Chap. XIX. cause of action until there is a personal representative capable of suing or being sued, as the case may be. If the deceased appointed an executor, the time of proving the will is immaterial, for an executor derives his authority from the will and not from the probate. Therefore, before probate, an executor1 can sue, and, if he has acted as executor, can be sued, so that time begins to run as soon as the cause of action arises, or, in the case of an executor defendant, from the time when he could be sued as an acting executor.3 But an administrator derives his title solely from the grant of letters of administration by the Court, and there is no complete cause of action until such grant, from the date of which grant, therefore, the period runs within which the administrator can sue or be sued.5 Death of plaintiff or defendant, and expiration of six years. The statute 21 Jac. 1, c. 16,6 provided that:- 4 "If, in any of the said actions, judgment be given for the plaintiff, and the same be reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff . . . ; or if any of the said actions be brought by original, and the defendant therein be outlawed, and shall reverse the outlawry, in all such cases the party plaintiff, his heirs, executors, or administrators, as the case shall require, may commence a new action or suit from time to time within a year after such judgment reversed, or such judgment given against the plaintiff, or outlawry reversed, and not after." Upon the construction of this section it has long been decided that when an action has been commenced within the six years and the plaintiff has died during the pending of the action, his representatives may commence a new action, and in the case of the death of a defendant the plaintiff may commence a new action, within a reasonable time after probate or grant of administration, although the six years may have expired in either case. This is still the rule, although the action does not now become abated by the death of either party. 8 In an action on an executory promise the cause of action is Chap. XIX. the breach of the promise, not the damage. If the promise When the is to pay at a future time, or on the happening of a contingent cause of event or the performance of a condition, the cause of action arises at the time specified, or on the happening of the event, or per- executory formance of the condition.2 action arises : agreements; If the promise is to pay after notice, the cause of action does demand; not arise until notice has been given.3 But if the promise is to pay on demand, the cause of action arises at once without any demand, unless the promise is to pay a collateral sum, e.g., by a surety, on demand, in which case no cause of action arises until demand.5 The cause of action for a debt arises at the time when the debt debts. could first be recovered by action; for it is a general rule that the statute runs from the earliest time at which an action could be brought. on credit. payable at fixed time after date : payable at sight: If goods are sold on credit, the cause of action arises at the Goods sold time when the credit expires, not from delivery of the goods.7 Where a bill or note is payable at a fixed time after date, the Bill or note cause of action arises at the time when it becomes due. If a bill be payable at sight, the cause of action arises on the presentment of the bill. If the bill or note is payable at a specified time after sight or demand, the cause of action arises at the expiration of that time.10 If it is payable on demand, the cause of action arises on the making of the bill or note, because no demand is necessary. On a contract of indemnity the cause of action arises when the Contract of party to be indemnified is called upon to pay.' In the case of a 11 1 Short v. M'Carthy, 3 B. & Ald. 626; 22 R. R. 503; Brown v. Howard, 2 Brod. & B. 73; Battley v. Faulkner, 3 B. & Ald. 288; 22 R. R. 390; Gould v. Johnson, 2 Salk. 422; 2 Ld. Raymond, 838. 2 Fenton v. Emblers, 3 Burr. 1278; Waters v. Earl Thanet, 2 Q. B. 757; Hammond v. Smith, 33 Beav. 452; Atkinson v. Bradford Bldg. Soc., 25 Q. B. D. 377. 3 Atkinson v. Bradford Bldg. Soc., sup. Norton v. Ellam, 2 M. & W. 461, 464; 46 R. R. 646; Brown v. Brown, [1893] 2 Ch. 300. › Birks v. Trippet, 1 Wms. Saund. 32; Brown v. Brown, sup. 12 6 Per Lindley, L. J., Reeves v. Butcher, [1891] 2 Q. B. 509, 511; Re McHenry, [1894] 3 Ch. 290. 7 Helps v. Winterbottom, 2 B. & Ad. 431; 36 R. R. 609. 8 Wittersheim v. Carlisle, 1 H. Bl. 631. 10 Thorpe v. Booth, 1 Ry. & M. 388. 12 Collinge v. Heywood, 9 A. & E. 633; after sight or on demand. indemnity. Co-sureties. Chap. XIX. claim by one co-surety against the other for contribution, the cause of action arises when the claim of the principal creditor against the one for more than his proportionate share is established;1 so, also, in the case of a claim for contribution by one co-trustee against the other in respect of a liability incurred by their joint default.2 Co-trustees. Dividends. Solicitor's bill. Husband's liability for wife's ante nuptial debts. Where promisor disables himself from performance or repudiates contract before time for perform ance. Trover and conversion. Detinue. When a company declares a dividend on its shares, a debt immediately becomes payable to each shareholder, and a cause of action immediately arises.3 The cause of action on a solicitor's bill of costs arises on the completion of the work, and the statute begins to run from that time, and not from the delivery of a signed bill of costs.* In the case of a wife's ante-nuptial debt for which the husband is liable, the cause of action is the wife's contract, and the statute runs, in favour of the husband, from the time when the cause of action accrued against the wife. 5 The rule, however, that the cause of action arises upon breach of the contract, is not universal, for in cases where a man undertakes to do an act on a future day, and before the day arrives disables himself from performing the act, or absolutely refuses to be bound by or perform his contract, and so to speak declares off the bargain himself and absolves the opposite party, it is in the option of such party at his discretion to treat that conduct as of itself a violation and breach of the contract, or to insist upon holding the repudiating party liable and sue him for non-performance when the day arrives." In an action for wrongfully depriving the plaintiff of goods (formerly and sometimes still called an action of trover or of trover and conversion) the cause of action is the conversion, that is, some act by the defendant incompatible with a recognition on his part of the right of the plaintiff to possess, notwithstanding that the plaintiff is ignorant of such right." In an action to recover the possession of goods which came lawfully (as, for example, by 1 Wolmershausen v. Gullick, [1893] 2 2 Robinson v. Harkin, [1896] 2 Ch. 415. 559. + Coburn v. Colledge, [1897] 1 Q. B. 5 Beck v. Pierce, 23 Q. B. D. 316. 8 a bailment) into the possession of a defendant whose possession Chap. XIX. has since become unlawful, or who has wrongfully parted with the possession (formerly called an action of detinue), the cause of action accrues at the time when the possession becomes unlawful.1 Thus, where title deeds are fraudulently taken by A. from the rightful owner B., and deposited by A. with a third person C., who has no knowledge that A. has no right to them, B., the rightful owner, has no right of action against C. until demand by B. and refusal by C. to give up the deeds; i.e., until there is a claim by C. to hold them as against the owner.2 Where money is deposited with a person for safe custody, and not by way of loan, a cause of action does not arise until demand to return the money and refusal.3 In the case of torts, if any right existing in the party damnified Torts. has been infringed, the infringement is an injury, and the law will presume that some damage resulted from it; "every injury to a right imports a damage in the nature of it, though there be no pecuniary loss."4 In such cases the cause of action arises immediately, and the statute begins to run. Where, however, actual damage is necessary to complete the cause of action, the statute begins to run when the damage has accrued.5 In the case of a tort, as in that of a contract, the general rule is that where there has once been a complete cause of action against the defendant the statute begins to run, and that subsequent circumstances which would but for the prior wrongful act or default of the defendant have constituted a cause of action against him are disregarded; but this applies only where the prior and subsequent wrongful acts are those of the same person.7 We have already referred to the rule that, where a cause of Disabilities: action has arisen and the period of limitation has begun to run, it will continue to run notwithstanding the impossibility of bringing an action. The rule applies to cases in which, after the cause of action arises, the party who would otherwise be entitled to sue falls under disability. But, where the disability exists at the 1 Plant v. Cotterill, 5 H. & N. 430. 2 Spackman v. Foster, 11 Q. B. D. 99; Miller v. Dell, [1891] 1 Q. B. 468; London & Mid. Bank v. Mitchell, [1899] 2 Ch. 161, 166. 3 Re Tidd, [1893] 3 Ch. 154. 4 Ashby v. White, 1 Sm. L. C. 240, and notes thereto. 5 Backhouse v. Bonomi, 9 H. L. C. 503; Darley Main Co. v. Mitchell, 11 App. Cas. 127. 6 Per Willes, J., Wilkinson v. Verity, 7 Miller v. Dell, [1891] 1 Q. B. 468. Chap. XIX. time when the right of action arises, the period of limitation does not begin to run until the removal of the disability, when for the first time there is a complete cause of action. of plaintiffs; married women. Defendant beyond the seas. Under the statute of 21 Jac. I, c. 16,1 time does not begin to run against a person entitled to sue who is, at the time the cause of action accrues, an infant, married woman, or lunatic, until the disability is removed. Under that statute time did not begin to run against a person imprisoned or beyond the seas until release or return; but these disabilities were abolished by the Mercantile Law Amendment Act, 1856. Those provisions do not prevent the person entitled to sue from bringing his action during the period of disability, if he thinks fit to do so.3 A married woman was, by the operation of this section,+ enabled to sue for a debt within six years after she became discovert, though the cause of action accrued more than six years before action. It has been said that the effect of the Married Women's Property Act, 1882, which enables a married woman to sue and be sued in all respects as if she were a feme sole, is to do away with the saving in her favour.7 There is, however, no direct decision upon this point, and it is at any rate doubtful whether sect. 7 has been impliedly repealed so far as it relates to married women.8 In the case of defendants, by a statute of Anne' it is enacted that if any person, against whom there is any one of the causes of action mentioned in sect. 3 of 21 Jac. I., c. 16,10 is at the time when the cause of action accrues beyond the seas, the person entitled to bring the action may do so within six years after the person liable returns11 from beyond the seas. No part of the United Kingdom, 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, are "beyond the seas seas" for |