Pleas that totally deny the cause of complaint are either the general issue. or a special plea, in bar.

1. The general issue, or general plea, is what traverses, thwarts, and denies at once the whole declaration; without offering any special matter whereby to evade it. As in trespass either vi et armis, or on the case, non culpabilis, not

139. And where the defendant is not prepared at the time the plaintiff sues him to prove the set-off, it is best not to avail himself of it, for if the defendant should attempt but not succeed on the trial in proving the set-off, he could not afterwards sue for the amount; and a party cannot bring an action for what he has succeeded in setting off in a former suit against him; though if the set-off were more than sufficient to cover the plaintiff's demand in the former action, the defendant therein might then maintain an action for the surplus. 3 Esp. Rep. 104. Though the defendant does not avail himself of the set-off, intending to bring a cross-action, the plaintiff may defeat it by taking a verdict for the whole sum he proves to be due to him, subject to be reduced to the sum really due on the balance of accounts, if the defendant will afterwards enter into a rule not to sue for the debt intended to be set off; or he may take a verdict for the smaller sum, with a special endorsement on the postea, as a foundation for the court to order a stay of proceedings, if an action should be brought for the amount of the set-off. 1 Camp. 252.

The demand, as well of the plaintiff as of the defendant, must be a debt. A set-off is not allowed in an action for uncertain damages, whether in assumpsit, covenant, or for a tort, trover, detinue, replevin, or trespass. Bull. N. P. 181. 3 Camp. 329. 4 T. R. 512. 1 Bla. Rep. 394. 2 Bla. Rep. 910.

The only cases in which a set-off is allowed are in assumpsit, debt, and covenant for the non-payment of money, and for which an action of debt or indebitatus might be sustained, (2 Bla. Rep. 911;) or where a bond in a penalty is given for securing the payment of money on an annuity, (2 Burr. 820;) or at least stipulated damages. 2 T. R. 32. The demand to be set off, also, must not be for unliquidated damages, although incurred by a penalty. 1 Bla. Rep. 394. 6 T. R. 488. 1 Taunt. 137. 2 Burr. 1024. 2 Bla. Rep. 910. 1 Taunt. 137. 5 B. & A. 92. 3 Camp. 329. Peake's Rep. 41. 6 Taunt. 162. 1 Marsh. 514, S. C. 2 Brod. & B. 89. 1 M. & S. 499. 5 M. & S. 539, &c. See cases in 1 Chitt. on Pl. 4th ed. 486, 487. Stark. on Evid. 1312, part 4. The defendant's bringing an action or obtaining a verdict for a debt is no waiver of the right to set off the debt. 2 Burr. 1229. 3 T. R. 186. And a judgment may be pleaded by way of set-off, though a writ of error be depending upon it, (3 T. R. 188, in notes;) but not so after plaintiff be taken in execution. 5 M. & S. 103. The debt to be set off must be a legal and subsisting demand: an equitable debt will not suffice. See 16 East, 36, 136. 7 East, 173. A demand barred by the statute of limitations cannot be set off. 2 Stra. 1271. Peake's Rep. 121. Bull. N. P. 180. An attorney cannot set off his bill for business done in court unless he has previously, and in a reasonable time to be taxed, delivered a bill signed. 1 Esp. C. 449. But it is not necessary that a month should intervene between the delivery of the bill and the trial. Id.

The debt sought to be recovered and that to be set off must be mutual and due in the same right: therefore a joint debt cannot be set off against a separate demand, nor a separate debt against a joint one, (2 Taunt. 173. Montague, 23. 5 M. & S. 439,) unless it be so expressly agreed between all the parties, (2 Taunt. 170;) and a debt on a joint and several bond of several persons may be set off to an action brought by only one of the obligors. 2 T. R. 32. A defendant sued for his own debt may set off a debt due to him as surviving partner, (5 T. R. 493. 6 T. R. 582;) and in an action brought by an ostensible and a dormant partner, the defendant may set off a debt due from the ostensible partner alone. 2 Esp. C. 469. 7 T. R. 361, n. c., S. C. See Peake, 197. 12 Ves. 346. 11 Ves. 27. Id. 517. 16 East, 130. A debt due to a man in right of his wife cannot be set off in an action against him on his own bond. Bull. N. P. 179. A debt due from a wife dum sola cannot be set off in an action brought by the husband alone, unless the defendant has made himself individually liable. 2 Esp. C. 594. A debt from an executor in his own right cannot be set off against a debt to the testator, (3 Atk. 691,) though the executor is residuary legatee. Id. So a debt which accrued to the defendant in the life time of the testator cannot be set off against a debt that accrued to the executor even in that character after the testator's death. Bull. N. P. 180. Willes, 103, 106.

Questions of difficulty frequently arise in cases of set-off, where the agent of a party deals as principal. The rule in these cases is, that if an agent dealing for a principal, but concealing that principal, delivers goods in his own name, the person contracting with him has a right to consider him as the principal; and though the real principal may appear and sue, yet the purchaser may in such case set off any claim he has against the agent. 7 T. R. 360. 1 M. & S. 576. 2 Marsh. 501. Holt, C. N. P. 124. But a debt due from a broker cannot be set off in an action by the principal against the purchaser

guilty;(y) in debt upon contract, nihil debet, he owes nothing, in debt on bond, non est factum, it is not his deed; on an assumpsit, non assumpsit, he made no such promise. Or in real actions, nul tort, no wrong done; nul disseisin, no disseisin; and in a writ of right, the mise or issue is, that the tenant has more right tc hold than the demandant has to demand. These pleas are called the general issue, because, by importing an absolute and general denial of what is alleged in the declaration, they amount at once to an issue: by which we mean a fact affirmed on one side and denied on the other.

Formerly the general issue was seldom pleaded, except when the party meant wholly to deny the charge alleged against him. But when he meant to distinguish away or palliate the charge, it was always usual to set forth the particular facts in what is called a special plea; which was originally intended to apprize the court and the adverse party of the nature and circumstances 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 [*306 pleading having been frequently perverted 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 antiently 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.

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, a 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;" or the time

(✔) Appendix, No. II. § 4.

() Appendix, No. III. § 6.

(") See pages 188, 196.

to recover the price of goods sold by the broker, not disclosing his name. 2 B. & A 137. And if an agent sells goods as his own, or has a lien upon them, and does not part with the goods unless the purchasor expressly agrees to pay him, the purchasor in an action brought against him by such agent for the price of the goods cannot set off a debt due from the owner to the purchasor. 2 Chitt. R. 387. 7 T. R. 359. But if an agent deliver goods without payment, and thereby parts with his lien, the purchasor may, in an action by the agent, set off a debt due from the principal. 7 Taunt. 243. And where an auctioneer had sold to the defendant the goods of A. as the goods of B., it was held that this was such a fraud that defendant might set off a debt due to him from B. against the price of the goods of A. Id. ibid. 1 J. B. Moore, 178. As to set-off in actions, by or against assignees of bankrupts, see 1 Chitt. on Pl. 492 to 494. Stark. on Evid. part 4, 106, ante, 2 book, 472, k., (n.) And 6 Geo. IV. c. 16, 8 50.-CHITTY.

24 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 a lending, or contract without specialty, or for arrearages of rent reserved on parol leases. Hut. 109. 1 Saund. 38. 2 Saund. 66. Tidd, Pr. 8th ed. 15. It does not extend to warrants of attorney. 2 Stark. 234. It extends to bills of

limited by certain acts of parliament, beyond which no plaintiff can lay his cause of action. This, by the statute of 32 Hen. VIII. c. 2, in a writ of right, is sixty years; in assizes, writs of entry, or other possessory actions 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 lands grounded

exchange, (Carth. 3,) attorneys' fees, (3 Lev. 367,) and to a demand for rent on a parol demise. 1 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. 1 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. 1 Camp. 27. After a considerable length of time, slight evidence is sufficient. 1 T. R. 271; and see Tidd, 8th 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. 1 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. 1Stark. 101;) or that the demand was trifling, (Cowp. 214;) or other circumstances, explaining satisfactorily why an earlier demand has not been made. 1 Stark. 101. 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. 1 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 Rum 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. 1 Lev. 48. Salk. 442. 1 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. 1 Taunt. 572. The statute begins to operate only from the time when a bill of exchange or promissory note, &c. 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. 1 Ves. 344. 2 Selw. 4th ed. 131, 339. Cro. Eliz. 548; and see Chitty on Bills, 6th ed. 373; sed quare, see Hard. 36. 14 East, 500. 1 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 froin 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 itera which happens to be within six years will not draw after it those which are of a longe standing. Bull. N. P. 149.

upon one's own seisin or possession, such possession must have been within thirty years. By statute 1 Mar. st. 2, c. 5, this limitation does not extend to *any suit for advowsons, upon reasons given in a former chapter.(b) But by the statute 21 Jac. I. c. 2, a time of limitation was extended to the

(*) See page 250.

[*307

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 acounts are current and open, and not to accounts stated between them, (2 Ves. 400. Bull. N. P. 149. Sir W. Jones, 401. 1 Sid. 465 1 Ventr. 89;) for no other actions are excepted but actions of account. Carth. 226. ▲ Show. 341, S. C. 2 Saund. 127, a. 2 Mod. 312, and 1 Mod. 70. 1 Lev. 298. 4 Mod. 105. Peake, 121. 1 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, &c. only extends to plaintiffs, (Carth. 116, 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. T. R. 516. It extends to persons absent in Scotland, (1 Bla. R. 286. 1 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 the meaning 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. 4 Taunt. 826. And see the cases (1 Wils. 134. 4 T. R. 516) just cited.

Thirdly, WHAT IS A GOOD COMMENCEMENT OF AN ACTION TO TAKE THE CASE OUT OF THE STATUTE. See Tidd, 8th 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, Š. C. 2 Stra. 907. Cro. Car. 294; sed vide 1 Lord Raym. 283. 1 Salk. 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 out 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

case of the king; .z., sixty years precedent to 19 Feb. 1623; (c) but, this be com.ng ineffectual by efflux of time, the same date of limitation was fixed by statute 9 Geo. III. c. 16, to commence and be reckoned backwards, from the time of bringing any suit or other process, to recover the thing in question; so

() Inst. 189.

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. & À. 204. 3 B. & A. 288;) and a subsequent acknowledgment of a trespass will not take the case out of the act. 1 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. 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, &c., 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. 1 B. & A. 690. An acknowledgment after action brought is good. Selw. N. P. tit. Limi tations. Burr. 1099. The admission to a third person is sufficient. 3 B. & A. 141. Loft. 86. 2 B. & C. 154.

46

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 as sumpsit 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 suf ficient 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 ac knowledgment, because the demand was out of date, and that he would not then pay it was not then due, takes the case out of the act. 16 East, 420. 2 Stark. 98, 99