rival of the specific period; in the second, from the time when the event occurred (s).

A bill of exchange was drawn, payable at a certain future period, for the amount of a sum of money lent by the payee to the drawer at the time of drawing the bill. The payce was allowed to recover the money in an action for money lent, although six years had elapsed since the actual advance of the money, it being held that the statute began to operate only from the time when the money was to be repaid, that is, when the bill became due (t).

In the case of an attorney's bill against his client for prosecuting or defending an action to its termination, the six years are to be reckoned, as to the whole bill, from the final determination of the suit; and the earlier items beyond six years are not barred, because the contract of an attorney to conduct a suit is an entire contract to carry on the suit to its termination, and no right to remuneration accrues until that period (u).

In the case of a promise of indemnity, the statute does not apply until the lapse of six years from the actual damnification, that is, from the time when the party to whom the indemnity is given actually pays the debt or damages, and not from the time when his liability to pay accrues (x).

The right of a surety to claim contribution from his co-surety, does not arise until he has paid something beyond his own proportion of the debt, and the Statute of Limitations does not run against his claim to contribution until he has made such payment (y).

Where goods were sold at six months' credit, payment to be then made by a bill at two or three months, at the purchaser's option, it was held (Parke, J., dubitante), that this was in effect a nine months' credit, and consequently that an action for goods

the statute by delaying the delivery of the bill; per Kelly in argument, Harris v. Osbourn, 2 C. & M. 631, 632. Perhaps the six years would be dated from the end of one month after the time when the business was completed.

(x) Huntley v. Sanderson, 1 C. & M. 467; 2 Chitty, jun. Bills, 1641, S. C.; Collinge v. Heywood, 1 P. & Dav. 502; 9 Ad. & E. 633, S. C.

(y) Davies v. Humphreys, 6 M. & W. 153.

sold and delivered, commenced within six years from the end of the nine months, was brought in time to save the statute (≈).

Where by a local turnpike act the trustees were to pay first the expenses of obtaining the act, and next the expenses of erecting toll-houses, &c.; a builder who brought an action for work and labour in building toll-houses more than six years after the work was done, but within six years of the time when the trustees had funds in hand by having paid off the expenses of the act; it was held that he was too late, as the action was maintainable immediately after the work was done, though the execution would have been postponed (a).

If goods be consigned to a factor for sale, an action does not lie against him for not accounting, until after a demand made of an account. Consequently the statute runs in such case only from the time when the demand was made (b).

If a bill or note be payable one month after sight, the six years are to be calculated from the expiration of a month after presentment (c). And if the instrument be payable one month after demand, or after notice, the limitation begins from the end of a month after actual notice or demand of payment, not at the expiration of one month from the date of the instrument (d). But if a promissory note be made payable upon demand, even with interest, it seems that no express demand is necessary; and consequently that the limitation commences from the date of the note (e).

The gist of an action of assumpsit for the violation of a special contract is the breach of such contract, and not any resulting or collateral damage occasioned thereby. The statute runs from the time when the contract is broken, and not from the period when any damage arising therefrom is sustained by the plaintiff'; and, therefore, although such damage accrue within six years, the action is defeated by the statute if the contract were broken beyond that period.

(2) Helps v. Winterbottom, 2 B. &

Ad. 431.

(a) Emery v. Day, 1 C., M. & R. 245; 4 Tyr. 695.

(b) Topham v. Braddick, 1 Taunt.

572.

(c) Holmes v. Kerrison, 2 id. 323. (d) Thorpe v. Coombe, R. & M. 388; Chitty, jun., Bills, 1295, 100 a a;

Clayton v. Gosling, 5 B. & C. 360; 8 Dowl. & Ry. 110.

(e) Norton v. Ellam, 2 M. & W. 461; Christie v. Fonsick, C. B. London sittings after Mich. Term, 52 Geo. 3, cor. Sir J. Mansfield, C. J., MS., Selw. N. P. 6th ed. 136, n. (l); 8th ed. 609, 803. The 7th ed. is incorrect in saying this has been overruled.

A., under a contract to deliver spring wheat, delivered to B. winter wheat, and B., having again sold the same as spring wheat, had in consequence been compelled by action to pay damages to his vendee, and afterwards sued A. in assumpsit for his breach of contract, alleging as a special injury the damages so recovered. It was held, that although the special damage occurred within six years before the commencement of the action, yet as the breach of the contract with A. had happened more than six years before that period, the Statute of Limitations was a bar to the suit (f).

In Short v. M'Carthy (g) the defendant was sued in assumpsit for negligence, as an attorney, in making search at the bank to ascertain whether certain stock was standing in the names of certain persons. The defendant's promise, his negligence, and the plaintiff's loss occurred more than six years before the commencement of the action; but the plaintiff did not discover the injury he had sustained till within six years. Bayley, J., and Holroyd, J., were of opinion that the cause of action accrued from the time the breach of duty took place, although the plaintiff was then unconscious thereof.

In Howell v. Young (h) the court applied the same doctrine to an action upon the case against an attorney for not using due care and diligence in ascertaining whether a mortgage would be a sufficient security to the plaintiff for the repayment of money to be advanced, although the insufficiency of the security was not discovered until long after the misconduct.

Bree v. Holbech (i) was also decided upon the same principle. A personal representative having found among the papers of the deceased a mortgage deed, assigned it more than six years before the action for the mortgage money, affirming and reciting in the deed of assignment that it was a mortgage deed, made or mentioned to be made between the mortgagee and the mortgagor for that sum. It was decided that the assignee could not recover back the mortgage money from the assignor, although it turned out that

(f) Bartley v. Faulkner, 3 B. & Al.

288.

(g) 3 B. & Al. 626; Brown v. Howard, 2 B. & Bing. 73; 4 Moore, 508, S. C.

(h) 8 D. & R. 14; 5 B. & C. 259, S. C. So in trover the six years run from the conversion, though it were not discovered at the time; Granger v. George, 7 D. & R. 729; 5 B. & C.

149, S. C. A defendant who converts part of some wine, and at the end of six years is sued in trover for the whole, cannot set up the partial conversion as a conversion of the whole to support a plea of the Statute of Limitations; Philpott v. Kelly, 3 Ad. & E. 106; 4 Nev. & P. 611.

(i) 2 Doug. 654.

the mortgage was a forgery, and that the assignee did not discover the forgery till within six years before he brought his action; it not appearing that the assignor knew it to be a forgery. Lord Mansfield, C. J., observed, "There may be cases which fraud will take out of the Statute of Limitations. But here every thing alleged in the replication may be true, without any fraud on the part of the defendant. He is an administrator with the will annexed, who finds a mortgage deed among the papers of his testator without any arrears of interest, and parts with it bona fide as a marketable commodity. If he had discovered the forgery and had then got rid of the deed as a true security, the case would have been very different."

The Statute of Limitations is a good defence to an action by a landlord for rent, against a person who had once been his tenant from year to year, but who had not, within the last six years, occupied the premises, either actually or constructively, or 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).

It appears not to be settled whether an undiscovered fraud on the part of the defendant in the transaction on which the claim is founded, prevents, or suspends, at law, the operation of the statute. It is clear, at all events, that the limitation would begin immediately the fraud was discovered. But the statute contains no exception or saving in the case of fraud; and there would probably be much difficulty at law (1) in setting up even an undiscovered fraud as an excuse for not suing for a debt within six years (m). At all events, if in assumpsit for money had and received, the statute be pleaded, and fraud in the defendant discovered by plaintiff within six years be relied upon as taking the case out of the statute, the general replication that the cause of action accrued within six years is insufficient, and the fraud should be specially replied (n).

(k) Leigh v. Thornton, 1 B. & Al.

625.

(1) In Equity, see South Sea Company v. Wymondsell, 3 P. Wms. 143; Bac. Ab. Limitations, (D 4); 2 Pothier by Evans, 126, 129; E. Chitty's Eq. Index, tit. Limitations, Statute of; 1 Chitty Gen. P. 775, 776, 779; see Ex parte Bolton, 1 Mont. & Ayr. 60.

(m) See, however, per Mansfield, C. J., in Bree v. Holbech, Dougl. 656,

supra; per Dallas, C. J., Brown v. Howard, 4 Moore, 512; 2 B. & Bing. 73, S. C.; and per Best, J., in Clark v. Hougham, 2 B. & C. 156; 3 D. & R. 729, S. C.

(n) Clark v. Houghum. As to the effect of fraud practised by defendant to prevent plaintiff from discovering his cause of action; Granger v. George, 5 B. & C. 149; 7 D.& Ry. 729, S. C.; ante, 817, note (h).

3. Of the Revival of the Remedy by a new Acknowledgment of and Promise to pay the Debt, &c.

1. In general.-Before the statute 9 Geo. 4, c. 14 (Lord Tenterden's Act), a verbal admission of the debt within six years was sufficient to obviate the Statute of Limitations. "The statute 9 Geo. 4 did not intend to make any alterations in the legal construction to be put upon acknowledgments or promises made by defendants, but merely to require a different mode of proof, substituting the certain evidence of a writing signed by the party chargeable instead of the insecure and precarious testimony to be derived from the memory of witnesses. To enquire, therefore, whether, in a given case, the written document amounts to an acknowledgment or promise, is no other enquiry than whether the same words, if proved, before the statute, to have been spoken by the defendant, would have had a similar operation and effect (o)."

By the first section of the 9 Geo. 4, after reciting" that various questions have arisen in actions founded on simple contract as to the proof and effect of acknowledgments and promises offered in evidence for the purpose of taking cases out of the operation of the said enactments, and that it is expedient to prevent such questions, and to make provision for giving effect to the said enactments, and to the intention thereof, it is enacted, 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 contract, whereby to take any case out of the operation of the said enactments, or either of them, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing (p) to be signed by the party chargeable thereby (q); and that where there shall be two or more joint contractors, or executors, or administrators of any contractor, no such joint contractor, executor, or administrator, shall lose the benefit of the

(0) Per Tindal, C. J., Haydon v. Williams, 7 Bing. 166, 167; 4 M. & P. 811, S. C.

(p) We have already seen that a parol account stated is no bar to the

statute; ante, 808.

(4) The signature of the debtor's agent will not suffice; Hyde v. Johnson, 2 Bing. N. C. 776; 3 Scot, 230, S. C.