Rhodes v Smethurst, Administratrix of Hobson, Deseased
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1838 |
| Date | 01 January 1838 |
| Court | Exchequer |
English Reports Citation: 150 E.R. 1335
EXCH. OF PLEAS.
S. C. 1 H. & H. 237; 7 L. J. Ex. 273; 2 Jur. 893; affirmed, 6 M. & W. 351. Referred to, Coombs v. Coombs, 1866, L. R. 1 P. & D. 289; Seagram v. Knight, 1867, L. R. 2 Ch. App. 633; In re Benzon; Bower v. Chetwynd, [1914] 2 Ch. 76.
rkodks v. SMErauRHT, Administratrix of Hobson, Deceased. Ifixch. of Pleas. 18158. -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. I H. & H. 237 ; 7 L. J. Ex. 273; '2 Jur. 893: affirmed, M. & W. 351. Referred to, Coombs v. Cimmds, 180( , L. K. I P. & D. 289; tiewjram v. Knight, 1807, L. R. 2 Oh. App. ( 33; In re .Benson; Bower v. Chetwyrul, [1914] 2 Oh. 76.] Assumpsit on a promissory note for 25001,, dated the I .'5th May, 1818, made by the intestate James Hobson in his lifetime, payable to the plaintiff or order on demand. There were also counts for money leut, money had and received, interest, and on an account stated. Third plea, actio non accruit infra sex annos. Replication thereto, so far as the same related to the first count of the declaration, that the cause of action in that count mentioned accrued to the plaintiff' within six years next before the time 1336 RHODES r. 8METHTJRST 4 M. & W. 43. of the death of the said James Hokson, to wit, on the 1st of May, 1820; and that afterwards, to wit, on the 13th day of May, 1830, the said James Holison died, having theretofore, on the 8th day of February, 1817, signed a certain testamentary paper purporting to he his lust will and testament, and thereby then named and appointed the plaintiff'and one Betty Hobson, (which said Betty Hobsou died in the lifetime of the said James Holison,) executor and executrix thereof, and having afterwards in his lifetime, to wit, on the llth day of December, 18^9, signed a ccr-[43]-tain other testamentary paper also purporting to be the last will and testament of him the said James Hobson, wherein no person was named as executor thereof; and the plaintiff further saith, that shortly after the death of the said .lames Hobson, and before the grant of the administration of the goods and chattels, rights and credits of the said James Hobson deceased, at the time of his death, to the defendant, or any other person, to wit, on the 1st day of October, 18.'iO, the plaintiff applied to the proper Ecclesiastical Court, that is to say, to the Consistory Court of Chester, that probate of the said testamentary paper hereinbefore firstly mentioned as the last will and testament of the said òlames Hobson, deceased, might be granted to him the plaintiff as the executor thereof therein named ; whereupon, to wit, on the day and year, last aforesaid, the defendant, then claiming to be next of kin of the said .fames Hobson, deceased, produced to the said last-mentioned Court the said testamentary paper hereinbefore secondly mentioned, and then required of the said last-mentioned Court that administration of all arid singular the goods, chattels, and credits of the said; James Hobson, deceased, at the time of his death, with the said last-mentioned testamentary paper annexed, as the will and testament of the said James Hobson, deceased, should be then granted to her the defendant, as such next of kin of the said James Hobson, deceased, as aforesaid; and thereupon, it being the opinion of the said last-mentioned Court that the plaintiff was entitled to probate of the said testamentary paper hereinbefore firstly mentioned, as the last will and testament of the said James Hobson, deceased, it was afterwards, to wit, on the 22nd day of November, 1832, by the Reverend and Worshipful Henry Raikes, Clerk, Master of Arts, Vicar-General and Official Principal of the Right Reverend Father in (tod, John Bird, Lord Bishop of Chester, decreed that the probate of the said testamentary paper hereinbefore firstly [44] mentioned, as the last will and testament, of the said James Hobson, deceased, should be granted to the plaintiff; whereupon the defendant then appealed against the said decree to the Chancery Court of York, and such proceeflings were thereupon had, that afterwards, to wit, on the 26th day of July, 1833, the said decree of the said Consistory Court of Chester was, by the Right Worshipful Granville Harpourt Veraon, Master of Arts, Official Principal of the said Chancery Court of York, reversed;, annulled, and rescinded, and the defendant was then, by the said Grajiville Harcourt Vernoti, as such official principal of the said last-mentioned Court, declared to be entitled, as the next of kin of the said James Hobson, deceased, to the administration of all and singular the goods and chattels, rights and credits of the said James Hobson, deceased, at the time of his death, with the said testamentary paper hereinbefore secondly mentioned, as the last will and testament of the said James Hobson, deceased, annexed ; whereupon the plaintiff then, to wit, on the day and;year last aforesaid, appealed against the said last-mentioned decree to the most Noble and Right Honourable the Judicial Committee of the Privy Council of his late Majesty King William the Fourth ; and such proceedings were thereupon had, that afterwards, to wit, on the 2nd day of February, 1835, by a certain report then made to his said late Majesty in Council by the said Judicial Committee, it was then reported and recommended that the said decree of the said Chancery Court of York should be affirmed, and that administration of all and singular the goods and chattels, rights and credits, which were of the said James Hobson, deceased, at the time of his deatjh, with the said testamentary paper hereinbefore secondly mentioned as the last williand testament of the said James Hobson, annexed, should be granted to the said defendant; which said report was afterwards, on the 18th day of the said month of February, by his said late [45] Majesty in Council duly affirmed: in pursuance whereof, afterwards, and not at any earlier period, to wit on the 18th day of Juno, 1835, administration of all and singular the goods and chattels, rights and credits, which were of the said James Hobson, deceased, at the time of his death, with the said last will and testament of the said James Hobson annexed, was duly granted to the defendant; and the plaintiff in fact further saith, that until the said grant of òJM.&W.46. RHODES 7'. SMETHURST 1337 administration so made to the defendant as aforesaid, there was not at any time from the time of the death of the said James Hobson, any legal personal representative of the said James Ilobson, deceased, or any other person whatsoever liable to the plaintiff, and against whom the plaintiff could commence any action or suit in respect of the said causes of action in the said first count mentioned ; and that within a reasonable time, that is to say, within the space of three months after the said grant of administration to the said defendant as aforesaid, to wit, on the 12th day of September, LcS,'J5, the plaintiff issued his writ of summons out of the said Court here, and thereby commenced his said action against the defendant, as such administratrix as aforesaid, in respect of the said sums of money and causes of action in the said first count of the said declaration mentioned ; and the plaintiff' in fact says, that the said periods which respectively elapsed between the accruing of the said causes of action in the said first count mentioned, and the time of the death of the said James Hobson, and between the said grant of administration to the defendant as aforesaid, and the time of the commencement of this suit, do not together amount to the period of six years, but only to a much less time, to wit, to the period of one year and four months Verification. Rejoinder, that the causes of action in the first count mentioned did not accrue to the plaintiff within six years next before the death of the said James Hobson, in man-[46]-ner and form as in the replication alleged; on which issue was joined. The cause was tried before I'ark, ò}., at the last Warwick assizes, and a verdict found for the plaintiff'. A rule having been subsequently obtained to enter a verdict for the defendant, or to arrest the judgment on the first count, on the ground that the replication was no answer to the plea, the case, at the suggestion of the Court, and with the consent of the parties, was set down in the special paper for argument, and was now argued by Sir W. Follett for the plaintiff. The uniform result of the cases decided on the Statute of Limitations is, that it shall not deprive the plaintiff of his remedy against his debtor, unless he have been guilty of the laches or default contemplated in the statute. The statute 21 Jac. 1, c. Hi, contains, in s. 7, express exceptions of certain cases where actions might be commenced, viz. the cases of plaintiHs who are infants, femes covert, non compotes, &c , at the time of the accruing of the cause of action. Hut here the plaintiff could not sue any person until after probate was taken out to the debtor's estate. There is no provision in the act giving executors plaintiffs any extension of the time, yet the courts have extended the words of the act, by an equitable construction, in their favour, giving them a reasonable period after probate in which to proceed with an action. In (Jury v. ^tuphensmi (2 Salk. 421 ; S. C. Garth. ,'i:i5 ; Skin. 555; 4 Mod. 372), where C. was indebted to A., who died, and B. received the money, and afterwards the plaintiff's wife took out administration to A., and within six years after the grant...
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