forced (h), where an action for its amount would be barred by the statute. CHAPTER A foreign Statute of Limitations is no defence to an action Foreign Statute on a foreign contract in the English Courts, unless it have of Limitations. the effect of extinguishing the contract, and the parties are living in the foreign country at the time of the extinction. For a Statute of Limitations usually affects the remedy merely, and not the construction of the contract (i). Secondly, as to the actions and legal proceedings which WHAT LEGAL the statute limits. It will be sufficient for the present purpose to remark that actions of debt and of assumpsit are limited to six years (k). That though the statute does not in terms apply to proceeding in equity, courts of equity adopt its provisions as a rule (1). "With regard to that statute," says Sir William Grant, "though it does not apply to any equitable demand, yet equity adopts it, or at least takes the same limitation, in cases that are analogous to those in which it applies in law" (m). But the statute does not bar a trust (n), nor a legacy (o). We have already seen that the statute is a bar in bankruptcy. PROCEEDINGS THE STATUTE LIMITS. The exception as to merchants' accounts (which, as we Merchants' achave seen, is now repealed) applied only to an action of counts. account, or perhaps, also, to an action on the case for not accounting, but not to an action of indebitatus debt, or assumpsit (p). title of a subse It is conceived, that if the statute have run out against Effect of the the holder of a bill or note, payable at a day certain, and he statute on the then transfers it, the transferee's right of action is barred. quent transferee. For he, as transferee of an overdue bill, can stand in no better situation than his transferer. He, like his transferer, has a debt due to him, but has lost the right of action, and has notice of the loss of it (q). And, perhaps as to the (h) Spears v. Hartley, 3 Esp. 81. (i) Huber v. Steiner, 2 Bing. N. C. 202; 2 Scott, 304, S. C.; Harris v. Quine, L. R., 4 Q. B. 653. See the Chapter on FOREIGN LAW. (k) Sect. 3. (1) Johnson v. Smith, 2 Burr. 961; Prince v. Heylin, 1 Atk. 493. (m) Starhouse v. Barnston, 10 Ves. 466. (n) Heath v. Hanley, 1 Cha. Ca. 20. (0) Anon., 2 Freem. 22. (p) Inglis v. Haigh, 8 M. & W. 769; and see Cottam v. Partridge, 4 M. & G. 271; 3 Scott, N. R. 174, S. C. (q) See Scarpelini v. Atcheson, 7 Q. B. 864. CHAPTER WHEN IT BE GINS TO RUN. On a bill payable after date. Payable on a contingency. Payable by instalments. Against an administrator. On a billah after sight. Statute of Limitations, the holder for the time being is a trustee of the action, so that prior or subsequent indorsees are, as between themselves and earlier parties, prejudiced by his laches (r). Thirdly, as to the time from which the statute runs. The Statute of Limitations begins to run on a bill or note, as well as on any other contract, from the time that the action (s) first accrued to the party. Therefore, on a bill payable at a certain period after date, the statute runs, not from the time the bill was drawn, but from the time when it fell due (t). And this is so also as to the account stated, of which the bill may be evidence (u). So, where the maker of a note gave it to a third person, to be delivered to the payee after certain events should happen, the statute was held to run, not from the date of the note, but from the time of its delivery to the payee (x). It is conceived, that if a note be payable by instalments, and contain a provision that, if default be made in payment of one instalment, the whole shall be due, the statute runs from the first default against the whole amount of the note (y). And so in an action on a bill by an administrator, who had not taken out administration till after the bill became due, it was decided that the statute ran, not from the time the bill fell due, but from the time of granting letters of administration, for there can be no action till there is a party capable of suing (z). As upon a bill drawn payable at er after sight, there is no right of action till presentment; so without such pre (r) See Webster v. Kirke, 17 Q. B. 947. (s) Though at that time an action and judgment would have been fruitless. Emery v. Day, 1 C., M. & R. 245; 4 Tyr. 695, S. C. (t) Wittersheim v. Lady Carlisle, 1 H. Bl. 631. (u) Fryer v. Roe, 12 C. B. 437. (x) Savage v. Aldren, 2 Stark. 232. (y) See Hemp v. Garland, 4 Q. B. 519. (z) Murray v. East India Company, 5 B. & Al. 204. But this interval is now to be computed where the administrator claims a chattel real, 3 & 4 Will. 4, c. 27, s. 6. The statute runs against an executor from the time the bill falls due, for he can commence an action before probate. sentment the statute does not begin to run (a). payable at a certain period after sight (b), the from the expiration of that period, after the the note to the maker. If a note be statute runs exhibition of CHAPTER usighton But we have seen, that if a bill or note be payable on On demand. demand, the words "on demand" are held not to constitute a condition precedent, but merely to import that the debt is due and payable immediately (c); or, at any rate, an action is sufficient demand. Therefore on a bill or note payable on demand, unless the note be accompanied by some writing restraining or postponing the right of action, the statute runs from the date of the instrument, and not from the time of the demand (d). Where a note payable on demand was given to a bank, accompanied by an agreement that the note should be held as a security for advances, the Court of Exchequer decided, in a recent case, that the statute did not begin to run against the note till after advances made, and a claim made as for a debt. The learned judge, however (Mr. Baron Martin), who tried the case, appears to have thought otherwise, or, at least, to have doubted. Where a loan was made by a check the statute was held to run, not from the date of the check, but from the time the check was cashed (e). If a note is made payable at a certain period after After demand. demand, it is like a note payable after sight, the demand and the lapse of the specified time after the demand are conditions precedent, and the statute runs from the time when the note falls due (ƒ). And if a bill be made payable twelve months after notice, the statute does not begin to run till after notice and the twelve months subsequent (g). (a) Holmes v. Kerrison, 2 Taunt. 323. (b) Sturdy v. Henderson, 4 B. & Al. 592; Sutton v. Toomer, 7 B. & C. 416; 1 M. & Ry. 125, S. C.; Holmes v. Kerrison, 2 Taunt. 323; and see Dixon v. Nuttall, 1 C., M. & R. 307; 6 C. & P. 320, S. C. (c) Capp v. Lancaster, Cro. Eliz. 548; Rumball v. Ball, 10 Mod. 38; Collins v. Benning, 12 Mod. 444; M'Intosh v. Haydon, R. & M. 363. (d) Christie v. Fonsick, Sel. N. P. 9th ed. 351. This case is said to have been overruled in K. B., sed quære. If, indeed, a bond is conditioned to be void on (e) Garden v. Bruce, L. R., 3 (g) Clayton v. Gosling, 5 B. & CHAPTER In case of fraud. In the case of an accommodation bill. Where there has been both nonacceptance and non-payment. UP TO WHAT PERIOD THE TIME OF LIMI TATION IS COMPUTED. It has been suggested that where the plaintiff has been the subject of fraud, he may by a special replication avoid a plea of the statute, and postpone its application (h). It is now, however, settled that such a replication is bad (i). But possibly the fraudulent concealing of a cause of action on the part of a defendant till the plaintiff's remedy is gone, may constitute a substantive ground of action. Upon the contract which the law implies to indemnify an accommodation acceptor, it has been held, that the statute begins to run from the time at which the plaintiff is damnified by actual payment (j). If a bill be dishonoured by non-acceptance, and afterwards by non-payment, the statute runs from the refusal to accept (k). Fourthly, as to the period up to which the time of limitation is computed. The words of the statute 21 Jac. 1, c. 16, s. 3, are, all actions of trespass, &c. shall be commenced and sued within six years, &c. Therefore, when, according to the old practice, writs bore teste of a day before the day of issuing them, it was held, that the time within which the action should be brought must be computed not to the teste but to the issuing of the writ (1). At present no difficulty on this subject can exist, as the date and teste of a writ are the same (m). Where an action is commenced in an inferior court, and removed into a superior court, the time of limitation is to be computed only to the commencement of the action in the inferior court (n). To bar a set-off the six years must have expired before action brought (0). (h) South Sea Company v. Wymondsell, 3 P. Wms. 143; Bree v. Holbech, Doug. 630; Clark v. Hougham, 2 B. & C. 149; 3 D. & Ry. 322, S. C.; Ex parte Bolton, 1 Mont. & Ayr. 60; Granger v. George, 5 B. & C. 149; Browne v. Howard, 2 B. & B. 73. (i) Imperial Gas Company v. London Gas Company, 10 Exch. 39. (j) Reynolds v. Doyle, 1 M. & G. 753; Collinge v. Heywood, 9 (k) Whitehead v. Walker, 9 M. & W. 506. (1) Johnson v. Smith, 2 Burr. 950. (m) 2 Will. 4, c. 39, s. 12. (n) Bevin v. Chapman, 1 Sid. 228; Matthewsv. Phillips, 2 Salk. 424. (0) Walker v. Clements, 15 Q. B. 1046. When the statute once begins to run, it never stops, except in the cases mentioned in the fourth section, although circumstances should arise in which it is impossible to sue, as if, for example, the debtor die before action, and no executor be appointed (o). CHAPTER XXVI after action. But where an action has been commenced in time, and Death of parties then the plaintiff dies, and the period of limitation has expired, the courts, by a strained construction of the statute, have allowed the personal representative to commence another action within a year from the plaintiff's death. And where the defendant dies, a year is also given, and a year from the grant of administration where there is no executor. In the case of the defendant's death, the allowance of a year rests not only on the analogy to the case of a plaintiff, but also upon the general rule that where an action abates by the act of God, the same plaintiff may have a new writ by journey's accounts (p). Fifthly, as to the mode in which the operation of the statute may be obviated by issuing a writ and continuing it down. HOW THE OF THE OBVIATED BY According to the old practice, the plaintiff might issue a writ, and without serving it on the defendant, keep it in his pocket, and get it returned at any time within the six WRIT. years (q), then file it (for it must have been filed) (r), and enter continuances, at any time, down to the writ on which the appearance was, and by replying the writ with the continuances, obviate the effect of the statute (s). But this practice was abolished by the Uniformity of Process Act (t). By that act, no first writ affects the operation of the statute, unless the defendant has been arrested or served with it, or proceedings to outlawry have been had upon it, or unless the writ and every continuing writ is returned non est inventus, and entered of record within one calendar month from its expiration; and each succeeding writ must issue within a month of the expiration of the pre (0) Rhodes v. Smethurst, 4 M. & W. 42; affirmed in error, 6 M. & W. 351, post, 336. (p) Curlewis v. Lord Mornington, in error, 27 L. J., Q. B. 439. (a) Taylor v. Hipkins, 5 B. & Al. 489. (r) Harris v. Woolford, 6 T. R. 617. (s) The first instance of a latitat replied is in Coles v. Sybsye, Styles's R. 156, A.D. 1649; and see |