strangers.(f) "It is settled," says Lord Mansfield, "that the Statute of Limitations does not destroy the debt, it only takes away the remedy; the objection lies in the mouth of the bankrupt himself, but not in the mouth of a third person."(g) Therefore, again, a lien may be enforced (h) where an action for its amount. [*345] would be barred by the statute.

A foreign Statute of Limitations is no defence to an action on a foreign contract in the English courts, unless it have the effect of extinguishing the contract, and the parties are living in the foreign country at the time of the extinction. For a Statute of Limitations usually affects the remedy merely, and not the construction of the contract.(i)

Secondly, as to the actions and legal proceedings which the statute limits.

It will be sufficient for the present purpose to remark that actions of debt and of assumpsit are limited to six years. (k) That though the statute does not in terms apply to proceeding in equity, courts of equity adopt its provisions as a rule. (7) "With regard to that statute," says Sir William Grant, "though it does not apply to any. equitable demand, yet equity adopts it, or at least takes the same limitation, in cases that are analogous to those in which it applies in law."(m) But the statute does not bar a trust(n) nor a legacy.(0) We have already seen that the statute is a bar to bankruptcy.

The exception as to merchants' accounts (which, as we have seen, is now repealed) applied only to an action of account, or perhaps

(f) Swaine v. Wallinger, 2 Stra. 746.

See the same

(g) Quantock v. England, 5 Burr. 2628; 2 W. Bl. 703, s. c. doctrine laid down by Lord Ellenborough and Bayley, J., in Williams v. Jones, 13 East 450; and the Court of Exchequer, in Chapple v. Durston, 1 C. & J. 1; Mavor v. Pyne, 2 C. & P. 91 (12 E. C. L. R.).

(h) Spears v. Harley, 3 Esp. 81.

(i) Huber v. Steiner, 2 Bing. N. C. 202 (29 E. C. L. R.); 2 Scott 304, s. c. ; Harris v. Quine, L. R., 4 Q. B. 653. See the chapter on FOREIGN LAW.

(k) Sec. 3.

(1) Johnson v. Smith, 2 Burr. 961; Prince v. Heylin, 1 Atk. 493.

(m) Starhouse v. Barnston, 10 Ves. 466.

(n) Heath v. Hanley, 1 Cha. Ca. 20.

(0) Anon., 2 Freem. 22.

also to an action on the case for not accounting, but not to an action. of debt or assumpsit.(p)1

It is conceived that if the statute have run out against the holder of a bill or note payable at a day certain, and he then transfers it, the transferree's right of action is barred. For he, as transferree of an overdue bill, can stand in no better situation than his transferror. He, like his transferror, has a debt due to him, but has lost the right of action, and has notice of the loss of it.(g) And perhaps, *as to the Statute of Limitations, the holder for the time [*346] being is a trustee of the action, so that prior or subsequent indorsees are, as between themselves and earlier parties, prejudiced by his laches.(r)

Thirdly, as to the time from which the statute runs.

The Statute of Limitations begins to run on a bill or note, as well as on any other contract, from the time that the action(s) first accrued to the party.2

Therefore, on a bill payable at a certain period after date, the statute runs, not from the time the bill was drawn, but from the

(p) Inglis v. Haigh, 8 M. & W. 769; and see Cottam v. G. 271; 3 Scott, N. R. 174, s. c.

Partridge, 4 M. &

(q) See Scarpelina v. Atcheson, 7 Q. B. 864 (53 E. C. L. R.).

(r) See Webster v. Kirks, 17 Q. B. 947 (79 E. C. L. R.).

(s) Though at that time an action and judgment would have been fruitless: Emery v. Day, 1 C., M. & R. 245; 4 Tyr. 695, s. c.

1 Phillips v. Cage, 12 Smedes & Marshall 141. Contra, Mandeville v. Wilson, 5 Cranch 15; Brackenridge v. Baltzell, 1 Smith 217. As to what are merchants' accounts: Slacumbs v. Holmes, 1 Howard, Miss. 786; Fox v. Fish, 6 Ibid. 328; Bevan v. Cullen, 7 Barr 281; Brackenridge v. Baltzell, 1 Smith 217; Marseilles v. Kenton's Exch., 17 Penna. State Rep. 238. The exception is available in merchants' accounts though none of the items come within six years: Bass v. Bass, 8 Pick. 187; Dyott v. Letcher, 6 J. J. Marshall 541; McLellan v. Crofton, 6 Greenl. 308.

* It begins to run only from the time the right of action accrued: Richman v. Richman, 5 Halsted 114; Odlin v. Greenleaf, 3 N. Hamp. 270; Banks v. Coyle, 2 Marshall 564; Jones v. Conway, 4 Yeates, 109; Bennett v. Herring, 1 Branch 387; Dobyns v. Schoolfield, 10 B. Monroe 311. It begins to run from the last day of grace: Pickard v. Valentine, 1 Shepl. 412. It does not begin to run against a bill of exchange made payable at a particular place, until after a demand at such place and a dishonor there: Picquet v. Curtis, 1 Sumner 478.

time when it fell due.(t) And this is so also as to the account stated, of which the bill may be evidence.(u)

So where the maker of a note gave it to a third person to be delivered to the payee after certain events should happen, the statute was held to run, not from the date of the note, but from the time of its delivery to the payee.(x)

It is conceived that if a note be payable by installments, and contain a provision that, if default be made in payment of one installment, the whole shall be due, the statute runs from the first default against the whole amount of the note.(y)

And so in an action on a bill by an administrator, who had not taken out administration till after the bill became due, it was decided that the statute ran, not from the time the bill fell due, but from the time of granting letters of administration, for there can be no action till there is a party capable of suing.(z)1

(t) Wittersheim v. Lady Carlisle, 1 H. Bl. 631.
(u) Fryer v. Roe, 12 C. B. 437 (74 E. C. L. R.).
(x) Savage v. Aldren, 3 Stark. 232 (3 E. C. L. R.).

(y) See Hemp v. Garland, 4 Q. B. 419 (45 E. C. L. R.).

(z) Murray v. East India Company, 5 B. & Al. 204 (7 E. C. L. R.). But this interval is now 'to be computed where the administrator claims a chattel real: 3 & 4 Will. 4, c. 27, s. 6. The statute runs against an executor from the time the bill falls due, for he can commence an action before probate.

1 Where an action does not accrue until after the death of the creditor, the statute does not begin to run until administration is granted, but if it accrues before his death the running is not thereby suspended: Beauchamp v. Mudd, 2 Bibb 537; Hobart v. Connecticut Turnpike Co., 15 Conn. 145; Jackson v. Hitt, 12 Vermont 285; Abbott v. McElroy, 10 Smedes & Marshall 100. Where A. has a demand against B. which is not barred, and B. dies intestate, the statute will not begin to run until letters of administration are taken out: Burnet v. Bryan, 1 Halsted 377. The running of the statute against a claim on the estate of a person deceased is suspended during the time in which the administrator is not liable to an action thereon: Houpt v. Shields, 3 Porter

247.

Where a surety pays a note, his right of action against the maker accrues from the date of the payment, and the Statute of Limitations commences running from that time: Burton v. Rutherford, 49 Mo. 255; Bennett v. Cook, 45 New York 268. So it runs against indorser who is compelled to pay from the time of payment: Godfrey v. Rice, 59 Maine 308.

As upon a bill drawn payable after sight, there is no right of action till presentment; so without such *presentment the statute [*347] does not begin to run. (a) If a note be payable at a certain period after sight,(b) the statute runs from the expiration of that period, after the exhibition of the note to the maker.

But we have seen that if a bill or note be payable "at sight" or (6 on demand," those words are held not to constitute a condition precedent, but merely to import that the debt is due and payable immediately; (c) or, at any rate, an action is sufficient demand. Therefore on a bill or note payable on demand, unless the note be accompanied by some writing restraining or postponing the right of action, the statute runs from the date of the instrument, and not from the time of the demand. (d) Where a note payable on demand was given to a hank, accompanied by an agreement that the note should be held as a security for advances, the Court of Exchequer decided, in a recent case, that the statute did not begin to run against the note till after advances made, and a claim made as for a debt. The learned judge, however (Mr. Baron Martin), who

(a) Holmes v. Kerrison, 2 Taunt. 323.

(b) Sturdy v. Henderson, 4 B. & Al. 592 (6 E. C. L. R.); Sutton v. Toomer, 7 B. & C. 416 (14 E. C. L. R.); 1 M. & Ry. 125, s. c.; Holmes v. Kerrison, 2 Taunt. 323; and see Dixon v. Nuttall, 1 C., M. & R. 307; 6 C. & P. 320 (25 E. C. L. R.), s. c.

(c) Capp v. Lancaster, Cro. Eliz. 548; Rumball v. Ball, 10 Mod. 38; Collins v. Benning, 12 Mod. 444; M'Intosh v. Haydon, R. & M. 363. (d) Christie v. Fonsick, Sel. N. P. 9th ed. 351. This case is said to have been overruled in K. B., sed quære. If, indeed, a bond is conditioned to be void on payment on demand, a demand must be proved, or the bond is not forfeited: Carter v. Ring, 3 Camp. 459. In Megginson v. Harper, 2 C. & M. 322; 4 Tyr. 94, s. c., it was assumed that the statute ran from the date of the note, which was payable on demand. Quære tamen, if the note be a reissuable one, and reissued, or if it be payable at a particular place; and see pp. 182, 211, 219.

1In general the statute begins to run from the date of a note payable on demand: Easton v. McAllister, 1 Missouri 662; Larason v. Lambert, 7 Halsted 247; Newman v. Kettle, 13 Pick. 418; Wenman v. Mohawk Ins. Co., 13 Wendell 267; Wilks v. Robinson, 3 Richardson 182; Hill v. Henry, 17 Ohio 9. But see Wolfe v. Whiteman, 4 Harrington 246. Where reasonable presentment of a draft on demand is made, the statute does not commence to run as against the drawer until payment is refused by the drawee: Wood v. McMeans, 23 Texas 481.

tried the case, appears to have thought otherwise, or, at least, to have doubted. Where a loan was made by a check, the statute was held to run, not from the date of the check, but from the time the check was cashed. (e)

If a note is made payable at a certain period after demand, it is like a note payable after sight; the demand and the lapse of the specified time after the demand are conditions precedent, and the statute runs from the time when the note falls due.(ƒ) And if a bill be made payable twelve months after notice, the statute does not begin to run till after notice and the twelve months subsequent.(g)1

*It has been suggested that where the plaintiff has been [*348] the subject of fraud, he may by a special replication avoid a plea of the statute, and postpone its application.(h) It is now, however, settled that such a replication is bad. (i) But possibly the fraudulent concealing of a cause of action on the part of a defendant till the plaintiff's remedy is gone may constitute a substantive ground of action.

Upon the contract which the law implies to indemnify an accommodation acceptor, it has been held that the statute begins to run

(e) Garden v. Bruce, L. R., 3 Ex. 300; 37 L. J. 112, s. c.

(f) Thorpe v. Booth, R. & M. 388.

(g) Clayton v. Gosling, 5 B. & C. 360 (11 E. C. L. R.) ; 8 D. & Ry. 110, s. c. (h) South Sea Company v. Wymondsell, 3 P. Wms. 143; Bree v. Holbech, Doug. 630; Clark v. Hougham, 2 B. & C. 149 (10 E. C. L. R.); 3 D. & Rỵ. 322, s. c.; Ex parte Bolton, 1 Mont. & Ayr. 60; Granger v. George, 5 B. & C. 149 (11 E. C. L. R.); Browne v. Howard, 2 B. & B. 73 (6 E. C. L. R.). (i) Imperial Gas Company v. London Gas Company, 10 Exch. 39.

1In case of a note payable at a given day after demand, it commences to run only from the time of the demand: Wenman v. Mohawk Ins. Co., 13 Wendell 267; Little v. Blunt, 9 Pick. 488; Wright v. Hamilton, 2 Bailey 51.

2 In a contract tainted with fraud, the statute runs from the time of its discovery Pennock v. Freeman, 1 Watts 401; Sherwood v. Sutton, 5 Mason 143; Turnpike v. Field, 3 Mass. 201; Miles v. Berry, 1 Hill S. C. 296; Frankfort v. Markley, 1 Dana 373; Cole v. McGlathry, 9 Greenleaf 131. A fraudulent concealment of the plaintiff's cause of action will not protect him against the operation of the statute: Smith v. Bishop, 9 Vermont 110; Fee v. Fee, 10 Ohio 469; Allen v. Mille, 17 Wend. 202; Baines v. Williams, 3 Iredell 481.