5. Release. a 5. Release.-Defendant may plead a release after promise, and before action brought (72.) The usual replication to a plea of release is non est factum (73). A release, upon performance of the promise in part quoad hoc, will not discharge the promise for the residue. If after the last continuance the plaintiff give the defendant a release, he may plead it in bar a ; such plea is called a plea puis darrein continuance. By R. G. H. T. 4 W. 4. No. 2. it is provided that in all cases, in which a plea puis darrein continuance is now by law pleadable in Banco, or at Nisi Prius; the same defence may be pleaded with an allegation, that the matter arose after the last pleading, or the issuing of the jury process, as the case may be. Provided, that no such plea shall be allowed, unless accompanied by an affidavit that the matter thereof arose within eight days next before the pleading such pleas, or unless the court or a judge shall otherwise order. 1. Of Limitations. 6. Statutes, 2. Of Set-Off. 1. Statute of Limitations. By stat. 21 Jac. 1. c. 16. §. 3. all actions upon the case (other than slander) shall be commenced and sued within six years next after the cause of such actions, and not after. Advantage must be taken of this statute by pleading it, although it should appear on the face of the declaration that the cause of action did not arise within six years before the commencement of the action; and the defendant will not be permitted to give it in evidence on the general issue, non assumpsit. There are two forms in which this statute is usually pleaded: 1. That the defendant did not at any time within six years next before the commencement of the plaintiff's action, undertake or promise, &c. 2. That the cause of action mentioned in the declaration, did not accrue at any time within six years next before the commencement of the plaintiff's action, &c. z 2 Roll. Abr. 413, 1. 2. adjudged. b Puckle v. Moor, 1 Vent. 191. Lee v. a Bull. N. P. 309. Rogers, 1 Lev. 110. (72) See the form, Clerk's Assist. p. 257, 258. 2 Rich. P. B. R. p. 43, third edition. (73) 2 Rich. Pr. B. R. p. 44. The first form is proper in actions of indebitatus assumpsit for goods sold and delivered, money lent, and the like, where the consideration is executed. In an indebitatus assumpsite, on a promise to pay on demand, the defendant pleaded non assumpsit infra sex annos; the plaintiff demurred, on the ground that nothing was due until demand, and therefore defendant should have pleaded non assumpsit infra sex annos after demand, or that no demand was made within six years : But per Cur. If the promise were of a collateral thing, which would not create any debt until demand, it might be so; but here it is an indebitatus assumpsit, which shews a debt at the time of the promise, therefore the plea is good. The second form, viz. that the cause of action did not accrue within six years, may be adopted with safety in all cases, but it is more peculiarly applicable to the cases of actions brought for breach of promises founded on collateral and executory considerations, in which cases the first form would be improper, as will appear from the following case: The declaration stated, that, in consideration that the plaintiff would receive A. and B. into his house as guests, and diet them, the defendant promised, &c. Plea, non assumpsit infra sex annos, to which the plaintiff demurred: judgment for the plaintiff in the Common Pleas on error in B. R. it was agreed by that court that the plea was ill: for this being an executory collateral promise, the defendant cannot plead non assumpsit infra sex annos, but should have pleaded causa actionis non accrevit infra sex annos; for, if the cause of action accrued within six years, it was immaterial when the promise was made. Where A., under a contract to deliver spring wheat, had delivered to B. winter wheat, and B. having again sold the same as spring wheat, had in consequence been compelled, after a suit in Scotland which lasted many years, to pay damages to the vendee, and afterwards B. brought an action of assumpsit against A. for his breach of contract, alleging as special damage, the damages so recovered; it was holden, 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 which in assumpsit was the gist of the action, having occurred and become known to B. more than six years before that period, A. might properly plead actio non accrevit infra sex annos. The statute bars the remedy only, not the debt. The plea c Collins v. Benning, 12 Mod. 444. d Gould v. Johnson, Ld. Raym. 838. and 2 Salk 422. e Battley v. Faulkner, 3 B. & A. 288. f Higgins v. Scott, 2 B. & Ad. 413. of the statute of limitations may be pleaded to an action brought on a bill of exchange, because it is not a specialty h; and to an action brought by an attorney for his fees, because the fees are not of record. This 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.k To the plea of non assumpsit infra sex annos the plaintiff may tender an issue', that defendant did promise within six years, and this issue will be supported by evidence of an express promise made by defendant within six years before action brought: for it has been holden, that this statute does not extinguish the plaintiff's right of action, but suspends the remedy only, and that this suspension is capable of being removed by a subsequent promise on the part of the defendant within the limited time. m In an action for money had and received, to recover the consideration of an annuity void on the ground of a defect of a memorial, but which had been treated by the grantor as a subsisting annuity for several years, and then set aside; it was holden, that the statute of limitations did not begin to run until the grantor had made his election to avail himself of the defect in the memorial. Declaration, that the defendant delivered his promissory note payable on demand with interest, to the plaintiff, but neglected to pay, except interest, which he paid up to a day within six years. A plea that the cause of action did not accrue within six years was holden" sufficient; for the allegation, that interest has been paid is only evidence towards taking the case out of the statute, but is not conclusive. Not only an express promise, but a mere acknowledgment of the debt, as existing, will be sufficient to support this issue; but it must be an acknowledgment whence a promise to pay may be inferred. In Whitcomb v. Whiting, Doug. 651. recognized in Wyatt v. Hodson, 8 Bingh. 309. an acknowledgment by one of several makers of a joint and several promissory note was holden sufficient to take it out of the statute against the others, and that such an acknowledgment might be given in h Renew v. Axton, Carth. 3. i Oliver v. Thomas, 3 Lev. 367. 1 Dickson v. Thomson, 2 show. 126. m Cowper v. Godmond, 9 bingh, 748. n Hollis v. Palmer, 2 N. C. 713. evidence in a separate action against any of the others. This case was recognized also in Perham v. Raynal and two others, 2 Bingh. 306. in which it was holden, that the circumstance of one of the defendants being a surety only, who had not made any acknowledgment, made no difference. So where one of two makers of a joint and several promissory note became a bankrupt P, and the payee received several dividends under the commission on account of the note, and an action having been brought (within six years after the receipt of the last dividend) against the other maker for the remainder of the money due on the note, it was adjudged, that the payment of the dividends was such an acknowledgment of the debt as took the case out of the statute. So in an action against A. on the joint and several promissory note of himself and B., it was holden that a letter written by A. to B. "desiring him to settle the money," took the case out of the statute 9. But where A. and B. made a joint and several promissory note, A. died, and ten years after his death B. paid interest upon the note; in an action brought upon the note against the executors of A. it was holden", that the payment of interest by B. did not take the case out of the statute, so as to make A.'s executors liable; for at the time when such payment was made, the joint contract had been determined by the death of A. (74). So where interest had been paid by executor of deceased, Slater v. Lawson, 1 B. & Ad. 396. So where one of two joint drawers of a bill of exchange became bankrupt, and under his commission the indorsees proved a debt (beyond the amount of the bill) for goods sold, &c. and they exhibited the bill as a security they then held for their debt, and afterwards received a dividend; it was holden, in an action by the indorsees against the solvent partner, that the statute of limitations was a good defence, although a dividend had been paid within six years; inasmuch as the proof was for goods sold and delivered, and the payment of the dividend did not amount to an actual or virtual acknowledgments that there was any money due on the bill. So where in assumpsit for money due on an accountable receipt, plaintiff, in order to take the case out of statute of limitations, called a witness, who proved that he p Jackson v. Fairbank, 2 H. Bl. 340, q Halliday v. Ward, 3 Campb. 32. recognized in Burleigh v. Stott, 8 B. r Atkins v. Tredgold, 2 B. and C. 23. and C. 36. s Brandram v. Wharton, 1 B. and A. 463. (74) It would have been otherwise if the payment had been made in the life-time of A. Burleigh v. Stott, 8 B. and C. 36. called on defendant, and shewed him the receipt, and asked him if he knew any thing of it, to which defendant answered that he knew all about it; witness then asked him for the amount, to which he answered, it was not worth a penny; he should never pay it; that it was his signature, but that he never had and never would pay it, "and besides," he added, "it is out of date, and no law shall make me pay it;" it was holdent, that this evidence was insufficient to charge the defendant with it, for there was not any acknowledgment, but the contrary, that the debt ever existed. Where the acknowledgment proved was, "I cannot pay the debt at present, but I'll pay it as soon as I can," it was holden, that such an acknowledgment, without proof of any ability, would not take the case out of the statute. That the cases proceed upon the principle, that, under the ordinary issue on the statute, an acknowledgment is only evidence of a promise to pay; and unless it is conformable to and maintains the promises in the declaration, though it may shew to demonstration that the debt has never been paid, and is still subsisting, it has no effect. In this case, the promises in the declaration were absolute and unconditional, to pay when thereunto afterwards requested. Here the promise proved was, “I'll pay as soon as I can ;" and there was no evidence of ability to pay, so as to raise that which in its terms was a qualified promise, into one that was absolute and unqualified. Upon a general acknowledgment, where nothing is said to prevent it, a general promise to pay may and ought to be implied; but where the party guards his acknowledgment, and accompanies it with an express declaration to prevent any such implication, why shall not the rule expressum cessare facit tacitum apply? Tanner v. Smart, 6 B. and C. 603. Since this case, many of the older cases on this subject cannot be sustained. Tindal, C. J. 2 Bingh. N. C. 244, 5. Linsell v. Bonsor, in which it was holden, that it was properly left to the jury to consider whether the acknowledgment was one from which a promise to pay could be implied. See Acourt v. Cross, 3 Bingh. 329. and Ayton v. Bolt, 4 Bingh. 105. Haydon v. Williams, 7 Bingh. 163. recognizing Tanner v. Smart. The various questions as to the proof and effect of acknowledgment and promises, agitated in some of the cases, induced the legislature to interfere; and in order to prevent them, it was enacted, by stat. 9 Geo. 4. c. 14. s. 1. that in actions of debt, or upon the case, grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing con t Rowcroft v. Lomas, 4 M. and S. 457. |