by the other tenants as well as by B.(ƒ) And an acknowledgment of a debt (due to the plaintiff) in a deed to third persons, and to which the plaintiff was a stranger, was held sufficient to defeat the operation of the act (g). In an action against A., on the joint and several promissory note of himself and B., to take the case out of the statute, it was considered sufficient to give in evidence a letter written by A. to B. within six years, desiring him to settle the demand (); but an acknowledgment by the acceptor of a bill of exchange, within six years, of his liability on the bill to the payee thereof, but accompanied with a declaration that he was not liable to the drawer, there being no consideration for the acceptance, was held not to be sufficient, in an action by the latter against the acceptor, to take the case out of the statute; for the admission could not enure to the benefit of a party whose claim the defendant denied (i).

Payment of interest to the administrator of the payee of a note is sufficient to take the case out of the statute of limitations, though the letters of administration were not obtained in the diocese in which the note was bonum notabilium (k). And where trustees under a will lent the trust fund to the defendant, and took from him a promissory note for the amount with interest, describing them as trustees, it was held that the payment within six years of part of the principal and interest due on the note to one of the cestui que trusts and legatees was sufficient to prevent the statute of limitations from operating against the note (7).

4. Of issuing and continuing a Writ to save the Statute. By the uniformity of process act, 2 W. 4, c. 39, s. 10, it is provided, "That no writ issued by authority of this act shall be in force for more than four calendar months from the day of the date thereof, including the day of such date; but every writ of summons and capias (m) may be continued by alias and pluries, as the case may require, if any defendant therein named may not have been arrested thereon or served therewith: provided always,

(f) Clarke v. Hougham, 2 B. & C. 149; 3 D. & R. 322, S. C.

(g) Mountstephen v. Brooke, S B. & Al. 141.

(h) Halliday v. Ward, 3 Camp. 32. (i) Easterly v. Pullen, 3 Stark. R. 186.

(k) Clarke v. Hooper, 4 M. & Scott,

353; 10 Bing. 480.

(1) Megginson v. Harper, 2 C. & M. 322; 4 Tyr. 94, S. C.

(m) All personal actions must now be commenced by writ of summons, 1 & 2 Vic. c. 110, s. 2, and see Thompson v. Dicas, 1 C. & M. 768.

that no first writ shall be available to prevent the operation of any statute, whereby the time for the commencement of the action may be limited, unless the defendant should be arrested thereon or served therewith, or proceedings to or toward outlawry should be had thereupon; or unless such writ, and every writ (if any), issued in continuation of a preceding writ, shall be returned non est inventus, and entered of record, within one calendar montk next after the expiration thereof, including the day of such expiration; and unless every writ issued in continuation of a preceding writ shall be issued within one such calendar month after the expiration of the preceding writ, and shall contain a memorandum indorsed thereon or subscribed thereto, specifying the day of the date of the first writ, such (n) return to be made in bailable process by the sheriff or other officer to whom the writ shall be directed, or his successor in office; and in process not bailable, by the plaintiff or his attorney suing out the same, as the case may be (o)."

The form of the Issue and Record refers to the summons issued against the defendant in the cause, and states the time when the writ (p) was issued; and the date there stated is conclusive. This dispenses with the necessity of producing the process at the trial, to show when the action was commenced: the fact will appear on the face of the record.

If a plaint be levied in an inferior court in due time, and then it be removed into the King's Bench by Habeas Corpus, and the plaintiff declare there de novo, and the defendant plead the statute, the plaintiff may reply and show the plaint in the inferior court, and that will be sufficient to avoid the statute (q).

5. Of the Pleadings and Evidence in these Cases.

In general where the debt is revived by an absolute acknowledgment within six years, it is sufficient to declare upon the original promise (r); for in such case the subsequent promise and original promise agree together. And where the original right of action

(n) In the act, as printed, the word "and" has here been inserted in mistake instead of the word "such."

(0) See the practice, 2 Chitty's Arch. Pr. 922, 923; see the form of the entry in Tidd's Forms, 8th ed. 30; T. Chitty's Pr. Forms, 539, 540.

(p) The form requires that the date of the first writ be mentioned.

(9) Bevin v. Chapman, 1 Sid. 228;

1 Lev. 143, S. C.; Matthews v. Phillips, Ld. Raym. 553; 2 Salk. 424; Brown v. Babbington, 2 Ld. Raym. 881; Storey v. Atkins, Stra. 719; 2 Ld. Raym. 1427, S. C.; Tidd, 9th ed. 27, 8.

(r) Leaper v. Tatton, 16 East, 420; Upton v. Else, 12 Moore, 303; and see 9 G. 4, c. 14, and 3 & 4 W. 4, c. 42, ante, 813.

is suspended by agreement to pay in a particular manner, on breach of the agreement, the plaintiff may declare for the original debt, although it would have been barred by the statute, but for payments made under the agreement (s). There are, however, some instances in which the declaration should be specially framed upon the defendant's subsequent promise or acknowledgment, as where the defendant promises conditionally to pay the money, as" when he shall be able," or "when applied to," &c. (t). So, if an attorney promise within six years to pay the plaintiff money he had expended or lost in consequence of the defendant's negligence more than six years before the commencement of the suit, the declaration should be drawn upon the defendant's subsequent promise to make satisfaction to the plaintiff, and not for the original neglect, otherwise the statute will be a bar(u). And where the plaintiff employed the defendant in 1808 to lay out money for him in the purchase of an annuity, and discovered in February, 1814, that the security provided by the defendant was void, within the defendant's own knowledge, at the time of the purchase; and in January, 1820, the plaintiff sued the defendant in assumpsit, for the breach of the implied promise to provide good security; it was held that as the action proceeded upon the contract, and not upon the fraud, the statute was a good bar (x).

If it be anticipated that the statute will be pleaded to an action at the suit of an executor, or the assignee of a bankrupt, &c., for a debt due to the testator or bankrupt, and there be a probability of defeating the plea by proving a sufficient subsequent promise or acknowledgment to the plaintiff in his representative character, the declaration should contain a count laying a promise to the plaintiff in such capacity (y). Upon a count on a promise to the testator or bankrupt, a promise or acknowledgment to the executor or assignee could not be given in evidence (y). And in an action of assumpsit against a husband and wife and A., laying only a promise" by her and A. before marriage," no acknowledgment by A. after the marriage can be given in evidence (z).

(s) Irving v. Veitch, 3 M. & W. 90. (t) See ante, 827, 834.

(u) Short v. M'Carthy, 3 B. & Al. 626; Whitehead v. Howard, 5 Moore, 105; 2 Brod. & B. 372, S. C.

(x) Brown v. Howard, 2 Brod. & B. 73; 4 Moore, 508, S. C. ante, 817.

(y) Sarell v. Wine, 3 East, 409; Ward v. Hunter, 6 Taunt. 210; 1 B.

& C. 249, 251; 2 D. & R. 368, 370, S. C.; Upton v. Else, 12 Moore, 304, per Guselee, J.

(2) Pittam v. Foster, 1 B. & C. 248; 2 D. & R. 363, S. C.; and yet the declaration cannot contain a count on a promise by the husband and wife after the coverture; Morris v. Norfolk, 1 Taunt. 212.

The statute must be specially pleaded. It forms no defence under the general issue (a). We have however seen, that the jury, from lapse of time and other circumstances, may presume that the debt has been satisfied (b).

There are two modes of pleading the statute. The first is, that the defendant "did not within six years next before the commencement of this suit (c) undertake or promise," in manner and form, &c. The second is, that "the supposed causes of action did not accrue within six years next before," &c. The first form evidently does not apply, and is demurrable if used in an action upon promises to pay money or to do any act at a future period; in other words, upon contracts whereon a cause of action does not immediately accrue upon the promise (d). The second form is appropriate in every instance, and is the most preferable mode of pleading the act (e).

This plea may be pleaded with the general issue, or any other plea; and is a fair issuable plea: it must conclude with a verification (f), and should be signed by counsel.

A plea that the debt, if any such there be, did not accrue within six years is bad, as an argumentative denial of the debt (g).

The Replication is, in general, a mere traverse or denial of the plea; as that the cause of action did accrue within six years (h); or that the defendant did promise within that period.

(a) Gould v. Johnson, Salk. 178; Draper v. Glassop, Ld. Raym. 153, 838; 2 Saund. 63, note (6).

(b) Ante, 748, 749.

(c) In the King's Bench by bill, and in the Exchequer, it was usual to plead that the defendant did not promise, or the causes of action did not accrue, within six years "before the exhibiting of the bill." But the plea now in use states that the causes of action did not accrue within six years "before the commencement of the suit;" because the writ is in all the courts at the present day the commencement of the action; 1 & 2 Vict. c. 110, s. 2. It follows that a replication specially showing the writ is now unnecessary; and see Dickinson v. Teague, 1 C., M. & R. 243.

(d) 1 Saund. 33, note (2), 283, note (2); 2 Saund. 63 c, (6); Leuper v. Tatton, 16 East, 421.

(e) It is proper though the declaration give credit for a part payment within six years; Hollis v. Palmer, 2

(f) Wheatley v. Williams, 1 M. & W. 53S.

(g) Margetts v. Boys, 4 Ad. & E. 489; 6 Nev. & Man. 228.

(h) See Chitty, jun., Precedents in Pleading, 345; Murray v. Eust India Company, 5 B. & Al. 215, 216. Where there are pleas of the general issue and the statute of limitations, and the plaintiff take issue on both of them, and no evidence is given by defendant in support of his first plea, the plaintiff must, in the affirmative terms of his replication, show that the debt was contracted within six years; or that there has been a part payment or an acknowledgment in writing to take the debt out of the operation of the statute, Wilby v. Henman, 2 C. & M 658; 4 Tyr. 957, S. C.

The exceptions in the statutes (i) should be specially replied (j). Nor can fraud (k) be set up as an answer to the statute, if the declaration be not founded thereon, and the replication contain a mere traverse of the plea (7).

It was held that by paying money into court generally upon the ordinary rule, on the common count for goods sold, &c., the defendant did not exclude himself from the benefit of the statute with respect to the remainder of the plaintiff's demand upon that count (m).

A set-off means a cross debt, for which an action might be maintained by the defendant against the plaintiff; and is very different from a mere right to a reduction of his demand or claim to defeat it, on account of some matter connected therewith. Thus the defendant may show, without the aid of the statute of set-off, that the sum sought to be recovered was incurred in satisfaction of a claim which he had on the plaintiff (a). So if it be agreed between a master and servant, that the latter shall pay out of his wages for all goods lost by his negligence, the value of goods thus lost may, in an action for wages, be deducted therefrom by virtue of the agreement (b). So in an action to recover money for dyeing goods, the defendant may, at common law,

tain sum, and afterwards B. purchase some of the materials for A., which are worked up by A., the money expended by B. on that account must be set off, and cannot be given in evidence under the general issue. It is also necessary to plead a set-off, although the plaintiff has in an account given credit for the goods sold by the defendant to the plaintiff, such account not being final or settled, and no balance being struck; Fothergill v. Jones, 1 C. & P. 133.

(b) Le Loir v. Bristow, 4 Campb.

134.