cause of action, the replication was holden bad on demurrer; for the attachment of privilege was a writ of a different nature from a bill of Middlesex, not bearing any analogy to it; and consequently was not a continuance of the former suit. If a latitat is sued out after the expiration of six years, but bearing teste before, and the plaintiff in his replication states the latitat to have been sued out on the day on which it bears teste, the defendant, in his rejoinder, may shew the real day on which the latitat was sued out, and aver that he did not promise within six years next before that day. If an action be commenced in an inferior court, and then removed by habeas corpus into the King's Bench, where the plaintiff declares de novo, and the defendant pleads the statute of limitations, the plaintiff may reply the suit below and shew that to have been commenced within six years of the cause of action. And in Story v. Atkins, 2 Str. 719. where the declaration in the inferior court was indebitatus assumpsit for money due, and the declaration in the superior court was a special assumpsit on a promissory note, yet the plaintiff in his replication having averred, that the declaration in the superior court was for the same cause of action as that for which plaintiff had levied his plaint below, it was holden sufficient to bar defendant's plea of the statute of limitations.

The replication must state that the cause of action, accrued within six years next before the suing forth of the writ; for where, in assumpsit, by an executor on promises to the testator, the defendant pleaded the statute, and the plaintiff replied, that the writ was sued out on such a day, and within six years before the suing out thereof, letters testamentary were granted to the plaintiff; on special demurrer, assigning for cause, that the plaintiff had not alleged positively that the cause of action accrued within six years before the suing forth of the writ, the replication was holden bad; the court observing, that the time of limitation must be computed from the time when the action first accrued to the testator, and not from the time of proving the will; that the proving the will did not give any new cause of action, and consequently the time, when it was done, was immaterial. So where to assumpsit brought by the assignee of a bankrupt, defendant pleaded the statute of limitations; the plaintiff replied the bankruptcy and assignment, and that the cause of

e Johnson v. Smith, 2 Burr. 950.
f Bevin v. Chapman, 1 Sid. 228. and
Matthews v. Phillips, Salk. 424. S. P.

g Hickman v. Walker, Willes, 27. h Gray v. Mendez, 1 Str. 556.

action arose within six years next before the assignment; on demurrer, the replication was holden bad: the court observing, that the statute would be defeated as to all simple contracts, if an assignment, at the end of five years and a half, was to set all at large again.

By stat. 21 Jac. 1. c. 16. s. 4. it is enacted, "that if judgment be given for the plaintiff and reversed by error, or the judgment be arrested, or if the defendant be outlawed, and the outlawry reversed; the plaintiff, his heirs, executors, or administrators, may commence a new action or suit from time to time within a year, after such judgment given or outlawry reversed."

It has been said, that within the equity of the preceding section, the courts have permitted an executor or administrator within a year (95) after the death of the tastator or

(95) I am not aware of any case in which this point has been expressly decided, or in which it has been holden, that an executor or administrator must bring his action within a year. In Buller's N. P. p. 150. is the following position: "If an executor take out proper process within a year after the death of his testator, if the six years were not lapsed before the death of the testator, though they be lapsed within that year, yet it will be sufficient to take it out of the third section of the statute of limitations by the equity of the fourth section." The authority cited for this position is Cawer v. James, probably the same case as is reported in Willes, 255. by the name of Karver v. James; but in Willes's Report, the position as laid down by Buller seems rather to have been admitted than expressly determined. In like manner in Wilcocks v. Huggins, Str. 907. and Fitzg. 170, 289. it seems to have been taken for granted. From the language, however, of Lee, J. in the last-mentioned case, it may be inferred that at that time no fixed period, within which the executor or administrator might bring the action, had been established. His words are*, "In the contingency that has happened, the statute does not limit any time for the executor to bring his action; but there is a clause that provides (where a judgment is reversed after the six years) one year after the reversal for the plaintiff to bring a new action, which may be a direction with regard to the reasonableness of the time to be allowed an executor or administrator in the present contingency." It is observable also, that in Wilcox v. Huggins, Fitzg. 171. a case (Lethbridge v. Chapman) was cited, where an administrator brought his action fourteen months after the intestate's death, and recovered and in Wilcox v. Huggins, (where the action was brought by the executor of an executor in right of the first testator more than four years after the death of the first executor,) it was

* Fitzg. 172.

intestate, to renew a suit commenced by the testator or intestate.

To an action of indebitatus assumpsit1 brought by an exe cutor for business done by his testator, the defendant pleaded the statute of limitations. Replication, an attachment of privilege sued out returnable in eight days of the purifica tion. Special demurrer, because the attachment was alleged to have been returnable on a general return day, instead of a day certain: the court overruled the demurrer, observing that the writ, though informal was sufficient to bar the statute; for if the cause had proceeded, and plaintiff had recovered, and afterwards judgment had been reversed or arrested for this irregularity, the plaintiff, by the 4th section would have had a year's time to proceed in a new action which shewed the spirit of the statute to be, that alsuit actul

i Leadbeter v. Markland, 2 Bl. Rep. 1131.

admitted by the court, that if the second executor had been retarded by suits about the will or administration, it would have altered the case, because then the neglect would have been accounted for. Perhaps the only rule that can be laid down with safety is, that the executor or administrator must bring his action within a reasonable time. This rule receives some sanction from the following observations of the judges in Wilcox v. Huggins, Fitzg. 290. Raymond, C. J. "It might be too harsh a construction to say, that the debt becomes irrecoverable by an abatement of the action, after the six years elapsed, by the plaintiff's death; but then the executor, to bring his case within the equity of the statute, must make a recent prosecution, as to which, the clause in the statute that provides a year after the reversal of a judgment, &c. may be a good direction." Page, Justice: Such a recent prosecution is to be made as will shew the party came as early as he might. If there had been a contest about the will or the right of administration, that should have been pleaded in excuse of the delay." Probyn, J. Nothing hath been disclosed to shew why the action was not brought sooner. If a reasonable cause had been shewn, it might bring the action within the notion of a recent prosecution, though it had been brought after the year." Lee J. "I think it should be in the nature of Journey's Accompts, which is a taking up and pursuing the old action in a reasonable time, which is to be discussed by the discretion of the justices, 6 Co. Spencer's case; and, by the same rule, I think what is or is not a recent prosecution, in a case of this nature, is to be determined by the discretion of the court from the circumstances of the case, but generally the year in the stat. is a good direction."

46

ally begun, however informally or irregularly, was sufficient to bar the statute (96.)

Exceptions in the case of Infancy, &c.-By the 7th section of stat. 21 Jac. I. c. 16. "If any person entitled to such action of trespass, detinue, trover, replevin, actions of account, debt, trespass for assault, menace, battery, wounding, or imprisonment, actions upon the case for words, shall be, at the time of such cause of action accrued, within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, such person shall be at liberty to bring the same actions within such times as are before limited after their being of full age, discovert, of sane me

mory, at large, and returned from beyond the seas."ty Fly Me Wh An action of assumpsit, although it is not expressly menGreat Brotame or tioned, is within the equity of the preceding clause. To a plea of the statute of limitations', the plaintiff replied, that he was resident in foreign parts out of the kingdom of England, viz. at Glasgow in Scotland: on demurrer, this replication was holden bad, because the plaintiff must be beyond the seas (97.) If the plaintiff is a foreigner, living beyond the sea at the time when the cause of action accrues, and doth not come to England for 50 years, he still has six years after his coming to England to bring an action of assumpsit; and if he never comes to England, his right of action is not barred either against him or his executors or administrators after his death. Hence a replication (to a plea of the statute of limitations) that the plaintiff was beyond sea at the time when the cause of action accrued, and that he hath ever since been and still is abroad, was holden good, on demurrer. If the plaintiff be in England when the cause of action accrues", the time of limitation begins to run, and a reland

k Chandler v. Velett, 2 Saund. 120. and Rochtschilt v. Leibman, 2 Str. 836. and Fitzgib. 81.

1 King v. Walker, Bl. R. 286.
m Strithorst v. Grame, 2 Bl. R. 723.
n Smith v. Hill, 1 Wils. 134.

(96) So where the plaintiff had levied a plaint, and declared in an inferior court, and the cause had been removed by habeas corpus into the Court of King's Bench, where the plaintiff declared de novo: an objection having been made to the declaration in the inferior court, Raymond, C. J. said, that although the declaration in the court below should be ill, yet if the plaint were regular, it was sufficient to prevent the operation of the statute. Story v. Atkins, 2 Str. 725.

(97) It was holden by Holt, C. J. upon consideration, that Dublin, or any place in Ireland, was beyond the sea, within the meaning of this statute. Anon. 1,Show, 91.

+ Farland nor the Islands of mom. glands of enom quentry Josey Aldomeny

+ Sark hot any Iflareds adjacent to any of them!

thaft to decine & to lead and will bearing

of the act or of the act of th
of 21 Jact 162

subsequent departure from the kingdom and going beyond the seas, will not entitle the plaintiff or his representative to maintain an action after the expiration of the limited time (98.) So if there are several partners and some are in England at the time when the cause of action accrues, and others beyond the seas, the action must be brought within six years next after the cause of action accrues, notwithstanding the absence of the partners beyond the seas.

Before the statute of Ann, hereinafter mentioned, it was holden, that the exception in the 7th section of the stat. 21 Jac. 1. c. 16. as to persons being beyond the seas, extended only to the case of plaintiffs so absent, and not to that of defendants; 1st. because plaintiffs only are mentioned in the statute of James; and 2dly, because the plaintiffs might have filed an original, and outlawed the debtor, which would have prevented the bar of the statute. But now, by stat. 4 Ann. c. 16. s. 199, "If any person, against whom there is any cause of action for seaman's wages, or of action upon the case, shall be, at the time of such cause of action, accrued beyond the seas, the person entitled to the action may bring the same against such person after his return from beyond the seas, within the time limited by the 21 Jac. 1. c. 16." To a plea of the statute it is sufficient to reply that the defendant was in the East Indies, at the time the cause of action accrued, and that the plaintiff commenced his suit against the defendant within six years next after his return to this kingdom; and it is no answer to this replication to say, that the defendant remained more than six years in India after the cause of action accrued there, and within the jurisdiction of the supreme court at Calcutta in that country.

2. Statute of Set-off-At common law, if the plaintiff was indebted to the defendant, in as much or even more than the defendant owed to him, yet the defendant had not any method of setting off such debt in the action brought by the

o Perry and others v. Jackson, 4 T. R.

516.

q Several other actions are mentioned in this statute.

p Hall v. Wyburn, Carth. 136. and r Williams v. Jones, 13 East, 439. Chevely v. Bond, Carth. 226.

(98) So when a disability is once removed, and the statute has begun to run, no subsequent disability will stop the running. See the opinion of Lord Kenyon, C. J. in Doe dem. Duroure v. Jones, 4 T. R. 311, where that learned judge speaks of the uniform construction of all the statutes of limitation in this respect. See also Gray v. Mendez, Str. 556, and Doe. d. Griggs v. Shaen, B. R. M. 28 G. 3. MS. S. P.