Crosier against Tomlinson, Executor
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1793 |
| Date | 01 January 1793 |
| Court | High Court |
English Reports Citation: 86 E.R. 947
IN THE COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
case 59. crosieii against tomlinson, Executor. The statute of the 21 Jac. c. 16, to limit personal actions, extends to an action of indebitatus assianpsit; for though trespass only is mentioned, yet all actions on t/ie case are within the equity of the proviso.-S. C. 1 Freem. 208, In an action on the case the plaintiff declared, that the defendant's testator being in his life time, viz. such a day, indebted to the plaintiff in the sum of twenty pounds for so much money before that time to his use had and received, did assume and promise to pay the same when he should be thereunto required ; and that the testator did not in his life-time, nor the defendant since his death, pay the money, though he was thereunto required. The defendant pleads, that the testator did not at any time within six years make such promise. The plaintiff replies, that he was an infant at the time of the promise made, and that he came not to full age till the year 1672, and that within six years after he attained the age of one-and-twenty years he brought this action, and so takes advantage of the proviso in the Statute of Limitations, (a) Yelv. 75. Cro. Car. 138. (Jontra Lutw. 1493. 948 EASTER TERM, 28 CAR. 2. IN C. B. S MOD. 72. 21 Jac. 1, c. 16, that the plaintiff shall have six years after the disability, by infancy, coverture, &c. is removed.-The defendant demurred. By Kigby, Serjeant. The reason of his demurrer was, because in the said proviso actions on the case on assumpsit are omitted. This Act was made for quieting of estates and avoiding of suits, as appears by the preamble, and therefore shall be taken strictly : there is an enumeration of several actions in the proviso, and this is casits omissus, and so no benefit can be taken of the proviso. In a writ of error upon a judgment brought 4 Car. 1, in the Court of Windsor, the Judges held, that an action on the case for slandering of a man's title is out of this Act (a), because such an action was rare, and not brought without special damages. But Hyde, Chief Justice, doubted. 1 Cro. 141. The law-makers could not omit this case unadvisedly, because it is within those sorts of actions enumerated by this Act. This promise was made to the plaintiff when he was but a day old, and it would be very hard now, after so many years, to charge the executor. [72] But Turner, Serjeant...
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