In the fourth place, if there have been a part payment, either of principal or interest, the time runs from such payment: this is by sect. 5 of 3 & 4 Will. IV., c. 42; and also by sect, 8 of 37 & 38 Vict., c. 57, as to cases within the latter section.
In the fifth place, if an action have been brought, and the defendant outlawed, or judgment obtained *against him, and arrested or reversed by writ of error, a new action may be commenced within a year after the reversal of the outlawry or of the judgment: this is by sect. 6 of 3 & 4 Will. IV., c. 42. But the importance of this enactment is much diminished by the abolition of outlawry in civil proceedings by 42 & 43 Vict., c. 59 (Civil Procedure Acts Repeal Act, 1879), s. 3.
Such is the statutable time of limitation in actions on specialties, which, you will have observed, is now either twenty years or twelve years, subject to the above exceptions. Now with regard to simple contracts:The limitation of time in cases of actions upon simple contracts, depends upon stat. 21 Jac. I., c. 16, which applies both to assumpsit and to debt on simple contract. The words of the Act are, "that all actions of account, and upon the case (other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants (a)), and all actions of debt grounded upon any lending or contract without specialty, and all actions of debt for arrearages of rent, shall be commenced and sued within six years next after the cause of such action or suit, and not after." Assumpsit, as I have explained to you, *was originally a species of action on the case (b). It therefore falls within the limitation prescribed by this statute, the period limited by which is, as just stated, six years.
(z) Forsyth v. Bristowe, 22 L. J. (Ex.) 255; 8 Ex. 347, S. C. See Morley v. Morley, 5 De G. M. & G. 610; 25 L J. (Ch.) 1; Roddam v. Morley, 25 L. J. (Ch.) 329; 2 K. & J. 330; reversed in 26 L. J. (Ch.) 428; 1 De G. & J. 1. See further Thorne v. Kerr, 25 L. J. (Ch.) 57; 2 Kay & J. 54; Jortin v. S. E. By. Co., 24 L. J. (Ch.) 343; 6 De G. M. & G. 270; Burrowes v. Gore, 6 H. L. C. 907; Dixon v Holdroyd, 27 L. J. (Q. B.) 43; 7 E. & B. (90 E. C. L. B.) 903; Moodie v. Bannister, 28 L. J. (Ch.) 881; 4 Drew. 433.
All actions upon simple contracts must therefore be commenced within six yearns, unless they fall within certain classes excepted from the operation of the statute of James I.
In the first place that statute excepts (c) the five cases of the person entitled to the action being an infant, married, insane, imprisoned, or beyond seas at the time of the accruing of the right, and gives six years from the removal of the disability.
It had been doubted whether this proviso applied to the case of a foreigner living abroad, because if he came to England without having been here before, he could not be said to have returned from beyond seas, as it is expressed in this statute; and, consequently, there being no period from which the exceptional six years could, in this case, run, he was not within the proviso of the statute, and must therefore bring his action within six years from the time of the cause of action accruing. But the Common Pleas held that this was
(a) This exception is repealed and merchants' accounts are subjected to the limitation of six years, by 19 & 20 Vict., c. 97, s. 9; see post, p. *537. (b) Batteiy v. Faulkner, 3 B. & Ald. (5 E. C. L R.) 294, per Holroyd, J. (c) Sect. 7. 518 not so, and the Chief Justice Jervis said, "I do not think the fair meaning of the word 'return' is, to refer it to the coming back of persons who have been here *before; I think the meaning of the proviso is, that an action shall not be commenced after six years, but if the plaintiff was abroad when the right of action accrued, then when he comes to England the statute is to begin to run against him" (d).
But it has been thought expedient to take away this exception in favour of persons imprisoned or beyond seas; and by the statute 19 & 20 Vict., c. 97, s. 10, no person is entitled to any time beyond the period fixed by the previous enactment, to commence an action or suit, by reason of such person, or one or more of such persons, being at the time when such action or suit accrued beyond seas or imprisoned (e). This section has been held to be retrospective so far as to include causes of action that accrued before 19 & 20 Vict., c. 97, was passed (f).
In the second place, the statute of James I. also contains the exception, in the case of the defendant being outlawed (g), or the judgment reversed or arrested, which I have just cited with regard to actions upon specialties. Indeed, the one is copied from the other. However, as has already been *said, the importance of this exception is much diminished by the abolition of outlawry on civil process.
In the third place, if the defendant be beyond seas when the right accrued, the plaintiff has six years after his return, not by the statute of James, but by stat. 4 Anne, c. 16, s. 19 (h); but it is a singular thing that "beyond seas " does not mean the same thing in this Act of Parliament as in the Acts of James and William IV.; for by 3 & 4 Will. IV., c. 42, s. 7, it is directed that no part of the United Kingdom, or of Guernsey, Jersey, Alderney, Sark, or Man, shall be considered beyond seas, within the meaning of that Act or of the Act of James I.; but, as the statute of Anne is not mentioned, it is held that the words "beyond seas" used in that Act retain their Common Law meaning, which was literally beyond the sea surrounding Great Britain. The Court of Exchequer, therefore, decided in Lane v. Bennett (i), that Ireland is not within the statute of Anne, and that the plaintiff had still six years in which to bring his action after the return of the defendant, who had been in that part of the United Kingdom ever since the cause of action accrued. But this condition of the statute law, although well worth observing, does not now exist, the Legislature having enacted in the statute *19 & 20 Vict., c. 97.. s.