from the time at which the plaintiff is damnified by actual payment.(j)1

If a bill be dishonored by non-acceptance, and afterwards by non-payment, the statute runs from the refusal to accept.(k)

Fourthly, as to the period up to which the time of limitation is computed.2

The words of the statute 21 Jac. 1, c. 16, s. 3, are, all actions of trespass, etc., shall be commenced and sued within six years, etc.

Therefore, when, according to the old practice, writs bore teste of a day before the day of issuing them, it was held that the time within which the action should be brought must be computed not to the teste but to the issuing of the writ.(1)

At present no difficulty on this subject can exist, as the date and teste of a writ are the same.(m)

Where an action is commenced in an inferior court and removed

(j) Reynolds v. Doyle, 1 M. & G. 753 (39 E. C. L. R.); Collinge v. Heywood, 9 Ad. & E. 633 (36 E. C. L. R.); but see Webster v. Kirk, 17 Q. B. 944 (79 E. C. L. R.).

(k) Whitehead v. Walker, 9 M. & W. 506.

(1) Johnson v. Smith, 2 Burr. 950.

(m) 2 Will. 4, c. 49, s. 12.

1 When a surety on a promissory note pays it before maturity, his cause of action accrues against the principal for indemnity only when the note becomes payable: Tillotson v. Rose, 11 Metc. 299; Farmers' Bank v. Gibson, 6 Barr 57; Jackson v. Adamson, 7 Blackford 597. Where one not a party to a note divides with the maker the consideration for which it was given, promising the maker to pay his half of the amount when the note becomes due, the statute will begin to run in bar of a suit for a breach of this promise, as soon as the note becomes due and unpaid; nor will its subsequent payment in full, by the maker, raise an implied assumpsit to him by the party who made such promise for money paid and advanced: Joiner v. Perry, 1 Strobhart 76. Interest is never barred till the principal is. Thus, if interest is payable yearly on a note having several years to run, the statute does not begin against the interest until the principal is due: Grafton Bank v. Doe19 Vermont 463.

2 The day on which the cause of action accrued is to be included, as an action might have been commenced on that day: Presbrey v. Williams, 15 Mass. 193. In computing time under the statute, the first day is to be excluded, and the last to be included: Smith v. Cassity, 9 B. Monroe 496.

into a superior court, the time of limitation is to be computed only to the commencement of the action in the inferior court.(n)

To bar a set-off, the six years must have expired before action brought.(0) *When the statute once begins to run, it never stops, [*349] except in the cases mentioned in the fourth section, although circumstances should arise in which it is impossible to sue, as if, for example, the debtor die before action, and no executor be appointed.(p)

But where an action has been commenced in time, and then the plaintiff dies, and the period of limitation has expired, the courts, by a strained construction of the statute, have allowed the personal representative to commence another action within a year from the plaintiff's death.

And where the defendant dies, a year is also given, and a year from the grant of administration where there is no executor. In the case of the defendant's death, the allowance of a year rests not only on the analogy to the case of a plaintiff, but also upon the general rule that where an action abates by the act of God, the same plaintiff may have a new writ by journeys accounts.(g) But now the action is not abated by marriage, death or bankruptcy of any party, if the cause of action survives, but the successor in interest, or such other parties as the court or a judge think fit, may be joined.(r)

Fifthly, as to the mode in which the operation of the statute may be obviated by issuing a writ and continuing it down.

According to the old practice, the plaintiff might issue a writ, and without serving it on the defendant keep it in his pocket, and get it returned at any time within the six years, (8) then file it (for it must have been filed),(t) and enter continuances at any time down

(n) Bevin v. Chapman, 1 Sid. 228; Matthews v. Phillips, 2 Salk. 244. (0) Walker v. Clements, 15 Q. B. 1046 (69 E. C. L. R.).

(p) Rhodes v. Smethurst, 4 M. & W. 42; affirmed in error, 6 M. & W. 351; post, 362.

(q) Curlewis v. Lord Mornington, in error, 27 L. J., Q. B. 439.

(r) Ord. L. rules 1-4.

(s) Taylor v. Hipkins, 5 B. & Al. 489 (7 E. C. L. R.).

(t) Harris v. Woolford, 6 T. R. 617.

to the writ on which the appearance was, and, by replying the writ with the continuances, obviate the effect of the statute.(u)1

But this practice was abolished by the Uniformity of Process Act.(v) By that act no first writ affects the operation of the statute, unless the defendant has been arrested *or served with [*350] it, or proceedings of outlawry have been had upon it, or unless the writ and every continuing writ has been returned non est inventus, and entered of record within one calendar month from its expiration; and each succeeding writ must issue within a month of the expiration of the preceding, and contain a memorandum(v) specifying the date of the first writ. The return of bailable process was to be made by the sheriff; of non-bailable, by the plaintiff or his attorney.

By the 15 & 16 Vict. c. 76, ss. 11, 12, the writ was to be renewed every six months, and the original writ marked with a seal bearing the date of renewal; but by Ord. VIII. r. 1, a writ is to be in force for twelve months, and a renewed writ for six months from date of renewal.

A bill in equity, filed by one creditor on behalf of himself and the other creditors, will prevent the Statute of Limitations from running against any of the creditors who come in under the decree.(w)

Sixthly, as to the saving clause in favor of infants, married women, lunatics, persons imprisoned or beyond seas.

An infant would have been bound had he not been expressly ex

(u) The first instance of a latitat replied as in Coles v. Sybsye, Style's R. 156, A. D. 1649; and see Dacy v. Clinch, 1 Sid. 53. As the form of the plea now is that the action did not accrue within six years before the commencement of the suit, it is not proper to reply the writ, but to traverse the plea and give the writ in evidence producing by the roll: Dickenson v. Teague, 1 C., M. & R. 241.

(v) 2 Will. 4, c. 39, s. 10.

(v) Of which the roll is no evidence: Walker v. Collick, 4 Exch. 171. (w) Sterndale v. Hankinson, 1 Sim. 393.

1 The commencement of a suit to defeat the statute must be the same suit · to which the plea is pleaded: Delaplain v. Crowninshield, 3 Mason 329; Soulden v. Van Rensselaer, 3 Wend. 743; Davis v. West, 5 Ibid. 63; Sherman v. Barnes, 8 Conn. 138; Callis v. Waddy, 2 Munf. 511; Harris v. Dennis, 1 Serg. & Rawle 236; Ontario Bank v. Rathbun, 19 Wendell 291; Ivins v. Schooley, 3 Harrison 269; Cheney v. Archer, Riley 195; Connell v. Moulton, 3 Denio 12.

cepted.(x) For infants may, during the six years, sue by their guardians.(y) An infant cestui que trust is bound by the laches of his trustee, even in equity.(2)

The plaintiff's imprisonment now no longer postpones the running of the statute.(a)

In the old Statute of Limitations, passed before the union with Scotland, the saving clause in favor of absent claimants protected claimants "out of the realm;" but the statute 24 Jac. 1, c. 16, being after the union of the crowns, changed the expression "out of the realm" to the expression "beyond the seas." Scotland, therefore, is not within the saving,(b) but Dublin, or any other place in Ireland, India(c) or the colonies was. By the 3 & 4 Will. 4,

*c. 42, s. 7, no part of the British Isles is to be deemed

[*351] beyond the seas. (d) And now, from the meaning of the

expression "beyond seas," whether applied to plaintiff or defendant, are excluded by the 19 & 20 Vict. c. 27, s. 12, all Great Britain and Ireland, the islands of Man, Jersey, Guernsey, Alderney and Sark and the islands adjacent. Foreigners were within the benefit of this saving. "If the plaintiff," says the Court of C. P., "is a foreigner, and doth not come to England in fifty years, he still hath six years after his coming into England to bring his action. And if he never comes into England himself, he has always a right of action while he lives abroad, and so have his executors or administrators after his death."(e) If one only of several plaintiffs were abroad, the case was not within the exception.(ƒ)1

(x) Prideaux v. Webber, 1 Lev. 31.

(y) Chandler v. Villett, 2 Saund. 121, a.

(z) Wynch v. East India Company, 3 P. Wms. 309.

(a) 19 & 20 Vict. c. 97, s. 10.

(b) King v. Walker, 1 W. Bl. 487.

(c) Parnther v. Gaitskell, 13 East 432.

(d) See Nightingale v. Adams, 1 Show. 91.

Query,

(e) Strithorst v. Græme, 3 Wils. 145; 2 W. Bl. 723, s. c.; Le Veux v. Berkeley, 5 Q. B. 836 (48 E. C. L. R.); Townsend v. Deacon, 18 L. J., Exch. 298; 3 Exch. 706, s. c.; Lafond v. Ruddock, 13 C. B. 813 (76 E. C. L. R.). whether the executors are limited to six years after the testator's death: Townsend v. Deacon, supra.

(f) Perry v. Jackson, 4 T. R. 516; secus, of one of several defendants: Fannin v. Anderson, 7 Q. B. 811 (53 E. C. L. R.).

1 The words "beyond seas" in the Statute of Limitations of a state mean out of the limits of that state: Murray v. Baker, 3 Wheat. 541; Shelby v.

But now the plaintiff's absence beyond the seas is no disability and gives no further time.(g)

This statute is not retrospective. (h)

The defendant's absence beyond seas is not a case within the 24 Jac. 1, c. 16, (i) though it is one in which the saving is much more necessary than when the plaintiff himself is absent, as an absent plaintiff may sue a defendant in England, but a defendant beyond seas could not formerly have been sued in England at all. To remedy this hardship, the statute 4 & 5 Anne, c. 16, s. 19, enacts that if at the accruing of the action the defendant be beyond the seas, the plaintiff may bring his action within six years after the defendant's return. A mere setting foot on English ground is not a return within the statutes.(k) If one of several co-defendants in an action ex contractu were abroad, the Statute of Limitations did not begin to run against any of them.(1) But the statute 19 & 20 Vict. c. 97, s. 11, *preserves the protection of the statute to such of the defendants as were within seas at the time of action accrued.

[*352]

When a disability is removed and the statute once begins to run, no supervening disability will stop it.(m)1

(g) 19 & 20 Vict. c. 97, s. 10.

(h) Flood v. Patterson, 30 L. J., Chan. 486; but see Cornill v. Hudson, 8 E. & B. 429 (92 E. C. L. R.).

(i) Hull v. Wyborn, 1 Show. 98; Swayn v. Stephens, Cro. Car. 333.

(8 E. C. L. R.); 8 Moore 189, s. c.

(k) Gregory v. Hurrill, 1 Bing. 24 (7) Fannin v. Anderson, 7 Q. B. 811 (53 E. C. L. R.); Towns v. Mead, 16 C. B. 123 (111 E. C. L. R.); Forbes v. Smith, 24 L. J., Exch. 299; 10 Exch. 717, s. c.; and see Forbes v. Smith, 11 Exch. 161. As to what is evidence for the jury of a person not having been in England, see Koch v. Shepherd, 18 C. B. 191 (86 E. C. L. R.).

(m) Doe d. Duroure v. Jones, 4 T. R. 310; Smith v. Hill, 1 Wils. 134; Gray v. Mendez, 1 Stra. 556; Rhodes v. Smethurst, 4 M. & W. 42; 6 M. & W. 351, in error.

Gray, 11 Wheat. 361; Bank of Alexandria v. Dyer, 14 Peters 141; Pancoast v. Addison, 1 Har. & Johns. 350; Richardson v. Richardson, 6 Ham. 125; Field v. Dickenson, 3 Pike 409. Contra, Whitlocke v. Walton, 2 Murph. 23; Earle v. McDowell, 1 Dev. 16; Thurston v. Dawes, 9 Serg. & R. 288.

1 The disability which entitles a party to the benefit of the proviso must exist when the right of action first accrues, and if several disabilities exist together the statute does not begin to run until the whole are removed: