cumstances of the defence, and to keep the law and the fact distinct. And it is an invariable rule, that every defence which cannot be thus specially pleaded may be given in evidence upon the general issue at the trial. But the science *of special pleading having been frequently perverted [*306 to the purposes of chicane and delay, the courts have of late in some instances, and the legislature in many more, permitted the general issue to be pleaded, which leaves every thing open, the fact, the law, and the equity of the case, and have allowed special matter to be given in evidence at the trial. And, though it should seem as if much confusion and uncertainty would follow from so great a relaxation of the strictness anciently observed, yet experience has shown it to be otherwise; especially with the aid of a new trial, in case either party be unfairly surprised by the other.

a

2. Special pleas, in bar of the plaintiff's demand, are very various, according to the circumstances of the defendant's case. As, in real actions, general release or a fine, both of which may destroy and bar the plaintiff's title. Or, in personal actions, an accord, arbitration, conditions performed, nonage of the defendant, or some other fact which precludes the plaintiff from his action. (2) A justification is likewise a special plea in bar; as in actions of assault and battery, son assault demesne, that it was the plaintiff's own original assault; in trespass, that the defendant did the thing complained of in right of some office which warranted him so to do; or, in an action of slander, that the plaintiff is really as bad a man as the defendant said he was. Also a man may plead the statutes of limitation(a) in bar;(65) or the time (z) Appendix, No. III. § 6. (a) See pages 188, 196.

(65) 2 Barb. Rights Pers. and Prop. 985. The statute of limitations must be pleaded, when a party would take advantage of it. It cannot be given in evidence under the general issue. Alston v. Alston, 3 Brevard (S. C.) 537 (1814). As questions on the statute of limitations (21 Jac. I. c. 16) so frequently occur, we will consider this subject more fully in the following order, viz., First, as to what cases the statute extends, and herein in what cases payment of a debt may be presumed at common law. Secondly, when the statute begins to take effect; and herein of the exceptions contained in the statute. Thirdly, what is a good commencement of an action to take the case out of the statute; and, Lastly, what acts or admissions will revive the claim.

First. To WHAT CASES THE STATUTE EXTENDS.-The statute does not extend to actions of account, or of covenant, or debt on specialty, or other matter of a higher nature, but only to actions of debt upon alending, or contract without specialty, or for arrearages of rent reserved on parol leases. Hut. 109. I Saund. 38. 2 Saund. 66. Tidd, Pr. 3 ed. 15. It does not extend to warrants of attorney. 2 Stark. 234. It extends to bills of exchange, (Carth. 3,) attorneys' fees, (3 Lev. 367,) and to a demand for rent on a parol demise. I B. & A. 625.

It does not extend to debt on a bond, (Cowp. 109;) but where the bond has been given more than twenty years before the commencement of the action, and no interest has been paid upon it, nor any acknowledgment by the obligor of the existence of the debt during that period, the law will in general presume it to have been satisfied, (6 Mod. 22. 1 Bla. Rep. 532. I T. R. 270. 3 P. Wms. 395,) particularly if the debt be large and the obligor has been all along in good circumstances, (1 T. R. 271;) and in some cases, where a bond has been given and interest paid on it within twenty years, the law will presume it to have been satisfied; as where it has been given eighteen or nineteen years, and in the mean time an account has been settled between the parties without taking any notice of the demand, (1 Burr. 434. 1 T. R. 271;) but in such case the presumption must be fortified by evidence of some auxiliary circumstances. Cowp. 214. 1 T. R. 271. I Camp. 27. After a considerable length of time, slight evidence is sufficient. 1 T. R. 271; and see Tidd, 8 ed. 17, 18. In assumpsit, though the statute be not pleaded, the jury may presume, from the length of time and other circumstances, that the debt has been satisfied. 2 Stark. C. N. P. 497; and see 5 Esp. 52. 3 Camp. 13. I Taunt. 572; sed vide 1

D. & R. 16.

This presumption may be repelled by proof of the recent admission of the debt, or of the payment of interest on the bond within twenty years, (1 T. R. 270;) or that the obligee has resided abroad for the last twenty years, (1 Stark. 101; sed vide 1 D. & R. 16;) or that the obligor was in insolvent circumstances, and had not the means of payment, (19 Ves. 196. Cowp. 109. I Stark. 101;) or that the demand was trifling, (Cowp.

limited by certain acts of parliament, beyond which no plaintiff can lay his

214;) or other circumstances, explaining satisfactorily why an earlier demand has not been made. I Stark. I0I. The fluctuation of credit, together with the circumstance of the security remaining with the obligee, is of great weight to rebut presumption of payment thereof, (19 Ves. 199. I Stark. 374;) an endorsement by the obligee, purporting that part of the principal sum has been received, if made after the presumption of payment has arisen, is inadmissible. 2 Stra. 827. 2 Ves. 42; sed vide 1 Barnard, 432. And further, if the defendant produce direct evidence of the payment of the principal sum and interest at a certain time within twenty years, the plaintiff will not be allowed to encounter that evidence by an endorsement in the handwriting of the obligee, purporting that interest was paid at a subsequent time. 2 Camp. 322.

Secondly. WHEN THE STATUTE BEGINS TO TAKE EFFECT.-It does not do so till the cause of action is complete and the party is capable of suing on it. Cro. Car. 139. I Lev. 48. Salk. 442. I Bla. Rep. 354. No action lies against a consignee of goods for sale, for not accounting and returning the goods undisposed of until demand; and therefore the statute does not begin to run until the time when demand is made. I Taunt. 572. The statute begins to operate only from the time when a bill of exchange or promissory note, etc. is due, and not from the date, (1 H. B. 631. 5 B. & A. 212;) and no debt accrues on a bill payable at sight until it be presented for payment. 2 Taunt. 323. The statute of limitations begins to run from the date of a note payable on demand. I Ves. 344. 2 Selw. 4 ed. 131, 339. Cro. Eliz. 548; and see Chitty on Bills, 6 ed. 373; sed quære, see Hard. 36. 14 East, 500. I Taunt. 575, 576. Sir W. Jones, 194. 12 Mod. 444. 15 Ves. 487. Where a payee of a bill of exchange was dead at the time the bill became due, it was held that the statute did not begin to run until letters of administration were taken out, (5 B. & A. 212. Skin. 555;) but where the cause of action is complete in the lifetime of the testator, then the statute begins to run from that time, and not from the granting of the probate. Willes, 27. Where a breach of a contract is attended with special damage, the statute runs from the time of the breach, which is the gist of the action, and not from the time it was discovered (3 B. & A. 628, 288. 4 Moore, 508. 2 Brod. & B. 73, S. C.) or the damage arose. 5 B. & A. 204. If there is mutual credit between two parties, though the items on both sides are above six years old, with the exception of one item on each side, which are just within the period, this is sufficient to take the whole out of the statute; for every new item and credit in an account given by one party to the other is an admission of there being some unsettled account between them. 6 T. R. 189. 2 Saund. 127, a., n. (6). But where all the items are on one side, so that the account is not mutual, as, for instance, in an account between a tradesman and his customer, the last item which happens to be within six years will not draw after it those which are of a longer standing. Bull. N. P. 149.

The exception in the statute respecting merchants' accounts extends only to those cases where there are mutual and reciprocal accounts and demands between two persons, and where such accounts are current and open, and not to accounts stated between them, (2 Ves. 400. Bull. N. P. 149. Sir W. Jones, 401. I Sid. 465. I Ventr. 89;) for no other actions are excepted but actions of account. Carth. 226. I Show. 341, S. C. 2 Saund. 127, a. 2 Mod. 312, and 1 Mod. 70. I Lev. 298. 4 Mod. 105. Peake, 121. I Vern. 456. 2 Vern. 276. It has been considered that by the effect of the above exception there can be no limitation to a merchant's open and unsettled account. This opinion, however, appears erroneous; and if there is no item in the account or acknowledgment of the debt within six years, the statute will take effect; but, as we have before seen, if even the last item of the account is within six years, that preserves all the preceding items of debt and credit from the operation of the statute, (6 Ves. 580. 15 Ves. 198. 18 Ves. 286. 2 Ves. 200, acc.; sed vide opinion of lord Hardwicke mentioned in 19 Ves. 185. 6 T. R. 189, 192, cont.;) and from these decisions it appears that merchants' accounts stand not upon better grounds in regard to the statute than other parties. The exception extends to all merchants, as well inland as to those trading beyond sea, (Peake, C. N. P. 121. 2 Saund. 127. B. acc. Chanc. Ca. 152, cont.;) and the effect of the exception has also been extended to other tradesmen and persons having mutual dealings. 6 T. R. 189. Peake, N. P. 127, overruling; sed vide 7 Mod. 270, cont. But in all these cases the accounts must be mutual, together with reciprocal demands on each side, and not, as in the case of a tradesman and his customer, where the items of credit are all on one side. Bull. N. P. 149.

The exception in the act respecting infants, etc. only extends to plaintiffs, (Carth. 136, 226. 6 Show. 99. Salk. 420. 2 Stra. 836;) but, by 4 & 5 Anne, c. 16, s. 19, it is extended to defendants beyond seas at the time of the cause of action accruing. If the plaintiff be in England when the cause of action accrues, though he afterwards go abroad, the time of limitation begins to run from the accruing of the action, (1 Wils. 134;) and so though one of several plaintiffs be abroad when the cause of action accrues. 4 T. R. 516.

cause of action. This, by the statute 32 Hen. VIII. c. 2, in a writ of right, is sixty years; in assizes, writs of entry, or other possessory actions

It extends to persons absent in Scotland, (1 Bla. R. 286. I D. & R. 16,) and the plaintiff, though absent there, must sue within the limited time; but it does not extend to persons in Ireland, (1 Show. 91,) the latter being considered as beyond the sea, within themeaning of the above provision. Foreigners living beyond the sea have the same advantage of the proviso as natives residing here. 2 Bla. R. 723. 3 Wils. 145, S. C. Though the demand be on a bill of exchange, the plaintiff's absence beyond sea saves the statute. Strange, 836. Where the cause of action accrues within the jurisdiction of the supreme court at Bengal, whilst the parties are resident there, the statute of limitations, as far as respects a suit in this country, begins to run only from the time of their concurrent presence here. 13 East, 439.

When once the statute has begun to run, nothing stops its course; as where a tenant in tail leaves two sons infants, and the eldest, having attained the age of twenty-one, dies without issue, the statute begins to run against his brother, though a minor. 826. And see the cases (I Wils. 134. 4 T. R. 516) just cited.

4 Taunt.

Thirdly, WHAT IS A GOOD COMMENCEMENT OF AN ACTION TO TAKE THE Case out of THE STATUTE. See Tidd, 8 ed. 24, 25, 144, 152, 161.

If the plaintiff, having commenced a suit in due time, die, or, being a feme-sole at the commencement of the action, marry, the representative in the one case, or husband and wife in the other, if they commence a new action within a reasonable time afterwards, it

will suffice. See Willes, 259, N. E. 2 Salk. 425. Bull. N. P. 150. A year seems to be a reasonable time within this rule, (1 Lord Raym. 434. 1 Lutw. 256, S. C. 2 Stra. 907. Cro. Car. 294; sed vide 1 Lord Raym. 283. 1 Šalk. 393, S. C.:) at all events, half a year would be. Cowp. 738, 740.

Lastly, WHAT ACTS OR ADMISSIONS WILL REVIVE THE CLAIM.-The object of this statute was to protect individuals against forgotten claims of so obsolete a nature that the evidence relating to the contract might probably be no longer to be found, and thereby might lead to perjury. It proceeds, also, upon the supposition that the debtor has paid but after a lapse of time may have lost his voucher. See 5 M. & S. 76, per Bayley, J. 3 B. & A. 142, per Abbott, J. In cases, therefore, where there is an acknowledgment of the debtor or contractor to prove the existence of the debt or obligation, or an express promise to pay or perform the same, the statute will not operate to protect him notwithstanding the lapse of six years or more since the cause of the action may have accrued. But if a cause of action arising from the breach of a contract to do an act at a specific time be once barred by the statute, a subsequent acknowledgment by the party that he broke the contract will not, it seems, take the case out of the statute, (2 Camp. 160; and see Peake's Evid. 205. 5 Moore, 105. 2 B. & C. 372, S. C. 5 B. & A. 204. 3 B. & A. 288;) and a subsequent acknowledgment of a trespass will not take the case out of the act. I B. & A. 92. 2 Chit. Rep. 249, S. C. The sufficiency of an acknowledgment to take the case out of the statute will be considered, first, where it directly acknowledges the debt; secondly, where it acknowledges the debt having existed, but is accompanied by a declaration of its being discharged; and thirdly, with reference to the party making the admission.

In the first case, the slightest acknowledgment has been held sufficient, (2 Burr. 1099. Bull. N. P. 149. Cowp. 548;) as where the debtor exclaimed to the plaintiff, “What an extravagant bill you have delivered me!" Peake N. P. 93. So, where the defendant met a man in a fair and said that he went there to avoid the plaintiff, to whom he was indebted, this was held to save the statute. Loft, 86. In an action by an administrator, an agreement for a compromise executed between intestate and defendant, wherein the existence of the debt sued for was admitted, was deemed sufficient to take the case out of the statute. 9 Price, 122. It is sufficient to prove that, a demand being made by a seaman on the owner of a ship for wages which had accrued during an embargo, he said, "if others paid, he should do the same." 4 Camp. 185. A promise, "if there should be any mistake it should be rectified," referring to payments actually made, is sufficient. 2 B. & C. 149. 3 D. & R. 522, S. C.; sed quære [But why]. And it makes no difference whether the acknowledgment be accompanied with a promise or refusal to pay: a bare acknowledgment is sufficient. 16 East, 420. 2 Burr. 1099. 5 M. & S. 75. 2 B. & Cres.

154. The construction of an ambiguous letter or declaration of a defendant on being served with a writ or requested to pay a debt, neither admitting or denying it, is strong intimation that it is an acknowledgment; since if the defendant knew he owed nothing he would have declared so. 2 T. R. 760. 1 Bing. 266. A conditional promise to pay when able, or by instalments, etc., is sufficient, without proof of ability or waiting till instalment become due. 16 East, 420. 2 Stark. 98, 99. 5 M. & S. 75; sed vide 3 D. & R. 267. Where the original agreement is in writing, in order to take the case out of the statute of frauds, a subsequent promise, or admission of the liability to perform such agreement need not be in writing to take the case out of the statute of limitations. I B. 1283

BOOK III.-19

real, of the seisin of one's ancestors, in lands; and either of their seisin, or one's own, in rents, suits, and services, fifty years: and in actions real for

& A. 690. An acknowledgment after action brought is good.

tions. Burr. 1099.

Selw. N. P. tit. Limita

The admission to a third person is sufficient. 3 B. & A. 141. Loft.,

86. 2 B. & C. 154. On the other hand, where the defendant said, “The testator always promised not to distress me," this was held no evidence of a promise to the testator to take the case out of the statute, (6 Taunt. 210;) so a declaration, "I cannot afford to pay my new debts, much more my old ones," is insufficient, (4 D. & R. 179;) and so where, in assumpsit by an attorney to recover his charges relative to the grant of an annuity, evidence that the defendant said "he thought it had been settled when the annuity was granted, but that he had been in so much trouble since that he could not recollect any thing about it," is not a sufficient acknowledgment of the debt to save the statute, notwithstanding proof that plaintiff's bill was not paid when the annuity was granted. 1 J. B. Moore, 340. 7 Taunt. 608, S. C. The referring plaintiff to the defendant's attorney, who, he added, was in possession of his determination and ability, is not an admission that any thing is due, (1 New Rep. 20;) and where a defendant, on being applied to by the plaintiff's attorney for the payment of the debt, wrote in answer "that he would wait on the plaintiff when he should be able to satisfy him respecting the misunderstanding which had occurred between them," this was holden not sufficient to take the case out of the statute. Holt, C. N. P. 380; and see 4 Esp. 184. 5 Esp. 81. A declaration, I will see my attorney and tell him to do what is right," is insufficient. 3 D. & R. 267. Payment of money into court on a special count will not save the operation of the statute, (3 B. & C. 10. 4 D. & R. 632, S. C.:) it only admits the debt to the amount paid in. Id. Bunb. 100. In the second place, where the defendant makes no express acknowledgment of the debt, but says he is not liable, because it is more than six years since, this will not take the case out of the statute. 3 Taunt. 380. 5 Esp. 81. 4 M. & S. 457. 5 Price, 636. But an acknowledgment that the defendant had been liable, but was not at the time of acknowledgment, because the demand was out of date, and that he would not then pay, as it was not then due, takes the case out of the act. 16 East, 420. 2 Stark. 98, 99.

.

If a debtor admit that he was once liable, but that he was discharged by a particular mode of performance, to which he with precision referred himself, and where he has designated that time and mode of performance so strictly that he can say it is impossible it had been discharged in any other mode, there the courts have said, that if the plaintiff can disprove that mode, he lets himself in to recover, by striking from under the defendant the only ground on which he professes to rely. 7 Taunt. 608. 4 B. & A. 568. I Salk. 29. Cowp. 548. Peake, N. P. C. 93. So where a party acknowledges but refuses to pay the debt, relying on the deficiency of his legal liability to pay, this will take the case out of the statute, upon proof of liability. 5 M. & S. 75. 6 Rep. 66. But a qualified admission by a party who relies on an objection which would at any time have been a good defence to the action does not take the case out of the statute, as if the defendant had said, "If you had presented the protest the same as the rest, it would have been paid: I had then funds in the acceptor's hands," (1 Stark. 7; see 3 Esp. N. P. C. 155. 2 Camp. 161. 2 B. & A. 759. 4 B. & A. 568. 4 East, 599, and cases there cited:) this was held no sufficient acknowledgment. Where the defendant,-an executor,-who was sued for money had and received from his testator, was proved to have said, "I acknowledge the receipt of the money, but the testatrix gave it me." it was held insufficient, (Bull. N. P. 148;) and so where the defendant, on being applied to for payment of a debt, said, "You owe me more money: I have a set-off against it." 2 B. & A. 759. Where a party, on being asked for the payment of his attorney's bill, admitted that there had been such a bill, but stated that it had been paid to the deceased partner of the attorney, who had retained the amount out of the floating balance in his hands, it seems that, in order to take the case out of the statute, evidence is inadmissible to show that the bill had never, in fact, been paid in this manner. 4 B. & A. 568. In all cases, unless the defendant actually acknowledge that the debt or obligation did originally exist, the statute will not be avoided. 4 Maule & S. 457. 2 Camp. 160.

In the third case, with respect to the party from whom the acknowledgment should come to render it sufficient, an acknowledgment by an agent or servant intrusted by the defendant to transact his business for him will suffice, (5 Esp. 145;) and so will the admission of the wife who was accustomed to conduct her husband's business. Holt's Ca. Ni. Pri. 591. In an action against a husband for goods supplied to his wife for her accommodation while he occasionally visited her, a letter written by the wife, acknowledging the debt within six years, is admissible evidence to take the case out of the statute. I Camp 394; and see 2 Esp. N. P. C. 511. 5 Esp. N. P. C. 145. If a demand is owing from two parties, an acknowledgment by one will avoid the statute. 4 T. R. 516. So an acknowledgment by one of several makers of a joint and several promissory-note

lands grounded upon one's own seisin or possession, such possession must have been within thirty years. (66) By statute Mar. st. 2, c. 5, this

will take the case out of the statute, as against any one of the other makers, in a separate action on the note against him, (Doug. 652:) and this though against a surety, (2 Bingh. 306;) and in an action against A. on the joint and several promissory-note of himself and B. to take case out of the statute, it is enough to give in evidence a letter written by A. to B. within six years, desiring him to settle the debt.. 3 Camp. 32; and see 11 East, 585. I Stark. 81. But the acknowledgment of one partner to bind the other must in such case be clear and explicit; and therefore it is not sufficient in order to take a case out of the statute, in an action on a promissory-note, to show a payment by a joint maker of a note to the payee within six years, so as to throw it upon the defendant, to show that the payment was not made on account of the note. I Stark. 488. It has been held that when, one of two drawers of a joint and several promissorynote having become bankrupt, the payee received a dividend under the commission on account of the note, this will prevent the other drawer from availing himself of the statute in an action brought against him for the remainder of the money due on the note, the dividend having been received within six years before the action brought. H. Bla. 340. But in a more recent case, where one of two joint drawers of a bill of exchange became bankrupt, and under his commission the endorsees proved a debt (beyond the amount of the bill) for goods sold, etc., and they exhibited the bill as a security, they then held for their debt, and afterwards received a dividend: it was held that in an action by the endorsees of the bill against the solvent partner, the statute of limitations was a good defence, although the dividend had been paid by the assignees of the bankrupt partner within six years. I B. & A. 463; and see I B. & C. 248. 2 D. & R. 363, S. C. So where A. & B. made a joint and several promissory-note, and A. died, and ten years after his death B. paid interest on the note, it was holden, in an action thereon against the executors of A., that the payment of interest by B. did not take the case out of the statute, so as to make the executors liable. 2 B. & C. 23. 3 D. & R. 200, S. C. An acknowledgment by an accommodation acceptor, within six years, of his liability to the payee, is not sufficient to take the case out of the statute for the drawer. 3 Stark. 186.

2

It is enacted, by 9 Geo. IV, c. 14, that in actions of debt or upon the case, grounded upon any simple contract, no acknowledgments or promise by words only should be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the enactments of the statutes of limitations, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby. And that where there shall be two or more joint contractors, or executors or administrators of any contractor, no such joint contractor, executor, or administrator shall lose the benefit of the said enactments, or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them. The act not to alter the effect of any payment of any principal or interest made by any person whatsoever. And in actions to be commenced against two or more such joint contractors, or executors or administrators, if it shall appear at the trial, or otherwise, that the plaintiff, though barred by either of the said recited acts, or this act, as to one or more of such joint con tractors, or executors or administrators, shall nevertheless be entitled to recover against any other or others of the defendants by virtue of a new acknowledgment or promise, or otherwise, judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff.

By sect. 2, that if defendant in action on simple contract shall plead an abatement to the effect that any other person ought to be jointly sued, and issue be joined on such plea, and it should appear at the trial that the action could not, by reason of the said recited acts, or the present act, be maintained against the other person named in such plea, the issue joined on such plea should be found against the party pleading the same. By sect. 3, no endorsement or memorandum of payment made after the first of January, 1829, upon any promissory-note, bill of exchange, or other writing, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of either of the said statutes. By sect. 4, said recited acts and the present act shall apply to the case of any debt on simple contracts by way of set-off on the part of any defendant, either by plea, notice, or otherwise.

By sect. 8, no memorandum or other writing made necessary by the act shall be deemed to be an agreement within the meaning of the Stamp Acts.-CHITTY.

(66) In actions of ejectment the defendant cannot show as a defence that he and his grantors have been in uninterrupted adverse possession of the land for twenty-one years