tract, whereby to take any case out of the operation of the statute, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby (75); and that where there shall be two or more joint contractors, or executors or administrators of any contractor, no such joint contractor, &c. shall lose the benefit of the statute, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them: provided always, that nothing therein contained shall alter or take away or lessen the effect of any payment (76) of any principal or interest (77) made by any person provided also, that in actions to be commenced against two or more such joint contractors, &c. if it shall appear at the trial or otherwise, that the plaintiff, though barred by the statute of limitations or this act, as to one or more of such joint contractors, &c. shall nevertheless be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment or promise, or otherwise, judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff. And by s. 2. if any defendant in any action on any simple contract shall plead any matter in abatement, to the effect that any other persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the trial that the action could not, by reason of the said statute of limitations, or this act, be maintained against the other persons named in such plea, or any of them, the issue joined on such plea shall be found against the party pleading the same. And by s. 3. no indorsement or memorandum of any payment written or made after the time appointed for this act to take

(75) Signature by the agent of the debtor will not suffice. Hyde v. Johnson, 2 Bingh. N. C. 776. Where the fair import of the writing is not to render the party signing chargeable, but only refers to others by whom the debt is to be paid, it is not sufficient to bring the case within this act. Whippy v. Hillary, 3 B. & Ad. 399.

(76) Delivery of goods by agreement between debtor and creditor in reduction of demand, operates as payment within this statute. Hooper v. Stephens, 4 Ad. & Ell. 71.

(77) Payment of interest within six years by one of two joint and several contractors, takes the debt out of the statute as to both. Wyatt v. Hodson, 8 Bingh. 309. Bealy v. Greenslade, 2 Cro. & J. 61. S. P. on note dated in 1817.

effect, upon any promissory note, bill of exchange, or other writing, by or on the behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of the statutes. And by s. 4. the statute of limitations and this act shall be deemed to apply to the case of any debt on simple contract alleged by way of set-off on the part of any defendant, either by plea, notice, or otherwise. This act took effect 1st January, 1829. But since this statute it has been holden, that where the written promise has been lost", oral evidence may be given of its contents. Defendant, by a deed, reciting that he was indebted to plaintiff and others, assigned his property to plaintiff and others in trust to pay all such creditors as should sign the schedule of debts annexed, with a proviso that if all the creditors whose debts amounted to a certain sum did not sign by a fixed day, the deed should be void; the plaintiff never executed the deed, nor was the amount of his debt any where stated; this was holden not to be a sufficient acknowledgment.

Where there are mutual accounts, (not merchants' accounts,) for any item of which credit has been given within six years, this is evidence of an acknowledgment of there being an open account between the parties, and of a promise pay the balance, so as to take the case out of the statute of limitations (78).

to

Plaintiff declared as executor on a promise to the testator2; defendant pleaded non assumpsit infra sex annos; and upon the trial it appeared that there was a new promise made within six years, but it was made to the plaintiff and not to

u Haydon v. Williams, 7 Bingh. 163. x Kennett v. Milbank, 8 Bingh. 38.

y Catling v. Skoulding, 6 T. R. 189. z Deane v. Crane, Salk. 28.

(78) But where all the items are on one side, as in an account between a tradesman and his customer, the last item which happens to be within six years, shall not draw after it those that are of a longer standing. Per Denison, J. in Cotes v. Harris, Bull. N. P. 149. And in this case the same learned judge held, that the clause in the statute about merchants' accounts, extended only to cases where there were mutual accounts and reciprocal demands between two persons. And in Webber v. Tivill, 2 Saund. 124. it was holden, that this clause extended only to accounts current between merchants, and not to accounts stated between them. And in Barber v. Barber, 18 Vesey, 286. Sir W. Grant, M. R. determined that the statute of limitations was a bar to merchants' accounts, where all accounts had ceased six years. See further on this clause, Welford v. Liddel, 2 Ves. 400.

the testator. Per Cur. he should have declared accordingly. And in Sarell v. Wine, 3 East's R. 409, in the case of an action brought by an administrator on promises to the intestate, where the evidence was an acknowledgment to the administrator within six years, it was holden insufficient on the authority of the preceding case. So where an action was brought by an executor on promises made to the testatora, the defendant pleaded non assumpsit infra sex annos, and the plamtiff replied a subsequent promise to himself, the replication was adjudged a departure in pleading, and therefore bad.

A party suing, and seeking to avail himself of the law of a particular country, must take the law as he finds it. Hence, where in an action of debt it was averred that, before the making the obligation thereinafter mentioned, the plaintiffs carried on business in Scotland, and that one A. B. and the defendant were resident and domiciled therein; and that by a certain obligation (set out,) the said A. B. and the defendant became bound, jointly and severally, to pay to the plaintiffs a sum of money: that, by the law of Scotland, the time for instituting any legal proceeding, upon the obligation, and the cause and right of action accruing thereon, had not yet elapsed; that is, by the said law the plaintiff's had the right of suing thereon, at any time within forty years from the making thereof. A plea, that the cause of action did not accrue within six years, was holden on demurrer to be a sufficient answer to the action.

Replication. The replication must state that the cause of action, accrued within six years next before the suing forth of the writ; for where, in assumpsit, by an executor on promises to the testator, the defendant pleaded the statute, and the plaintiff replied, that the writ was sued out on such a day, and within six years before the suing out thereof, letters testamentary were granted to the plaintiff; on special demurrer, assigning for cause, that the plaintiff had not alleged positively that the cause of action accrued within six years before the suing forth of the writ, the replication was holden bad; the court observing, that the time of limitation must be computed from the time when the action first accrued to the testator, and not from the time of proving the will; that the proving the will did not give any new cause of action, and consequently the time when it was done was immaterial. So where to assumpsit brought by the assignee of a bankrupta,

a Hickman v. Walker, Willes, 27.

c Hickman v. Walker, Willes, 27.

b The British Linen Company v. Drum- d Gray v. Mendez, 1 str. 556.

defendant pleaded the statute of limitations; the plaintiff replied the bankruptcy and assignment, and that the cause of action arose within six years next before the assignment; on demurrer, the replication was holden bad: the court observing, that the statute would be defeated as to all simple contracts, if an assignment, at the end of five years and a half, was to set all at large again.

By stat. 21 Jac. 1. c. 16. s. 4. it is enacted, "that if judgment be given for the plaintiff and reversed by error, or the judgment be arrested, or if the defendant be outlawed, and the outlawry reversed; the plaintiff, his heirs, executors, or administrators, may commence a new action or suit from time to time within a year, after such judgment given or outlawry reversed."

It has been said, that within the equity of the preceeding section, the courts have permitted an executor or administrator within a year (79) after the death of the testator or in

(79) I am not aware of any case in which this point has been expressly decided, or in which it has been holden, that an executor or administrator must bring his action within a year. In Buller's N. P. p. 150. is the following position:-" If an executor take out proper process within a year after the death of his testator, if the six years were not lapsed before the death of the testator, though they be lapsed within that year, yet it will be sufficient to take it out of the third section of the statute of limitations by the equity of the fourth section." The authority cited for this position is Cawer v. James, probably the same case as is reported in Willes, 255. by the name of Karver v. James; but in Willes's Report, the position as laid down by Buller, seems rather to have been admitted than expressly determined. In like manner, in Wilcocks v. Huggins, Str. 907. and Fitzg. 170, 289, it seems to have been taken for granted. From the language, however, of Lee, J. in the last-mentioned case, it may be inferred that at that time no fixed period, within which the executor or administrator might bring the action, had been established. His words are *, In the contingency that has happened, the statute does not limit any time for the executor to bring his action; but there is a clause that provides (where a judgment is reversed after the six years) one year after the reversal for the plaintiff to bring a new action, which may be a direction with regard to the reasonableness of the time to be allowed an executor or administrator in the present contingency." It is observable also, that in Wilcox v. Huggins, Fitzg. 171. a case (Lethbridge v. Chapman,) was cited, where an administrator brought his action fourteen months after the intestate's death, and recovered: and in Wilcox v. Huggins, (where the action was brought by the executor of an executor in right

Fitzg. 172.

testate, to renew a suit commenced by the testator or intes

tate.

Exceptions in the Case of Infancy, &c.-By the 7th section. of stat. 21 Jac. 1. c. 16. "If any person entitled to such action of trespass, detinue, trover, replevin, actions of account, debt, trespass for assault, menace, battery, wounding, or imprisonment, actions upon the case for words, shall be, at the time of such cause of action accrued, within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, such person shall be at liberty to bring the same actions within such times as are before limited after their being of full age, discovert, of sane memory, at large, and returned from beyond the seas." By stat. 3 and 4 W. 4 c. 42. s. 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 act of 21 Jac. 1. c. 16.

of the first testator more than four years after the death of the first executor,) it was admitted by the court that if the second executor had been retarded by suits about the will or administration, it would have altered the case, because then the neglect would have been accounted for. Perhaps the only rule that can be laid down with safety is, that the executor or administrator must bring his action within a reasonable time. This rules receives some sanction from the following observations of the judges in Wilcox v. Huggins, Fitzg. 290. Raymond, C. J. "It might be too harsh a construction to say, that the debt becomes irrecoverable by an abatement of the action, after the six years elapsed, by the plaintiff's death; but then the executor, to bring his case within the equity of the statute, must make a recent prosecution, as to which, the clause in the statute that provides a year after the reversal of a judgment, &c. may be a good direction." Page, Justice: "Such a recent prosecution is to be made as will shew the party came as early as he might. If there had been a contest about the will or right of administration, that should have been pleaded in excuse of the delay." Probyn, J. "Nothing hath been disclosed to shew why the action was not brought sooner. If a reasonable cause had been shewn, it might bring the action within the notion of a recent prosecution, though it had been brought after the year." Lee J. “I think that it should be in the nature of Journeys Accompts, which is a taking up and pursuing the old action in a reasonable time, which is to be discussed by the discretion of the justices, 6 Co. Spencer's case; and, by the same rule, I think what is or is not a recent prosecution, in a case of this nature, is to be determined by the discretion of the court from the circumstances of the case, but generally the year in the stat. is a good direction." A similar clause to that in the text will be found in stat. 3 and 4 W. 4 c. 42, s. 6.