the case" in the latter part of the section. In the same clause of the section the words limiting Actions of

trespass. "actions of trespass, of assault, battery, wounding, imprisonment or any of them” to four years are clearly i descriptive of the kinds of trespass intended to be referred to, and all other actions of trespass are included in the preceding clause.

Actions for slander where the words are not of them. Slander. selves actionable without special damage do not come within “actions upon the case for words” in the last clause, but are within “actions upon the case ” in the earlier clause, and the limitation for such actions is six years from the happening of the damage (1). It is submitted that the dictum of Lord Cranworth to the contrary effect in Backhouse v. Bonomi (2) is inconsistent with the authorities (3). The now obsolete action on the case of scandalum magnatum was held not to be within the statute (4).

The exception of merchants' accounts in the statute of Merchants James is repealed by the 9th section of the Mercantile Law Amendment Act, 1856 (5), which enacts that all actions of account, or for not accounting, and suits for such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, shall be commenced and sued within six years after the cause of such actions or suits, or within six years after the passing of the Act. It had been decided before the Mercantile Law Amendment Act that the exception in the statute of James extended only to actions brought in the form of actions of account, or on the case for not accounting, or at least to cases in which actions in one of these forms

(1) Saunders v. Edwards, 1 Sid. 95; Law v. Harwood, Cro. Car. 140; Topsall v. Edwards, Cro. Car. 163; Browne v. Gibbons, 1 Salk. 206. But see Littleboy v. Wright, 1 Lev. 69.

(2) 9 H. L. Cas. 503; 34 L. J. Q. B. 181.
(3) See Darley Main Colliery Co. v. Mitchell, 11 App. Cas. 127.
(4) Sayes' case cited (arguendo) Litt. 342.

19 & 20 Vict. c. 97.


CH. I.


would lie (1). The effect of the Mercantile Law Amend-
ment Act is that the statute of James can be pleaded in
an action between merchants brought to recover a balance
of account due more than six years before action. An
old claim is not kept out of the statute of James by the
fact of there being some items in the same account less
than six years old (2).

As a person has a right to sue for any balance of
account which has become due to him within the six
years, and it is impossible to ascertain such balance with-
out knowing in what character the payments on each
side of a running account were made, it seems necessary
that both parties should have the right of referring to the
older entries, in order to ascertain whether at the time
when any particular sum was placed to the credit of
either party within the six years there was not in fact a
balance due to him, to the discharge of which the sum so
placed was attributable.

An action by a lord against a copyholder for fines is

not within the statute of James (3), but is provided for within the by 3 & 4 Wm. IV. c. 42, s. 3 (4); nor is an action of debt

for rent reserved on an indenture of demise (5); nor is
an action for a rent-charge or arrears of a rent-charge (6);
nor is an action of debt grounded on a statute. These
actions do not come within the description of an action
of debt grounded on any lending or contract without
specialty (7). In the Cork and Bandon Railway Com-

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(1) Inglis v. Haigh, 8 M. & W. 769; Cottam v. Partridge, 4 M. & G. 271; Mills v. Fowkes, 5 Bingh. N. C. 455; Tatam v. Williams, 3 Hare, 357; 2 Wms. Saund. 402.

(2) Knox v. Gye, L. R. 5 H. L. at p. 672.

(3) Hodgson v. Harris, 1 Lev. 273, reported sub variis nominibus,
2 Keb. 462, 497, 533, 536; 1 Sid. 415.

(4) See post, Pt. II. Ch. I.
(5) Freeman v. Stacy, Hutton, 109.

(6) Stackhouse v. Barnston, 10 Ves. 453, 467; Cupit v. Jackson,
McCleland, 495; 13 Price, 721; Collins v. Goodall, 2 Vern. 235.

(7) Jones v. Pope, 1 Wms. Saund. 55; 1 Sid. 305; Talory v. Jackson, Cro. Car. 513; Cork and Bandon Railway Co. v. Goode, 13 C. B. 826; 22 L. J. C. P. 198; Shepherd v. Hills, 11 Exch. 67.

CH. I.

under & statute.

pany v. Goode (1), Maule, J., says in his judgment:“There may be cases where a statute enables an action to be brought, which nevertheless is not an action on the Debts Act of Parliament." The action for money had and received given by the Copyhold Act, 1852 (2), s. 47, may be such a case. Where a statute directed that a borough situate in a county and assessed to the county rate should be recouped the proportionate amount contributed by the borough to the expenses incurred by the county in pursuance of the statute, it was held that if an action by the borough for the recovery of the expenses would lie against the county, such an action would be an action on the case, and not an action for debt on a statute, and would therefore be within the statute of James (3)

In a proceeding by guardians of a union to recover the expenses of the maintenance of a lunatic, Chitty, J., held that the lunatic could set up the statute of James, and that only six years' arrears were recoverable, whether the liability was a statutory one (by 16 & 17 Vict. c. 97, s. 104), or whether the liability was a debt independent of but recognised by statute (4). Where a corporation was by charter empowered to make bye-laws, and a byelaw was made inflicting penalties on the members to be recovered by an action of debt, it was held that such an action was within the statute of James (5). The ground of this decision seems to have been that the consent of the defendant to become a member of the company created a liability in the nature of a simple contract; and the question in all cases of this sort appears to be whether the liability arises from any contract, express or

(1) 13 C. B. 826; 22 L. J. C. P. 198. (2) 15 & 16 Vict. c. 51.

(3) Mayor, &c., of Salford v. County Council of Lancashire, 25 Q. B. D. 384.

(4) In re Newbegin's Estate. Eggleton v. Newbegin, 36 Ch. D. 477. .

(5) Tobacco Pipe Makers Co. v. Loder, 16 Q. B. 765; 20 L. J. Q. B. 414.

Part I
CH. I.

implied, entered into by the party himself, or is imposed upon him without any consent or act of his own. By the Seed Supply (Ireland) Act, 1880 (1), the guardians of the poor are authorised to borrow money for the purchase of seed, and such seed may be sold to occupiers of land, and payment of the price is to be recovered by a special rate as if it were poor rate. In a case which arose under this Act (2) the guardians claimed the price of seeds sold and delivered to the defendant; special rates had been made by the plaintiffs on the defendant on 25th November 1880, 24th November 1881, and 23rd November 1882; the civil bill was served on the defendant on 10th June 1889. The defendant claimed the benefit of the statute of James, but the plaintiffs contended that the liability was imposed by statute, and was

not within the statute of James, and the Court so held. Liability

The liability of a shareholder under the deed of settleunder com; ment establishing a banking company is not within the

statute of James, when the liability is created by some panies Act, clause in the deed (3). The liability of a contributory 1862.

to pay calls under the Companies Act, 1862, s. 75, is to be deemed a debt by specialty, and is not within the statute of James (4). By the Companies Act, 1862, s. 16, all moneys payable by any member to a company incorporated under the Act in pursuance of any of the regulations of the company shall be in the nature of a specialty debt, and therefore actions to recover such

moneys would not be within the statute of James. Specialty A debt on a foreign judgment is not a specialty

in England, and is therefore within the statute of James (5). A contract by specialty, concluded in India but sued upon in England, is not within the

pany's deed

and Com


(1) 43 Vict. c. 1.

(2) Guardians of the Poor of the Union of Magherafelt v. Gribben, 24 L, R. Ir. 520.

(3) In re Portsmouth Banking Co., L. R. 2 Eq. 167.
(4) Buck v. Robson, L. R. 10 Eq. 629.
(5) Dupleix v. De Roven, 2 Vern. 540.

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