ant avers that the trust had only come to his knowledge within two years. 57

59

But the statute will not run against an action brought to recover an overpayment made by mistake upon a check, which was discovered. and fraudulently concealed by the defendant.58 So, in general, where the cause of action has been fraudulently concealed from the plaintiff, unless he had ample means of knowledge, with the exercise of ordinary prudence. So, an action will lie upon a fraudulent promise of the maker, by means of which he obtained possession of the note and kept it until it was barred by the statute.6o But if the plaintiff in such case elects to sue on the note itself, on discovery of the fraud, as on a lost note, he will be barred by the ordinary limitation.61 Where a bank pays a forged check, and the forgery is not discovered by it until more than six years after, it may still sue, as we have seen, for the recovery of the money paid.62 So, if a note is renewed by forgery without the knowledge of the accommodation maker, and the fraud is not discovered for some time, it has been held that the maker will remain liable on the original note for six years after the fraud is discov ered.63

Statute Bars Set-Off.

§ 1592. In order to bar a set-off pleaded by the defendant, the same period of six years must have expired before the action is brought."4 And the defendant cannot be deprived of his set-off by the plaintiff's

57 Martin v. Bank, 31 Ala. 115; Brunson v. Ballou, 70 Iowa, 34, 29 N. W. 794; or from the time when the plaintiff learns that the surety claims to have already accounted, Wolf v. Wolf, 97 Iowa, 279, 66 N. W. 170.

58 Manufacturers' Nat. Bank v. Perry, 144 Mass. 313, 11 N. E. 81. In an equitable action to correct a mistake, the statute runs from the time when it should have been, with ordinary care, discovered. Gould v. Emerson, 160 Mass. 438, 35 N. E. 1065.

59 McKown v. Whitmore, 31 Me. 448. So, by statute, in INDIANA (Horner's Rev. St. § 300), and MASSACHUSETTS (Pub. St. c. 197, § 14). And see § 1596, infra.

60 Cockrill v. Hall, 65 Cal. 326, 4 Pac. 33; Civ. Code, §§ 1709, 1710. 61 Miles v. Berry, 1 Hill (S. C.) 296.

62 Bank of British North America v. Merchants' Nat. Bank, 91 N. Y. 106, affirming 48 N. Y. Super. Ct. 1.

63 Irwin v. Freeman, 13 Grant, Ch. (U. C.) 465.

64 Byles, Bills, 348; Walker v. Clements, 15 Q. B. 1046.

discontinuing his action after set-off pleaded, and beginning a fresh action after the set-off had become barred by the statute.65 But where actions on account are barred in five years, and actions on notes in six, an account between the parties to a note in the maker's favor may be barred as a set-off after the five years, although action will still lie on the note. The statute of limitations may be pleaded to a set-off, but the right to plead it may be waived by an absolute promise to pay.s

67

66

If a note is paid with the proceeds of the discount of a new note made by the same parties, and the original note is surrendered, a new debt is created, for which an action will lie from the date of the new note; and such action may be maintained within one year from that time against the stockholders of a corporation, under a statute limiting such actions to one year. But a similar action does not arise by the renewal of a note given for goods purchased, and the statute will run in such case from the time when the goods were sold."

69

Proof by Barred Note-Pleading.

71

§ 1593. Even where a note is outlawed, it may still be admitted as evidence of the debt under the money counts, or as evidence of the amount due on a collateral mortgage, which the creditor began to foreclose before the note fell due." 72 So, suit may be brought on an

65 Parsons v. Crabb, 34 U. C. Q. B. 136, 31 U. C. Q. B. 435.

66 Stanwood v. Smith, 3 Ill. App. 647. In ILLINOIS a set-off may be pleaded, although barred against any plaintiff when cause of action accrued before it was barred, but not as against a bona fide assignee of a negotiable instrument assigned before maturity. Hurd's Rev. St. c. 83, § 17.

67 And the running of the statute against the set-off is not stayed by the bankruptcy of the maker, against whom it is offered. Harwell v. Steel, 17 Ala. 372. But in Massachusetts, at the suit of an insolvent payee, debts due more than six years before action, and less than six years before the plaintiff's insolvency, may be set off. Parker v. Sanborn, 7 Gray, 191.

es Amonett v. Montague, 75 Mo. 43; but a request by a surety for time is

not a waiver, § 924, supra.

Fisher v. Marvin, 47 Barb. (N. Y.) 159.

70 Jagger Iron Co. v. Walker, 76 N. Y. 521.

71 Michael V. Tuttle, 37 Mich. 502.

72 Cheney v. Woodruff, 20 Neb. 124, 29 N. W. 275; Cheney v. Janssen, 20 Neb, 128, 29 N. W. 289.

account for which the creditor took a note, although the note itself

73

had then become barred by the statute." After judgment is rendered on the note, the note is merged in the judgment, and the statute runs from that time upon the judgment debt.7*

In Great Britain, since the rules of 4 Wm. IV., the statute must in all cases be specially pleaded.75 The defendant should plead "that the action did not accrue within six years,' "76 and not "that the defendant did not undertake within six years." And, if a set-off is pleaded, the statute of limitations must be replied specially. And such replication admits the alleged set-off, and only raises the question whether it accrued within the six years.79

What Law Governs.

78

§ 1594. In general, the statute of limitations of the place where the suit is brought is the only one to be considered. 80 But if a surety is

73 McGuire v. Bidwell, 64 Tex. 43.

74 Hopkins v. Stout, 6 Bush (Ky.) 375; and a bill of exchange founded on such judgment is, in like manner, taken out of the operation of the statute, Cherry v. Lamar, 58 Ga. 541.

75 Byles, Bills, 344; 2 Daniel, Neg. Inst. 245; Chapple v. Durston, 1 Cromp. & J. 1, overruling Anon., 1 Salk. 278. This was formerly held to be unnecessary where it appeared by the declaration that the action was begun too late. Brown v. Hancock, Cro. Car. 115. But a different rule was afterwards settled upon even in such cases. Lee v. Rogers, 1 Lev. 110; Gould v. Johnson. Hawkings v. Billhead, Cro. Car. 464; Puckle

2 Salk. 422, 2 Ld. Raym. 838;

v. Moor, 1 Vent. 191.

76 Byles, Bills, 363; Chit. Bills, 685; Josselyn v. Lacier, 10 Mod. 294.

77 This being insufficient, if the contract is still executory. Gould v. Johnson, 2 Salk. 422, 2 Ld. Raym. 838.

78 Chapple v. Durston, 1 Cromp. & J. 1.

79 Byles, Bills, 363; Chit. Bills, 697; Gale v. Capern, 1 Adol. & E. 102, 3 Nev. & M. 863.

80 Benj. Chalm. Dig. art. 252; 2 Daniel, Neg. Inst. 245; Story, Bills, § 160. Bank of U. S. v. Donnally, 8 Pet. 361; Murray v. Fisher, 5 Lans. (N. Y.) 98; Darling v. Hitchcock, 28 U. C. Q. B. 469, 25 U. C. Q. B. 463; Hervey v. Pridham, 11 U. C. C. P. 329. And see $ 54, supra. Although the instrument would be barred by the statute of limitations where it was made payable. Sawyer v. Macaulay, 18 S. C. 543. But see, contra, if it could have been sued and was already barred in the place where it was made, Hervey v. Jacques, 20 U. C. Q. B. 366. In MAINE, effect is given to foreign statutes of

sued and compelled to pay a judgment in New Hampshire, although he would have been relieved by the statute in Vermont, he may bring an action in Vermont against his co-surety for contribution.81 But, where judgment has been recovered in Illinois on a note barred by the statute in Wisconsin, it has been held that a court of equity in Wisconsin will enjoin its collection there.82

In general, a foreign statute of limitations is no defense.83 If the maker leaves the state where the note is made and payable, before it becomes barred there, it has been held that it can still be sued on in another state, if not barred by its statute.84 But the courts of Upper Canada have recognized and enforced the statute of limitations of Lower Canada in the case of a note made and payable there between parties who resided in Upper Canada, but who met in Lower Canada after its maturity, and could have sued and been sued there.R The statute, being one that relates to the remedy, may be changed even as to existing contracts, provided the remedy is not thereby at once destroyed. And the time for bringing suit on a note may be extended by the statute, after it has become due,87 or even after it is barred. But such statutes are not retrospective, unless expressly

88

86

85

limitation in favor of residents of the foreign state. Laws 1885, c. 376. But this does not apply to bar a creditor residing in Maine. MacNichol v. Spence, 83 Me. 87, 21 Atl. 748.

81 Aldrich v. Aldrich, 56 Vt. 324.

82 Brown v. Parker, 28 Wis. 21.

83 Carpentier v. Minturn, 6 Lans. (N. Y.) 56. Although both parties were residents of such foreign state, while the statute was running. Crocker v. Arey, 3 R. I. 178. In England the courts will not enforce a foreign statute, unless it affects the right of action itself. Huber v. Steiner, 2 Bing. N. C. 202, 2 Scott, 304; Harris v. Quine, L. R. 4 Q. B. 653.

84 Adams v. Kelly, 20 Cent. Law J. 299. But see § 1612, infra.

* Although the note was subsequently transferred to a nonresident. Sheriff v. Holcombe, 13 U. C. C. P. 590, 2 U. C. Err. & App. 516.

86 Biscoe v. Anketell, 28 Miss. 361; West Feliciana R. Co. v. Stockett, 13 Smedes & M. (Miss.) 395. Although it reduces the time to a few months. George v. Gardner, 49 Ga. 441. But it is unconstitutional where a reasonable time is not allowed on existing contracts. Carr v. Robinson, 8 Bush (Ky.) 269.

87 Bennett v. Bevard, 6 Iowa, 82.

88 Maltby v. Cooper, Morris (Iowa) 59; McKinney v. Springer, 8 Blackf. (Ind.) 506.

RAND.C.P.-143

(2273)

89

made so by their terms.8 And a statute passed between the making of a note and the time it becomes due will not affect it.""

American and Foreign Statutes.

§ 1595. The time for bringing suit upon a bill or note is variously fixed by statute in different countries and in the different states,— at two, three, four, five, six,95 ten, or fifteen years."7 ,93 On

92

94

96

89 Byles, Bills, 360; Jackson v. Woolley, 27 Law J. Q. B. 448; Fenwick v. Phillips, 3 Metc. (Ky.) 87; and, if the former statute is repealed without a saving clause, the new statute would run de novo on a note which the former statute had almost barred. Forsyth v. Ripley, 2 G. Greene (Iowa) 181.

90 Means v. Harrison, 114 Ill. 248, 2 N. E. 64. But see Black v. Swanson, 49 Ga. 424, where the statute included debts "accruing" at a date which fell between the making and the maturity of the note.

91 ARGENTINE REPUBLIC (Code Com. art. 844); BRAZIL (Code Com. art. 382); URUGUAY (Code Com. art. 862); HUNGARY (Exch. Law, § 204). 92 MARYLAND (Pub. Gen. Laws, art. 57, § 1); NORTH CAROLINA (Code, § 155); AUSTRIA (Exch. Law, arts. 77, 100); GERMANY (Exch. Law, arts. 77, 100); SWEDEN (Exch. Law, § 76). So, in SWITZERLAND (Oblig. R. 803-805), as against the acceptor, the time being much shorter as against drawer and indorsers.

93 CALIFORNIA (Code Civ. Proc. § 337); TEXAS (Rev. St. art. 3205). So, on bills of exchange reckoning from maturity, CHILI (Code Com. art. 761; COLOMBIA (Code Com. art. 511); COSTA RICA (Code Com. art. 504); ECUADOR (Code Com., as in "Spain"); PERU (Code Com. art. 516); SALVADOR (Code Com. art. 529); SPAIN (Code Com. art. 557); or from date of protest. MEXICO (Code Com. art. 467); or from date of payment by indorser, CHILI (Code Com. arts. 761-763).

94 ARIZONA (Laws 1891, p. 7Ð); ARKANSAS (Sand. & H. Dig. § 4827); FLORIDA (Rev. St. § 1294); KANSAS (Gen. St. c. 95. § 12); KENTUCKY (Ky. St. § 2515), the statute not applying to a note in the hands of the original payee, Caldwell v. Evans, 5 Bush (Ky.) 380; LOUISIANA (Rev. Civ. Code. art. 3540); NEBRASKA (Comp. St. § 5600); VIRGINIA (Code, § 2920). So. on bills reckoning from date of protest, in DENMARK (Exch. Law, § 73); or of last legal demand, BELGIUM (Code Nap.); FRANCE (Code Com. art. 189); GREECE (Code Nap.); HAYTI (Code Nap. § 186); ITALY (Code Com. art. 282); SAN DOMINGO (Code Nap.); TURKEY (Code Nap. § 146); VENEZUELA (Code Com. art. 90). So, between drawer and acceptor who pays without funds, or refuses payment with funds, in CHILI (Code

95 See note 95 on following page. 96 See note 96 on following page. 97 See note 97 on following page.