Lord Kenyon observed, in the case Cole v. Saxby,(a)

which was by the executor of one obligor against the [*86] *co-obligor for contribution, that he had considerable doubts whether the Statute of Limitations attached on the case. The demand arose under a deed; and there had been a case in which a very considerable law authority had

(a) 3 Esp. 160.

The complainant and defendant had, at the request of Wyld,, become endorsers of a set of Bills of Exchange which he drew on a mercantile house in London; the complainant, also endorsed other bills to a considerable amount, for Wyld; but receiving information that the bills would be protested, he obtained a conveyance to himself, of the whole estate of Wyld, in trust for the payment of his debts. The bills were returned protested, and payment of them demanded from the complainant, who in the year 1753, (the same year in which the bills were drawn, and returned protested) sold the whole estate on six months' credit, and set industriously about the collection of the debts. He discharged the debts due from Wyld, in the order of priority mentioned in the deed, as the money came to his hands and as he could spare it from his own estate. The whole debts were paid by the month of October, 1762. It then appeared that his payments had exceeded his receipts and left him, in advance for Wyld, to a large amount; which must fall on the bills endorsed by the complainant and defendant, as that was the last mentioned debt in the said deed. The trust estate was not closed until 1765. The complainant being much perplexed with business did not apply to the defendant until some time in the year 1766; when he transmitted to the defendant an account claiming a moiety of the money paid by the complainant on the bill endorsed by them both, with interest from October, 1762. Payment was refused; and this suit was instituted in 1768. The defendant pleaded the Act of Limitations; and, in his answer, stated that he did not recollect, or admit having endorsed the bill; that he had no notice of its protest or of its payment, until 1766; and that he knew not whether the complainant had, or had not expended the trust estate; or whether he had paid any part of the bill. It appeared, however, from the report of the Commissioners to whom the accounts were referred, that the bill of exchange was taken up by the complainant, and his own bond executed for the amount thereof, in November, 1765, Held, that the Act of Limitations could not be consider"ed as commencing till the trust was closed, which was in 1765; "and in 1768 the suit was instituted." Lomax vs. Pendleton, 3 Call's Rep. 538. 542.

been of opinion, that such a debt was entitled to the same limitation as the deed itself.

All contracts(a) are, by the laws of England, distinguished into agreements by specialty and agreements by parol; no i there a third class, as contracts in writing. If they be mrel written, and not specialties, they are parol. It may be lad own as a rule, that parol contracts are within the Statuted Imitations, and barred after six years, [1] and that contracs funded

(a) 7 T. R. 350.

[1] Vide, Nafie vs. Executors of Ackerman, 2 PenrRep. 562.

When money is deposited with one man for the usof another, the cause of actions accrues to him who is to receiv it from the time of the deposit, and from that will the Act Limitations commence running. Buckner vs. Patterson, Litt Select. Cas. 234. Coomer vs. Little, Cam. & Norw. Rep.

1

Sed vide, Johnston vs. Humphrey's Admr. &c. In Error,) 14 Serg. & R. Rep. 394, CONTRA.

Where a promise is made to pay a debt, the statute of Limitations begins to run from the time of the proise; and so even though the promise be to pay on a future cotingency; for the Statute is not suspended until the contingenc happens. Admrs. of McDowell vs. Exors. of Goodwyn, 2 Rep Const. C. So. Car. 441. & vide Painter vs. Smith, Exor. &c. Root's Rep. 142.

In the case of Sweat vs. Arrington, Amr. of Armstrong, (2 Hayw. Rep. 129,) JOHNSTON, J. who lelivered the Opinion of the Court, said; "In 1783, Armstrong dew the pay of the plaintiff, a "soldier, who lived (near the place where the commissioners sat,) "for five or six years afterwards, and never made application in his "life time. I am of opinion the Act of Limitations began to run "from the time of the accruing of the action, and that was imme"diately after drawing the money."

In the case of Bishop vs. Little (3 Greenl. Rep. 405,) which was an action of assumpsit; the plaintiff being in possession of certain land claimed by the Pejepscot proprietors for whom the defendant assumed to act as agent, paid to defendant a certain sum of money

on specialties are not within the statute.[2] The first part of

and received a deed. At the time of the payment the plaintiff's agent expressed his fears that the title of the proprietors, did not extend so far as to include the land occupied by the plaintff; but thedefendant affirmed that it did, and said that if the deed that he wasabout to give to the plaintiff should not convey to him a good titlethereto, he would make it good. Upon this assurance the mony was paid, and a deed of release and quit-claim was nade othe plaintiff. Within six years prior to the commence menthe plaintiff's action, but more than six years after the paymet of the money and delivery of the deed, it was ascertained that he title of the proprietors did not extend so far, as to cover the pintiff's farm; and he thereupon brought his suit to recover back le purchase money and interest. The defendant pleaded the genel issue, and the Statute of Limitations. It was Held, (MELLEN, h. J. delivering the Opinion of the Court,) that, "When "the dee was made and delivered to the plaintiff in the year "1805, theroprietors had no title to the land therein described. "If the plaiiff ever had a right to recover back the consideration, "he had onthen; there was at that moment, if ever, a la

"It was und by the plaintiff's counsel, that as this want of "title was not scovered till within six years, the Statute is no bar; "that it did nocommence running until the discovery was made. "Such howevels not the law. No case can be found where the "Statute has ben avoided at law or in equity, unless on the ground of frau lent concealment on the defendants part. First "Mass. Turnpike brp. vs. Field, 3 Mass. 201, was a case of such "concealment." We perceive no principle of law which can "save this cause fim the operation of the Statute."

A verbal contract,respecting lands, made before the Statute of Frauds, is valid and the Act of Limitations begins to run from the breach of the contraci Allen & Al. vs. Beal's Heirs, 3 Marsh. Rep. (Ky.) 555. Overtonys. Tracey, 14 Serg. & R. Rep. 311.

The Statute of Limitations does not apply to trusts; but an executor paying more money to a distributee than is due to him, creates no trust in such distribuee; he holds in his own right and adversely to the executor; and on this ground the operation of the Statute cannot be evaded. Turner & Al. Exors. vs. Debell, Exor. 2 Marsh. Rep. (Ky.) 384.

A demand which is barred by time, at Law, will not be aided in

[2] Vide post.

the rule has admitted of some exceptions, but the latter part of

Equity, if no circumstance is shewn excusing the neglect and la-. ches of the complainant. McDowell vs. Heath's Exors. 3 Marsh Rep. (Ky.) 223.

"Until the cause of action accrued, the Statute would not begin "to run." Overton v. Tracey, 14 Serg. & R. Rep. 328, (per DUNCAN, J. delivering the Opinion of the Court.) Same point, Montgomery vs. Hernandez, & Co. 12 Wheat. Rep. 129. 134.

In the case of Glasgow's Admr. vs. Porter & Al. (1 Har. & Johns. Rep. 109.) which were actions of Debt on Bonds, CHASE, Ch. J. said; "The Court, are of opinion that the Act of Limita"tions does not begin to operate until the expiration of the time "limited for the payment of the money."

The Statute of Limitations does not begin to run against a par ty, until his claim accrues. Scott's Exor. vs. Osborne's Exor. 2 Munf. Rep. 413. & vid Thompson vs. Stevens, 2 Nott. & Mc. C. Rep. 493. & vide Chardler & Al. vs. Chandler & Al. 4 Pick. Rep. 78. Shearman & Al. vs. Akins, Administratrix, 4 Pick. Rep. 283.

Statutes of Limitations, only take place from the time when the right of action accrues; and if there be fraud from its discovery. Jones vs. Conoway & A. Ex'ors. &c. 5 Yeates' Rep. 109.

Against a debt due on condition, prescription does not begin to ran until the condition is accomplished. Le Changeur vs. Gravier's heirs, 2 Mart. Rey (N. S.) 545.

A receipt or acquittance f any kind, is not within the Statute of Limitations; that Statute an never operate against a release or acquittance, because so much as is mentioned in a release or a discharge, is an extinguishment of the debt or demand pro tanto. Every receipt is a release in law, nd extinguishes a debt or demand as effectually as a release unor hand and seal. Admr. of Compty vs. Alken, 2 Bay's Rep. 48. 483.

Where an administrator pays a debt 'n full, upon an erroneous belief that the estate of his intestate is solvent, an action to recover back part of the money paid does not accrue until the insolvency of the estate is ascertained by lecree of insolvency and order of distribution; and consequentl; the Statute of Limitations begins to run from that time. Waku vs. Bradley, 3 Pick. Rep. 261.

B. bequeathed a legacy to J., and appointed E. his executor,

it has been unvarying; and although the words of the statute

who paid the legacy to J., and took his bond on the 25th of April, 1797, conditioned to refund the legacy, or a rateable part thereof, if a deficiency of assets should actually happen, after request should be made; and there being a deficiency of assets, and the estate overpaid by E., he brought an action on the above bond on the 24th of February, 1816, against J., who defended himself under the Act of Limitations. Held, that as the cause of action first accrued in 1814, when the deficiency of assets was ascertained, the Act of Limitations was no bar. Salisbury vs. Black's Administrator, 6 Harr. & Johns. Rep. 293.

The Act of Limitations is a good plea to a suit in Equity, brought to recover money collected by an attorney for the plaintiff, and not accounted for by him. Kinney's Exors. vs. McClure, 1 Rand. Rep. 284.

Where the defendant obtained possession of divers promissory notes without a legal transfer from the ovner, and received payment of some of them more than six yea's, and of others within six years, next before the commencement of the action, it was Held, that he was liable in assumpsit, or the sums received within the six years, and that he was stopped to say that the notes were obtained by fraud, and so ar action of trover would have been barred by the Statute. Lamb Executor, &c. vs. Clark, 5 Picker. Rep. 193.

The Statute of Limitations does not begin to run against a parol guarantee of the sufficiency of a mortgage, given to secure a bond payable by instalments, and of the solvency of the mortgagor, until six years after the last stalment has become due. Overton vs. Tracey, 14 Serg. & R Rep. 311.

In an action of assumpsit, fe negligence, want of skill, and fraud, in the performance of wek, the defendant pleaded the Statute of Limitations: Held, tht the plaintiff cannot reply a fraudulent concealment of the baress of the work by the defendant, so that the plaintiff did not disover the fraud until within six years before the commencementof the suit, so as to deprive the defendant of the protection of he Statute. Troup vs. Smith's Exors. 20 Johns. Rep. 33. Sd vide, The first Massachusetts Turnpike Corporation v. Field & Al. 3 Mass. Rep. 201. 207. CONTRA

In the case of Adle vs. Andrus, (6 Cow. Rep. 225,) which was an action of assumpsit on a parol promise of indemnity, the defendant pleaded 1st, non assumpsit; 2d, non assumpsit infra sex annos; 3d, fctio non accrevit infra sex annos; to which