statute 4 Anne, c. 16, which we shall next notice, so that Ireland is, within that act, still a place beyond the seas (u). By the statute 4 Anne, c. 16, s. 19, persons entitled to the causes of actions by the statute of James, "shall be at liberty; if the person against whom the cause of suit exists were, at the time of such cause of action or suit given or accrued, fallen or come, beyond the seas (x), to bring the said action against such person after his return from beyond the seas; so as they take the same after his return from beyond the seas within the time limited by the statute of James." If the debtor once arrive in this country, though his stay here be but for a few days, and were unknown to the creditor, the action must be brought within six years from the time he arrived (y). The disability must exist when the cause of action arose: if the creditor were in Great Britain, &c. at that time, the six years will be dated from that period, although he afterwards go abroad and remain absent (2). Where there are several joint creditors or claimants, and one of them is in England when the right of suit accrues, the action must be commenced within six years from that period (a). If the creditor were abroad when the debt accrued, and never came to this country, the statute does not attach against him or his representative (b). But if he once arrive here (c); or if one of several joint creditors who were resident abroad when the cause of action arose afterwards come to England (d); the statute in each case attaches upon the demand, at the expiration of six years after such first arrival; and no subsequent departure defeats its operation. If the defendant were in the East Indies when the cause of action accrued, the plaintiff may sue him within six years after his return to England, although the defendant lived six years in the East Indies, within the jurisdiction of the supreme court of Calcutta (e). (u) Lane v. Bennett, 1 M. & W. 70; 1 Tyr. & Gr. 441, S. C. (x) Ireland is beyond the seas; supra, note (u). (y) Gregory v. Hurrill, 5 B. & C. 341; 8 Dowl. & Ry. 270. And see Holl v. Hadley, 2 Ad. & E. 757; 4 Nev. & Man. 515. (z) Smith v. Hill, 1 Wils. 134; Doe d. Doroure v. Jones, 4 T. R. 311; Grey v. Mendez, Str. 556. (a) Perry v. Jackson, 4 T. R. 516. (b) Strithorst v. Græme, 2 Black. Rep. 723. (c) Smith v. Hill, 1 Wils. 134. A cause of action cannot be said to exist, unless there be a person in existence capable of suing. Consequently, in an action by an administrator, upon a bill of exchange payable to the intestate, but accepted after his death, the six years do not begin to run until letters of administration are granted (f). But if the cause of action had accrued before the death of the intestate, the statute would have commenced running when such cause of action accrued, and having commenced, must have continued running (g). Where the testator resided abroad at the time the cause of action accrued, and died abroad; it was held that his executors, who resided in England, might be sued within six years after taking out probate. Best, C. J., observed, "Although the injury of which the plaintiffs complain has existed more than six years, yet they had no cause of action until there was some person within the realm against whom the action could be brought. Cause of action is the right to prosecute an action with effect; no one has a complete cause of action until there is somebody that he can sue. The deceased was never in England after the cause of action accrued against him; after his death, there was no person in England against whom the plaintiffs could proceed, until the defendant took upon himself the execution of his will. The defendant did not act as executor, or prove the will of the deceased, until 1824. An executor may do many acts before he has proved the will; and when he has proved the will, his right to the testator's property has relation to the time of the testator's death; but we do not think that any action can be maintained against him as executor, until he has taken upon himself to act as such, or has proved the will (h).” Where the six years from the time the cause of action accrued expired in the lifetime of the testator, and no action was brought by him, the statute is a bar, and the executor cannot, by any proceeding, defeat its operation (i). However, if the testator had, within the six years, brought an action, which is abated by his death, the executor shall have reasonable time (semble a year), after the testator's death, to commence a new action, and thereby (f) Murray v. The East India Company, 5 B. & Al. 204. See exception in 3 & 4 W. 4, c. 27, s. 6. as lo real actions. (g) Rhodes v. Smethurst, 4 M. & W. 63, affirmed in error, 6 M. & W. 351; post, 814. (h) Douglas v. Forrest, 4 Bing. 686, 704; 1 M. & P. 663, S. C. (i) Rex v. Morrell, 6 Price R. 30; Rhodes v. Smethurst, 4 M. & W. 42, affirmed in error, 6 M. & W. 351; Freak v. Cranefeldt, 3 Myl. & Cr. 499, post, 814. take the case out of the statute, although the six years may have elapsed when such fresh proceedings are taken (k). Limitation of Actions on Deeds, &c.-By the law amendment act, 3 & 4 Will. IV. c. 42, s. 3, it is enacted, "That all actions of debt for rent upon an indenture of demise (1), all actions of covenant or debt upon any bond or other specialty, and all actions of debt or scire facias upon any recognizance (m), and also all actions of debt upon any award where the submission is not by specialty, or for any fine due in respect of any copyhold estates, or for an escape, or for money levied on any fieri facias, and all actions for penalties, damages, or sums of money given to the party grieved, by any statute now or hereafter to be in force, that shall be sued or brought at any time after the end of the present session of parliament, shall be commenced and sued within the time and limitation herein-after expressed, and not after; that is to say, the said actions of debt for rent upon an indenture of demise, or covenant, or debt upon any bond or other specialty, actions of debt, or scire facias upon recognizance, within ten years after the end of this present session, or within twenty years after the cause of such actions or suits, but not after; the said actions by the party grieved, one year after the end of this present session, or within two years after the cause of such actions or suits, but not after; and the said other actions within three years after the end of this present session, or within six years after the cause of such actions or suits, but not after; provided that nothing herein contained shall extend to any action given by any statute where the time for bringing such action is or shall be by any statute specially limited." IV." And be it further enacted, that if any person or persons that is or are or shall be entitled to any such action or suit, or to such scire facias, is or are or shall be, at the time of any such cause of action accrued, within the age of twenty-one years, feme covert, (k) See Bul. N. P. 150; 1 Selw. N. P. 6th ed. 144, and note (94); 8th ed. 151, 152, note; Tidd, 9th ed. 28; Ballantine, 156, 166. (1) Covenant for rent in arrear may be brought within the time limited by this statute, and need not be brought within six years, the time limited by the 3 & 4 W. 4, c. 27, s. 42; Paget v. Foley, 3 Scott, 120; 2 Bing. N. C. 679; Hartshorne v. Watson, 5 Scott, 506; 4 Bing. N. C. 178, S. C. See S & 4 W. 4, c. 27, s. 40, 42, as to annuities, &c., or charges on land, Chitty & Hulme's Statutes, 623. (m) It will be observed that judgments are not mentioned; as to the limitation in an action, or scire facias, &c. thereon, see 3 & 4 W. 4, c. 27, s. 40; ante, 8, note (g). non compos mentis, or beyond the seas, then such person or persons shall be at liberty to bring the same actions, so as they commence the same within such times after their coming to or being of full age, discovert, of sound memory, or returned from beyond the seas, as other persons having no such impediment should, according to the provisions of this act, have done; and that if any person or persons against whom there shall be any such cause of action is or are, or shall be, at the time such cause of action accrued, beyond the seas, then the person or persons entitled to any such cause of action shall be at liberty to bring the same against such person or persons within such times as are before limited after the return of such person or persons from beyond the seas (n).” V. "Provided always, that if any acknowledgment (o) shall have been made, either by writing signed by the party liable by virtue of such indenture, specialty, or recognizance, or his agent (p), or by part payment or part satisfaction (o) on account of any principal or interest being then due thereon, it shall and may be lawful for the person or persons entitled to such actions to bring his or their action for the money remaining unpaid and so acknowledged to be due within twenty years after such acknowledgment by writing, or part payment, or part satisfaction, as aforesaid; or in case the person or persons entitled to such action shall at the time of such acknowledgment be under such disability as aforesaid, or the party making such acknowledgment be, at the time of making the same, beyond the seas, then within twenty years after such disability shall have ceased as aforesaid, or the party shall have returned from beyond seas, as the case may be; and the plaintiff or plaintiffs in any such action on any indenture, specialty, or recognizance, may, by way of replication, state such acknowledgment, and that such action was brought within the time aforesaid, in answer to a plea of this statute." VI. "And nevertheless be it enacted, 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 on matter alleged in arrest of judgment the judgment be given against the plaintiff, that he take nothing by his plaint, writ, or bill; or if (n) See the cases on the statute of James, ante, 809, 810. (0) See post, 820, 830, 831. Geo. 4, c. 14, so that an acknowledgment under that statute signed by the agent of the debtor will not suffice; Hyde v. Johnson, 3 Scott, 230; post, 819. in any of the said actions the defendant shall be outlawed, and shall after reverse the outlawry, that in all such cases the party plaintiff, his 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." 2. From what period the Limitation is to be dated. The statute of James does not begin to run or operate from the time of the making of a contract or promise, unless a full and complete cause of action instantly accrue thereon. The six years are to be dated from the day upon which the plaintiff might have commenced an action for the recovery of his demand. "Prescription only begins to run from the time when the creditor has a right to institute his suit, because no delay can be imputed to him before that time. Hence it is a general maxim, with regard to this subject, contra non valentem agere nulla currit prescriptio; consequently a prescription cannot begin to run whilst a debt is suspended by a condition (p)." But the statute runs from the moment that there is a cause of action, a plaintiff in England capable of suing and a defendant of being sued, and having begun to run, no subsequent disability affects it. Were it otherwise, inquiries would have to be made in every case of a most difficult and intricate nature (q). It is therefore no answer to a plea of the statute of limitations, that after the cause of action accrued and the statute had begun to run, the debtor within the six years died, and that by reason of litigation as to the right to probate an executor of his will was not appointed until after the expiration of the six years, and that the plaintiff sued such executor within a reasonable time after probate granted (r). If the contract be to pay money at a future period, or upon the happening of a certain event, as "when J. S. is married;" the six years are to be dated, in the first instance, from the ar (p) 1 Pothier by Evans, 451, pt. 3, c. 8, art. 2, s. 2. (q) Rhodes v. Smethurst, 4 M. & W. 42, in which all the cases were very elaborately reviewed; and see Freake v. Cranefeldt, 3 Myl. & Cr. 499. See |