to run until after demand is made. If there be a contract to pay a sum of money, or do any act on a contingency, the statute does not begin to run until the event has occurred.(1) с statute be 2.-Bills and notes.] Where a bill or note is made payable When the on demand, the statute begins to run from the date, for it is gins to payable immediately, without an actual demand being made. run, in reAnd it makes no difference that it is made payable with inte- spect of rest. But if it be made payable at a certain period after bills and demand, the statute does not begin to operate until the note notes. becomes due. As where a note was made payable two years after demand; it was held, that the statute did not begin to run until two years had elapsed after a demand had been made. So if a note be made payable after sight, the statute does not begin to run until after it has been presented for payment. So if a bill be made payable twelve months after notice, the statute does not begin to run until twelve months after notice has been given.s Where the maker of a promissory note deposited it with a banker, to be delivered to the payee on his producing another note cancelled; it was held, that the cause of action to the payee accrued on his receiving the note from the banker, and that the statute began to run from that period, and not from the date of the note.h As a cause of action cannot be said to exist unless there be a *person in existence capable of suing; it has been held in an *1247 Topham v. Braddick, 1 Taunt. 572. Shulford v. Borough, Godb. 437. Fenton v. Emblers, 1 Bl. 353. c Christie v. Fonswick, S. N. P. 136. a Norton v. Ellam, 2 Mees. & Wels. 461. 1 Mur. & Hur. 69. e Thorpe v. Coombe, 8 D. & R. 347. R. & M. 388. (21 Eng. C. L. 468.) Bl. 631. (16 Eng. C. L. 344.) Nom. Thorpe v. Booth, (Homes v. Kerrison, 2 Taunt. 323. (1) (The statute of limitations begins to run so as to bar an action on a contract to perform certain work, from the time when the work was to be completed, and not from the time when the plaintiff received actual damage from the imperfect execution of it. Rankin v. Woodworth, 3 Penna. 48. When A. entered into a contract for the purchase of land, by which the purchase money was to be paid after a certain time and interest at a certain rate; and afterwards B. was admitted to participate in the purchase: it was held, that on every payment by A., he became entitled to maintain an action against B. to recover his moiety, and consequently that the statute of limitations began to run from the time of such payment. Brady v. Colhoun, 1 Penna. 140. Against a right of action dependent on the existence of a secret fraud, the statute of limitations runs only from the period of discovery. Pennock v. Freeman, 1 Watts, 401. Farnam v. Brooks, 9 Pick. 212. As to when the statute will begin to run, see further, Sinkler v. The Indiana, &c., Turnpike Co., 3 Penna. 149. Walter v. Walter, 1 Wharton, 292. Leinhart v. Forringer, 1 Penna. 492. Jones v. Trimble, 3 Rawle, 381. M'Euen v. Girard, 2 Rawle, 311. Morgan v. Plumb, 9 Wend. 237. Rodman v. Hedden, 10 Wend. 498. Payne v. Webster, 1 Vermont, 101. Keith v. Harrington, 2 Vermont, 174. Little v. Blant, 9 Pick, 488.) If the action by an administrator upon a bill of exchange, payable to the intestate, but accepted after his death, that the statute did not being to run until administration was granted." 3.-Where any of the parties is abroad.] By the statute plaintiff or of James, if the creditor be abroad when the cause of action defendant be abroad accrues, the statute does not begin to run until after his return when the to this country, and if he never comes into this country, the cause of statute does not attach against him or his representatives.b action ac- But if he once arrive in this country, or if one of several joint crues, the claimants, who were resident abroad when the cause of action arose, afterwards come into England, or if one of them was in England when the cause of action arose, the statute begins to run in the former case from the arrival of the party in England and in the latter, from the time when the right of action accrued.c statute does not begin to six years after his return. What con this coun try. The 4 and 5 Anne, c. 16, s. 19, contains similar provisions respecting defendants, by enacting, that if at the time the cause of action accrues the defendant be beyond the seas the plaintiff may bring his action within six years after the defendant's return. A mere setting foot in England, as by touching at a port stitutes a for a temporary purpose, in his passage from one foreign port return to to another, is not a return of the defendant to this country from beyond the seas within the meaning of the statute. But if the defendant, having arrived in this country, stops a few days, so that the plaintiff would have time to serve him with a writ before his departure, the statute begins to run from the time of his arrival, though his return was unknown to the plaintiff."(1) Where a disability is once removed, and the statute has begun to run, no subsequent disability will stop the running.f *1248 *The disability must exist when the cause of action arose; therefore, if both parties be in England when the cause of action accrues, the statute will run from that period, though one or both of them afterwards go abroad, and remain absent.5 When the Where the cause of action accrued in India, while both parties were resident there; it was held, that the plaintiff, having reaction ac- turned to this country, might commence an action within six years after the defendant's return to England, though more than six years had elapsed in India after the cause of action cause of crues abroad. Murray v. The East India Company, 5 B. & A. 204. (7 Eng. C. L. 66.) Smith v. Hill, 1 Wils. 134. Perry v. Jackson, 4 T. R. 516. Durore v. Jones, 4 T. R. 310. Gray v. Mendez, 1 Stra. 556. Gregory v. Hurril, 1 Bing. 324. (8 Eng. C. L. 335.) 8 Moore, 189. See Gregory v. Hurrill, 5 B. & C. 341. (11 Eng. C. L. 251.) 8 D. & R. 270. 'Doe v. Sheen, S. N. P. 147, n. Cotterell v. Dutton, 4 Taunt. 826. See the cases in note e, ante, 1147. (1) (Kysinger v. Baltzell, 3 Gill & Johns. 158.) had accrued there, and during the defendant's stay within the jurisdiction of the court in that country." Where the testator resided abroad at the time the cause of action accrued, and continued abroad until his death; it was held, that his executor, who resided in England, might be sued within six years after taking out probate, for the statute does not begin to run until there is a complete cause of action, and there can be no cause of action until there be some person within the realm against whom an action can be brought; a cause of action is a right to prosecute an action with effect, and there was no person in England after the testator's death whom the plaintiff could sue, until the defendant proved the will.b When a personal contract, made in a foreign country, is sought to be enforced in England, so much of the law as affects the merits and rights of the contract is adopted from the foreign country, and all that affects the remedy only, is taken from our own laws. Therefore, where an action was brought in England on a contract made in Scotland, where the limitation of time for bringing an action on such contract is forty years; it was held, that actio non accrevit infra sex annos was a good defence to the action, though forty years had not elapsed from the time that the contract was made.d f seas with Scotland is not considered as beyond the sea within the Ireland is meaning of these statutes, but Ireland was. And though not bethe 3 & 4 W. IV, c. 42, s. 7, provides, that no part of the United yond the Kingdom of Great Britain and Ireland, &c., shall be deemed in the sta to be beyond the seas within the meaning of the statute of tute. James, it has been decided that this provision does not extend *1249 to 4 Anne, c. 16, s. 19, and therefore, that Ireland is still a place beyond the seas within the meaning of the latter statute;g so that, if the defendant be in Ireland when the right of action accrues, the statute does not begin to run until after his arrival in England; but though the plaintiff be in Ireland, the statute begins to run when the cause of action arises. 4.-Merchants' accounts.] The statute of James excepts Mutual "such accounts as concern the trade of merchandise between accounts merchant and merchant, their factors or servants." It has are excepted been decided, that this provision is not confined to accounts from the between merchants, in the strict acceptation of that term, it operation extends to all cases where there are mutual accounts and re- of the staciprocal demands, but not to cases where there is only a demand tute. Williams v. Jones, 13 East, 439. Douglas v. Forrest, 4 Bing. 686. (15 Eng. C. L. 113.) 1 M. & P. 663. • Per Tindal, C. J., in Huber v. Steiner, 1 Hodges, 206. 2 Bing. N. C. 202. (29 Eng. C. L. 304.) d British Linen Co. v. Drummond, 10 B. & C. 903. (21 Eng. C. L. 194.) King v. Walker, 1 Bl. 286. Anon. 1 Show. 91. Lane v. Bennett, 1 Mees. & Wels. 71. 1 Gale, 368. on one side, as in the case of a tradesman and his customer in the common way of business."(1) Formerly, if there was "a mutual account of any sort between the plaintiff and the defendant, for any item of which credit had been given within six years, that was such evidence of an acknowledgment of there being such an open account between the parties, and of a promise to pay the balance, as to take it out of the statute. In assumpsit for use and occupation, the defendants pleaded the statute of limitations and a set off; at the trial it appeared that the plaintiff's testator let the premises to the defendants, and that at the time of his death, rent for nine years and an half was due, besides an item of 20%. lent to the defendant; the testator was indebted to the defendant for various articles supplied to him in their trade. The last *1250 half-year's rent, and some of the articles of the defendant's bills for goods supplied, were within six years before the writ was issued; there never was any settled account between the testator and the defendants; the balance due to the testator at his death was 1717.; held, that the plaintiff was entitled to recover. "It is clearly settled," said Lord Kenyon, that "every new item and credit in an account given by one party to another, was an admission of there being some unsettled account between them, the amount of which was afterwards to be ascertained; and any act which the jury might consider as an acknowledgment of its being an open account, was sufficient to take the case out of the statute.b There statement But now it is not sufficient to bring a case within the excepmust be a tion contained in this statute, that there are cross demands between the parties, unless there be a statement of accounts in counts, or writing, or evidence of one demand having been given and a payment accepted in reduction of the other. Assumpsit for work and of ac labor; plea the statute of limitations. It appeared that the plaintiff occupied a house and land under the defendant, at a rent of 167. a year, and that he worked for the defendant for twelve years at 12s. a week, during which period he received no wages, nor paid any rent, there had been no statement or settlement of accounts between them; held, that the statute was a bar to so much of the demand as had accrued six years before the action was brought. "It would very much diminish the force of Lord Tenterden's act," said Parke, Baron, "if such a Cranch v. Kirkman, Peake, 121. Cotes v. Harris, B. N. P. 150. Wace v. Wyburn, id. 2 Saund. 127, n. Per Tindal, C. J., in Moore v. Strong, 1 Bing. N. Č. 441. (27 Eng. C. L. 450.) 1 Hodges, 28. b Catling v. Skoulding, 6 T. R. 189. 2 Saund. 127, a. If goods are supplied by A. to B., and five years afterwards there are mutual dealings between the parties, semble, that the first item comes within the exception. Moore v. Strong, supra. (1) (Ingram v. Sherard, 17 Serg. & R. 347. Sce Spring v. Gray's Ex'r., 6 Peters, 151. Kimball v. Brown, 7 Wend. 322. Chamberlin v. Cuyler, 9 Wend. 126. Edmonston v. Thomson, 15 Wend. 554. Hutchinson v. Pratt, 2 Vermont, 146. Wood v. Barney, Ibid. 369. Gold v. Whitcomb, 14 Pick. 188. Belles v. Belles, 7 Halsted, 339.) a case as this was not within its provisions. Since that statute, there must be some acknowledgment or promise in writing, or a part payment, to take a case out of the statute of limitations. I do not say a payment must be in money; there may be a contract to furnish labor, or supply goods, but a contract or understanding must be shown, that would lessen the demand of the other party without using the statute of set off. Before Lord Tenterden's act, if a defendant had said, 'I have a demand on you, but you have a greater demand on me,' that *would have been sufficient. An open account is equivalent to such a declaration, which is no longer sufficient. Something *1251 must be proved amounting to payment." SECTION IV. AVOIDING THE STATUTE BY ISSUING PROCESS. THE time of limitation is computed from the period when the right of action accrued until the commencement of the action. Formerly, when writs bore teste of a day before the day of issuing them, the commencement of the action for the purpose of saving the statute, was held to be the issuing of the writ." But since the uniformity of process act, the date and teste of a writ are the same; and suing out the writ of summons is the commencement of the action for all purposes. According to the old practice, it was sufficient, in order to prevent the statute from attaching, to issue out a writ, and get it returned at any time within the six years, without serving it on the defendant," and enter continuances at any time down to the writ on which the appearance was; but this practice has been abolished by the 2 W. IV, c. 39, s. 10, the uniformity of process act, which provides, "that no first writ shall be available to Issuing a prevent the operation of any statute whereby the time for the writ to commencement of the action may be limited, unless the defen- avoid the dant shall be arrested thereon or served therewith, or proceedings to or towards outlawry shall be had thereupon, or unless such writ, and every writ (if any) issued in continuation of a preceding writ, shall be returned non est inventus, and entered of record within one calendar month next after the expiration thereof, including the day of such expiration, and unless every writ issued in continuation of a preceding writ shall be issued • Williams v. Griffith, 1 Gale, 65. 2 C. M. & R. 45. Johnson v. Smith, 2 Burr. 950. Alston. Underhill, 1 C. & M. 492. 2 Dowl. 26. statute. d Taylor v. Hipkins, 5 B. & A. 489. (7 Eng. C. L. 169.) Harris v. Woolford, 6 T. R. 617. |