Court, I find no difficulty in holding that the section is 1900. applicable only to an administrator here, and therefore, Judgment. that the defendant cannot claim the benefit of the section BAIN, J. by virtue of the notice repudiating the plaintiff's claim that she sent before she became administratrix here. I have not found any authority directly in point, but the law as to the statute of limitations affords an analogy that supports this view. It is well settled that when the 'cause of action accrues after the death of the testator or intestate, the statute begins to run against a creditor and in favor of the personal representative only from the date he has proved the will or taken out letters of administration (unless, indeed, he has previously constituted himself an executor de son tort); the principle of the rule being that, until there is some one within the jurisdiction of the Court capable of being sued, there cannot be said to be a complete cause of action: Carey v. Stephenson, 2 Salk, 421; Murray v. East India Co. 5 B. & Ald. 204; Webster v. Webster, 10 Ves. 93; Burdick v. Garrick, L. R. 5 Ch. 241; Grant v. McDonald, & Gr. 468. And that it is only from the time of representation having been taken out in England, that the statute begins to run, is shown by Douglas v. Forrest, 4 Bing. 686; Flood v. Patterson, 29 Beav. 295. There is no evidence on which we could find that the defendant had made herself an executrix de son tort here before she took out administration; and it is unnecessary, therefore, to consider what would have been the effect as regards this defence had she done so. But while I think the plaintiff would be entitled to recover on proof of the contract she alleges, I am very doubtful if it can be considered that it was satisfactorily proved by the evidence that was given at the trial; and if I had to decide the question on the evidence that is before us in the Judge's notes, I should say that it was not. It cannot 1900. however, be laid down as a rule of law that there must be Judgment. corroboration to establish a claim advanced by a living BAIN, J. person against the estate of a dead person. In In re Hodg son, 31 Ch. D. 177, in the Court of Appeal, Sir J. Hannen said that "it is natural that in considering the statement of the survivor we should look for corroboration in support of it; but if the evidence given by the living man brings conviction to the tribunal which has to try the question, then there is no rule of law which prevents that conviction being acted on." There was no evidence given at the trial corroborating the plaintiff's own statement that she had made the contract with Kingdon, but we cannot tell whether the trial judge would have considered that the contract was proved or not; and as this question can be better decided by a judge who has the witness or witnesses before him than by a Court which has only the written notes of evidence, I think the plaintiff should be given the opportunity of proving her claim for nursing at another trial, if she thinks she can prove it. RICHARDS, J.-With deference to the learned County Court Judge, I am of opinion that he was mistaken in allowing the defence of coverture and in adding Arthur Doidge as a co-plaintiff. As to each item the claim was either that of Doidge's wife alone or it was Doidge's alone. It could not be a joint claim under the circumstances. In Young v. Ward, 24 A. R. 147, the claim was held to be the husband's alone. It is claimed that more than six months before this action defendant gave plaintiff notice, under section 31 of The Manitoba Trustee Act, disputing her claim, and that plaintiff's failure to sue during six months after receipt of that notice is a bar, under said section 31, to plaintiff's claim. To prove this defence, letters disputing plaintiff's claim, written more than six months before this suit, and while defendant was administratrix in Ontario, but had not been given administration in Manitoba, are relied on. 1900. The question turns on whether a foreign administrator Judgment. can, after giving such a notice as contemplated by section RICHARDS,J. 31, avail himself of the privileges given by that section. The objects of that section are, I think, first to give the claimant notice that his claim is disputed, and that to avoid its being barred he must bring his action within six months, and secondly, to give the administrator the benefit of having the claim either quickly tested by suit or barred. Both of these objects reasonably imply that the claimant should be in a position to bring his action at once after receipt of the notice. As he cannot sue a foreign administrator in the Manitoba courts, it seems to me that the section should be construed to refer only to a Manitoba administrator. The argument that administration when granted relates back is disposed of by Holland v. King, 6 C. B. 727. There is no evidence that defendant ever was executrix de son tort; so the argument that she could in that capacity give the notice under section 31 need not be considered. The claim for meals furnished is not supported by any evidence of a promise to pay Mrs. Doidge for same, and is in any case only a claim for work of the kind ordinarily done by a wife in performance of household duties. If any one had a claim to be paid for these meals it was the husband alone. The claim for interest is not supported by any evidence of written notice to the defendant of any intention to claim interest after the notice, and should, I think, be disallowed. The nursing, however, is in my opinion such an act apart from her household duties as the original plaintiff, Mrs. Doidge, might contract to perform in return for 1900. wages to be paid to herself for her own separate use, and Judgment. in case of such a contract she could sue alone for such RICHARDS, J. Wages. There is no question that she did perform the services as a nurse, and they were not such services as in my opinion would be included in her husband's contract to board the intestate. They were, I think, services for which a claim could be made upon the intestate's estate by her or by her husband, the test as to which of them was entitled to make the claim being whether there was or was not a contract with her to pay her, in return for such services, wages to be taken by her for her own use. There is the evidence of the original plaintiff herself that the intestate did agree with her to pay her for the nursing. It is urged that her evidence is uncorroborated as to the contract to pay being made with her for her own benefit. There is no statute requiring such corroboration, and though its absence may be ground for suspicion, yet the learned County Court Judge would not have been debarred from finding in the wife's favor on her own testimony alone, if he thought it thoroughly clear and reliable. The fact that the husband has always treated it as her separate claim is some corroboration, and perhaps sufficient corroboration, in view of the fact that it would be his claim if not hers. As the evidence before this Court is not the full evidence given, but merely the learned County Court Judge's notes taken for the purpose of refreshing his own memory after having first heard the evidence in full, and as we have not the benefit of seeing the parties and judging of their evidence and demeanor, and as there is nothing to show what view the learned Judge took of the plaintiff's own evidence, I do not feel in a position to decide whether a contract to pay the original plaintiff for her own use has or has not been proved. 1900. In my opinion the name of Arthur Doidge should be struck out as a co-plaintiff. The defence of coverture Judgment. The claim for meals and inter- RICHARDS,J. should also be struck out. est should be disallowed. The original plaintiff should, I think, be allowed a new trial as to her claim for nursing; no costs to either party of the appeal. Plaintiff elected to take a new trial. ST. GERMAIN V. CHARETTE. Before BAIN, J. Seduction-Act respecting the Action of Seduction, 55 Vic., c. 43, (M. 1892)-Seduction of illegitimate child. Section 1 of the Act respecting the Action of Seduction, 55 Vic., c. 43, does not apply to the case of the seduction of an illegitimate female. ARGUED 19th March, 1900. ACTION for seduction. The statement of claim was Statement. filed by Joachin St. Germain, who alleged he had suffered damage from the seduction, by defendant, of Marie Nault, the step-daughter and servant of plaintiff. The evidence. at the trial showed that Marie Nault was illegitimate. Counsel for defendant moved for a nonsuit on the ground, amongst others, that where the female seduced is illegitimate, the Act respecting the Action of Seduction, 55 Vic., c. 43 (M. 1892), does not apply. H. M. Howell, Q. C., and A. J. H. Dubuc for defend- ant. |