21 Jac. 1, c. 16, s. 3. Action for purchasemoney of annuity. nts due more than six years ago, but also (Hemp v. Garland, 4 Q. B. 519). If any ity are set aside, the grantee may recover action for money had and received for ch a case the statute runs from the time not appearing that the consideration has statute does not apply if the security was h six years have elapsed since the annuity tes, 5 Q. B. 432; Cowper v. Godmond, 9 action does not arise until after request from the time of such request (Gould v. 1.63 b, n.) If goods be consigned to a not lie against him for not accounting for of an account; and the statute therefore, ime of such demand (Topham v. Braddick, be to pay money at a future period, or event, the statute does not begin to run t event (Fenton v. Imbers, 1 W. Bl. 354; to a firm to be repaid on demand, with Debt payable an from the date of the advance (Jackson on demand. ase it was also held that entries made in the person who advanced the money with footing of periodical rests, did not affect Compare the cases as to a mortgagee's he plaintiff, in 1851, advanced 5,000l. to aking, which was brought to an end in efendant was not to be personally liable, t of the profits, it was held that the adth reference to the statute as a debt payute did not commence to run until after stinction was drawn between debts payrable on demand (Knox v. Gye, 15 W. R. er of two bills of exchange of which the written promise that, in consideration of to proceed against him, the defendant a of the statute, and promised to pay the es may enable me to do so, and I may be 7. That no part of the United Kingdom of Great Betain No put of and Ireland, nor the islands of Man, Guernsey, Jersey, Alde. Tod ney and Sark, nor any islands alient to any of bing part of the dominions of his majesty, shall be deemed to beyond the seas within the mesing of this aut, or of the vi passed in the 21st year of the reign of King James the Fint, d le on demand, the statute runs from Bills and Fonsick, 1 Selw. N. P. 301, 13th ed.) notes. en for a pre-existing debt (Bethell v. nakes no difference that the note is . Ellam, 2 M. & W. 461). Where, fore the advance was made, gave to ayable on demand, it was said that note, not from the date of the advance 2). Where in form a note is payable the cause of action on the note does t begin to run until twenty-four months othe, 1 Ry. & Moo. 388). Payment of ayable on demand, although there be demand of payment of the note has demand (Bamfield v. Tupper, 7 Exch, 21 Jac. 1, c. 16, s. 3. Concealment but see, as to pour lycammon raw actions, 27; Re Rutherford, Brown v. Rutherford, 14 Ch. Div. 687). Where a note is payable after sight, the statute runs only from the time of presentment (Holmes v. Kerrison, 2 Taunt. 323; and see Savage v. Aldred, 2 Stark. 232). As to when bills and notes are to be deemed payable on demand, see 45 & 46 Vict. c. 61, ss. 10, 11, 88. Where the statutory period for suing on a note expired on a Sunday, and a writ was issued on Monday, the action was held barred, R. S. Č. Ord. 64, r. 3, not applying (Morris v. Richards, 45 L. T. 210). Where a debtor draws a bill to be applied in part payment of the debt, and the bill is paid when due by the drawee to the creditor, it operates as a part payment to defeat the statute only from the time of the delivery of the bill by the debtor, not from the time of its payment (Irving v. Veitch, 3 M. & W. 90). The defendant gave S. his acceptance in blank on a 5s. stamp. S. (not within a reasonable time), filled in his own name as drawer for 2007. at five months. The defendant being sued on the bill, and having pleaded the statute, the statute ran from the time the bill became due as filled up, and not from the time it would have become due if completed when it was accepted in blank (Montague v. Perkins, 22 L. J. C. P. 187). In the case of a bill of exchange drawn on a bank, time did not commence to run against the holder's right to sue the drawer until presentation to the bank for payment (Re Boyse, Crofton v. Crofton, 33 Ch. D. 612). "In the case of a bill of exchange drawn at so many months after sight, and refused acceptance, the cause of action is complete, and the statute begins to run upon the refusal of acceptance, and no new cause of action arises upon refusal of payment" (Per Willes, J., Wilkinson v. Verity, L. R. 6 C. P. 209; see Whitehead v. Walker, 9 M. & W. 506). K. being indebted to the plaintiffs and to the defendant, and also to a banking company, it was agreed between all the parties that to secure K.'s debt to the company the defendant should draw upon K. three bills of exchange, payable to the plaintiffs, and that the plaintiffs should indorse them to the company. The bills became due in 1843, and were dishonoured. In 1847 the company sued the plaintiffs on the bills, and the plaintiffs, in 1851, paid the amount: it was held, in 1852, that the plaintiffs were barred by the statute from suing the defendant as drawer of the bills (Webster v. Kirk, 17 Q. B. 944). Where a bill is drawn payable at a future period for a sum lent by payee to drawer at the time of drawing the bill, the payee may recover in an action for money lent at any time within six years from the time when the bill became due (Wintersheim v. Carlisle, 1 H. Bl. 631). Where an advance was made by the lender giving to the borrower a cheque which was subsequently paid, time ran against the lender, in an action for money lent, from the payment not the giving of the cheque (Garden v. Bruce, L. R. 3 C. P. 300). Before the Jud. Acts it was held that it was no answer at law to a plea of the statute, that the plaintiff was prevented by the defendant's fraud from knowing of the cause of action until after the time of limitation had expired (Imperial Gas Co. v. London Gas Co., 10 Exch. 39; Hunter v. Gibbons, 1 H. & N. 459). The rule was different in equity where time ran from the discovery of the fraud (Blair v. Bromley, 2 Phil. 354; Eccl. Commissioners v. N. E. R. Co., 4 Ch. D. 845). The rule in equity now prevails (Gibbs v. Guild, 9 Q. B. Div. 59; Re Crosley, Munns v. Burn, 35 Ch. Div. 266) and in cases falling within the Trustee Act, 1888, s. 8, is not affected by that section (Moore v. Knight, 1891, 1 Ch. 547). But Hometrang. v. concealment of a cause of action without fraud makes no difference Velburn, 5:23. (Armstrong v. Milburn, 54 L. T. 723). ૩ Where costs were incurred in obtaining an act for a railway subsequently abandoned, time did not commence to run against the creditor claiming the costs until the company had assets (Re Kensington Station Act, 20 Eq. 197). In the case of bills of costs items dated more than six years before action will be barred, where the work was miscellaneous (Beck v. Pierce, 23 Q. B. Div. 323), or the employment not continuous (Phillips v. Broadley, 9 Q. B. 744). Where, however, the employment was continuous and lasted till within the six years, such items will not be barred (Harris v. Quine, L. R. 4 Q. B. 653). As where a solicitor is retained to conduct an action; in which case he cannot, as a rule, sue for his costs until the termination of the action or of his retainer (Harris v. Osbourn, 2 C. & M. 629; Nicholls v. Wilson, 11 M. & W. 106). So costs incurred in conducting a suit in which no final decree had been made were held not to be barred, though no steps had been taken in the suit for ten years prior to action brought (Whitehead v. Lord, 7 Exch. 691; see Stokes v. Trumper, 2 K. & J. 232; Baile v. Baile, 13 Eq. 497). The statute will, as a rule, run from the date of the judgment in the action for which the retainer was given (Rothery v. Munnings, 1 B. & Ad. 15); but when an appeal is brought, the employment will be considered continuous as from the commencement of the action (Harris v. Quine, L. R. 4 Q. B. 657). During the course of the action the solicitor may give reasonable notice to the client to supply him with funds, and on refusal sue for costs. The retainer will also be determined by the death of the client (Whitehead v. Lord, 7 Exch. 691). As to part payment in the case of bills of costs, see Morley v. Finney (1870, W. N. 82). And as to taxation where some of the items of a bill are barred, see Curwen v. Milburn, 42 Ch. D. 424. 21 Jac. 1, c. 16, s. 3. Costs incurred by solicitors in prosecuting a commission in lunacy, and Costs in subsequently acting on behalf of the committee, were held (at the lunatic's lunacy. death) not barred by the lapse of six years during his life; for the Court of Chancery will take judicial notice, that any action for the recovery of the claim would have been restrained (Stedman v. Hart, Kay, 607). See the cases as to a lunatic's maintenance, post, p. 238. Where solicitors delivered to the official manager of a company in Costs incurred liquidation books and papers, on which they had a lien for their costs, by a company upon his undertaking in writing to pay them out of the first funds which which is might come into his hands; it was held that the statute had no applica- afterwards tion (Re Gloucester, &c. R. Co., 2 Giff. 47). As to the right of an official wound up. liquidator to have bills of costs taxed, see Ex p. Evans (11 Eq. 151); Re Liverpool, &c. Association (1889, W. N. 48). A solicitor's right to have a call made for his payment may be lost by laches (Ex p. A'Beckett, 2 Jur. N. S. 684; see Re Gloucester R. Co., sup.) It was decided, under the Winding-up Acts of 1848-49, that an order Effect on the to wind up a company did not stop time from running against a creditor running of whose right of action had accrued previously to the winding-up order time (Ex p. Forest, 2 Giff. 42). But the carrying in a claim under the wind- of windinging up did stop the running of time (Wryghte's Case, 5 De G. & Sm. 244). up order; Under the Companies Act, 1862, a winding-up order stops the running of of adminis time (Re General Rolling Stock Co., 7 Ch. 646). Compare the similar tration judgeffect of judgment in an administration action, post, p. 237. ment. It was formerly laid down that when once time had begun to run, no Continuous subsequent disability or inability to sue would stop it (Rhodes v. Smethurst, running of 4 M. & W. 42). But it has since been held, that where a debtor takes out time. administration to his creditor, the running of time will be suspended during the administration (Seagram v. Knight, 2 Ch. 628). Where an action was brought in time and the defendant died, the plaintiff had a right to bring a new action against the executor or administrator within a reasonable time (Sturgis v. Darell, 6 H. & N. 120; see sect. 4, post). This rule was applied where the second action was commenced within a year from the proof of the will by the executor (Swindell v. Bulkeley, 18 Q. B. Div. 250). A mere letter of licence by a creditor to his debtor does not suspend the operation of the statute (Fuller v. Redman, 26 Beav. 614). But a covenant not to sue for a certain period will prevent time running until the expiration of that period (Iven v. Elwes, 3 Drew. 25; see O'Brien v. Osborne, 10 Hare, 92). He was held to run against a trustee in Where a cause of action accrues to a person in his lifetime, his executor in cannot bring an action after the time limited by the statute has expired (Penny v. Brice, 18 C. B. N. S. 393; 13 W. R. 342). But if the statute has not begun to run during the lifetime of an intestate, it does not run against the administrator until administration has been taken out (Burdick v. Garrick, 5 Ch. 241). Where a creditor dies intestate on the day on which the debt becomes due, in the absence of evidence time does not Hankruptey the easme way in the bankrup! 1. 21 Jac. 1, c. 16, s. 3. Limitation after judgment or outlawry reversed. Infants, femes coverts, &c. excepted. DISABILITIES. Beyond the seas. run against the administrator until administration is taken out (Atkinson v. Bradford Society, 25 Q. B. Div. 377). If time has once begun to run against a debt in the debtor's life, it does not afterwards cease to run during the period which may elapse between his death and the time at which a personal representative to him is constituted (Freake v. Cranefeldt, 3 M. & C. 499; Boatwright v. Boatwright, 17 Eq. 71; see Martin v. Beauchamp, 1888, W. N. 247). In an action by an administrator against the acceptor upon a bill of exchange, payable to the testator, but accepted after his death, it was held, that the statute began to run from the time of granting the letters of administration, and not from the time the bill became due, there being no cause of action until there was a party capable of suing (Murray v. The East India Co., 5 B. & Ald. 204; and see Pratt v. Swaine, 8 B. & C. 285; Perry v. Jenkins, 1 M. & C. 118; Hyde v. Price, 1 C. P. Coop. 196; Freake v. Cranefeldt, 3 M. & C. 499; Howlitt v. Lambert, 1 Ir. Eq. R. 263; Fergusson v. Fyffe, 8 Cl. & Fin. 121). The statute is not a good plea where an executor has not proved; because no laches can be imputed to a plaintiff for not suing whilst there was no executor against whom he could bring his action (Coop. Eq. Pl. 233; 2 Vern. 694; 1 Eq. Cas. Abr. 305). But where the defendant might have been sued as executor de son tort, his plea of the statute was allowed, although he had not taken out probate until some years after the testator's death (Webster v. Webster, 10 Ves. 93). By 21 Jac. 1, c. 16, s. 4, if judgment is given for the plaintiff and reversed by error or arrested, or if the defendant is outlawed and the outlawry reversed, a new action may from time to time be commenced within a year afterwards by the plaintiff, his heirs, executors or administrators. Within the equity of this section the courts permitted an executor or administrator, within a year, or within a reasonable time after the death of the testator or intestate, to renew a suit commenced by the testator or intestate, and vice versa (Curlewis v. Mornington, 7 E. & B. 283; see 15 & 16 Vict. c. 76, ss. 135 et seq.; Swindell v. Bulkeley, 18 Q. B. Div. 250). 7. Provided nevertheless, and be it further enacted, that if any person or persons that is, or shall be, entitled to any such action of trespass, detinue, action sur trover, replevin, actions of accounts, actions of debt, actions 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, that then such person or persons 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 the seas, as other persons having no such impediment should have done (b). (b) From the time when the Married Women's Property Act, 1882, enabled a married woman to sue, she became discovert within the above section; so held in the case of an action for slander (Weldon v. Neal, 51 L. T. 289; 32 W. R. 828), and for assault (Lowe v. Fox, 15 Q. B. Div. 676). Neither the imprisonment of the plaintiff nor his absence beyond the seas now constitute a disability (19 & 20 Vict. c. 97, s. 10, post). The absence of a defendant beyond the seas is made a disability by 4 Anne, c. 16, s. 19 (See Forbes v. Smith, 11 Ex. 161). As to the meaning of "beyond seas in these acts, see 3 & 4 Will. 4, c. 42, s. 7 (p. 207, ante); and 19 & 20 Vict. c. 97, s. 12 (post, p. 228); and see as to the effect of the proviso relating to plaintiffs beyond the seas, Perry v. Jackson (4 T. R. 516); Lafond v. Ruddock (13 C. B. 813; 2 Atk. 610-614); Strithorst v. Grame, (3 Wils. 145) Le Veux v. Berkeley, (5 Q. B. 836); Townsend v. Deacon (3 Exch. R. 706); Smith v. Hill (1 Wils. 134; 4 T. R. 311); Denys v. Shuckburgh (4 Y. & Coll. 47). 21 Jac. 1, c. 16, s. 7. Under the statute 4 Anne, c. 16, s. 19, if a right of action accrued against One of several several persons, one of whom was beyond seas, the statute did not run under disuntil his return, though the others had never been absent from the king- ability. dom (Fannin v. Anderson, 7 Q. B. 811; Towns v. Mead, 16 C. B. 123; see 19 & 20 Vict. c. 97, ss. 10, 11, post, p. 228). under disability. Where a person died abroad, to whom a right of action had accrued Representaduring his residence there, and he never returned to this country, his tives of perexecutors could sue for it, although more than six years had elapsed since sons dying it accrued. It was unnecessary to consider the question whether the executor could maintain the action after the expiration of six years; Parke, B., inclining to the opinion that the executor was under no restraint; but Rolfe, B., thinking it would be more reasonable to consider the right of action as accruing to the executor at the death of the testator, and to limit the right of action to six years (Townsend v. Deacon, 3 Exch. R. 706). A person gave his creditor a bill, and, before the bill arrived at maturity, went to India, whence he never returned. As soon as circumstances would permit after his death in India, his will was proved in England. A creditor's bill filed within six years after his death was held not barred (Story v. Fry, 1 Y. & Coll. C. C. 603; see Williams v. Jones, 13 East, 439; and Flood v. Patterson, 29 Beav. 295). EXPRESS ACKNOWLEDGMENTS. 9 GEO. 4, c. 14.-An Act for rendering a Written Memorandum necessary to the Validity of certain Promises and Engagements. [19th May, 1828.] case no ac The stat. 9 Geo. 4, c. 14, recites the stat. 21 Jac. 1, 9 Geo. 4, c. 16, s. 3, and the Irish stat. 10 Car. 1, sess. 2, c. 6, and that c. 14. various questions had arisen in actions founded on simple contracts, as to the proof and effect of acknowledgments and promises offered in evidence, for the purpose of taking cases out of the operation of the said enactments; and that it was expedient to prevent such questions, and to make provision for giving effect to the said enactments, and to the intention thereof; and enacts (sect. 1), That in actions of debt or upon In actions the case grounded upon any simple contract, no acknowledgment of debt or promise, by words only, shall be deemed sufficient evidence or upon the of a new or continuing contract, whereby to take any case out knowledgof the operation of the said enactments, or either of them, or to ment shall be deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some it be in writwriting to be signed by the party chargeable thereby; and ing or by part that, where there shall be two or more joint contractors, or exe- payment. cutors 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: deemed suffi cient, unless |