Cigars and tobacco cannot be necessaries in the absence of special circumstances rendering them necessary, medicinally or otherwise, for the infant. Bryant v. Richardson, L. R., 3 Ex. 93, n., and see Ryder v. Wombwell, ante, p. 642.

If issue be joined on the goods being necessaries, the plaintiff need not prove that all are necessaries, but may recover pro tanto. Per cur. in Tapley v. Wainwright, 5 B. & Ad. 399.

Ratification of promise after full age.] A contract by an infant, other than for necessaries, was formally voidable only, not void, and was therefore capable of being ratified by him after he had attained his majority: but now by the Infants' Relief Act, 1874 (37 & 38 Vict. c. 62), s. 1, "all contracts, whether by specialty or by simple contract, henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants shall be absolutely void, provided always that this enactment shall not invalidate any contract into which an infant may by any existing or future statute, or by the rules of common law or equity, enter, except such as now by law are voidable." Such contracts are therefore no longer capable of ratification. This section applies only to the three classes of contracts specified therein. Duncan v. Dixon, 44 Ch. D. 211, dissenting from the dictum of Jessel, M. R., in Ex pte. Jones, 18 Ch. D. 109, 122. Thus, it does not apply to a contract in a marriage settlement. Duncan v. Dixon, supra. Where an infant had agreed to become tenant of a house and to pay 1027. for the furniture therein, 687. of which sum he paid, and had occupied the house and used the furniture for some months, it was held that he could not recover back the 687. under this section; Valentini v. Canali, 24 Q. B. D. 166; though semble, having elected to avoid the contract, he was entitled to have the contract declared void, and a promissory note he had given for the balance of purchase money, delivered up. S. C.

By sect. 2, "no action shall be brought whereby to charge any person upon any promise made after full age, to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age." This applies to a ratification after the passing of the Act, although the promise was made before its passing. Ex pte. Kibble, L. R., 10 Ch. 373. It applies to an infant's promise to marry. Coxhead v. Mullis, 3 C. P. D. 439. See also Ditcham v. Worrall, 5 Č. P. D. 410. It extends to a set-off. See Rawley v. Rawley, 1 Q. B. D. 460, C. A., decided on similar words in 9 Geo. 4, c. 14, s. 5.

Infant shareholders.] The liability to calls of infants holding shares in joint-stock and other companies is considered, post, Part III., Actions by companies, 2-Special defences-Infancy.

If the action be on a contract for the sale of shares by the plaintiff to the defendant, a simple defence of infancy is enough, for an infant is not compellable to complete an agreement to buy them.

Infancy-how proved.] Infancy must be proved by calling some person who can speak as to the time of the defendant's birth. It cannot be proved by declarations of deceased members of his family mentioning the time of his birth. Haines v. Guthrie, 13 Q. B. D. 818, C. A., vide ante, p. 46. Nor by a certificate of birth, vide ante, p. 126. Nor of baptism,

ante, p. 215. If the defendant were of age when the action was commenced the date of the contract must be shown as well as his non-age at that date. But where the defendant pleaded infancy to an action against him as acceptor of a bill, it was held that the acceptance not being dated, ought to be presumed to have been made shortly after the date of the bill itself according to the common practice, the drawer and acceptor not living far apart; therefore, where a bill at four months was dated 9th November, 1850, and the defendant came of age in March, 1851, the jury rightly presumed that he was not of age when he accepted. Roberts v. Bethell, 12 C. B. 778; 22 L. J., C. P. 69.

Insanity.

It is not a good defence that the defendant, at the time of the contract entered into, was of unsound mind, unless the plaintiff knew of it, and took advantage of that circumstance to impose upon him. Browne v. Joddrell, M. & M. 105; Levy v. Baker, Id., 106, n. The inquiry as to the necessity of the goods supplied, and their suitableness to the defendant's condition, may arise on this plea as in that of infancy. See Baxter v. Portsmouth, El. of, 5 B. & C. 170. A lunatic is liable on an implied contract for necessaries supplied to him, if supplied under such circumstances that an obligation to pay for them is to be implied. Rhodes v. Rhodes, 44 Ch. D. 94, C. A. A lunatic is liable for necessaries supplied to his wife; Read v. Legard, 6 Exch. 637; 20 L. J., Ex. 309; or moneys expended for her protection. Williams v. Wentworth, 5 Beav. 325. The rule is, that the contracts of a lunatic, entered into fairly and bona fide, with a person ignorant of his incapacity, where the transaction is in the ordinary course (as the purchase of an annuity), and is wholly or in part executed, are valid. Molton v. Camroux, 2 Exch. 487; Ex. Ch., 4 Exch.. 17. Insanity, and the probable knowledge of it by the adverse party, may be proved by showing that it existed and was apparent, either shortly after or shortly before the alleged contract. Beavan v. M'Donnell, 9 Exch. 309; 23 L. J., Ex. 326. The mere existence of a delusion in the mind of the defendant, although connected with a contract made by him, is not sufficient to avoid such contract; it is a question for the jury whether the delusion affected the contract. Jenkins v. Morris, 14 Ch. D. 674, C. A. See further, post, Action for recovery of land by devisee-Incapacity from idiocy or non-sane memory.

As to the liability of a principal on contracts entered into on his behalf, by an agent, after the principal has become insane, see Drew v. Nunn, 4 Q. B. D. 661, C. A., cited ante, p. 533.

Intoxication.

A contract entered into by a person in a state of intoxication is in a similar position to one made by an insane person; see Molton v. Camroux, supra; it is voidable, not void. Matthews v. Baxter, L. R., 8 Ex. 132. See further as to this defence, Gore v. Gibson, 13 M. & W. 623.

Limitation, Statutes of.

The statutes of limitation must be specially pleaded; Rules, 1883, O. xix. r. 15, ante, p. 301; and upon issue joined thereon the burden of proof lies on the plaintiff. Wilby v. Henman, 2 Cr. & M. 658. The commencement of the action is the date of the issuing of the original writ of summons: Rules 1883 O. ii. r. 1; this date is stated on the

statement of claim; App. C., sect. 1; and would seem, subject to amendment, to be conclusive evidence thereof; see Harper v. Phillipps, 7 M. & Gr. 397; Whipple v. Manley, 1 M. & W. 432; but after the lapse of six years, strict proof of the regular continuance by other writs was necessary in order to rebut this defence. Pritchard v. Bagshaw, 11 C. B. 459; 20 L. J., C. P. 161. But the original writ is now kept alive by renewal by judge's order under Rules, 1883, O. viii. r. 1. The renewal must be made within twelve months in the case of an original writ, and six months in the case of a renewed writ; the day of its date or of renewal being in each case included. A writ issued before the J. Act, 1875, is void unless renewed as prescribed by this rule. Hume v. Somerton, 25 Q. B. D. 239. As it was held unnecessary to reply specially the issuing and return of successive writs under 2 Will. 4, c. 39 (Higgs v. Mortimer, 1 Exch. 711), so it seems to be unnecessary to reply the renewal of the original writ under the new process now substituted. By Rules, 1883, O. viii. r. 2, the production of a writ, purporting to be marked with the seal of the court showing the same to have been renewed according to rule 1, shall be sufficient evidence of such renewal, and of the commencement of the action, as of the first date of such renewed writ for all purposes. 'Sufficient evidence" here means primá facie evidence. See Barraclough v. Greenhough, ante, p. 149. It may be proved that the renewal was irregular, and that the writ is therefore void; see Hume v. Somerton, supra.

A misdated writ, with its indorsement, is amendable under Rules, 1883, O. xxviii. r. 12, ante, p. 286, according to the facts; though the effect may be to defeat the statute of limitations. See Cornish v. Hockin, 1 E. & B. 602; 22 L. J., Q. B. 142. But there is no power to alter the true date. Clarke v. Smith, 2 H. & N. 753; 27 L. J., Ex. 155.

The time of limitation is to be computed exclusively of the day on which the cause of action arose. Hardy v. Ryle, 9 B. & C. 603; Freeman v. Read, 4 B. & S. 178; 32 L. J., M. C. 226.

The principal Statutes of Limitation are 21 Jac. 1, c. 16; 4 & 5 Anne, c. 3 (c. 16, Ruff.); 9 Geo. 4, c. 14 (Ld. Tenterden's Act); 3 & 4 Will. 4, c. 27, s. 40; 3 & 4 Will. 4, c. 42, ss. 3 to 7; 19 & 20 Vict. c. 97 (Mercantile Law Amendment Act, 1856); 37 & 38 Vict. c. 57, s. 10 (Real Property Limitation Act, 1874), cited post, p. 685; and 51 & 52 Vict. c. 59 (Trustee Act, 1888), s. 8.

Foreign Statutes of Limitation, which bar the remedy only, and not the right, have no operation here; Huber v. Steiner, 2 N. C. 202; Alliance Bank of Simla v. Carey, post, p. 647; even after judgment for the defendant in the foreign court on a plea of the foreign statute. Harris v. Quine, L. R., 4 Q. B. 653.

By stat. 21 Jac. 1, c. 16, s. 3, actions of account, and on the case (other than concerning the trade of merchandise between merchants or their factors or servants, and other than for slander), actions of debt on lending or contract without specialty, or for rent in arrear, are to be brought within six years after the cause of action, and not after.-Under the head "case is here included assumpsit on promises, and the part of the statute above cited therefore includes all the causes of action founded on simple contract, whether expressed to be for a debt, or on a promise or contract, express or implied, formerly prosecuted in the form of debt or assumpsit.

The exception in this statute of merchants' accounts was held to apply only to actions of account, or, perhaps, for not accounting; or at all events only to cases in which account would lie. Inglis v. Haigh, 8 M. & W. 769; Cottam v. Partridge, 4 M. & Gr. 271. And by 19 & 20 Vict. c. 97, s. 9, this exception has been abolished, and all such actions shall be

commenced within six years after the cause of action, and no claim in respect of a matter which arose more than six years before such action, shall be enforceable by action by reason only of some other matter of claim comprised in the same account having arisen within six years next before the commencement of such action.

An action of debt on the bye-law of a chartered company is an action on a contract without specialty; Tobacco Pipe Co. v. Loder, 16 Q. B. 765; 20 L. J., Q. B. 414; so is an action for calls by a company established under an act of a colonial legislature. Welland Ry. Co. v. Blake, 6 H. & N. 410; 30 L. J., Ex. 161. But an action given by statute, as for calls on a shareholder in a company, under the Companies Clauses Consolidation Act, 1845, is founded on specialty. Cork & Bandon Ry. Co. v. Goode, 13 C. B. 826; 22 L. J., C. P. 198. The liability of a member or contributory of a joint-stock company incorporated under the Companies Act, 1862, to pay calls, is, under sects. 16, 75, 76, a debt in the nature of a specialty debt; whereby the heirs are bound. Buck v. Robson, L. R., 10 Eq. 629. So, where an unregistered company is wound up under that Act. In re Muggeridge, Id. 443. Where the liability of the members of a non-corporate co-partnership is fixed by a deed of settlement, the liability is a specialty debt. Helby's, Stokes', and Horsey's cases, L. R., 2 Eq. 167. An instrument under seal, executed in India, is here treated as a specialty, although by Indian law specialty debts have no greater efficacy than simple contract debts, and both are barred by the lapse of three years. Alliance Bank of Simla v. Carey, 5 C. P. D. 429.

The stat. 21 Jac. 1, c. 16, s. 3, ante, p. 646, having been construed somewhat strictly, so as to exclude cases which were not, when it passed, regarded as contracts, the stat. 3 & 4 Will. 4, c. 42, s. 3, enacted that actions of debt on an award (where the submission is not by specialty), or for copyhold fines, or an escape, or money levied on a fi. fa., should be brought within six years after the cause of action.

As to the application of the Statutes of Limitation in actions by and against executors, vide post, Part III., sub tit., Actions by and against Executors.

The Statutes of Limitation applicable to money charged on, or payable out of land, and also to rent, will be found post, pp. 685 et seq.

By the J. Act, 1873, s. 25 (2), "no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any Statute of Limitations." As to the meaning of "express trust," see Banner v. Berridge, 18 Ch. D. 254, and cases there cited. But where a remedy in equity was correspondent to the remedy at law, the Court of Equity acted by analogy to the Statute of Limitations, and imposed on the remedy it afforded, the same limitation that would be imposed on the proceedings at law. Knox v. Gye, L. R., 5 H. L. 656, 674; Metropolitan Bank v. Heiron, 5 Ex. D. 319, C. A., and the statutes now apply to actions for all such claims as fall within them in whatever division of the High Court the action may be brought. Bray v. Tofield, 18 Ch. D. 551, 554; Gibbs v. Guild, 9 Q. B. D. 59, 64, 67.

Actions against trustees are now, however, in some cases, subject to statutes of limitation, for by the Trustee Act, 1888 (51 & 52 Vict. c. 59), s. 8-(1.) In any action or other proceeding" commenced after Jan. 1st, 1890 (sect. 8 (3))"against a trustee or any person claiming through him, except where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property, or the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use, the following provisions

shall apply:-"(a.) All rights and privileges conferred by any statute of limitations shall be enjoyed in the like manner and to the like extent as they would have been enjoyed in such action or other proceeding if the trustee or person claiming through him had not been a trustee or person claiming through him: (b.) If the action or other proceeding is brought to recover money or other property, and is one to which no existing statute of limitations applies, the trustee or person claiming through him shall be entitled to the benefit of and be at liberty to plead the lapse of time as a bar to such action or other proceeding in the like manner and to the like extent as if the claim had been against him in an action of debt for money had and received, but so nevertheless that the statute shall run against a married woman entitled in possession for her separate use, whether with or without a restraint upon anticipation, but shall not begin to run against any beneficiary unless and until the interest of such beneficiary shall be an interest in possession: (2.) No beneficiary, as against whom there would be a good defence by virtue of this section, shall derive any greater or other benefit from a judgment or order obtained by another beneficiary than he could have obtained if he had brought such action or other proceeding and this section had been pleaded." See on this section, Andrew v. Cooper, 45 Ch. D. 444. And see also the Real Property Limitation Act, 1974 (37 & 38 Vict. c. 57), s. 10, cited post, p. 685.

Claims chargeable against the separate estate of a married woman for her debts were, apart from the Trustee Act, 1888, supra, barred by analogy to the Statute of Limitations. Hallett v. Hastings, 35 Ch. D. 94, C. A.

The Statutes of Limitation do not apply to a petition of right. Rustomjee v. The Queen, 1 Q. B. D. 487.

When the statute begins to run.] The statute begins to run from the time of the breach of promise or contract, and not the discovery of it. Therefore in an action against a solicitor for neglecting his duty six years before, the statute was held a bar, though the omission was only discovered within the six years; Short v. M Carthy, 3 B. & A. 626; Battley v. Faulkner, Id. 288; Colvin v. Buckle, 8 M. & W. 680; and formerly, at law, this was the rule although the defendant had fraudulently concealed the cause of action. Imperial Gas Co. v. London Gas Co., 10 Exch. 39; 23 L. J., Ex. 303. But the rule of equity which now prevails (see J. Act, 1873, s. 25 (11), ante, p. 300), at any rate in a case in which a court of equity would have had concurrent jurisdiction, is that in the case of fraudulent concealment of the cause of action, the statute runs from its discovery only; Brooksbank v. Smith, 2 Y. & C. Ex. 58; Ecclesiastical Commissioners v. N. E. Ry. Co., 4 Ch. D. 845; Metropolitan Bank v. Heiron, supra; Gibbs v. Guild, 9 Q. B. D. 59, C. A.; unless the plaintiff by reasonable diligence might have discovered it sooner. Denys v. Shuckburgh, 4 Y. & C. Ex. 42. See further, Story, Eq. Jur. § 1521.

Where a contract to deliver goods is once broken, the statute runs, and a subsequent refusal to deliver after the loss of the goods, during an inquiry touching the first breach, will not revive the right. E. India Co. v. Paul, 7 Moo. P. C. 85. Upon promises to indemnify, the statute runs from the time of damnification. Huntley v. Sanderson, 1 Cr. & M. 467; Reynolds v. Doyle, 1 M. & Gr. 753. Where a bill of exchange is drawn, payable at a future time, for a sum of money lent by the payee to the drawer, at the time of drawing the bill, the payee may sue for money lent, at any time within six years from the time when the money was to be repaid; i.e., when the bill became due, and not from the time of the loan. Wittersheim v. Carlisle, Cs. of, 1 H. Bl. 631; Wheatley v. Williams, 1 M. & W.