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The former statutes of limitation were held not to bar the right but only the remedy. 1 Saund. 283, a. n.; 2 B. & Ad. 413. The present act has wisely put an end to such an absurd distinction.

§35. "That the receipt of the rent payable by any tenant from year to year, or other lessee, shall, as against such lessee or any person claiming under him (but subject to the lease), be deemed to be the receipt of the profits of the land for the purposes of this act."

$36. "That no writ of right patent, writ of right quia dominus remisit curiam, writ of right in capite, writ of right in London, writ of right close, writ of right de rationabili parte, writ of right of advowson, writ of right upon disclaimer, writ de rationabilibus divisis, writ of right of ward, writ de consuetudinibus et servitiis, writ of cessavit, writ of escheat, writ of quo jure, writ of secta ad molendinum, writ de essendo quietum de theolonio, writ of ne injuste vexes, writ of mesne, writ of quod permittat, writ of formedon in descender, in remainder, or in reverter, writ of assize of novel disseisin, nuisance, darrein-presentment, juris utrum, or mort d'ancestor, writ of entry sur disseisin, in the quibus, in the per, in the per and cui, or in the post, writ of entry sur intrusion, writ of entry sur alienation dum fuit non compos mentis, dum fuit infra ætatem, dum fuit in prisona, ad communem legem, in causu proviso, in consimili casu, cui in vita, sur cui in vita, cui ante divortium, or sur cui ante divortium, writ of entry sur abatement, writ of entry quare ejecit infra terminum, or ad terminum qui præteriit, or causa matrimonii prælocuti, writ of aiel, besaiel, tresaiel, cosinage, or nuper obiit, writ of waste, writ of partition, writ of disceit, writ of quod ei deforceat, writ of covenant real, writ of warrantia chartæ, writ of curia claudenda, or writ per quæ servitia, and no other action real or mixed (except a writ of right of dower, or writ of dower unde nihil habet, or a quare impedit, or an ejectment,) and no plaint in the nature of any such writ or action (except a plaint for freebench or dower), shall be brought after the 31st December, 1834."

§ 37. "Provided always, that when, on the said 31st December, 1834, any person who shall not have a right of entry to any land shall be entitled to maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought at any time before the 1st June, 1835, in case the same might have been brought if this act had not been made, notwithstanding the period of twenty years hereinbefore limited shall have expired.'

§ 38." Provided also, that when, on the said 1st June, 1835, any person whose right of entry to any land shall have been taken away by any descent cast, discontinuance, or warranty, might maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought after the said 1st of June, 1835, but only within the period during which by virtue of the provisions of this act an entry might have been made upon the same land by the person bringing such writ or action, if his right of entry had not been so taken away."

$39. "That no descent cast, discontinuance, or warranty which may happen or be made after the said 31st December, 1833, shall toll or defeat any right of entry or action for the recovery of land."

§ 40. "That after the said 31st December, 1833, no action or suit or other proceeding shall be brought, to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his agent, to the person entitled

thereto or his agent; and in such case no such action or suit
or proceeding shall be brought but within twenty years after
such payment or acknowledgment, or the last of such
pay-
ments or acknowledgments, if more than one, was given.'
§ 41. "That after the said 31st December, 1833, no arrears
of dower, nor any damages on account of such arrears, shall
be recovered or obtained by any action or suit for a longer
period than six years next before the commencement of such
action or suit."

§ 42. "That after the said 31st December, 1833, no arrears of rent or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress, action, or suit, but within six years next after the same respectively shall have become due, or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent: provided nevertheless, that where any prior mortgagee or other incumbrancer shall have been in possession of any land, or in the receipt of the profits thereof, within one year next before an action or suit shall be brought by any person entitled to a subsequent mortgage or other incumbrance on the same land, the person entitled to such subsequent mortgage or incumbrance may recover in such action or suit the arrears of interest which shall have become due during the whole time that such prior mortgagee or incumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years."

§ 43. "That after the said 31st December, 1833, no person claiming any tithes, legacy, or other property for the recovery of which he might bring an action or suit at law or in equity, shall bring a suit or other proceeding in any spiritual court to recover the same but within the period during which he might bring such action or suit at law or in equity.'

$44. "Provided always, that this act shall not extend to Scotland; and shall not, so far as it relates to any right to permit to or bestow any church, vicarage, or other ecclesiastical benefice, extend to Ireland."

It is to be observed, that in consequence of the abolition of fines by the 3 & 4 Wm. 4. c. 74. a title to lands can no longer be obtained by a fine levied with proclamations, and non-claim for five years under the provisions of the 4 H. 7. c. 24. See tit. Fine of Lands.

2. By 31 Eliz. c. 5. par. 5, it is enacted, "That all actions, suits, bills, indictments, or informations, which shall be brought for any forfeiture upon any statute penal, made or to be made, whereby the forfeiture is or shall be limited to the queen, &c. shall be brought within two years after the of fence: and that all actions, suits, bills, or informations, which shall be brought for any forfeiture upon any penal statute, made or to be made, except the statutes of tillage, the benefit and suit whereof is or shall be by the said statute limited to the queen, her heirs or successors, and to any other that shall prosecute in that behalf, shall be brought by any person that may lawfully sue for the same within one year next after the offence committed; and in default of such pursuit, that then the same shall be brought for the queen's majesty, her heirs or successors, any time within the two years after that year ended. Where a shorter time is limited by any penal statute, the prosecution must be within that time."

Also see 18 Eliz. c. 5; 21 Jac. 1. c. 4; the former requir ing a memorandum of the day of exhibiting an information, the latter an oath from the informer.

In the construction of these statutes it hath been holden, That the 21 Jac. 1. c. 4, does not extend to any offence created since that statute; so that prosecutions on subsequent penal statutes are not restrained thereby, but that statute is to them as it were repealed pro tanto. 1 Salk. 373;

5 Mod. 425. And that the said statute, 21 Jac. 1. only applies to those penal statutes, on which proceedings may be had before the justices of assize, justices of the peace, &c. 3 Term Rep. 362.

That if an offence prohibited by any penal statute be also an offence at common law, the prosecution of it as of an offence at common law, is no way restrained by any of these statutes. Hob. 270; 4 Mod. 144.

That if an information tam quam be brought after the year on a penal statute, which gives one moiety to the informer, and the other to the king, it is naught only as to the informer, but good for the king. Cro. Car. 331; Cro. Jac. 366. See Dalis. 60.

That if a suit on a penal statute be brought after the limited time, the defendant need not plead the statute, but may take advantage of it on the general issue. 1 Show. 353.

It seems doubtful whether the suit by a common informer on a penal statute, which first gives an action to the party grieved, and in his default, after a certain time, to any one who will sue, be within the restraint of these statutes. 1 Show. 353, 354.

The party grieved was not within the restraint of these statutes, but might have sued in the same manner as before. Cro. Eliz. 645; Noy, 71; 3 Leon. 237.

But by the 3 & 4 Will. 4. c. 42. § 3. all actions for penalties, damages, or sums of money given to the party grieved by any statute now or hereafter to be in force, shall be commenced and sued within two years after the cause of such actions or suits, but not after.

It has been held by three judges, that suing out a latitat within the year was a sufficient commencement of the suit to save the limitation of time on a penal statute; because the latitat is the original in B. R. and may be continued on record as an original. But Holt held otherwise, for the action being for a penalty given by a statute, the plaintiff might have brought an action of debt by original in B. R. because the statute gives the action; and he held, that there was a difference between a civil action, and an action given by statute; for in the first case, the suing out a latitat within the time, and continuing it afterwards, will be sufficient; but in the other case, if the party proceeds by bill, he ought to file his bill within the time, that it may appear so to be on the record itself. Carth. 232; Show. 353. But upon a writ of error, all the judges in the Exchequer Chamber held, that a latitat is a kind of original in the King's Bench. 2 Ld. Raym. 883. And accordingly, in two subsequent cases, it was holden to be a good commencement of the suit in a penal action. 2 Burr. 950; 3 Burr. 1243; Comp. 454.

See as to limitation of indictments, and informations in criminal cases, Indictment, Information, Quo Waranto, Treason, &c.

2. By the 21 Jac. 1. c. 16. § 3. it is enacted, that all actions of trespass quare clausum fregit, trespass, detinue, trover, and replevin for taking away of goods and cattle; all actions of account and upon the case, other than such accounts as concern the trade of merchandize between merchant and merchant, their factors or servants; all actions of debt grounded upon any lending or contract without specialty; all actions of debt for arrearages of rent; and all actions of assault, menace, battery, wounding, and imprisonment of them, shall be commenced and sued within the time and limitation hereafter expressed, and not after (that is to say), the said actions upon the case (other than for slander), and the said actions for account, and the said actions for trespass, debt, detinue, and replevin for goods or cattle, and the said action of trespass quare clausum fregit, within six years next after the cause of such actions or suit, and not after: and the said actions of trespass, of assault, battery, wounding, imprisonment, or any of them, within four years next after the cause of such actions or suit, and not after; and the said actions upon the case for

words, within two years next after the words spoken, and not after.

By § 4. where judgment is given for a plaintiff, and reversed by writ of error; or if judgment for a plaintiff be arrested, or if a defendant in an action by original be outlawed, and the outlawry reversed, the plaintiff may commence a new action within twelve months after such reversal or arrest of judgment respectively, though it be beyond the time of limitation directed by the statute.

By § 7. an exception is introduced in favour of persons within the age of twenty-one, femes covert, persons non compos mentis, imprisoned, or beyond seas, who are at liberty to bring the same actions, so as they take the same within such times as are before limited after their coming to, or being of full age, discovert, of sane memory, at large, and return from beyond the seas, as other persons having no such impediment should have done. And see 3 & 4 Wm. 4. c. 42. § 7. post, as to what places shall not be deemed to be beyond the seas within this act.

The action of assumpsit is not mentioned eo nomine in the statute; but the last proviso extends not only to those actions therein enumerated, but also to an assumpsit and all other actions on the case. Bac. Abr. Lim. of Act. [E. 1.] In all cases, therefore, where assumpsit is maintainable, the above statute applies.

Under the head of actions upon the case are included actions for libels, criminal conversation, seduction, and actions for such words as are not actionable without a special damage; and all other actions on the case, being of equal mischief, and plainly within the intention of the legislature. See Cro. Car. 245, 333; 2 Saund. 120; 2 Mod. 71; 1 Sid. 455; 3 Comm. c. 8. p. 307, in n. As to actions in the Admiralty for seaman's wages, see post, III.

Where the plaintiff complained of a plea of trespass, for that the defendant with force and arms assaulted and seduced the plaintiff's wife, whereby he lost the comfort of her society &c., against the peace &c., to his damage &c. ; whether this be trespass or case, (and former authorities have considered it to be case,) at any rate a plea of not guilty within six years' is good on a general demurrer, 6 East, 387.

It seems, that if a man brings trespass for beating his servant, per quod servitium amisit, this is not such an action as is within the branch of the statute relating to actions of trespass, being founded on the special damage. 1 Salk. 206; 5 Mod. 74. If to an action of assault, battery, and imprisonment, the defendant pleads, as to the assault and imprisonment, the statute of limitations, without answering particularly to the battery, otherwise than by using the words transgressio prædicta, it is sufficient; for these words are an answer to the whole. 1 Lev. 31.

In the construction of the branch of the statute relating to words it hath been holden,

That an action of scandalum magnatum is not within the statute. Lit. Rep. 342; 3 Keb. 645.

That it extends not to actions for slander of title; for that is not properly slander, but a cause of damage; and the slander intended by the statute is to the person. Cro. Car.

141.

That if the words are of themselves actionable, without the necessity of alleging special damages, although a loss ensues, yet in this case the statute of limitations is a good bar; but if the words, at the time of the speaking of them, are not actionable, but a subsequent loss ensues, which entitles the plaintiff to his action, in such case the statute is no bar. 1 Sid. 95; Raym. 61; and see 3 Mod. 111.

That if an action for words be founded upon an indictment, or other matter of record, it is not within this statute. 1 Sid. 95.

By 27 Geo. 3. c. 44. suits in ecclesiastical courts for defamatory words must be commenced within six months.

It was adjudged, that an action of debt on 2 & 3 Ed. 6. c. 13. for not setting out tithes, was not within the 21 Jac. 1. c. 16; the action being grounded on an act of parliament, which is the highest record. Cro. Car. 513; Talory v. Jackson, 1 Saund. 38; 2 Saund. 66; 1 Sid. 305, 415; 1 Keb. 95; 2 Keb. 462.

But by the 53 Geo. 3. c. 127. § 5. no action shall be brought for recovery of any penalty for not setting out tithes, nor any suit instituted in any Court of Equity, or Ecclesiastical Court, to recover the value of any tithes, unless such action be brought or such suit commenced within six years from the time when such tithes became due.

So it was held an action of debt for rent reserved on a lease by indenture was out of the statute, the lease by indenture being equal to a specialty. Hutt. 109; 1 Saund. 38.

Also an action of debt for an escape was not within the statute; not only because it is founded in malificio, and arises on a contract in law, which is different from those actions of debt on a lending or contract mentioned in the statute, but also because it is grounded on 1 Rich. 2. c. 12. which first gave an action of debt for an escape, there being no remedy for creditors before, but by action on the case. 1 Saund. 37; Jones v. Pope, 1 Lev. 191: 2 Keb. 903; 1 Sid. 305.

Neither did the statute extend to actions of covenant, nor to any actions of debt in specialties, or other matter of a higher nature. 1 Saund. 38. Thus a scire facias being founded in matter of record was not within the act.

So this statute could not be pleaded to an action of debt brought against a sheriff for money by him levied on a fieri facias; because the action is founded in maleficio, as also upon the judgment on which the fieri facias issued, which is a matter of record. 1 Mod. 212, 245; 2 Show. 79.

And an action of debt on an award under the hand and seal of the arbitrators, though the submission was by parol, was not within the statute. 2 Saund. 64; Sid. 415; 1 Lev. 273; 1 Keb. 462, 496, 533.

Nor an action of debt for a fine of a copyholder. 1 Keb. 536; 1 Lev. 273.

Neither was an action of debt upon bond within the statute, Comp. 102; but after a lapse of twenty years, without payment of interest or any acknowledgment of it by the obligor, the law presumed it to be satisfied, 1 Term Rep. 270, and in some cases satisfaction was presumed within that period. 1 Burr. 434, n. (a); 1 Term Rep. 270; 1 Camp. 26.

bringing such action is or shall be by any statute specially limited.

But by § 4. "if any person or persons that is or are or shall be entitled to any such action or suit, or to such scire facias, is or are or shall be, at the time of any such cause of action accrued, within the age of twenty-one years, feme covert, non compos mentis, or beyond the seas, then such person or persons shall be at liberty to bring the same actions, so as they commence the same within such times after their coming to or being of full age, discovert, of sound memory, or returned from beyond the seas, as other persons having no such impediment should, according to the provisions of this act, have done; and if any person or persons against whom there shall be any such cause of action is or are, or shall be at the time such cause of action accrued, beyond the seas, then the person or persons entitled to any such cause of action shall be at liberty to bring the same against such person or persons within such times as are before limited after the return of such person or persons from beyond the seas."

§ 5. Provided, "that if acknowledgment shall have been made, either by writing signed by the party liable by virtue of such indenture, specialty, or recognizance, or his agent, or by part payment or part satisfaction on account of any principal or interest being then due thereon, it shall and may be lawful for the person or persons entitled to such actions to bring his or their action for the money remaining unpaid and so acknowledged to be due within twenty years after such acknowledgment by writing or part payment or part satisfaction as aforesaid, or in case the person or persons entitled to such action shall at the time of such acknowledgment be under such disability as aforesaid, or the party making such acknowledgment be, at the time of making the same, beyond the seas, then within twenty years after such disability shall have ceased as aforesaid, or the party shall have returned from beyond the seas, as the case may be; and the plaintiff or plaintiffs in any such action on any indenture, specialty, or recognizance, may, by way of replication, state such acknowledgment, and that such action was brought within the time aforesaid, in answer to a plea of this statute."

§ 6. "If in any of the said actions judgment be given for the plaintiff, and the same be reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment the judgment be given against the plaintiff, that he take nothing by his plaint, writ, or bill, or if in any of the said actions the defendant shall be outlawed, and shall after reverse the outlawry, that in all such cases the party plaintiff, his executors or administrators, as the case shall require, may commence a new action or suit from time to time within a year after such judgment reversed, or such judgment given against the plaintiff, or outlawry reversed, and not after."

$ 7. No part of the united kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any islands adjacent to any of them, being part of the dominions of his majesty, shall be deemed to be beyond the seas within the meaning of this act, or of the 21

Now by the 3 & 4 Wm. 4. c. 42. with a view of fixing a period of limitation for such actions as had been held not to be within the 21 Jac. 1. c. 16. it is enacted, § 3. " that all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty, and all actions of debt or scire facias upon any recognizance, and also all actions of debt upon any award where the submission is not by specialty, or for any fine due in respect of any copyhold estates, or for an escape, or for money levied on any fieri facias, and all actions for penalties, damages, or sums of money given to the party grieved, by any statute now or hereafter to be in force, that shall be sued or brought at any time after the end of the present session of parliament, shall be commenced and sued within the time and limitation herein-Jac. 1. c. 16. after expressed, and not after; that is to say, the said actions of debt for rent upon an indenture of demise, or covenant or debt upon any bond or other specialty, actions of debt or scire facias upon recognizance, within ten years after the end of this present session, or within twenty years after the cause of such actions or suits, but not after; the said actions by the party grieved, one year after the end of this present session, or within two years after the cause of such actions or suits, but not after; and the said other actions within three years after the end of this present session, or within six years after the cause of such actions or suits, but not after; provided that nothing herein contained shall extend to any action given by any statute where the time for

For the clause of the above statute permitting actions of trespass, or trespass on the case to be maintained by or against executors or administrators for injuries done to the real estate of the deceased persons in their life-times, or by the latter to the real and personal property of others, provided the cause of action has accrued, and the action is brought within the time prescribed by the act. See tit. Executor, VI. 1.

The statute of limitations (21 Jac. 1. c. 16.) bars the remedy, not the debt. Therefore an attorney retains his lien on a judgment for his costs, though his remedy by action is barred. 2 B. & Ad. 413.

III. 1. The 21 Jac. 1. c.16. cannot be a bar unless the six years

are expired, after there hath been complete cause of action; as if a man promise to pay 10l. to J. S. when he came from Rome, or when he marries, and ten years after J. S. marries, or comes from Rome, the right of action accrues from the happening of the contingency; from which time the statute shall be a bar, and not from the time of promise. Godb. 437. So in an action on the case wherein the plaintiff declared, that in consideration that he would forbear to sue the defendant for some sheep killed by the defendant's dog, the defendant promised to make him satisfaction upon request, and that at such a time he requested, &c. it was held that the right of action accrued from the request, not from the time of killing the sheep; that therefore the defendant could not plead the statute of limitations, the request being within six years, though the killing the sheep and promise of satisfaction was long before. Godb. 437. See also 1 Lev. 48; 1 Sid. 66; 1 Keb. 177.

And where the plaintiff declared that in consideration, he, at the defendant's request, would receive A. and B. into his house as guests and diet them, the defendant promised &c.; it was held that the statute began to run from the time of the dieting, and not from the time of making the promise. 2 Salk. 422; S. C. 2 Lord Ray. 888.

So if a note or bill of exchange is given, payable at a certain time after date, the cause of action does not accrue until after the expiration of the time specified; and if an action is brought within six years after that time, the statute is not a bar. But if the suit is not commenced within six years after that time, the defendant may plead that the cause of action did not accrue within six years, but he must not plead that he did not promise within six years, i. e. if he is the person first liable to the payment, because the promise is made at the time of making the notes, &c. It may be otherwise in the case of an indorser, who is not liable until default made by the drawer of the note, or acceptor of the bill; but in this case non accrevit infra sex annos is a safe and good plea. And see 1 Vent. 191; 3 Keb. 613; Cro. Car. 245, 6, 333; 1 John. 252; 3 Mod. 110, &c.; Allen, 62; 2 Salk. 420; Comb. 26; 1 H. Black. 631.

The statute is no bar to a bill payable at a specified time after sight, unless it has been presented for payment, for debt does not accrue upon such a bill until it is presented. 2 Taunt.

323,

And the statute was held no bar to an action on a promissory note, dated about thirteen years before and payable twenty-four months after demand, no demand having been made until within three years before action brought. 1 R. & M. 388. But a promissory note payable on demand is payable immediately; and the statute runs from the date of the note. 1 Selw. N. P. 137.

Where a demand is necessary to complete the cause of action, the statute only runs from the time of such demand. But in some cases, after a reasonable period has elapsed, a jury may presume that the demand has been made. See I Taunt, 572.

Where the breach of a contract is attended with special damage, the statute runs from the time of the breach, and not from the time it was discovered or the damage arose. 2 B. & B. 73; 3 B. & A. 288, 626.

In trover the statute runs from the conversion, 7 Mod. 99 ; 4 Esp. 20; and in other actions founded upon tort, from the time when the cause of action is complete.

Where the agreement on the sale of goods was for payment at the end of six months by a bill at two or three months at the option of the purchaser: held, (Park, J. diss.) that this was a credit for nine months, and that the statute did not begin to run till the expiration of that time. 2 B. & Ad. 431. 2. It has been agreed, that the statute of limitations is no plea in the Court of Admiralty or Spiritual Court, where they proceed according to their law, and in a matter in which they have cognizance. 6 Mod. 25, 26; 2 Salk. 424; 3 Keb. 366, 392.

VOL. II.

Therefore, for a suit upon a contract super altum mare, no prohibition should go upon their refusal of a plea of the statute of limitations. 6 Mod. 26.

So it has been held not to be pleadable to a proceeding in the Spiritual Court, pro violentá manuum injectione in clericum, because the proceeding is pro reformatione morum, not for damages. 2 Salk. 424.

It was formerly doubted, whether, to a suit in the Admiralty for mariners' wages, this statute was a good plea; because it was said, that this was a matter properly determinable at common law; and the allowing the Admiralty jurisdiction therein only a matter of indulgence. 2 Salk. 424; 6 Mod. 25, But it was enacted by the 4 & 5 Ann. c. 16, that all suits and actions in the Court of Admiralty for seamen's wages shall be commenced and sued within six years next after the cause of such suits or actions shall accrue, and not after.

IV. 1. The statute 21 Jac. 1. c. 16, being general, infants had been included, had they not been particularly excepted. 1 Lev. 3. It hath been holden, that if an infant, during his infancy, by his guardian, bring an action, the defendant cannot plead the statute of limitations; although the cause of action accrued six years before; and the words of the statute are, that after his coming of age, &c. 2 Saund. 121.

It hath been held in Chancery, that if one receives the profits of an infant's estate, and six years after his coming of age he brings a bill for an account, the statute of limitations is as much a bar to such a suit as if he had brought an action of account at common law; for this receipt of the profits of an infant's estate is not such a trust as, being a creature of the court of equity, the statute shall be no bar to; for he might have his action of account against him at law, and therefore no necessity to come into this court for the account; for the reason why the bills for an account are brought here, is from the nature of the demand, and that they may have a discovery of books, papers, and the party's oath, for the more easy taking of the account, which cannot be so well done at law; but if the infant lies by for six years after he comes of age, as he is barred of his action of account at law, so shall he be of his remedy in this court. 1 Abr. Eq. 304, c. 10; Pre. Ch. 518.

2. It hath been a matter of much controversy, whether the exception relative to a merchant's accounts extends to all actions and accounts relating to merchants and merchandize, or to actions of account open and current only; the words of the statute being, "All actions of trespass, &c. all actions of account and upon the case, other than such actions as concern the trade of merchants;" so that by the words, other than such actions, not being said actions of account, it has been insisted that all actions concerning merchants are excepted. But it is now settled, that accounts open and current only are within the statute; that therefore if an account be stated and settled between merchant and merchant, and a sum certain agreed to be due to one of them, if in such case he to whom the money is due does not bring his action within the limited time, he is barred by the statute. See 1 Jon. 401; 2 Saund. 124, 125; 1 Lev. 287, 298; 2 Keb. 622; 1 Vent. 90; 1 Mod. 270; 2 Mod. 312; 2 Vern. 456.

So it hath been adjudged, that by the exception in the statute concerning merchants' accounts, no other actions are excepted but actions of accounts. Carth. 226. But the law is now held to be, that the exception applies to actions on the case. 2 Will. Saund. 127, b. n. (7).

Also it hath been adjudged, that bills of exchange for value received are not such matters of account as are intended by the exception in the statute of limitations. Carth. 226.

An open current account, between tradesmen or others, is not within the statute, supposing the last article of the debt in the account was contracted within the last six years; otherwise, in such case, the statute is a bar. J. M.

This exception does not extend to a tradesman's account N

with his customer; for in this case there are not mutual deal-
ings; and the tradesman is barred by the statute from reco-
vering for more than those articles which have been sold within
six years. Bull. N. P. 149. See Rothery v. Munnings, 1 B.
& Adol. 15, acc.
Quære. Whether, in case of a bill for work
done (as a proctor's), the right of action accrues de die in
diem, or whether it is incomplete till the completion of the
business in hand? Ibid.

3. The clause of the statute, as to persons beyond sea, extends only to such as are actually so. For where to non assumpsit infra sex annos, the plaintiff replied, that, when the cause of action accrued, he was resident in foreign parts out of the kingdom of England, viz. Glasgow in Scotland; this was held ill, on demurrer; Scotland not being a foreign part within the meaning of the statute, the express words of which are, beyond the seas. 1 Bl. 256. Therefore a foreigner, or person resident abroad, shall never be barred from bringing his action, from any length of time while out of the kingdom, for the statute does not begin to run until he has come into it; though any of the persons, who are under the disabilities mentioned in the statute, may nevertheless, during the time such disabilities exist, bring their actions. Espinasse, N.P. 149, 150. If the plaintiff be in England at the time the cause of action accrues, the time of limitation begins to run, so that if he, or (if he dies abroad) his representative, does not sue within six years, he is barred by the statute. 1 Wils. par. 1.134. If one only of a number of partners lives abroad, if the others be in England, the action must be brought within six years after the cause of action arises. 4 T. R. 516.

It seems to have been agreed, that the exception extends only where the creditors or plaintiffs are so absent, and not to debtors or defendants, because the first only are mentioned in the statute; and this construction has the rather prevailed, because it was reputed the creditor's folly that he did not file an original, and outlaw the debtor, which would have prevented the bar of the statute. Cro. Car. 245, 333; 1 Jon. 252; 1 Lev. 143; 3 Mod. 311; 2 Lutw. 950; 1 Salk. 420.

But as the creditor's being beyond sea is saved by 21 Jac. 1. c. 16; so now by 4 & 5 Ann. c. 16. it is enacted, that if any person or persons, against whom there is or shall be any cause of suit or action for seamen's wages, or against whom there shall be any cause of action of trespass, detinue, action sur trover or replevin, for taking away goods or chattels, or of action of account, or upon the case, or of debt grounded upon any lending or contract without specialty, of debt for arrearages of rent, or assault, menace, battery, wounding, and imprisonment, or any of them, be, or shall be, at the time of any such cause of suit or action given or accrued, fallen or come, beyond the seas, that then such person or persons, who is or shall be entitled to any such suit or action, shall be at liberty to bring the said actions against such person or persons after their return from beyond the seas, within such times as are limited for the bringing of the said actions by 21 Jac. 1. c. 16.

If the cause of action accrue in India, and the plaintiff sues the defendant in England within six years after the defendant's return to this country, according to the 4 Anne, c. 16. the defendant cannot plead the statute of limitations, although more than six years elapsed in India after the cause of action accrued there. 13 East, 439.

See now 3 & 4 Will. 4. c. 42. § 7. as to what places shall be deemed not beyond seas within the 21 Jac. 1. c. 16, ante, II. 4. A. received money belonging to a person who before died intestate, and to whom B. after such receipt took out administration, and brought an action against A. to which he pleaded the statute of limitations; the plaintiff replied, and shewed that administration was committed to him such a year, which was infra sex annos; though six years were expired since the receipt of the money, yet not being so since the administration committed, the action not barred by the statute. 1 Salk. 421; Skin. 555; 4 Mod. 376; Latch. 335.

It is said in general, that where one brings an action before the expiration of six years, and dies before judgment, the six years being then expired, this shall not prevent his executor. 2 Salk. 424, 425.

But if an executor sues upon a promissory note to the testator, and dies before judgment, and six years from the original cause of action are actually expired, and the executor brings a new action in four years after the first executor's death, the statute of limitations shall be a bar to such action; for though the debt does not become irrecoverable by an abatement of the action after the six years elapsed by the plaintiff's death; yet the executor should make a recent prosecution, to which the clause in the statute, § 4. that provides a year after the reversal of a judgment, &c. may be a good direction, or show that he came as early as he could, because there was a contest about the will, or right of administration; for the statute was made for the benefit of the defendants, to free them from actions when their witnesses were dead, or their vouchers lost. 2 Stra. 907; Fitzgib. 81.

Under the equity of the above-mentioned section, in all cases of executors, if the six years be not elapsed at the time of the testator's death, and the executor takes out proper process within the year, it will save the bar by reason of the limitation, even though the six years, within which the demand accrued, be elapsed before process sued out. Bull. N. P. 150; Cawer v. James, Trin. 15 Geo. 2. C. B.

If there be no executor against whom the plaintiff may bring his action, he shall not be prejudiced by the statute of limitations, nor shall any laches in such cases be imputed to him, 2 Vern. 695; and so also where a bill of exchange was drawn, payable to the intestate in his life, but was accepted after his death, it was held, that the statute only began to run from the date of the letters of administration, for till that time there was no person capable of suing. 5 B. & A. 204; 8 B. & C. 285.

Where a party brings an action within the six years, and dies before judgment, the six years being then expired, it has been held that his executor or administrator may, within the equity of the fourth section of the 21 Jac. 1. c. 16. bring a new action, provided he does so within a reasonable time. 2 Salk. 425; 1 Lutw. 260. What is a reasonable time has not been expressly decided, although it seems to have been thought the period allowed should not exceed one year. See 1 Lord Raym. 434; 2 Str. 907; Fitz. 170, 289. And the executor ought to bring a new action as soon as he can, and at all events not delay it beyond a year. 2 Saund. 63 h. note.

5. It seems agreed, that there being no courts, or the courts of justice being shut, is no plea to avoid the bar of the statute of limitations; as where after the civil war an assumpsit was brought, and the defendant pleaded the statute of limitations; to which the plaintiff replied, that a civil war had broke out, and that the government was usurped by rebels, which hindered the course of justice, and by which the courts were shut up, and that within six years after the war ended he commenced his action; this replication was held, for the statute being general, must work upon all cases which are not exempted by the exception. 1 Keb. 157; 1 Lev. 31; Carth. 157; 2 Salk. 420.

It is clearly agreed, that the defendant's being a member of parliament, and entitled to privilege, will not save a bar of the statute; because the plaintiff might have filed an original without being guilty of any breach of privilege. 1 Lev. 31, 111; Carth. 136, 137.

It is said, that if a man sues in Chancery, and pending the suit there, the statute of limitations attaches on his demand, and his bill is afterwards dismissed, the matter being properly determinable at common law; in such case the court will preserve the plaintiff's right, and will not suffer the statute to be pleaded in bar to his demand. 1 Vern. 73, 74.

If the statute of limitations be pleaded to an action, the plaintiff to save his action may reply, that he had commenced

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