LIMITATIONS. Rejoinder. REJOINDER. And the said D. says, (actio non,) because he says, that after the said supposed (a) cause of action accrued, and That the plain- more than six years before the commencement of the said action, compos mentis the plaintiff became compos mentis, to wit, on &c., at &c.; and this more than six the said D. is ready to verify: Wherefore, &c. tiff became years before, &c. Surrejoinder. was non com pos, &c. Rejoinder. was compos (a)" Promise (if any) was made, and more than six years," &c.; mutatis mutandis in the replication. SURREJOINDER. And the plaintiff, as before, says that he was non compos mentis until within six years next before the commencement of the action aforesaid, to wit, until the day of &c.; and this he prays may be inquired of by the country. NOTE. These last forms have been suggested as substitutes for the preceding in this state; and the following remarks subjoined. "Quære, if these forms be not more technical as well as more concise; and more analogous to the precedent in the case of Infancy in 2 Saund. 119. The whole exception to the statute is thus precisely suggested. In this State the commencement of the action is a part of the record, and not fictitious, as in England, where it may be rendered certain by the pleas. Without any allegation, that the action was commenced within six years after the removal of the impediment, the dates suggested render it apparent." “The rejoinder might be, that the plaintiff became compos at such a time; or was compos at the time of the promise, &c.; and tender an issue, or a traverse without that, &c. traversing the plaintiff's allegation; and then the surrejoinder might take issue on the material fact." Quære, whether the rejoinder to the above replication might not be in this form; "that at any time after the supposed cause of the action aforesaid accrued, within six years next before the commencement of the action aforesaid, the plaintiff was not non compos mentis, in manner and form as the plaintiff hath above alleged; and of this he puts himself on the country." It would seem, that in this form, the whole matter of the replication is denied, and the material fact put in issue. REJOINDER. And the said D. says, (actio non,) because he says, that at the time when the supposed (b) cause of action in the plaintiff's declaration mentioned accrued, the plaintiff was compos mentis; puts himself (b)" Promise and of this the said D. the country. (if any) was mentis, &c. made;" as the Plea. That the plaintiff, at the time of the promise, was an infant. upon NOTE. It is usual to a!lege, (immediately after the allegation that the plaintiff was compos mentis,)" and not non compos mentis, in manner and form as the plaintiff hath above in his replication alleged; and of this &c.; but it seems unnecessary, and therefore is better omitted. REPLICATION. And the said plaintiff says, that he, notwithstanding any thing by the said D. above in pleading alleged, ought not to be barred from having his said action thereof against him, because he says that he, the said plaintiff, at the time (c) of inaking the several prom(c) Or," when ises aforesaid, and also on the day of the commencement of the action aforesaid, to wit, on &c., was within the age twenty-one years, to wit, at &c.; and this he is ready to verify: Wherefore he prays judgment, and his damages on occasion of the premises, to be adjudged to him, &c. the cause of the action aforesaid accrued." NOTE. This plea was adjudged good on demurrer. An infant may bring his action at any time while he is under age; but if he bring it after he is of age, it must be within six years after his coming of age. Chandler v. Villett, 2 Saund. 119, 120. If the plaintiff be of age at the time of the suit, the replication, in Courts where the commencement of the action is fictitious, should state, "that the plaintiff, at the time when the cause of the action aforesaid accrued, was an infant under the age of twenty-one years, and so continued until LIMITATIONS. the &c. day of &c., when he became of age; and that he, the plaintiff, within six years next after he became of age, commenced his action aforesaid, to wit, on &c.; and this &c.: Wherefore," &c. But in the Courts in this State the replication should be (for the reasons stated in a note under the preceding head of plea of non compos) as follows: "that the plaintiff, at the time when the cause of action aforesaid accrued, and afterwards, until within six years next before the commencement of the action aforesaid, to wit, until the &c. day of &c. was within the age of twenty-one years, to wit, at &c.; and this &c.: Wherefore," &c. The rejoinder might be in the form ensuing in the text, or like that suggested in the note under the same. In the same way a replication of coverture may be framed; "that the plaintiff, at the time when &c. was a feme covert, and under the coverture of A. A., and so continued until within six years next before the commencement of this action, &c.; and this &c.: Wherefore," &c. And the rejoinder may be framed similar to the ensuing, mutatis mutandis. the promise, REJOINDER. And the said D. says, that notwithstanding any thing Rejoinder. by the plaintiff in his replication alleged, (actio non,) because he says, That plaintiff, that at the time (a) of making the several promises aforesaid, the at the time of plaintiff was of full age, and not within the age of twenty-one years, was of full age. as the plaintiff hath above in his said replication alleged; and of this he puts himself upon the country. (a) Or, "when the cause of the action aforesaid accrued." Rejoinder. To infancy, that plaintiff came REJOINDER. And the said D. says, that notwithstanding any thing above in the replication of the plaintiff' alleged, (actio non,) because he a replication of says that after the said supposed cause of the action aforesaid accrued, and more than six years before the commencement of the action of age more aforesaid, to wit, on &c., the plaintiff became of full age; and this than six years the said D. is ready to verify: Wherefore, &c. age before the action brought. was Surrejoinder. That plaintiff did not come he of age more SURREJOINDER. And the plaintiff, as before, says, that he within until within six years next before the commencement of the action aforesaid, to wit, until the &c. day of &c.; and this prays may be inquired of by the country. NOTE. If the replication were in the form suggested in the preceding note, it should seem, that the rejoinder in this case might be thus; "because he says, that at any time after the said supposed cause of action accrued, within six years next before the commencement of the action aforesaid, the plaintiff was not within age, as the said plaintiff hath above in his replication alleged; and of this the said D. puts himself upon the country." PLEA. And the said D. having obtained leave of the Court here to plead another and further plea in this behalf, comes and defends &c., when &c., and as to the three first counts in the declaration aforesaid, he says, (actio non,) because he says, that the said A. A. at any time within six years next before the commencement of the action aforesaid, never made either of the promises above alleged by the plaintiff in the said three counts in his declaration aforesaid, in manner and form as the plaintiff has above thereof declared against him; and this he the said D. is ready to verify: Wherefore, &c. T. PARSONS. than six years, &c. Plea. The intestate never promised within six years. REPLICATION. And the said plaintiff says, he ought not, by any Replication. thing by the said D. in pleading above alleged, to be precluded from Merchants' ac counts. LIMITATIONS. having and maintaining his action aforesaid thereof against him, because he says that he, the plaintiff, and the said A. A., at the times of making the several promises aforesaid, set forth in the plaintiff's declaration, were merchants, and that the accounts and promises aforesaid, in the plaintiff's declaration aforesaid, were at &c. at the times of making thereof concerning the trade of merchandise between the plaintiff, merchant, and the said A. A., merchant; and this he is ready to verify Wherefore he prays judgment, if he ought to be precluded from having and maintaining his said action, and for his damages and costs. N. DANE. Rejoinder. Not merchants' accounts. (a)" Causes of action," if the plea be actio non accrevit. Replication. Merchants' accounts. If the plea be actio non accrevit &c., say, " at the times when the said several causes of action set forth in the plaintiff's declaration, accrued, were merchants, and that the accounts and causes of action in said declaration mentioned, were at such time of accruing, concerning the trade of merchandise," &c. REJOINDER. And the said D. says, that notwithstanding any thing by the said plaintiff in his replication above alleged, he ought not to have or maintain his action aforesaid against him the said D., because he says the aforesaid accounts and (a) promises in the plaintiff's declaration aforesaid, were not concerning the trade of merchandise between the said plaintiff, merchant, and the said A. A., merchant, as the plaintiff hath above alleged; and of this the said D. puts himself upon the country. Patch v. Sargent, administrator, Essex, October term, 1795. T. PARSONS. REPLICATION. And the said plaintiff says that he, notwithstanding any thing by the said D. above in pleading alleged, ought not to be precluded from having his said action thereof against the said D., because he says, that the said money in the several promises aforesaid above mentioned, at the time of the making of the promises aforesaid, became due and payable on trade, had between the said plaintiff and the said D. as merchants, and wholly concerned the trade of (b) Semble not merchandise, (b) to wit, at &c., and this he is ready to verify: Wherefore he prays judgment, and his damages on occasion of the premises to be adjudged to him, &c. Webber v. Tivil, 2 Saund. necessary. 2 H. Bl. 145. Replication. Fraud and embezzlement of the defendant, and action brought within six years after the discovery of it. 123. NOTE. In this case, on demurrer, the replication was held bad, because it was pleaded to indebitatus assumpsit, and insimul computassent; and such a replication is bad to a stated account, and good only to a current account. But the form is considered correct. REPLICATION. And as to so much of the second plea by the said D. above pleaded, as relates to the second &c. counts of the declaration aforesaid, the said plaintiff says, (precludi non,) because he says, that the same goods and merchandises so received by the said D. and E. as aforesaid, were received by them in packages, and that the said D. and E. in opening, sorting, dividing, and distributing the same goods and merchandises, fraudulently, deceitfully, and clandestinely and secretly embezzled and converted to their own use divers of the same goods and merchandises, to wit, to the value of &c., fifteen hundred parts whereof belonged to the said plaintiff, which fraudulent, deceitful, clandestine, and secret embezzlement and conversion of the last mentioned goods and merchandises, they, the said D. and E., so artfully concealed from said plaintiff, that he, said plaintiff, had no knowledge thereof, nor was the same by any LIMITATIONS. means disclosed or discovered to him until within six years next before the commencement of his the said plaintiff's action aforesaid; and this he is ready to verify: Wherefore he prays judgment, and his damages by reason of the non-performance of the promise in said count, to be adjudged to him, and his costs. bezzlement action was REPLICATION. And as to so much of the second plea by the Replication. said D. above pleaded, as relates to the first &c. counts of the Fraud and emdeclaration aforesaid, the said plaintiff says, (precludi non,) be- stated genercause he says, that the said D. and E. fraudulently, deceitfully, ally, and that secretly, and clandestinely embezzled and converted to their own brought within use the goods and merchandise in the same count mentioned, which six years after fraudulent, deceitful, clandestine, and secret einbezzlement and con- discovery. version of the last mentioned goods and merchandise, they, the said D. and E. so artfully concealed from said plaintiff, that he, said plaintiff, had no knowledge thereof, nor was the same by any means disclosed or discovered to him until within six years next before the commencement of his the said plaintiff's action aforesaid; and this he is ready to verify: Wherefore he prays judgment, and his damages, by reason of the non-performance of the promise in said count, to be adjudged him, and his costs. STORY. NOTES ON PLEAS OF LIMITATIONS. The Stat. of Mass. of 1786, ch. 52, is in most respects a transcript Notes on the of the stat. 21 Jac. both in its language and provisions. Wherever Pleas. they differ, has, for the most part, been incidentally noticed in the pleas. It is to be noticed, that the plea of "never promised within six Plea. How years," is applicable only to indebitatus assumpsit, and executed con- pleaded. siderations. But that "actio non accrevit" is applicable to all cases, and is on that account preferable in practice. 2 Saund. Rep. 63 c. Williams's notes. If an assignee declare that the defendant was indebted to the bank- When bad. rupt, and promised the plaintiff (assignee) to pay, and the defendant plead that the action did not accrue to the bankrupt within six years, it is bad; for it does not answer the promise in the declaration. Skinner v. Rebow, 2 Str. 919. So where in case of an insolvency, the plaintiffs declared on a promise to them as assignees, a plea that the action accrued to the insolvent before the plaintiffs became assignees, and six years had since elapsed, was held bad for the same reason. Kinder v. Paris, 2 Hen. Bl. 561. When this statute is pleaded to an action brought by an executor, How time the six years are to be computed from the time when the cause of computed. action accrued, and not from the time of granting administration. For in all cases, if the statute once begins to run, it shall run forever, even against feme coverts, &c. Hickman v. Walker, Willes's Rep. 27. tions. Promise within six years. REPLICATION. What is, or is not, a promise to take the case out On replicaof the statute upon the replication, is not properly the subject of these notes; but it may be observed, that any acknowledgment, even by one joint promisor, will take the case from the statute. Whitcomb v. Whiting, Doug. 652. But Bell v. Morrison, 1 Peters's Sup. Court Rep. 360, is contra. And mutual accounts within six years, draw previous items along with them. Catling v. Shoulding, 6 'I'. R. 189. LIMITATIONS. In case of administrator. Beyond seas, infancy, &c. In case of administrator. Reversal of judgment, &c. Coverture after If the defendant plead the statute to an action brought by an executor on a promise made to the testator, and the plaintiff reply a subsequent promise to himself, it is a departure in pleading, and bad. Hickman v. Walker, Willes's Rep. 27. Assumpsit was brought by an administrator de bonis non, and the declaration alleged the promise to be made to the former administrator; the defendant pleaded the statute, and a verdict was found for the plaintiff; and on moving in arrest of judgment, that the declaration could not be supported, the Court adjudged the declaration good; and adjudged that the plaintiff might, in such case, have declared on a promise to himself, and given the promise to the former administrator in evidence to rebut the statute. Hirst v. Smith, 7 T. R. 182. But see Sarell v. Cline, 3 East, 409, and 3 Barn. & Ald. 632. There is an exception in the Mass. statute in favour of infants, femes covert, persons imprisoned, or beyond sea, without any of the United States, allowing them six years from the time of the removal of such impediment. But if the statute once begin to run, it will be a bar, notwithstanding any mesne or intervening acts, as coverture, being beyond sea, &c. Str. 556, 836. And if the action be joint, and any of the plaintiffs reside in the country, the statute will be a bar. Perry v. Jackson, 4 T. R. 516. The same statute provides, that if the defendant, at the time when the action accrues, be out of the Commonwealth, and does not leave property or estate therein, that can by the common and ordinary process of the law be attached, then the action may be commenced in years after his return; and the same law applies as in the case of the plaintiff. six It seems, that if an executor is out of the country, the clause of the statute extends to him; but if the testator has ever been in the country after the action accrued, the six years begin from that time. Smith v. Hill, 1 Wils. 134. Another exception in the statute is, where judgment has been reversed or arrested. The clause in our statute, in this respect, is precisely like the English in its provisions. Within the equity of this statute, it has been holden, that if a feme sole action brought. commence an action within six years, and pending the action the six years expire, and then she marries, by which the writ is abated, she and her husband may recently bring a new action; and if the defendant pleads the statute, the plaintiffs may reply," that E., when a widow, to wit, on &c., brought her original writ &c., and afterwards, on &c., she married, and they recently afterwards, to wit, on &c., commenced their action," &c.; and it will be a good replication. Forbes v. Middleton, Willes, 259, notis; 2 Saund. 64, Williams's notes. Death of plainSo by the same equity, if a testator commence an action before the tiff after action six years are ended, and die before judgment, the six years having brought. then expired, it has been held, that the executor may recently commence an action; and the form of the replication, to a plea of the statute in such case, is to state, that the testator on &c. purchased out of the clerk's office of the C. C. P. within and for the county of &c., against the defendant, a certain writ &c., returnable &c., and then state the entry &c., to the testator's death; that he appointed the plaintiff his executor; recently after whose death, to wit, on &c., the plaintiff sued out his writ in the action aforesaid; that the said writ so prosecuted by the testator against the defendant, was upon the same promises in the declaration of the plaintiff speci |