VII. What promise or acknowledgment will obviate this statute. 1258 1265 IX. Payment by one of several debtors. 1266 X. What amounts to payment. 1270 XI. By and to whom the promise or acknowledgment must be *1241 SECTION I. THE 21 JAC. I. c. 16. By the 21 Jac. I, c. 16, sec. 3, "all actions of trespass, of assault, battery, wounding, imprisonment, or any of them, shall be commenced and sued within four years next after the cause of such actions or suits, and not after; and all actions upon the case for words, within two years next after the words spoken, and not after; and all actions of trespass, detinue, trover, or replevin for goods; all actions of account, and on the case, other than actions concerning trade between merchants; and all actions of debt, grounded on any lending or contracts without specialty; and all actions of debt for arrearages of rent, within six years next after the cause of such actions or suit, and not after." *By sec. 4, "after reversal of judgment for plaintiff in error, or arrest of judgment, or reversal of outlawry, the plaintiff, his heirs, executors, or administrators may commence a new action within a year." By sec. 7, "if any persons entitled to sue, be within the age of twenty-one years; feme covert, non compos mentis, imprisoned or beyond seas at the time the cause of action accrued, they may sue within the time limited after their coming of age, being discovert, of sane memory, at large, or returned from beyond the seas, as other persons having no such impediment might have done." THIS statute extends to all actions upon an unsealed, written, or parol contract for the recovery of a debt or damages, whether the claim be made in a court of law or equity. It extends to an action on a bill of exchange; or by an attorney for his fees. It extends to defences of set-off, as well as to actions, and if a debt barred by the statute be set-off, the plaintiff may reply the statute."(1) The statute does not destroy the debt, it only bars the remedy; therefore if the creditor possesses property of the debtor, on which he has a lien, he may enforce his lien, though the demand in respect of which it arises is barred by the statute."(2) A debt barred by the statute will not support a commission of bankruptcy; nor can it be proved under it. But "if the six #1242 years have not elapsed before the fiut was issued, the creditor's claim is not barred; for the statute does not run in that case. The king not being named in the statute, is not barred thereby.h The statute is a good defence to an action by a landlord for rent against one who had once been his tenant from year to year, but who had not within the last six years occupied the premises, paid rent, or done any act from which a tenancy could be inferred, although the tenancy had not been determined by a notice to quit.i Bac. Ab. Limitations of Actions, D. 2-4. Though assumpsit is not specifically mentioned in the act, yet it is comprehended in action on the case. Battley v. Faulkner, 3 B. & A. 294. (5 Eng. C. L. 288.) 2 Saund. 121. Even though the action be for unliquidated damages. Pigott v. Rush, 6 N. & M. 376. 2 H. & W. 28. • Oliver v. Thomas, 3 Lev. 367. e Renew v. Axton, Carth. 3. B. N. P. 180. Higgins v. Scott, 2 B. & Ad. 413. (22 Eng. C. L. 113.) Spears v. Hartley, 3 Esp. 81. But it is no bar in case of fraud. Ex parte Botton, 1 Mon. & Ayr. 60. Ex parte Dewdney, 15 Ves. 479. Ex parte Roffey, 2 Rose, 245. 19 Ves. 468. But a promissory note more than six years old is a good petitioning creditor's debt, as against a stranger, if the bankrupt does not object that it is barred by the statute. Swayne v. Wallinger, 2 Stra. 746. Quantock v. England, 5 Burr. 2628. Chapple v. Dunstan, 1 C. & J. 1. Ex parte Ross, 2 Glynn & Jam. 461. 4 W. IV, c. 27, s. 42, post. (1) (Alsop v. Nichols, 9 Conn. 359.) h Lambert v. Taylor, 6 D. & R. 188. Hughes v. Thomas, 13 East, 474. See 3 & (2) (The redemption of a pawn is not affected by the statute of limitations, which runs only from the conversion of the thing pawned; but a simple contract debt is not protected from the statute, because accompanied with a pledge as collateral security. Slaymaker v. Wilson, 1 Penna. Rep. 216. Where, however, the security for a debt is a lien on property, personal or real, that licn is not impaired, in consequence of the debt's being barred, by the statute of limitations. Belknap v. Gleason, 10 Conn. 160.) SECTION III. WHEN THE STATUTE BEGINS TO RUN. The statute begins to run from the 1.-In cases of torts and contracts.] THE statute begins to run from the time that the right of action has accrued; that is, from the day on which the plaintiff might have an action time that for the recovery of his demand, although the plaintiff may not the cause then know that he has a cause of action, provided no fraud be of action practised by the defendant, to prevent him from obtaining accrued. knowledge of his right of action;(1) therefore, it has been held that the statute was a bar to an action of trover, commenced more than six years after the conversion, although the plaintiff did not know of the conversion until a period within the six years. So in an action of assumpsit, for not laying out the plaintiff's *1243 *money in an annuity on a good and sufficient security, which the defendant promised to do; held, that the statute of limitations was a good bar to the plaintiff's recovery, as the promise of the defendant was the gist of the action, although it was commenced within the period of six years from the time it was discovered that the security was invalid, and the defendant knew it to be so at the time the annuity was granted. So where a declaration in assumpsit against an attorney, assigned for breach that he did not make diligent inquiry at the Bank, to ascertain whether stock was standing in the names of certain persons there; held, that the cause of action arose on the breach of duty by the defendant, and not on its discovery by the plaintiff, and that the statute began to run from the time of the breach. So, in an action on the case for negligence, where the declaration alleged a breach of duty, and a special consequential damage, it was held that the cause of action was the breach of duty, and not the consequential damage; and that the statute of limitations began to run from the time when the breach of duty was committed, and not from the time when the consequential damage accrued.d a Granger v. George, 5 B. & C. 149. (11 Eng. C. L. 185.) But to support a plea of the statute of limitation, the defendant must show an actual conversion in fact, or prove a positive demand and refusal, six years before action brought. Philpott v. Kelly, 1 Harr. & W. 134. 3 Ad. & Ell. 106. (30 Eng. C. L. 40.) b Brown v. Howard, 4 Moore, 508. 2 B. & B. 73. (6 Eng. C. L. 25.) Short v. M'Carthy, 3 B. & A. 626. (5 Eng. C. L. 403.) d Howell v. Young, 8 D. & R. 14. 5 B. & C. 259. (11 Eng. C. L. 219.) (1) (The length of time requisite to bar a claim by the act of limitations, is not increased Where a client employs an attorney to conduct a suit, it is Attorney's an entire contract to carry on the suit to its termination, and bill. determinable only on reasonable notice; and where no such notice has been given, the statute of limitations is no bar to that part of the demand which is for business done more than six years before the commencement of an action by the attorney for business done in the suit, which was not brought to a termination till within six years of the commencement of the action."(1) Where a personal representative having found among the papers of the deceased a mortgage deed, and having assigned it more than six years before the action, for the mortgage money, affirming and reciting in the deed of assignment, that it was a mortgage deed, made or mentioned to have been made between the mortgagor and mortgagee for that sum; it was held, that the assignee could not recover back the mortgage money, although it turned out that the mortgage was a forgery, and that the assignee did not discover the forgery till within six years before he brought his action, it appearing that the assignor did not know it to be a forgery. *1244 In an action for words actionable in themselves, the statute Action for runs from the time of the speaking, although they have occa- words. sioned special damage; and the action must be brought within two years. Where special damage is the gist of the action, the statute runs from the time of the special damage only, and the limitation is six years. Where six years had elapsed since the committing of a trespass, by cutting down trees, it was held that an action could not be maintained for the produce of the sale of the trees within six years.d nistrators. If the six years have not expired before the death of the tes- Executors tator or intestate, the executor or administrator may sue at any and admitime within a year after his death; but if the six years have expired before the death of the testator, and no action has been commenced by him, the statute is a final bar, and cannot be avoided. But if an action has been commenced by the testator or intestate, which is abated by his death, the executor or administrator shall have a reasonable time after his death (semble a year) to commence a new action, and thereby take the case out of the statute, though the six years may have elapsed before such action has been commenced." In contracts, the cause of action arises at the time that the Harris v. Osbourn, 2 C. & M. 629. & Ad. 17. (20 Eng. C. L. 334.) b Bree v. Holbeck, Doug. 654. Hughes v. Thomas, 13 East, 474. 'S. N. P. 151, n. Tidd, 28. f 4 Tyr. 445. See Rothery v. Munnings, 1 B. Bac. Ab. Limitation of Actions. (D.) • Rex v. Morral, 6 Price, 30. B. N. P. 150. by a transfer of the claim; all the successive owners of it have, together, only the time which the original claimant would have had. M'Euen v. Girard, 2 Rawle, 311.) (1) (The statute of limitations does not begin to run against the claim of an attorney for professional compensation, before demand is made, or the professional relation is dissolved. Foster v. Jack, 4 Watts, 334.) tion ac crues in *1245 When a contract is broken; the statute therefore begins to run from the right of ac- time of the breach of the contract, and not from the time that the plaintiff has sustained any damage therefrom. Therefore, contracts. Where A. under a contract to deliver spring wheat to B., had delivered winter wheat, and B. having again sold the same as spring wheat, had in consequence been compelled to pay damages to the purchaser; and afterwards B. brought an action of assumpsit against A. for his breach of contract, alleging as special damage the damages so recovered; held, that although such special damage had occurred within six years before the commencement of the action by B. against A., yet that the breach of contract having occurred and become known to B. more than six years before that period, the statute of limitations was a bar to the action. Upon a promise of indemnity the statute begins to run from the actual damnification." Where A. in consideration of B.'s supplying C. with goods guarantees to B. the payment of the price; B. having supplied C. with goods, and C. having neglected to pay the price, A. in consideration of B.'s extending to C. a period of two years and upwards, for the liquidation of his debt, agrees to reserve to B. all right and claim which B. may now have against him; A. by virtue of the security previously entered into on C.'s behalf and to be bound by it, if, at the expiration of such period, B.'s demand shall not have been fully discharged; held, that A.'s liability attached upon default made by C. after the expiration of two years and a few days; that B.'s right of action then accrued, and that, therefore, the statute of limitations then began to run. So, where by a local turnpike act, the trustees were to pay first the expenses of obtaining the act, and next the expenses of erecting toll-houses, &c., a builder who brought an action for work and labor in so doing, more than six years after the work done, but within six years of the time when the trustees had funds in hand by having paid off the expenses of the act; it was held, that he was too late, as the action was maintainable immediately after the work done, though the execution would have been postponed." с Where goods were sold at six months' credit, payment to be then made by a bill at two or three months; held, that this was in effect a nine months' credit, and that the statute did not *1246 *begin to run until nine months after the goods were sold.e a с If goods be consigned to a factor for sale, an action does not lie against him for not accounting until after a demand made of an account; the statute, therefore, does not, in such case begin Battley v. Faulkner, 3 B. & A. 288. (5 Eng. C. L. 288.) Huntley v. Sanderson, 1 C. & M. 467. Holl v. Hadley, 4 Nev. & M. 515. (29 Eng. C. L. 206.) a Emery v. Day, 1 C. M. & R. 245. 4 Tyr. 695. Helps v. Winterbottom, 2 B. & Ad. 431. (22 Eng. C. L. 116.) Dubitante, Parke, J., who thought that the statute began to run at the expiration of six months, as no bill was given. |