seem, although it is believed there is no decision on the point, not to refer to any cause of action but that of actual debt, and that all cases of damages arising from breach of contract are excluded. The decisions, therefore, in the cases referred to before the passing of the Act, are still of importance. PART I. CH. III. defendant In Towns v. Mead (1), Jervis, C.J., intimated that if an Joint absent co-contractor died abroad, the survivor in England dying might be sued within six years of the death, such being abroad. the true equitable construction of the statute. The other judges avoided giving a decision on this point, which it was not actually necessary to decide. But the opinion of Jervis, C.J., would probably be held correct, as this case and the case of the representatives of a plaintiff dying under disability, or a defendant dying abroad, discussed below (2), seems all to depend on the same principle of construction. disabilities. If the party entitled to the cause of action be under Successive one disability when the cause of action arises, and before that disability ceases, is affected by another, and then the first disability ends, the second remaining, time will not begin to run till the second disability has ceased. This has so been decided in a case in Ireland (3), under a corresponding section in an Irish Act (10 Car. I. sess. 2, c. 6, s. 13), and in England (4) under the corresponding section (sect. 16) of 3 & 4 Wm. IV. c. 27; and although the wording of these sections is different from the wording of the 7th section of the statute of James, the same principle of construction is applicable to them. And the same principle would apply to the construction of sect. 22 of the Irish statute, 16 & 17 Vict. c. 113. Of course if there be any interval between the determination of the original disability and the supervening of the PART I. Right of executors second disability, time having once begun to run, the second disability has no effect whatever (1). If a person is under disability when the cause of action of person accrues to him and so continues up to his death, his dying personal representatives have a right of action, although under disability. the six years have elapsed during his life. This was decided in Strithorst v. Graeme (2) and Townsend v. Deacon (3). In both these cases the person to whom the action accrued was beyond the seas, but they apply in principle to every case of disability. It is, however, an undecided point whether the personal representative is under any limitation whatever in such a case, the argument against any limitation being that the event from which the six years under the statute begin to run —namely, the ceasing of the disabled person to be under disability-has not and never can happen, and that the right of the personal representative is the same right which the person under disability had while under it. In the case last quoted, Parke, B., was of opinion that the representative was not limited; Rolfe, B., that he The latter says: "The more reasonable equity would be to consider the right of action as accruing to the executor at the time of the death of the testator, and that the action ought to be brought within six years of that time." And if, as Parke, B., observes in the same case, the personal representatives may bring the action. "as standing in the same position and possessing the same rights" as the person who died under disability, which appears to be the true ground on which that decision is to be supported, it is submitted that his death cannot put his representatives in a better position or give them more rights than he would have had if the disability had ceased in his lifetime. The true view seems to be that, as it is by an equitable construction only that was. (1) Borrows v. Ellison, L. R. 6 Exch. 128. (2) 2 W. Bl. 723; 3 Wils. 145. (3) 3 Exch. 706. CH. III. the right to bring an action when six years have elapsed PART I. after the accrual of a cause of action is reserved to the personal representatives who are not named in the statute, so by the same equitable construction the limitation ought to be extended to them, and that their right to bring an action should be limited to six years after the death under disability of the person whose representatives they are. If adminis trator. In the case of the executor of a person under disability Right of it is clear that the time, if it runs at all, must run from the death of the testator. But what if the person under disability dies intestate? Does the time then run from his death or the taking out of administration? Rolfe, B., is right in the observation above quoted, the time would, on the principle stated in a former chapter (1), run from the date of the letters of administration. But even without taking his view this position may be supported on the ground that there is no person capable of suing between the death of the intestate and the grant of administration, and the time has not begun to run before. But, on the other hand, it may be argued that the grounds on which it was decided in cases where the cause of action arose after the death of the intestate, that the time did not run till administration granted, do not apply here, because, when the intestate is under disability, there is none the less a perfect cause of action, since the intestate, though protected by his disability, was yet capable of suing. of of testator dying Assuming that executors are limited in time, will a Disability disability affecting them at the time of their testator's executors death still prevent the statute from beginning to run? This question can only arise where all the executors are, under or a sole executor is, under disability, and no administra- disability. tion is taken out in the meanwhile, but probate is granted when the disability is removed. As it is still undecided whether executors are limited at all, there are (1) P. 47. PART I. Where of course no decisions on the point. As in the case of successive disabilities the time does not run till the last disability has ceased (1), it would seem that the same principle should be applied when the executors of a person dying under a disability are themselves under a disability, and that the time will not run till the sole executor, or one of the executors, ceases to be under disability. So it was held in Cotton's case (2), under the Statute of Fines (3), that a disability in the heir claiming under an ancestor who died under disability protected the heir. The case of Doe v. Jesson (4), which was decided on the 2nd section of the statute of James, is no authority on the point, for the decision against the heir in that case was grounded on the effect of the word 'death" there introduced, which is absent alike from the Statute of Fines and the 7th section of the statute of James. In the case of a person liable to an action remaining liable to be abroad from the time when the cause of action accrues party sued dies abroad. until his death, an action no doubt lies against his representatives, although the six years may have elapsed in his lifetime, and time will not begin to run till letters of administration are taken out or the executor has proved or acted; and if the executor be himself abroad at the time of the death of the testator, time will not begin to run till the executor has both returned home and either acted in England or proved the will (5). (1) Borrows v. Ellison, L. R. 6 Exch. 128. (2) 1 Leon. 211. See Dillon v. Leman, 2 H. Bl. 584. (4) 6 East, 80. (5) Flood v. Patterson, 29 Beav. 295; 30 L. J. Ch. 486. CHAPTER IV. ACKNOWLEDGMENTS. NOTWITHSTANDING the express words of the statute, PART I. CH. IV. ledgment it was soon held that the acknowledgment of a debt within six years of action brought took the case out of Acknowthe operation of the statute. As parol evidence of such of debt. acknowledgments was admitted, the beneficial operation of the statute was much limited, and in consequence it was provided by 9 Geo. IV. c. 14, s. 1, commonly called Lord Tenterden's Act, after referring to the statute of James and the corresponding Irish Act, as follows: "In actions of debt or upon the case grounded upon any simple contract,' no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract whereby to take any case out of the operation of the said enactments or either of them, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby; and where there shall be two or more joint contractors or executors or administrators of any contractor, no such joint contractor, executor or administrator shall lose the benefit of the said enactments, or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them: Provided always that nothing herein contained shall alter or take away or lessen the effect of any payment of F 9 G. IV. c. 14, s. 1. |