fied, and for the same causes of action, with an averment, that the LIMITATIONS. said several causes of action accrued within six years before the purchase of the writ of the testator, &c. 2 Saund. 64, Williams's notes. Renewal of the action within one year has been considered as recently, by the executor. 2 Str. 907. By Mass. Stat. 1793, ch. 75, § 3, it is enacted, that any action upon the case, or of debt, grounded upon any lending, or contract, or for rent, if it might have been prosecuted by or against a person deceased, at any time within thirty days before his decease, may be sued by or against an executor or administrator within two years after the grant of letters testamentary, or of administration. In all cases which do not fall within this clause, it is apprehended, that the English authorities above cited are in point. But as provision is made by the statute of 1783, ch. 59, to compel the executor or administrator to come in, and prosecute or defend the suit commenced for or against their testator or intestate, these cases can seldom occur. ac With respect to the exception in the statute, of merchants' accounts, Merchants' ac it has before been observed, that it is meant only to prevent dividing counts. a running account, and extends only to accounts current, and not to accounts stated. 2 Vesey, 400; Esp. N. P. Dig. 149. And, therefore, where one of the counts in the declaration was insimul computassent, and the replication was entire of merchants' accounts, it was adjudged bad. 2 Saund. 124. Where, therefore, there is no item of account within six years, the plaintiff will be barred, unless he can bring himself within this exception; and must reply it in his replication. But if there be mutual accounts, and any of the items are within six years, they will draw those previous, and be considered as evidence of a new promise. Catling v. Shoulding, 6 T. R. 189; 2 Mass. R. 217. In accounts current between merchants, the limitation does not begin to run till a settlement, or till the death of one of them, if no settlement is made, for the mutual charges on their books amount to a mutual confession of their debts. Ruled, S. J. C. Mass. Ipswich, 1800. REJOINDERS. If to a plea of the statute, the plaintiff reply, that On rejoinder. he sued out the writ on such a day, and that the defendant promised within six years of that day, and conclude with an averment; (a) the (a) The plaindefendant may rejoin, and take issue either on the time of the writ tiff might in being sued, or on the promise being made within six years of the time (which is the mentioned, they being alleged as distinct facts in the replication; usual way) reand when issue is taken on one, the other is admitted to be true, ply, that the and need not be proved. Bull. N. P. 149. But in MS. case, cited defendant Esp. N. P. Dig. 155, where, to such a replication, the defendant rejoined that he did not promise within six years next before the suing out any precept, it was decided, that the plaintiff must produce the writ; for the writ stated in the replication was not admitted, but the issue is joined, that the defendant did not sue out any writ. ADDITIONAL NOTE. 1. Who is or is not within the statute-When does it begin to run— When is the limited time expired. It seems, that the statute does not apply to suits brought against a bauk, on the bills of the corporation. 16 Mass. R. 65. It seems, also, that the statute does not apply to parties, plaintiffs, (who have never been in the United States at all,) while they remain abroad; but such persons have six years from the time of their first arrival here, within which to commence their suits, and even if they such case promised within six years next before the writ sued, &c. ; and conclude to the country. LIMITATIONS. have an agent residing here at the time when the cause of action accrues. 14 Mass. R. 203; 17 Mass. R. 180. Neither does it extend to such plaintiffs as are residents in this country, but who are absent when the cause of action accrues, and it Ibid. only begins to run from the time of their return. If the defendant is resident in another State, when the cause of action accrues, and has no property here that the plaintiff can attach, &c., the statute will not begin to run until he comes into this State. 7 Mass. R. 515. Nor will it begin to run even then, if he returns secretly, or keeps himself close, so that the creditor can have no opportunity of arresting him before he again departs out of the State. 3 Mass. R. 271. If after the cause of action has accrued, the defendant comes into the Commonwealth, though the plaintiff is absent, yet the statute will begin to run. 10 Mass. R. 29. If a promissory note is given in New York by a citizen of this State, in an action brought upon it by the plaintiff, a citizen of New York, it seems, that the Statute of Limitations of that State cannot be pleaded. And the law is the same if both parties are resident at New York, when the note is given. 2 Mass. R. 84; 17 Mass. R. 55. With regard to the computation of the time limited, the six years generally begins from the time when the cause of action accrues; thus if a promise is made on a contingency, it begins to run from the happening of the contingency; in cases of fraud, from the time of the discovery of the fraud; (4 Yeates, 109;) in cases of disability under the statute, from the time when the disability ceases. Bl. R. 354; 3 Mass. R. 201. And where a contract is made with several, as soon as the disability of either has ceased, the statute runs against the rest. See 4 T. R. 516. And it seems, if a person is under two concurring disabilities at the same time, the statute runs from the time the last ceases. But if a person is once free from disability, no supervening disability will prevent the statute from running. See Bal. on Lim. 64. If mutual accounts are closed, and a balance struck, the statute begins to run from the time of striking the balance. 3 Pick. 96. With regard to fraud, more particularly, if there has been a fraudulent concealment, that a cause of action has accrued, on action brought, and a plea of the statute of limitations, it will be a good replication, that there was such fraudulent concealment, if there is an averment that the action is brought within six years after the discovery of the fraud. 3 Mass. R. 201. Or, more generally, where there has been fraud, the plaintiff may reply to the plea of the statute of limitations, that he did not discover the fraud until within six years before action brought. 1 Pick. 435; 3 Pick. 74. With regard to the time when the six years, within which the plaintiff must commence his suit, expire, it is held, that if the cause of action accrues on January 1, 1800, the time expires on the last day of December, 1806; and a suit brought on January 1, 1807, will be barred by the statute. 15 Mass. R. 195. This, however, has been excepted to, on the ground, that in the computation of time, limited by statute, one day should be inclusive, and the other exclusive. 2. What promise, acknowledgment, or other circumstance is sufficient to prevent the statute from applying to revive a demand after it is barred by the statute. Formerly the Courts leaned very much against the statute, and by construing slight circumstances, or expressions which were merely evasive or equivocal, into a sufficient acknowledgment to take a case LIMITATIONS. out of it, seemed inclined virtually to repeal the greater part of its intended operation. Cowp. 548; 2 T. R. 760. More recently, however, the courts in this country, as well as in England, seem disposed to favor the statute, as grounded, if not on equity, at least on sound policy. 8 Cranch, 72. It is therefore now held, that an acknowledgment, to take the case out of the statute, must be, that the debt is still due, and must not be accompanied with any intimation, that the party intends to avail himself of the statute. See 8 Cranch, 74; 11 Johns. 146; 12 Serg. & R. 396. See, also, the elaborate opinion of Putnam J., 2 Pick. 368. The anonymous annotator on Taunton's Reports, in the case of Hellings v. Shaw, considers it as established by the modern decisions, "that an acknowledgment of the existence of a debt, if qualified in a manner to repel the presumption of a promise to pay, is not sufficient to revive the debt, and take it out of the statute, and cites many cases in support of his position. See 7 Taunt. 613. 4 It seems, that a bare acknowledgment of a debt, without any expression to show, whether the debtor intends to avail himself of the statute, or not, or without any express promise to pay, in Massachusetts, is considered sufficient to take a case out of the statute. Pick. 110. For the debt being acknowledged, the law here implies the promise. See 12 Ser. & R. 397. And, if the defendant acknowledges in general terms, that he is indebted to the plaintiff, it will be sufficient to take a particular debt out of the statute, unless the defendant shows, that he referred to some other claim. 1 Esp. c. 435; 4 Pick. 110. And this acknowledgment will be sufficient though made in the creditor's absence, to a stranger. 4 Esp. R. 46; 4 Pick. 110. And an acknowledgment by a principal debtor, or by one joint contractor, or by an agent, will be sufficient to take a case out of the statute as respects the surety, or the other joint contractors, or the agent's principal. 2 Esp. R. 511; Doug. 652; 1 Taunt. 104; 2 Pick. 581; 3 Pick. 291. See also, 1 Starkie, 488. So the admission of a wife, acting for her husband with his consent in his business. 1 Holt, 591. So, although a promise by an executor or administrator will not exempt a claim from the operation of the statute, limiting suits against them to four years from the time of giving notice, &c. Yet it is sufficient to revive a claim against the estate of the deceased, whom they represent, which otherwise would have been barred, by the general statute of limitations. See 15 Mass. R. 6; 16 Mass. R. 290. However, a distinction, formerly held in relation to the statute of limitations, does not seem sufficiently adverted to in more modern cases. If A. acknowledged to B., within six years after a debt was contracted, that he owed B. that debt, such acknowledgment would be suthcient to prevent the statute from beginning to run from the time when the debt was first contracted. But if A. after six years had elapsed from the time when the debt was contracted, acknowledged that he was indebted to B., without more, such a bare acknowledgment was not sufficient to take the case out of the statute. See 2 Show. 126; Ch. Prec. 386; 12 Mod. 224, c. 363. A conditional promise, is not such an acknowledgment, as will take a demand out of the statute, unless the condition is complied with. Pick. 368. 1 With regard to circumstances, from which an acknowledgment or promise is implied, it is held, that a partial payment of a note will be sufficient to take it out of the statute. 2 Pick. 581. LIMITATIONS. INFANCY. at the time of the promise of action brought, omit this part. Replication. of (b) Semble the protestation may be omitted. "That the work and labor ration mention But a mere indorsement on a note, made without the debtor's knowledge, by the creditor himself, purporting to be a minute of a partial payment, will not be sufficient without some proof of payment actually made. 4 Pick. 110. And where a town passed a vote, appointing a committee "to settle a dispute," it was held not to take a demand out of the statute. 11 Mass. R. 452. Where the plaintiff means to rely on a subsequent acknowledgment to rebut the statute, he need not use a special count on it, nor need he reply to it specially. He may give it in evidence under the usual replication, that the defendant promised within six years; or, that the cause of action accrued within six years. Lawes on Assumpsit, 548; 8 Mass. R. 133. 3. Infancy. PLEA. And the said D. (a) who is under the age of twenty-one years, by A. B. his guardian, who is admitted by the court here to defend for the said D. comes and defends &c., when &c., and saith, that the plaintiff his action aforesaid thereof against him ought not to have or maintain, because he says that, at the several times of the making the said several promises in the plaintiff's declaration mentioned, he the said D. was an infant within the age of twenty-one years, to wit, of the age of nineteen years and no more; and this he is ready to verify: Wherefore he prays judgment if the plaintiff ought to have or maintain his action aforesaid thereof against him, &c. See 3 Went. 96, 97, 98. REPLICATION. And the plaintiff says, that he, notwithstanding any thing by the said D. in his plea above in bar alleged, ought not to be barred from having and maintaining his action aforesaid &c., because (b) protesting that the said D. at the times of the making of said several promises in said declaration was not within the age of twenty-one years, as the said D. hath in his said plea alleged; for replication in this behalf he says, that said goods, wares, and merchandises, sold and delivered by the plaintiff to the said D., and said in said decla- work and labor done and performed, and said materials and need were work cessary things found and provided by the plaintiff for said D. were and labor done necessary goods, wares and merchandises, work and labor, materials, and performed and things sold and delivered, done, found, and provided by the plainhis business as tiff for said D. at his special request, and suitable to his estate and a tailor, in and degree; (c) and that said money in said declaration mentioned to about the mak- have been paid, laid out, and expended by the plaintiff for the said D., was so paid, laid out, and expended for buying and providing for said D., at his request things necessary for said D., and suitable to his estate and degree; and this he is ready to verify: Wherefore he prays judgment, and his damages &c., to be adjudged to were necessa- him, &c. ry for said D., by the plt. in ing of divers clothes and wearing appar el for said D., which clothes and apparel and suitable to his degree, &c. &c." 3 Morg. Assumpsit, pl. 9. (c) Quare, if the above may not be concisely stated thus, "that the goods, wares and merchandises, labor and work, materials and necessary things in said declaration mentioned, were necessaries for the said D., and suitable for his degree and estate, &c." and "that the said money in the same declaration mentioned was paid &c., for things necessary for defendant's estate and degree," &c. note above. "That the REJOINDER. And the said D. as to the replication aforesaid of INFANCY. the plaintiff says, that (a) the said goods, wares and merchandises, Rejoinder. Not sold and delivered by the plaintiff to said D., and said work and necessaries. labor done and performed, and said materials and necessary things (a) See the found and provided by said plaintiff for said D., were not necessary goods, wares and merchandises, work and labor, materials and things sold, delivered, done, found, and provided by the plaintiff for wearing apparsaid D., and suitable to the estate and degree of said D., and that el and clothes said money in said declaration mentioned to have been paid, laid in said replicaout, and expended by the plaintiff for the use of said D., was not tioned were money paid, laid out, and expended by said plaintiff for the buying not necessary and providing for said D., things necessary for said D., suitable for for the said Ď., and fitting to his estate and degree, as the plaintiff hath above in his said repli- his degree, nor cation alleged; and of this he puts himself upon the country. 3 were the Went. 99, 100. tion first men and work therein men tioned necessary for said D. and fitting to his degree, nor were the clothes and wearing appar el in said replication secondly mentioned, necessary for the said D. and fitting his degree, nor were the clothes and wearing apparel in said replication lastly mentioned necessary for said D. and fitting to his degree, in manner and form as the plaintiff in his replication aforesaid hath above alleged; and of this he puts &c." See above, 3 Morg. Ass. pl. 9, 10. The first part of the replication was labor and work; second, goods sold and delivered; third, money laid out &c., in and about the purchase of divers other clothes and wearing apparel necessary for said D. &c. and materials cessary in and about said said declaration mention work used, in REPLICATION. And the said plaintiff says, that he, notwithstanding Replication. any thing by the said D. above in pleading alleged, ought not to be Necessaries, precluded from his action aforesaid against said D., because he () Quære, if says (b) that the said $30 by the plaintiff for said D., laid out and be concisely it might not expended, and the said tailor's work by said D. done and perform- said, "that the ed, together with the materials and things necessary in and about money, work, that work used, and by the plaintiff for said D. in form aforesaid and things nefound and provided, were laid out, expended, done and performed, found and provided for the necessary apparel and clothing of the said D., his degree requiring the same: and this he is ready to verify: Wherefore he prays judgment, and his damages aforesaid to be adjudged to him, &c. E. NORTHEY. REJOINDER. And the said D. says, that the said $30 by the the said D. and plaintiff laid out and expended, and the said tailor's work by him degree," &c. done and performed, together with the materials and things neces- Rejoinder. Not sary in and about that work, and by the plaintiff in form aforesaid necessaries. found and provided, were not for the necessary apparel and clothing of the body of said D. in manner and form as the plaintiff above in replying thereto hath alleged; and of this he puts himself upon country. 1 Lilly, Ent. 107. F. PEMBERTON. the ed, were necessaries for suitable to his of full age at REPLICATION. And (c) the plaintiff, as to the plea of the said Replication. D. by him above pleaded saith, that he, the plaintiff, ought not to be That dft. was barred from having or maintaining his action aforesaid thereof against the time of said D., because he saith, that the said D., at the time of making promise. the promises in said declaration mentioned, was of the full age of (c) And the twenty-one years, and not within the age of twenty-one years, in plts. say, that they, by any manner and form as the said D. hath in his said plea alleged; and this thing by said he prays may be inquired of by the country. 3 Morg. Assum. pl. 12. D. above alleg ed, ought not to be barred from having their aforesaid action, because they say, that the said D. at the said time of the several promises in said declaration above specified, was of the full age of twenty-one years and more, and not within the age of twenty-years, in manner and form as the said D. hath above in pleading alleged, &c." 2 Saund. 211. |