Page images
[ocr errors]

defendant pleaded the statute of limitations; the plaintiff replied the bankruptcy and assignment, and that the cause of action arose within six years next before the assignment; on demurrer, the replication was holden bad: the court observing, that the statute would be defeated as to all simple contracts, if an assignment, at the end of five years and a half, was to set all at large again.

By stat. 21 Jac. 1. c. 16. s. 4. it is enacted, “that if judgment be given for the plaintiff and reversed by error, or the judgment be arrested, or if the defendant be outlawed, and the outlawry reversed; the plaintiff, his heirs, executors, or administrators, may commence a new action or suit from time to time within a year, after such judgment given or outlawry reversed.

It has been said, that within the equity of the preceeding section, the courts have permitted an executor or administrator within a year (79) after the death of the testator or in

[ocr errors]


(79) I am not aware of any case in which this point has been expressly decided, or in which it has been holden, that an executor or administrator must bring his action within a year. In Buller's N. P. p. 150. is the following position:-" If an executor take out proper process within

after the death of his testator, if the six years were not lapsed before the death of the testator, though they be lapsed within that year, yet it will be sufficient to take it out of the third section of the statute of limitations by the equity of the fourth section." The authority cited for this position is Cawer v. James, probably the same case as is reported in Willes, 255. by the name of Karver v. James; but in Willes's Report, the position as laid down by Buller, seems rather to have been admitted than expressly determined. In like manner, in Wilcocks v. Huggins, Str. 907. and Fitzg. 170, 289, it seems to have been taken for granted. From the language, however, of Lee, J. in the last-mentioned case, it may be inferred that at that time no fixed period, within which the executor or administrator might bring the action, had been established. His words are *, “In the contingency that has happened, the statute does not limit any time for the executor to bring his action; but there is a clause that provides (where a judgment is reversed after the six years) one year after the reversal for the plaintiff to bring a new action, which may be a direction with regard to the reasonableness of the time to be allowed an executor or ad. ministrator in the present contingency.” It is observable also, that in Wilcox v. Huggins, Fitzg. 171. a case (Lethbridge v. Chapman,) was cited, where an administrator brought his action fourteen months after the intestate's death, and recovered: and in Wilcox v. Huggins, (where the action was brought by the executor of an executor in right


* Fitzg. 172.

testate, to renew a suit commenced by the testator or intestate.

Erceptions in the Case of Infancy, &c.—By the 7th section of stat. 21 Jac. 1. c. 16. “If any person entitled to such action of trespass, detinue, trover, replevin, actions of account, debt, trespass for assault, menace, battery, wounding, or imprisonment, actions upon the case for words, shall be, at the time of such cause of action accrued, within the age

of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, such person shall be at liberty to bring the same actions within such times as are before limited after their being of full age, discovert, of sane memory, at large, and returned from beyond the seas.” By stat. 3 and 4 W. 4 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 of 21 Jac. 1. c. 16.

of the first testator more than four years after the death of the first executor,) it was admitted by the court that if the second executor had been retarded by suits about the will or administration, it would have altered the case, because then the neglect would have been accounted for. Perhaps the only rule that can be laid down with safety is, that the executor or administrator must bring his action within a reasonable time. This rules receives some sanction from the following observations of the judges in Wilcox v. Huggins, Fitzg. 290. Raymond, C. J. “It might be too harsh a construction to say, that the debt becomes irrecoverable by an abatement of the action, after the six years elapsed, by the plaintiff's death; but then the executor, to bring his case within the equity of the statute, must make a recent prosecution, as to which, the clause in the statute that provides a year after the reversal of a judgment, &c. may be a good direction." Page, Justice: “Such a recent prosecution is to be made as will shew the party came as early as he might. If there had been a contest about the will or right of administration, that should have been pleaded in excuse of the delay.” Probyn, J. “Nothing hath been disclosed to shew why the action was not brought sooner. reasonable cause had been shewn, it might bring the action within the notion of a recent prosecution, though it had been brought after the year." Lee J. “I think that it should be in the nature of Journeys Accompts, which is a taking up and pursuing the old action in a reasonable time, which is to be discussed by the discretion of the justices, 6 Co. Spencer's case; and, by the same rule, I think what is or is not a recent prosecution, in a case of this nature, is to be determined by the discretion of the court from the circumstances of the case, but generally the year in the stat. is a good direction.” A similar clause to that in the text will be found in stat. 3 and 4 W. 4 c. 42, s. 6.

If a

An action of assumpsit, although it is not expressly mentioned, is within the equity of the preceding clausee. 'If the plaintiff is a foreigner, living beyond the sea at the time when the cause of action accrues, and doth not come to England for 50 years, he still has six years after his coming to England to bring an action of assumpsit; and if he never comes to England, his right of action is not barred either against him or his executors or administrators after his death. Hence a replicationf (to a plea of the statute of limitations) that the plaintiff was beyond sea at the time when the cause of action accrued, and that he hath ever since been and still is abroad, was holden good, on demurrer. If the plaintiff be in England when the cause of action accrues, the time of limitation begins to run, and a subsequent departure from the kingdom and going beyond the seas, will not entitle the plaintiff or his representative to maintain an action after the expiration of the limited time (80). So if there are several partnersh and some are in England at the time when the cause of action accrues, and others beyond the seas, the action must be brought within six years next after the cause of action accrues, notwithstanding the absence of the partners beyond the seas.

Before the statute of Ann, hereinafter mentioned, it was holden, that the exception in the 7th section of the stat. 21 Jac. 1. c. 16. as to persons being beyond the seas, extended only to the case of plaintiffs so absent, and not to that of defendants; 1st. because plaintiffs only are mentioned in the statute of James ; and 2dly, because the plaintiffs might have filed an original, and outlawed the debtor, which would have prevented the bar of the statute. But now, by stat. 4. Ann. c. 16. s. 19k, “If any person, against whom there is

any cause of action for seaman's wages, or of action upon


shall be, at the time of such cause of action accrued, beyond the seas, the person entitled to the action may bring the same against such person after his return from beyond the seas, within the time limited by the 21 Jac. 1. c. 16.” To a plea of e Chandler v. Vilett, 2 Saund. 120. and h Perry and others v. Jackson, 4 T R.

Rochtschilt v. Leibman, 2 Str. 836. and Fitzgib. 81.

i Hall v. Wyburn, Carth. 136. and f Strithorst v. Grame, 2 Bl. R. 723. Cheveley v. Bond, Carth. 226. g Smith v. Hill, 1 Wils. 134.

k Several other actions are mentioned


in this statute.

(80) So when a disability is once removed, and the statute has begun to run, no subsequent disability will stop the running. See the opinion of Lord Kenyon, C. J. in Doe dem. Duroure v. Jones, 4 T. R. 311, where that learned judge speaks of the uniform construction of all the statutes of limitation in this respect. See also Gray v. Mendez, Str. 556. and Doe d. Griggs v. Shaen, B. R. M. 28 G. 3. MS. S. P.

the statute it is sufficient to reply that the defendant was in the East Indies, at the time the cause of action accrued, and that the plaintiff commenced his suit against the defendant within six years next after his return to this kingdom ; and it is no answer to this replication to say, that the defendant remained more than six years in India after the cause of action accrued there, and within the jurisdiction of the supreme court at Calcutta in that country!

2. Statute of Set-off.- At common law, if the plaintiff was indebted to the defendant, in as much or even more than the defendant owed to him, yet the defendant had not any method of setting off such debt in the action brought by the plaintiff for the recovery of his debt, and consequently the defendant was driven to a cross action. To obviate this inconvenience and to prevent circuity of action, or a bill in equity, it was enacted by stat. 2 G. 2. c. 22. s. 13. (made perpetual by stat. 8 G. 2. c. 24. s. 4.) “that where there are mutual debts between the plaintiff and defendant, or if either party sue or be sued as executor or administrator, where there are mutual debts between the testator or intestate, and either party, one debt may be set against the other, and such matter may be given in evidence upon the general issue, or pleaded in bar, as the nature of the case shall require, so as at the time of pleading the general issue, where any such debt of the plaintiff, his testator or intestate, is intended to be insisted on in evidence, notice shall be given of the particular sum or debt so intended to be insisted on, and upon what account it became due, or otherwise such matter shall not be allowed in evidence on such general issue.” And by stat. 6 G. 2. c. 24. s. 5. it was enacted and declared, “that by virtue of the preceding clause, mutual debts might be set against each other, either by being pleaded in bar, or given in evidence, on the general issue, in the manner therein mentioned, notwithstanding that such debts were deemed in law to be of a different nature; unless in cases where either of the said debts shall accrue by reason of a penalty contained in any bond or specialty; and in all cases where either the debt for which the action shall be brought, or the debt intended to be set against the same shall accrue, by reason of any such penalty, the debt intended to be set off shall be pleaded in bar, in which plea shall be shewn how much is justly due on either side; and in case the plaintiff shall recover in any such action or suit, judgment shall be entered for no more than shall appear to be justly due to the plaintiff, after one debt being set against the other as aforesaid.”

I Williams v. Jones, 13 East, 439.

s. 13.

As to the causes in which a set-off is allowed under the preceding statutes, it must be observed,

1. That the debts sued for, and the debts intended to be set off, must be mutual and due in the same right. Hence a joint debt cannot be set against a separate demand, nor a separate debt against a joint demand; but a debt due to the defendant, as surviving partner, may be set against a demand on defendant in his own righta; and e converso, a debt due from the plaintiff, as surviving partner, may be set againt a debt due from the defendant to the plaintiff in his own rightb. A defendant sued as executor or administrator, cannot set off a debt due to defendant personally, nor can a person who is sued for his own debt set off what is due to him as executor or administrator. The statute 2 G. 2. c. 22.


if either party sues or is sued as executor or administrator, where there are mutual debts between the testator or intestate and either party, one debt may be set against the other. This part of the statute is confined to cases where the party sues or is sued as executor or administrator. Hence where an executor sues for a cause of action arising after the death of the testator, the defendant cannot set off a debt due to him from the testator: A. having been appointed by B. his attorney to receive his rents', did, after his death, receive rent arrear in B.'s life-time; the executrix of B. brought an action againt A. for the money in her own name, not naming herself executrix ; the defendant gave notice to set off a debt due to him from the testator, which was not allowed at the trial, because the suit not being as executor, the case is not within the statute. The court of C. B. on a case made, concurred in opinion with the judge who tried the cause. The same rule holds where the plaintiff declares as executor, if the cause of action arose after the death of the testator : In assumpsit by the plaintiff as executord, for goods sold and delivered to the defendant by the plaintiff, as executor, the defendant pleaded a set-off for a debt due from the testator to the defendant. On demurrer, the court held the plea bad: for to allow a set-off in this case, would be altering the course of distributione (81).

a Slipper v. Stidstone, 6 T. R. 493.
b French v. Andrade, 6 T. R. 582.
c Shipman v. Thompson, Willes, 103.

and Bull. N. P. 180.

d Kilvington, executor, v. Stevenson,

cited by Erskine from Yate's MS».

in Teggetmeyer v. Lumley.
e Durnford's note, Willes, 264.

(81) So if the cause of action arises partly in time of testator and partly in time of executor, although the plaintiff declares as executor, yet defendant cannot get off a debt due from the testator to him: In

« EelmineJätka »