within the statute. ing of these statutes, but Ireland was b. And though the 3 the seas & 4 W. IV. c. 42. s. 7. provides, that no part of the United Kingdom of Great Britain and Ireland, &c., shall be deemed to be beyond the seas within the meaning of the statute of James, it has been decided, that this provision does not extend to 4 Ann. c. 16. s. 19, and therefore that Ireland is still a place beyond the seas within the meaning of the latter statute; 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 cause of action arises. counts are excepted from the operation of the statute. 4.-Merchants' accounts.] The statute of James excepts Mutual ac"such accounts as concern the trade of merchandize between merchant and merchant, their factors or servants." It has been decided, that this provision is not confined to accounts between merchants, in the strict acceptation of that term, it extends to all cases where there are mutual accounts and reciprocal demands, but not to cases where there is only a demand on one side, as in the case of a tradesman and his customer in the common way of business d. 66 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 201. lent to the defendant; the testator was indebted to the defendant for various articles supplied to him in their trade. The last half-year's rent, and some of the articles of the There must be a state ment of ac 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 a. But now it is not sufficient to bring a case within the exception contained in this statute, that there are cross demands becounts, or a tween the parties, unless there be a statement of accounts in payment. writing, or evidence of one demand having been given and accepted in reduction of the other. Assumpsit for work and labour; 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 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 labour, or supply goods, but a contract or understanding must be shewn, 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 a 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. would have been sufficient. An open account is equivalent to such a declaration, which is no longer sufficient. Something must be proved amounting to payment." a 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 c. 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 prevent Issuing a the operation of any statute whereby the time for the commencement of the action may be limited, unless the defendant shall statute. 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 within one such calendar month after the expiration of the preceding writ, and shall contain a memorandum indorsed thereon or subscribed thereto, specifying the day of the date of the first writ to avoid the Resealing. The writ need not be served. Continuances. writ; and return to be made in bailable process by the sheriff or other officer to whom the writ shall be directed, or his successor in office, and, in process not bailable, by the plaintiff or his attorney suing out the same, as the case may be." a Where a writ of summons, tested in time to save the statute of limitations, was resealed in consequence of an alteration in the description of the defendant and the county in which he resided, and was not served until after the six years had expired; held, that the resealing did not amount to a re-issuing of the writ, and that it was not necessary for the plaintiff to shew when the resealing took place . Under this provision it is not necessary to serve, or endeavour to serve a writ to avoid the effect of the statute of limitations; it is sufficient to return it non est inventus, and enter it of record, but the expense of such writs as are unnecessarily issued will not be allowed to the plaintiff c. If continuances are regularly entered upon the roll, the court will not look at any thing in order to contradict the roll; e. g., a writ produced to shew that a second writ, an alias, was tested on a day subsequent to the return day of the first. Where a plea of the statute of limitations stated, that the cause of action did not accrue within six years next before the commencement of the suit; plaintiff replied, that the cause of action did accrue within six years, &c.; held, that without specially replying process issued, the plaintiff might on the above replication prove a quo minus to have issued within the six years, and produce the roll to show the continuances regularly entered up accordingly d. A bill in equity, filed by one creditor on behalf of himself and other creditors, will prevent the statute from running against any of the creditors who come in under the decree. Where an action is commenced in an inferior court, and This provision applies only to cases where it is sought to prevent the operation of some statute of limitations. Nicholson v. Rowe, or Leman, 2 C. & M. 469. 2 Dowl. 296. 2 C. & M. 408. C Williams v. Roberts, 1 C. M. & R. 676. 1 Gale, 56. d Dickenson v. Teague, 1 C. M. & R. 241. 4 Tyr. 450. e Sterndale v. Hankinson, 1 Sim. Braithwaite v. Montford (Lord), 393. removed to a superior court, the time of limitation is computed to the commencement of the action in the inferior court a. SECTION V. WHAT ACKNOWLEDGMENT WILL OBVIATE THE STATUTE. WE have seen that the statute of limitations begins to run from the period when the right of action accrued, and that the remedy is barred at the expiration of six years from that period; it is observable, however, that in actions of assumpsit, a subsequent acknowledgment of the debt, or promise to pay it, whether made before or after the expiration of the six years, will give the creditor a right of suing for the debt at any time within six years from such new acknowledgment or promise. But it seems that a new acknowledgment or promise has not the effect of obviating the operation of the statute in any other case than in assumpsit, on a guarantee, or on a simple contract debt, including bills of exchange and promissory notes b. Formerly it was considered that any acknowledgment or admission of a debt obviated the provisions of the statute, on the grounds that the statute was founded on a presumption of payment, and that any acknowledgment which repelled that presumption was an answer to the statute, and in law amounted to a promise to pay the debt, or, in other words, operated as a waiver of the statute, even though such acknowledgment was accompanied with a refusal to pay c. Mathews v. Phillips, 2 Salk. 1 Lev. 143. act, (other than payment of money,) 424. Ld. Raym. 553. Bevin v. at a specific time, be once barred by Chapman, 1 Sid. 228. the statute of limitations, no new Storey v. Atkins, Stra. 719. promise can have the effect of reviving it." See Martin's Treatise on Lord Tenterden's Act, where this subject is very ably considered. Per Best, C. J., in A'Court v. Cross, 3 Bing. 331. Per Gaselee, J., in Scales v. Jacob, Id. 638. Per Abbott, C. J., in Tanner v. Smart, 6 B. & C. 605. Hurst v. Parker, 1 B. & A. 92. Gibbons v. M'Casland, 1 B. & A. 690. In Boydell v. Drummond, 2 Camp. 160, Lord Ellenborough, C. J., held, that "if a cause of action, arising from the breach of a contract in not doing an VOL. II. The following acknowledgments were held sufficient, "Prove your debt, and I'll pay you;" or, "I am ready to account, but nothing is due." "And even slighter acknowledgments than these have been held to be sufficient." Per Lord Mansfield, C. J., in Trueman v. NN A new promise, whe or implied, to pay the debt, will obviate the statute. |