from length of time, as it is not common for a creditor to wait so long without enforcing payment of what is due; and, as presumptions are founded upon the ordinary course of things, ex eo quod plerumque fit, the laws have formed the presumption, that the debt, if not recovered within the time prescribed, has been acquitted or released. Besides, a debtor ought not to be obliged to take care for ever of the acquittances which prove a demand to be satisfied; and it is proper to limit a time beyond which he shall not be under the necessity of producing them. This doctrine has also been established as a punishment for the negligence of the creditor. The law having allowed him a time within which to institute his action, the claim ought not to be received or enforced when he has suffered that time to elapse. For these reasons, it is enacted, by the statute 21 Jac. 1, c. 16, s. 3, that all actions of account and of assumpsit (other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants), and all actions of debt grounded upon any lending or contract without specialty, and all actions for debt or arrearages of rent,3 shall be commenced and sued within six years next after the cause of such action or suit, and not after. And section 7 contains a *proviso, similar

6

5

[*699] to those already mentioned, with respect to infants, married women, non compotes mentis, and persons imprisoned or beyond the seas, viz., that an action may be commenced in the above cases within six years after the particular disability shall have ceased." The

11 Pothier, by Evans, 451.

This exception applies only to accounts current between merchants, but not to accounts stated. (Webber v. Tivill, 2 Wms. Saund. 124; Robinson v. Alexander, 2 Cl. & Fin. 717, 737. See Colvin v. Buckle, 8 M. & W. 680.) (*) It likewise applies only to merchants' accounts, or, perhaps, also to an action for not accounting, but not to an action of indebitatus assumpsit. (Inglis v. Haigh, 8 M. & W. 769;(*) Cottam v. Partridge, 4 Scott, N. R. 819, 832.) As to money deposited with a banker, see Pott v. Clegg, 16 W. & M. 321.(*)

3 See 3 & 4 Will. 4, c. 27, s. 42.

4 The mere fact of part payment is not of itself sufficient to take the case out of the statute. The circumstances must be such as to warrant the jury in inferring a promise to pay: Wainman v. Kynman, 16 L. J., Exch. 232; S. C., Exch. 118; Worthington v. Grimsditch, 7 Q. B. 479; E. C. L. R. 53; Burn v. Boulton, C. B. 476. See, also, Martindale v. Falkner, 2 C. B. 706; E. C. L. R. 52.

5 See, also, 4 Ann. c. 16, s. 19; Fannin v. Anderson, 7 Q. B. 811; E. C. L. R. 53.

See Scarpellini v. Atcheson, 7 Q. B. 864; E. C. L. R. 53.

7 If a plaintiff be beyond seas at the time of the action accruing, he may sue under the above section at any time before his return, as well as within the limited time after: Le Veux v. Berkeley, 5 Q. B. 836; E. C. L. R. 48.

action of debt for not setting out tithes is not within the above statute; but, by 53 Geo. 3, c. 127, s. 5, no action shall be brought for the recovery of any penalty for not setting out tithes, unless such action be brought within six years from the time when such tithes became due.

With respect to actions ex delicto, the period of limitation' in trespass qu. cl. fr., or for taking goods or cattle, as also in trover, detinue, replevin, and case (except for slander), is six years; in trespass for assault, battery, or false imprisonment,3 it is four years; and in case for slander, two years. An action for crim. con., the gist of which is the injury sustained by the husband, should, perhaps, be considered with reference to the statute as essentially an action on the case, and not of trespass, and, therefore, be brought within six years after the injury was committed."

*Lastly, in connexion with this part of the subject, it may be observed, that no judgment in any action shall be reversed [700] or avoided for any error or defect therein, unless the writ of error be brought and prosecuted with effect within twenty years after such judgment signed or entered on record; provided the party against whom the judgment is given be not an infant, feme covert, non compos mentis, or in prison or beyond sea; in which cases the writ of error must be brought within twenty years after such disability ceases."

It is not intended, nor would it be consistent with the plan of this work, to consider, in detail, either from what period limitation runs, or the mode in which a claim may be taken out of the operation of the statute, or, when barred by any statute, may be revived by a subsequent promise or acknowledgment." These subjects will be

found minutely treated of in works devoted to an exposition of the law of real property, and of contracts and mercantile transactions. There is, however, one maxim which naturally suggests itself in this place, and which is illustrated by those provisions in the different statutes of limitation, which, in the cases of infancy and coverture,

1 2 Selw., N. P. 10th ed. 1303. See, also, 3 & 4 Will. 4, c. 27, s. 43. 2 21 Jac. 1, c. 16, s. 3.

3 See Coventry v. Apsley, Salk. 420.

4 Coke v. Sayer, 2 Wils. 85; cited, Macfadzen v. Olivant, 6 East, 388, per Grose, J., 5 T. R. 361. See, however, Woodward v. Walton, 2 N. R. 476; Ditcham v. Bond, 2 M. & S. 436; E. C. L. R. 28; per Lord Abinger, C. B., 5 M. & W. 517.(*)

5 See 1 Chitt. Arch. Pr., 8th ed. 477; per Lord Lyndhurst, C., Davies v. Lowndes, 1 Phill. 340.

6 See Hart v. Prendergast, 14 M. & W. 741; (*) Tanner v. Smart, 6 B. & C. 603; E. C. L. R. 13; Smith, on Contracts, 318 (a), and cases cited, note 4, p. 698.

and others similar, suspend their operation until removal of such disability. The maxim alluded to is expressed thus: Contra non valentem agere nulla currit præscriptio-prescription does not run against a party who is unable to act. For instance, in the case of a debt due, it 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.' Where, therefore, a debt is suspended by [*701] a condition; as, 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 arrival of the specified period; in the second, from the time when the event occurred. Where, however, the breach of contract, which, in assumpsit, is the gist of the action, occurred more than six years before the commencement of the proceedings, the statute will afford a good defence, although the plaintiff did not discover the injury resulting from the breach till within the six years.3 So in trover, the six years run from the conversion, though it was not discovered at the time. Where, however, the statute has once begun to run, i. e., where there is a cause of action, a plaintiff in England capable of suing, and a defendant of being sued, no subsequent disability interrupts it; such, for instance, as the death of the defendant, and the non-appointment of an executor by reason of litigation as to the right to probate."

[*702] *ACTIO PERSONALIS MORITUR CUM PERSONA. (Noy, Max. 14.)

A personal right of action dies with the person.

The legal meaning and application of this maxim will, perhaps, be shown most clearly, by stating concisely the various actions which

11 Pothier, by Evans, 451; Hemp v. Garland, 4 Q. B. 519, 524; E. C. L. R. 45; Huggins v. Coates, 5 Q. B. 432; E. C. L. R. 48; Holmes v. Kerrison, 2 Taunt. 323; Cowper v. Godmond, 9 Bing. 748; E. C. L. R. 23. See, also, Davies v. Humphreys, 6 M. & W. 153;(*) Bell, Dict. and Dig. of Scotch Law, 223.

21 Pothier, by Evans, 451; Shutford v. Borough, Godb. 437; Fenton v. Emblers, 1 W. Bla. 353.

3 Short v. M'Carthy, 3 B. & Ald. 626; E. C. L. R. 5; Brown v. Howard, 2 B. & B. 73; E. C. L. R. 6; Howell v. Young, 5 B. & C. 259; E. C. L. R. 11; recognised by Wigram, V. C., in Smith v. Fox, 12 Jur. 130; Bree v. Holbech, 2 Dougl. 654. 4 Granger v. George, 5 B. & C. 149; E. C. L. R. 11. See Philpot v. Kelly, 3 Ad. & E. 106; E. C. L. R. 30.

5 Rhodes v. Smethurst, 4 M. & W. 42 ;(*) Freake v. Cranefeldt, 3 M. & Cr. 499.

may be maintained by and against executors and administrators, as well as those rights of action which die with the person, and to which alone the above rule may be considered strictly to apply.

The personal representatives are, as a general rule, entitled to sue on all covenants broken in the lifetime of the covenantee; as for rent then due, or for breach of covenant for quiet enjoyment,' or to discharge the land from incumbrances. A distinction must, however, be remarked between a covenant running with the land, and one purely collateral. In the former case, where the formal breach has been in the ancestor's lifetime, but the substantial damage has taken place since his death, the real and not the personal representative is the proper plaintiff; whereas, in the case of a covenant not running with the land, and intended not to be limited to the life of the covenantee, as a covenant not to fell trees, excepted from the demise, the personal representative is alone entitled to sue. In a recent case, it was held, that the executor of a tenant for life may recover for a breach of a covenant to repair *committed by the lessee of the testator in his lifetime, without averring a damage to [*703] his personal estate; and, in this case, the rule was stated to be, that, unless the particular covenant be one for breach whereof, in the lifetime of the lessor, the heir alone can sue, the executor may sue, unless it be a mere personal contract, to which the rule applies, that actio personalis moritur cum persona.*

The personal representative, moreover, may sue, not only for the recovery of all debts due to the deceased by specialty or otherwise, but on all contracts with him, whether broken in his lifetime or subsequently to his death, of which the breach occasions an injury to the personal estate," and which are neither limited to the lifetime of the

1 Lucy v. Levington, 2 Lev. 26. By 13 Edw. 1, st. 1, c. 23, executors shall have a writ of account; and the stat. 31 Edw. 3, st. 1, c. 11, was the origin of administrators as they at present stand. (1 Chit. Stats. 318, n. (b).)

2 Smith v. Simonds, Comb. 64.

3 Raymond v. Fitch, 2 C., M. & R. 598, 599. (*) Per Parke, J., Carr v. Roberts, 5 B. & Ad. 84; E. C. L. R. 27; Kingdon v. Nottle, 1 M. & S. 355; E. C. L. R. 28; 4 M. & S. 53; E. C. L. R. 30; King v. Jones, 5 Taunt. 518; E. C. L. R. 1; affirmed, in error, 4 M. & S. 188; E. C. L. R. 30.

4 Ricketts v. Weaver, 12 M. & W. 718, (*) recognising Raymond v. Fitch, supra. As to a covenant respecting a chattel, see per Parke, J., Doe d. Rogers v. Rogers, 2 Nev. & Man. 555; E. C. L. R. 28; in an indenture of apprenticeship, Baxter v. Burfield, 2 Stra. 1266.

5 Judgment, 2 C., M. & R. 596, 597; (*) per Tindal, C. J., Orme v. Broughton, 10 Bing. 537; E. C. L. R. 25; 1 Wms. Saund. 112, n. (1); Edwards v. Grace, 2 M. &

deceased, nor, as in the instance of a submission to arbitration containing no special clause to the contrary, revoked by his death.' An administrator's title, moreover, relates back to the time of the intestate's death, so that he may sue for goods sold and delivered between the death and the taking out letters of administration.2 An action, however, is not maintainable by an executor or an administrator for a breach of promise of marriage made *to [*704] the deceased, where no special damage is alleged ;3 and, generally, with respect to injuries affecting the life or health of the deceased,—such, for instance, as arise out of the unskilfulness of a medical practitioner, or the negligence of an attorney, or a coach proprietor, the maxim as to actio personalis is applicable, unless some damage done to the personal estate of the deceased be stated on the record. But, where the breach of a contract relating to the person occasions a damage, not to the person only, but also to the personal estate; as, for example, if in the case of negligent carriage or cure there was consequential damage-if the testator had expended his money, or had lost the profits of business, or the wages of labour for a time; or if there were a joint contract to carry both the person and the goods, and both were injured: it seems a true proposition, that, in these cases, the executor might sue for the breach of contract, and recover damages to the extent of the injury to the personal estate."

The personal representatives, on the other hand, are liable, as far as they have assets, on all the covenants and contracts of the deceased broken in his lifetime, and likewise on such as are broken after his death, for the due performance of which his skill or taste was not required, and which were not to be performed by the

W. 190.(*) As to misjoinder of counts in an action by executrix, see Webb v. Cowdell, 14 M. & W. 820.(*)

1 Cooper v. Johnson, 2 B. & Ald. 394; per Bayley, J., Rhodes v. Haigh, 2 B. & C. 346, 347; E. C. L. R. 9; M'Dougall v. Robertson, 4 Bing. 435; E. C. L. R. 13– 15; Tyler v. Jones, 3 B. & C. 144; E. C. L. R. 10; Clarke v. Crofts, 4 Bing. 143; E. C. L. R. 13-15; Knights v. Quarles, 2 B. & B. 102; E. C. L. R. 6; which was an action against an attorney for negligence in investigating a title.

2 Foster v. Bates, 12 M. & W. 226.(*)

3 Chamberlain v. Williamson, 2 M. & S. 408; E. C. L. R. 28.

4 Judgment, 2 M. & S. 415, 416; E. C. L. R. 28. See Knights v. Quarles, 2 B. & B. 104; E. C. L. R. 6.

5 Judgment, 8 M. & W. 854, 855.(*)

6 Per Parke, B., Siboni v. Kirkman, 1 M. & W. 423; (*) per Patteson, J., Wentworth v. Cock, 10 Ad. & E. 445, 446; E. C. L. R. 37; Bac. Abr. "Executors and Administrators," (P. 1); Com. Dig. "Administration,” (B. 14.)