tained, that none were merchants, within the meaning of this exception, save those who traded beyond sea. (p) But that clearly would not be held now. So, also, an opinion has prevailed, to some extent, that the exception does not extend to accounts between merchants, as partners; (q) but we doubt whether there is good reason for such restriction. (r) Whether common retail tradesmen come within the exception, as being merchants, is more uncertain. (s) It has been much questioned whether this exception required, that even where the account was between merchants, and in relation to merchandise, some item of it must be within six years. (t) It would seem that this construction adds to the statute. It requires, for admission within the exception, a new, distinct, and important element, which the statute certainly does not express, and, perhaps, does not indicate. We consider this which accounts the debits to the alleged debtor consisted of two items for cash paid him on account of bills of exchange, one item for goods sold him, and the other items for cash advanced to or for him, and there was a single credit for the proceeds of a bill of exchange bought of him; it was held, that the replication was not supported by the evidence, and the demand therefore was barred by the statute. Again, in Farmers & Mechanics Bank v. Planters Bank, 10 Gill & J. 422, it was held, that the exception did not apply to transactions between banking institutions. And see further, Dutton v. Hutchinson, 1 Jur. 772; Coster v. Murray, 5 Johns. Ch. 522, 20 Johns. 576; Landsdale v. Brashear, 3 T. B. Mon. 330; Patterson v. Brown, 6 id. 10; Smith v. Dawson, 10 B. Mon. 112; Price v. Upshaw, 2 Humph. 142; Slocumb v. Holmes, 1 How. (Miss.), 139; Fox v. Fisk, 6 id. 328; Marseilles v. Kenton, 17 Penn. St. 238; McCulloch v. Judd, 20 Ala. 703; Blair v. Drew, 6 N. H. 235; Sturt v. Mellish, Atk. 612; Codman v. Rogers, 10 Pick. 118; Coalter v. Coalter, 1 Rob. (Va.), 79. (p) Thus, in Sherman v. Withers, 1 Ch. Cas. 152, which was a bill of equity for an account of fourteen years' standing, it appeared that the plaintiff was an inland merchant, and the defendant his factor. The defendant pleaded the statute of limitations. And "upon debate of the plea, the Lord Keeper conceived the exception in the statute, as to merchants' accounts, did not extend to this case, but only to merchants trading beyond sea." And see Thomson v. Hopper, 1 Watts & S. 469. (q) Bridges v. Mitchell, Bunb. 217; Lansdale v. Brashear, 3 T. B. Mon. 330; Patterson v. Brown, 6 id. 10; Coalter v. Coalter, 1 Rob. (Va.), 79. (r) See Ogden v. Astor, 4 Sandf. 327. (s) In Farrington v. Lee, 1 Mod. 268, Atkins, J., said: “I think the makers of this statute had a greater regard to the persons of merchants, than the causes of action between them. And the reason was, because they are often out of the realm, and cannot always prosecute their actions in due time. I think, also, that no other sort of tradesmen but merchants are within the benefit of this exception; and that it does not extend to shopkeepers, they not being within the same mis chief." And see Cottam v. Partridge, 4 Scott, N. R. 819, where this question was raised, but not decided. (t) For cases holding the affirmative of this question, see Welford v. Liddel, 2 Ves. Sen. 400; Martin v. Heathcote, 2 Eden, 169; Barber v. Barber, 18 Ves. 286; Foster v. Hodgson, 19 id. 180; Ault v. Goodrich, 4 Russ. 430; Coster v. Murray, 5 Johns. Ch. 522, 20 Johns. 576; Didier v. Davidson, 2 Barb. Ch. 477; Van Rhyn v. Vincent, 1 McCord, Ch. 310. Penn v. Watson, 20 Mo. 13 And see question as now settled in England, in the negative; and believe that it will be so held in this country. (u) SECTION VI. WHEN THE PERIOD OF LIMITATION BEGINS TO RUN. The next question we propose to consider is, from what point of time the six years are to be counted. The general answer is, from the period when the creditor could have commenced his action; because it is then only that the reason of the limitation begins to operate, whether we say, with the theory that the statute is one of presumption, that so long a delay makes it probable that the debt is paid, or suppose the statute to be one of repose, and say, that after so long a neglect, the creditor ought to lose his action. Thus, if a credit is given, the six years begin when the credit expires; (v) and if the money be payable on the happening of a certain event, the six years begin from the happening of the event, as on a marriage; (w) or if a bill be payable at sight, the six years begin on presentment and demand. (x) And this credit may be inferred, or lengthened by inference. (y) As if goods are sold on six months (u) That this question is now settled in the negative in England, see Catling v. Skoulding, 6 T. R. 189; Robinson v. Alexander, 8 Bligh, 352; Inglis v. Haigh, 8 M. & W. 769. See, however, Tatam v. Williams, 3 Hare, 347. And such also is the weight of authority in this country. See Mandeville v. Wilson, 5 Cranch, 15; Spring v. Gray, 6 Pet. 151; Bass v. Bass, 6 Pick. 362; Watson v. Lyle, 4 Leigh, 236; Coalter v. Coalter, 1 Rob. (Va.), 79; Lansdale v. Brashear, 3 T. B. Mon. 330; Patterson v. Brown, 6 id. 10; Dyott v. Letcher, 6 J. J. Marsh. 541; Guichard v. Superveile, 11 Texas, 522; Pridgen v. Hill, 12 id. 374; Ogden v. Astor, 4 Sandf. 329. And see Chambers v. Snooks, 25 Penn. St. 296. (v) Thus, in Wittersheim v. Lady Carlisle, 1 H. Bl. 631, it was held, that where a bill of exchange is drawn payable at a certain future period, for the amount of a (w) Shutford v. Borough, Godb. 437; Fenton v. Emblers, 1 W. Bl. 353. (x) Wolfe v. Whiteman, 4 Harring (Del.), 246; Holmes v. Kerrison, 2 Taunt 323. (y) See Brent v. Cook, 12 B. Mon 267. credit, and then a bill is to be given, payable at three months, whether the bill is given or not, the six years are said to begin after nine months; and if the bill may be at two or four months, at the purchaser's option, this, it seems, would be construed as a credit for ten months. (z) It may, however, be doubted whether the true construction of such a contract should not be a credit for six months; then a bill for two or four; and if the bill is given, the statute will begin to run when the bill is due and not before; but if the bill is not given, this is a breach of the contract so far, and the credit ends with the six months, and the statute then begins to run. (a) Where there are third parties in the transaction, the same rule prevails. As if one sells property belonging to himself and another, and this other sues him for his share, the action is barred by the statute, only if six years have run from the time when the payment was made by the buyer. (b) And if the seller takes a promissory note for the goods, the six years do not run for him from the sale, nor yet from the maturity of the note; but only from the actual payment, because only then could the other owner demand his share. (c) So if a surety pays for his principal, the statute begins to run from his first payment for his principal, as to that payment; (d) but as to his claim on a co-surety, for contribution, it does not begin when he begins to pay, but only when his payments first amount to more than his share. (e) So in a contract of indemnity; the six years begin only with the actual damnification. (ƒ) As if one lends a note, on a promise of indemnity, the statute begins to run only from the time when he has to pay the note he lends. (g) If a demand be necessary to sustain an action, only after it is made does the statute begin. (h) But a note payable (z) Helps v. Winterbottom, 2 B. & Ad. 431. (a) Per Parke, J., in Helps v. Winter-bottom, supra. (b) Miller v. Miller, 7 Pick. 133. (c) Id. (d) Davies v. Humphreys, 6 M. & W. 153; Ponder v. Carter, 12 Ired. 242; Gillespie v. Creswell, 12 Gill & J. 36; Bullock v. Campbell, 9 Gill, 182. (e) Davies v. Humphreys, supra (f) Huntley v. Sanderson, 1 Cromp. & M. 467; Collinge v. Heywood, 9 A. & E. 633; Ponder v. Carter, 12 Ired. 242; Sims v. Gondelock, 6 Rich. 100; Gillespie v. Creswell, 12 Gill &. J. 36; Scott v. Nichols, 27 Miss. 94. (9) Reynolds v. Doyle, 2 Scott, N. R. 45. (h) For the cases in which a demand is necessary, see Topham v Braddick, 1 Taunt. 572; Clark v. Moody, 17 Mass. 145; Coffin v. Coffin, 7 Greenl. 298; Lit "on demand" is due always, and the statute begins as soon as the note is made.(i) So it is with a receipt for money borrowed, whereby the borrower agrees to pay "whenever called upon to do so." (j) The statute begins to run whenever the creditor or plaintiff could bring his action, and not when he knew he could; thus, it is said that if one promises to pay when able, as soon as he is able the statute runs, although the creditor did not know it. (k) And if the action rests on a breach of contract, it accrues as soon as the contract is broken, although no injury result from the breach until afterwards. (1) As if one delivers goods which are not what he undertakes to sell, and the purchaser resells under his mistake, and is obliged to pay damages, he has a claim against the first seller, but must bring his action to enforce it within six years from the first sale. (m) So if one is guilty of gross negligence, whereby injury occurs, six years, running from the time of his neglect, will bar the action, although the injury has occurred within the six. (n) The holder of a foreign bill acquires a right of action; as against the drawer, immediately on non-acceptance, protest, and notice; and the statute then begins to run against him; tle v. Blunt, 9 Pick. 488; Stafford v. Richardson, 15 Wend. 302; Lillie v. Hoyt, 5 Hill, 395; Hickok v. Hickok, 13 Barb. 632; Lyle v. Murray, 4 Sandf. 590; Mitchell v. McLemore, 9 Texas, 151; McDonnell v. Branch Bank, 20 Ala. 313; Taylor v. Spear, 3 Eng. 429; Denton v. Embury, 5 id. 228. (i) Little v. Blunt, 9 Pick. 488; Wenman v. The Mohawk Ins. Co. 13 Wend. 267; Hill v. Henry, 17 Ohio, 9; Norton v. Ellam, 2 M. & W. 461. (j) See Waters v. The Earl of Thanet, 2 Q. B. 757. (k) Waters v. The Earl of Thanet, 2 Q. B. 757. And see Battley v. Faulkner, 3 B. & Ald. 288; Short v. M'Carthy, id. 626; Brown v. Howard, 2 Brod. & B. 73; Granger v. George, 5 B. & C. 149; Argall v. Bryant, 1 Sandf. 98; Troup v. Smith, 20 Johns. 33; Howell v. Young, 5 B. & C. 259; Wilcox v. Plummer, 4 Pet. 172; Kerns v. Schoonmaker, 4 Ohio, 331; Denton v. Embury, 5 Eng. 228; The Governor v. Gordon, 15 Ala. 72. (1) Argall v. Bryant, 1 Sandf. 98; Smith v. Fox, 6 Hare, 386. And see cases cited in preceding note. (m) Thus 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 brought an action of assumpsit against A for his breach of contract, alleging as special damage, the damages, so recovered, it was held, 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 the contract having occurred more than six years before that period, A might properly plead actio non accrevit infra sex annos. Battley v. Faulkner, 3 B. & Ald. 289. (n) Sinclair v. The Bank of So. Car. 2 Strobh. 344. And see cases cited supra. n. (i). and therefore, if he afterwards pay the bill when due, he has not six years from that payment in which he may bring his action. (o) It has been said, obiter, in New York, that a second indorser who sues a prior indorser for money paid on a note, but who has not paid the note and brought his action upon it, cannot maintain his action, if the statute has run in favor of the defendant, and against the holder of the note. (p) If money be payable by instalments, the statute begins to run as to each instalment from the time when it becomes due; but if there be an agreement, that upon default as to any one, all then unpaid shall become payable, the statute begins to run as to all, upon any default. (q) If the demand arise from the imperfect execution of a con. tract to do certain work, in a certain way, and within a certain time, it is said that the six years begin to run from the time when the work was to have been completed, and not from the time when the plaintiff had received actual damage from the imperfect execution of the work. (r) It would seem, both from English and American authority, that the statute does not begin to run against the claim of an attorney, for professional services, until he no longer acts in that matter as attorney; (s) but he may terminate his professional relation at his own pleasure (if he thereby does no wrong to his client), and demand payment of his bill; and the statute then begins to run. (t) So it would undoubtedly be, if the services were in any way brought to an end, although no demand were made; because (except that, in England, the rule requiring a delivery of the signed bill one month before suit, might prevent it) he could bring an action for his services at once. (0) Whitehead v. Walker, 9 M. & W. 506. (p) Wright v. Butler, 6 Wend. 284. And see Barker v. Cassidy, 16 Barb. 177. (9) Hemp v. Garland, 4 Q. B. 519. (r) Rankin v. Woodworth, 3 Penn. 48. (s) Harris v. Osbourn, 2 Cromp. & M. 629; Nicholls v. Wilson, 11 M. & W. 106; (t) Vansandau v. Browne, 9 Bing. 402 |