are to be dated from the day upon which the plaintiff might have commenced an action for the recovery of his demand.

"Prescription only begins to run from the time when the creditor has a right to institute his suit, because no delay can be imputed to him before that time. Hence it is a general maxim, with regard to this subject, contra non valentem agere nulla currit prescriptio; consequently a prescription cannot begin to run whilst a debt is suspended by a condition” (q).

If the contract be to pay money at a future period; or upon the happening of a certain event, as "when J. S. is married ;” the six years are to be dated, in the first instance, from the arrival of the specified period; in the second, from the time when the event occurred (r).

A bill of exchange was drawn, payable at a certain future period, for the amount of a sum of money lent by the payee to the drawer at the time of drawing the bill. The payee was allowed to recover the money, in an action for money lent, although six years had elapsed since the actual advance of the money; it being held, that the statute began to operate only from the time when the money was to be repaid, that is, when the bill became due (s).

In the case of an attorney's bill against his client for prosecuting or defending an action, it seems that the six years are to be reckoned, as to the whole bill, from the termination of the suit by judgment or otherwise (†).

In the case of a promise of indemnity, the statute does not apply until the lapse of six years from the actual damnification (u). Where goods were sold at six months' credit, payment to be then made by a bill at two or three months, at the purchaser's option, it was held (Parke, J., dubitante), that this was in effect a nine months' credit, and consequently that an action for goods

(q) 1 Pothier by Evans, 451, Pt. 3, c. 8, Art. 2, s. 2.

(r) Shutford v. Borough, Godb. 437; Fenton v. Emblers 1 Bla. R. 353. (s) Wittersheim v. Lady Carlisle, 1 H. Bla. 631.

(t) Rothery v. Munnings, 1 B. & Ad. 17, 18, per Lord Tenterden, C. J, cited ante, 630. An attorney cannot sue his client if the bill be taxable,

until it has been delivered signed for one month; but semble, the attorney could not obviate the statute by delaying the delivery of the bill. Perhaps the six years would be dated from the end of one month after the time when the business was completed.

(u) Huntley v. Sanderson, 1 C. & Meeson, 467; 2 Chitty, Jr., B. 1641, S. C.

sold and delivered, commenced within six years from the end of the nine months, was brought in time to save the statute (x).

If goods be consigned to a factor for sale, an action does not lie against him for not accounting, until after a demand made of an account. Consequently, the statute runs, in such case, only from the time when the demand was made (y).

If a bill, or note, be payable one month after sight, the six years are to be calculated from the expiration of a month after presentment (z). And if the instrument be payable one month after demand, the limitation begins from the end of a month after actual demand of payment, not at the expiration of one month from the date of the instrument (a). But if a promissory note be made payable upon demand, it seems that no express demand is necessary; and, consequently, that the limitation commences from the date of the note (b).

The gist of an action of assumpsit for the violation of a special contract is the breach of such contract, and not any resulting or collateral damage occasioned thereby. The statute runs from the time when the contract is broken, and not from the period when any damage arising therefrom is sustained by the plaintiff and therefore, although such damage accrue within six years, the action is defeated by the statute, if the contract were broken beyond that period.

A., under a contract to deliver spring wheat, delivered to B. winter wheat; and B., having again sold the same as spring wheat, had, in consequence, been compelled by action to pay damages to his vendee; and afterwards sued A., in assumpsit, for his breach of contract, alleging, as a special injury, the damages so recovered. It was held, that although the special damage occurred within six years before the commencement of the action, yet, as the breach of the contract with A. had happened more than six years before that period, the Statute of Limitations was a bar to the suit (c).

In Short v. M'Carthy (d), the defendant was sued in assumpsit for negligence, as an attorney in making a search at the bank, to ascertain whether certain stock was standing in the names of certain persons. The defendant's promise, his negligence, and the plaintiff's loss, occurred more than six years before the commencement of the action; but the plaintiff did not discover the injury he had sustained till within six years. Bayley, J., and Holroyd, J., were of opinion that the cause of action accrued from the time the breach of duty took place, although the plaintiff was then unconscious thereof.

In Howell v. Young (e), the court applied the same doctrine to an action upon the case against an attorney for not using due care and diligence in ascertaining whether a mortgage would be a sufficient security to the plaintiff for the repayment of money to be advanced, although the insufficiency of the security was not discovered until long after the misconduct.

Bree v. Holbech (f) was also decided upon the same principle. A personal representative, having found among the papers of the deceased a mortgage deed, assigned it more than six years before the action, for the mortgage money, affirming and reciting in the deed of assignment that it was a mortgage deed, made or mentioned to be made between the mortgagee and the mortgagor for that sum. It was decided that the assignee could not recover back the mortgage money from the assignor, although it turned out that the mortgage was a forgery, and that the assignee did not discover the forgery till within six years before he brought his action; it not appearing that the assignor knew it to be a forgery. Lord Mansfield, C. J., observed, "There may be cases which fraud will take out of the Statute of Limitations. But here, every thing alleged in the replication may be true, without any fraud on the part of the defendant. He is an administrator with the will annexed, who finds a mortgage deed among the papers of his testator, without any arrears of interest, and parts with it boná fide, as a marketable commodity. If he had discovered the

(d) 3 B. & Al. 626; Brown v. Howard, 2 B. & Bing. 73; 4 Moor, 508, S. C.

(e) 8 D. & R. 14; 5 B. & C. 259, S. C. So in trover the six years run

from the conversion, though it were not discovered at the time; Granger v. George, 7 D. & R. 729; 5 B. & C. 149, S. C.

(f) 2 Doug. 654.

forgery, and had then got rid of the deed as a true security, the case would have been very different."

The Statute of Limitations is a good defence to an action by a landlord for rent, against a person who had once been his tenant from year to year, but who had not, within the last six years, occupied the premises, either actually or constructively, or paid rent, or done any act from which a tenancy could be inferred, although the tenancy had not been determined by a notice to quit (g).

It appears not to be settled whether an undiscovered fraud on the part of the defendant in the transaction on which the claim is founded, prevents, or suspends, at law, the operation of the statute. It is clear, at all events, that the limitation would begin immediately the fraud was discovered. But the statute contains no exception, or saving, in the case of fraud; and there would probably be much difficulty at law (h) in setting up even an undiscovered fraud as an excuse for not suing for a debt within six years (i). At all events, if in assumpsit for money had and received, the statute be pleaded, and fraud in the defendant discovered by plaintiff within six years be relied upon as taking the case out of the statute, the general replication that the cause of action accrued within six years is insufficient, and the fraud should be specially replied (k).

3. Of the revival of the Remedy by a new Acknowledgment of the Debt, &c.

1. Before the statute 9 Geo. 4, c. 14 (Lord Tenderden's Act), a verbal admission of the debt within six years was sufficient to obviate the Statute of Limitations. "The statute 9 Geo. 4 did not intend to make any alterations in the legal construction to be put upon acknowledgments or promises made by defendants, but merely to require a different mode of proof, substituting the

(g) Leigh v. Thornton, 1 B. & Al.

624.

(h) In Equity, see South Sea Company v. Wymondsell, 3 P. Wms. 143; Bac. Ab. Limitations, (D 4); 2 Pothier by Evans, 126, 129; E. Chitty Eq. Index, tit. Limitations, Statute of; 1 Chitty Gen. P. 775, 776, 779.

(i) See, however, per Mansfield, C. J., in Bree v. Holbech, Dougl. 656,

supra; per Dallas, C. J., Brown v. Howard, 4 Moore, 512; 2 B. & Bing. 73, S. C.; and per Best, J., in Clark v. Hougham, 2 B. & C. 156; 3 D. & R. 329, S. C.

(k) Clark v. Hougham. As to the effect of fraud practised by defendant to prevent plaintiff from discovering his cause of action; Granger v. George, 5 B. & C. 149; 7 D. & Ry. 729, S. C.

certain evidence of a writing signed by the party chargeable, instead of the insecure and precarious testimony to be derived from the memory of witnesses. To enquire, therefore, whether, in a given case, the written document amounts to an acknowledgment or promise, is no other enquiry than whether the same words, if proved, before the statute, to have been spoken by the defendant, would have had a similar operation and effect" (l).

By the first section of the 9 Geo. 4, after reciting "that various questions have arisen in actions founded on simple contract as to the proof and effect of acknowledgments and promises offered in evidence for the purpose of taking cases out of the operation of the said enactments, and that it is expedient to prevent such questions, and to make provision for giving effect to the said enactments, and to the intention thereof it is enacted, that in actions of debt or upon the case grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactments, or either of them, 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 :-provided always, that nothing herein contained shall alter, or take away, or lessen the effect of any payment of any principal or interest made by any person whatsoever :-provided also, that 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 contractors, 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

(1) Per Tindal, C. J., Haydon v. Williams, 7 Bing. 166, 167; 4 M. & P. 811, S. C.