are allowed in equity to be confirmed, but not such as are actually void.

An infant cannot be bound by a submission to arbitration *.

4. Payment.

4. Payment. To an action of assumpsit the defendant may plead matter of discharge ex post facto, as payment before action brought, but this defence may be and generally is given in evidence under the general issue.

Indebitatus assumpsit for goods sold: plea, payment; special demurrer, because the plea amounted to the general issue; but per Cur. it admits at one time a good cause of action (80) in the plaintiff, and excuses it by matter er post facto, and therefore is a good plea.

A person who is indebted to another on several accounts, may, at the time of payment, apply the money to which ever account he thinks proper; and his election so to do may either be expressed, or may be inferred from the circumstances of the transaction; but if the party paying does not make such election, the receiver may apply it as he pleases* (81).

The mere production of a bill of exchange from the custody of the acceptor is not presumptive evidence of payment, unless it be shewn that the bill was once in circulation after being accepted'. Nor is payment to be presumed from a receipt indorsed on the bill, unless it can be shewn

x Anon, B. R. Hil. 55 Gen. 3.

y Vanhatton v. Morse, Ld. Raym. 787. z Newmarch v. Clay, 14 East, 239. Agreed per cur. Peters v. Andersou, 5 Taunt. 596.

a Bowes v. Lucas, B. R. M. 11 G. 2.

Andr. 55. Goddard v. Cox, Str. 1194.
See 2 Vern. 607. S. P. per Ld. Cowp.
Ch, and Peters v. Anderson, 5 Taunt.
596.

b Pfiel v. Vanbatenberg, 2 Camp. N.
P. C. 439.

(80) "It is generally true, that a plea, which admits that there was once a cause of action, does not amount to the general issue." Per Holt, C. J. in Brown v. Cornish, Ld. Raym. 217.

In pleading a plea of payment, the defendant ought to plead actio. non. and not onerari non debet, for he allows the promise to be a good promise, but avoids it by matter of discharge ex post facto; per Holt, C. J. ibid.

(81) The defendant owed money on two bonds, and paid money on account, but gave no directions to which he would have it applied; and upon a case reserved, it was determined, that the plaintiff had the election. Bloss v. Cutting, cited in 2 Str. 1194.

that the receipt is in the handwriting of a person entitled to demand payment.

5. Release.

5. Release.-Defendant may plead a release after promise, and before action brought, specially (82), or give it in evidence under the general issue. The usual replication to a plea of release is non est factum (83).

A release, upon performance of the promise in part*, quoad hoc, will not discharge the promise for the residue.

If after the last continuance the plaintiff give the defendant a release, he may plead it in barf; such plea is called a plea puis darrein continuance: as it is pleaded sometimes at the assizes, the following form may be useful:

"And now at this day, to wit, on the

in the

day of year of the reign of our "Sovereign Lord George the Third by the grace of God, "&c. before A. B. and C. D., justices of our Lord the now King, appointed to take the assizes in and for the "county of G. aforesaid, at in the county of "G. aforesaid, comes the said H. J., by J. S. his counsel, "and says that the said E. F. ought not further (84) to "maintain his action against the said H. J., because he says "that after the making the said several supposed promises "and undertakings in the said declaration mentioned, and "after the last continuance of the aforesaid plea, that is,

c S. C.

d Miller v. Aris, ante. p. 115. Hawley v. Peacock, 2 Camp. N. P. C. 558. S. P.

e 2 Roll. Abr. 413. 1. 2. adjudged. f Bull. N. P. 309.

(82) See the form, Clerk's Assist. p. 257, 258. 2 Rich. P. B. R. p. 43. third edition.

(83) 2 Rich, Pr. B. R. p. 44.

(84) "This seems to be the proper way of pleading a collateral thing, which happens after the action brought; for by this it admits that the action was well brought, but that the plaintiff by reason of the new matter ought not to proceed further in it." Campion v. Baker, Lutw. 1143. "Since the case of Evans v. Prosser, 3 T. R. 186. it may be considered as a settled rule of pleading, that no matter of defence arising after action brought can properly be pleaded in bar of the action generally." Per Lord Ellenborough, C. J. in Le Bret v. Papillon, 4 East's R. 507.

day of
day of

last past, from which in Mich. Term next

"(unless the justices of our Lord the King assigned to "hold the assizes of our Lord the King in and for the county of G. should first come on the

66

day of

"at in the said county of G.) the action afore"said is continued, to wit, on, &c. (86) at, &c. the said "E. F. by his deed, dated, &c. did release," and so shew the particular matter, and conclude, "And this he is ready to verify, wherefore he prays judgment if the said E. F. ought further to maintain this action against him, &c."

66

66

It is the constant experience at the assizes to put the party to verify a plea puis darrein continuance, before it is allowed; and if the party does not give some evidence of the truth of it, the judge will reject it, and go on with the

cause.

The same certainty is required in this, as in other pleas.

A plea puis darrein continuance may be pleaded at nisi prius, although there has been time to plead it in bank since the last continuance. If it be verified by an affidavit which refers to the plea, and the plea is in the cause, the affidavit is sufficient, though not specially entitled in the cause*.

If the jury be not taken at the day of Nisi Prius, a release is pleadable after the last continuance at the day in bank', although it be not offered at Nisi Prius; but otherwise it is, if the jury be taken.

1. Statute of Limitations.-By stat. 21 Jac. 1. c. 16. § 3. all actions upon the case (other than slander) shall be commenced and sued within six years next after the cause of such actions, and not after.

(85) The day of the return of the venire facias.

(86) The defendant must allege precisely the very day, time, and

place. Per Cur. Yelv. 141.

K

Advantage must be taken of this statute by pleading it", (87) although it should appear on the face of the declaration that the cause of action did not arise within six years before the commencement of the action; and the defendant will not be permitted to give it in evidence on the general issue, non assumpsit.

There are two forms in which this statute is usually pleaded:

1. That the defendant did not at any time within six years next before the commencement of the plaintiff's action, undertake or promise, &c.

2. That the cause or causes (if more than one) of action mentioned in the declaration, did not accrue at any time within six years next before the commencement of the plaintiff's action, &c.

The first form is proper in actions of indebitatus assumpsit for goods sold and delivered, money lent, and the like, where the consideration is executed.

In an indebitatus assumpsit", on a promise to pay on demand, the defendant pleaded non assumpsit infra sex annos; the plaintiff demurred, on the ground that nothing was due until demand, and therefore defendant should have pleaded non assumpsit infra sex annos after demand, or that no de

m Puckle v. Moor, 1 Vent. 191. Lee n Collins v. v. Rogers, 1 Lev. 110.

Benning, 12 Mod. 444.

(87) Different reasons are assigned for this which seems to be an exception to the general rule, that where it is required by statute, that an action shall be commenced within a limited time, it is incumbent on the plaintiff to prove that he has complied with the terms of the statute. In an anonymous case in Salk. p. 278. Holt, C. J. said, that the statute of limitations could not be given in evidence on non assumpsit, because that plea spoke of a time past, and related to the time of making the promise, but that on nil debet it might; and in Draper v. Glassop (Ld. Raym. 153.) he expressed the same opinion.

In Gould v. Johnson (Ld. Raym. 838.) it was said by the court, that the statute ought to be pleaded, because an original might have been sued out within six years, and therefore the defendant should plead the statute, to the end that the plaintiff might have an opportunity to reply such matter. A different reason is assigned by Mr. Serjeant Williams, in an elaborate note on this subject in the second vol. of his edition of Saunders, p. 63 b. and 63 c. to which, on account of its length, I must refer the reader.

mand was made within six years: But per Cur. If the promise were for a collateral thing, which would not create any debt until demand, it might be so; but here, it is an indebitatus assumpsit, which shews a debt at the time of the promise, therefore the plea is good.

The second form, viz. that the cause of action did not accrue within six years, may be adopted with safety in all cases, but is more peculiarly applicable to the cases of actions brought for breach of promises founded on collateral and executory considerations, in which cases the first form would be improper, as will appear from the following case:

The declaration stated, that, in consideration that the plaintiff would receive A. and B. into his house as guests, and diet them°, the defendant promised, &c. Plea, non assumpsit infra sex annos, to which the plaintiff demurred: judgment for the plaintiff in the Common Pleas: on error in B. R. it was agreed by that court that the plea was ill: for this being an executory collateral promise, the defendant. cannot plead non assumpsit infra sex annos, but should have pleaded causa actionis non accrevit infra sex annos; for, if the cause of action accrued within six years, it was immaterial when the promise was made.

The plea of the statute of limitations may be pleaded to an action brought on a bill of exchange, because it is not a specialty P; and to an action brought by an attorney for his fees, because the fees are not of record. A promissory note payable on demand, is payable immediately; and the statute of limitations runs from the date of the note, and not from the time of demand.

To the plea of non assumpsit infra sex annos the plaintiff may tender an issues, that defendant did promise within six years, and this issue will be supported by evidence of an express promise (SS) made by defendant within six years before action brought: for it has been holden, that this statute does not extinguish the plaintiff's right of action, but suspends the remedy only, and that this suspension is

o Gould v. Johnson, Ld. Raym. 838. and 2 Salk. 422.

p Renew v. Axton, Carth, 3.

q Oliver v Thomas, 3 Lev. 367.

r Christie v. Fonsick, C. B. London Sittings after M. T. 52 G. 3. Sir J. Mansfield, C J. M. S.

s Dickson v. Thomson, 2 Show. 126.

(88) "Doubtless an express promise will revive the debt, though it were twenty years after." Per Holt, C. J. in Hyleing v. Hastings, Lord Raym. 389.