Rhodes v Smethurst
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1840 |
| Date | 01 January 1840 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 447
EXCH. OF PLEAS.
S. C. 9 L. J. Ex. 330; 4 Jur. 702.
[351] rhodes . smethurst. Exch. Chamber. 1840. - It is no answer to a plea of the Statute of Limitations, that, after the cause of action accrued, and after 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. [S. C. 9 L. J. Ex. 330 ; 4 Jur. 702.] A writ of error having been brought from the judgment of the Court of Exchequer (4 M. & W. 42) in this case, it was argued in Michaelmas Vacation by Sir W. W. Follett for the plaintiff. The arguments were in substance the same as those urged by him in the Court below ; the main position contended for on behalf of the plaintiff being, not that the case fell within the words or the equity of the 7th section of the 21 Jac. 1, c. 16, or within the 4 Anne, e. 16. s. 18; but that the 3rd section of the statute of James did not apply at all to a case where there was not a, continuing right to bring the action during the six years. Besides the eases cited in the Court below, the lollowing were referred to: Chandler v. fileti (2 Saund. 120), Matthews v. Philips (2 Salk. 424), Middldon v. Forbes (Willes, 259, note (c)). At the conclusion of the argument for the plaintiff', the Court intimated to White-hur&t, who appeared for the defendant, that they would hear him on a future day, if they considered it necessary to do so. And now, without calling upon the defendant, lord denman, C. J., gave judgment. This was an action upon a promissory note for £2500 made by the intestate James Hobson, payable to the plaintiff on demand, with the usual money counts. To the count on the note the defendant pleaded, inter alia, the Statute of Limitations. The plaintiff replied, that the cause of action accrued within six years before the death of James Hobson, arid shewed further, that, in consequence of litigation in the Ecclesiastical Courts, no administration to his effects was granted till the 18th of June, 1835, and that the plaintiff [352] commenced his action within a reasonable time afterwards, viz. on the 12th of September, 1835; and averred, that the periods which elapsed between the accruing of the cause of action and the death 'of James Hobson, and between the grant of administration to the defendant and the commencement of the suit, did not together amount to six years. The defendant rejoined, that the causes of action did not accrue within six years before the death of James Hobson. 448 RHODES V. 8METHUEST 6 M. & W. 353. A verdict having passed for the plaintiff, the Court...
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