LIMITATION OF ACTIONS. A. IN ASSUMPSIT. (a) From what time to be com- (b) In what cases the statute does (c) How avoided. B. UPON TORTS. A. IN ASSUMPSIT. A. (a) From what time to be computed. (And see ante, ANNUITY, pl. 14.) Fonseck, Selw. 131, 339. But see A. (b) In what cases the statute does not 4. Where there are reciprocal demands, the statute of limitations does not attach, although the parties be not merchants. Cranch, executrix, &c. v. Kirkman and others, Peake, 121. Kenyon, C. J. 1792. 6 T. R. 191. S. C. Acc. Catling v. Skoulding, 6 T. R. 189. 5. Unless a long period has intervened between the respective demands. Ibid. And see Cotes v. Harris, Bull. N. P. 149; 2 Saund. 124; ib. 127, d. (n) 7. Bridges v. Mitchell, Bunb. 217; 2 Vern. 276. 6. Where there are cross demands arising out of the same transaction, and the plaintiff has kept alive his claim by continuing down process, he cannot avail himself of the statute of limitations to defeat the defendant's set-off. Ord v. Ruspini, 2 Esp. 570. Kenyon, C. J. 1. Where a declaration is filed in vacation, entitled of the preceding term, the defendant may shew that the action was commenced after the six years had expired. Snell v. Phillips, one, &c. Peake, 209. Kenyon, C. J. 1794. And see 2 Wms. Saund. 1. n. 1. 2. If the statute be pleaded to an action against an attorney for negligence, semble, that the six years must be reckoned from the period at which the 1797. plaintiff was damnified, not from the 7. Quære, whether the demand of a time when the blunder was committed. joint obligor for contribution, is barred Compton v. Chandless, one, &c. 4 Esp. by a shorter period than an action on 18. Kenyon, C. J. 1801. the bond itself. Cole, executor of Cole, And see Peake v. Ambler, W. Jon. v. Saxby, 3 Esp. 161. Eldon, C. J. 329; S. C. Cro. Car. 349; Shutfen v. 1800. Penow, ibid. 139; Hughes v. Thomas, 8. An acceptor may retain funds to 13 East, 474; 15 Vin. Abr. Limitation, indemnify him against his acceptances, P; Littleboy v. Wright, 1 Lev. 69; Hick-though outstanding more than six years. man v. Walker, Willes, 27; Ante, IN- Morse and others, assignees of T. A. KerSURANCE, O. (b). rison, v. Williams and others, 3 Campb. 3. In an action upon a note payable 418. Ellenborough, C. J. 1814. on demand, if no steps appear to have been taken during twenty years, the jury may presume payment. Duffield v. Creed, 5 Esp. 52. Ellenborough, C. J. 9. The statute does not prevent a creditor from suing out a commission of bankruptcy. It extends only to the remedies by action mentioned in the act. Fowler v. Brown, 1 Bac. Abr. 400. Lord Mansfield, C. J. 1779. S. C. Co. B. L. 16; overruled by Eldon, C. in ex parte Dewdney, 15 Ves. 479. And see Quantock v. England, 5 Burr. 2628, 2 Bla. 702; Remington v. Stevens, 2 Stra. 1271; Bull. N. P. 180. 10. So a carrier, &c. has a lien upon goods in his possession for a debt barred by the statute. Spears v. Hartley, 3 Esp. 81. Eldon, C. J. 1800. N. Agreeably to the maxim, quæ tem poralia sunt ad agendum, perpetua sunt chiquin, 1 Esp. 435. Kenyon, C. J. ad excipiendum. And see Pothier, Charte-partie, part 1. art. 3. sect. 3. num. 92, 3. Sed vide Vinn. Inst. Imp. Comm. lib. 4. tit. 13. sect. 9. n. 2. A. (c) How avoided. 11. Upon a replication of an original, sued out within time, it is sufficient to produce a capias. Gosling v. Witherspoon, 2 Wms. Saund. 1, e. Kenyon, C. J. 1788. 1796. And see Com. Dig. Temp. G. 18. 20. And where the acknowledgment is general, and a preceding debt is proved, it lies upon the defendant to shew that the acknowledgment applied to a different demand. Ibid. 21. An acknowledgment made to a stranger, is sufficient. Peters v. Brown, 4 Esp. 46. Kenyon, C. J. 1801. And see Quantock v. England, 5 Burr. 2628. S. C. 2 Bla. 702. Trueman v. Fenton, Cowp. 544, 8. 12. Under the statute the execution of 22. "I am bound in honour to pay, a warrant of attorney has no greater and I shall pay when I am able." Held, operation than any other acknowledg- not sufficient, without proof of ability at ment of the debt, not being a specialty the time of bringing the action. Davies whereon an action would lie. Clarke, v. Smith, 4 Esp. 36. Ellenborough, C. executor of Musgrave, v. Figes, 2 Stark. J. 1801. 234. Abbott, J. 1817. A. (d) Where waved. (2 Anst. 527.) 13. In an action by A. against B. upon the joint note of himself and C. deceased, the mere payment of a sum of money to A. by C., in his life-time, will not take the case out of the statute. Holme v. Green, 1 Stark. 488. Ellenborough, C. J. 1816. 14. A new promise made by the wife of the debtor, entrusted by him with the inanagement of the particular business out of which the debt arises, is sufficient to take it out of the statute. Palethorp v. Furnish, 2 Esp. 511, n. Lord Mansfield, C. J. 1783. And see ante, INFANT, B. (d). 23. A promise to pay by instalments, if time is given, is sufficient, without proof that time has been given. Thompson v. Osborne, 2 Stark. 98. Ellenborough, C. J. 1817. 66 24. "I have paid the debt, and will send a copy of the receipt," is not sufficient. Birk v. Guy, gent. 4 Esp. 184. Ellenborough, C. J. 1803. 25. But this has been since held a sufficient acknowledgment to go to a jury on failure to produce a receipt. Anon. cited, Holt, 381, and approved by Gibbs, C. J. 1816. Contra, post, pl. 30. 26. "I shall be able to satisfy him respecting the misunderstanding which has occurred between us," is not sufficient. Craig v. Cox, Holt, 380. Gibbs, C. J. 1816. And see Ward v. Hunter, 6 Taunt. And see 2 Freem, 178; F. N. B. 120 G. And see post, pl. 19. 16. Or a promise by any other agent so entrusted. Ibid. 17. S. P. ruled in Burt, administrator, v. Palmer, 5 Esp. 145. Ellenborough, C. J. 1804. 18. "What an extravagant bill you have delivered me." This admits that something is due. Lawrence v. Worrall, Peake, 93. Kenyon, C. J. 1790. 19. Creditor is referred by debtor to his trustee. This is a sufficient acknowledgment. Baillie et alt. v. Lord In 27. "I do not consider myself as owing the plaintiff any thing, as it is over six years since I contracted; I acknowledge having had the wheat, but I have paid part, and only 261. remains due;" held sufficient to take the demand out of the statute. Bryan v. Horseman, 5 Esp. 81. Ellenborough, C. J. 1803. And the court of K. B. discharged a rule for a new trial. Ibid. and 4 East, 599. S. C. 1 Smith, 125. Cont. Bicknell v. Keppel, 1 N. R. 599. Coltman v. Marsh, 3 Taunt. 381, 28. So "If others pay I will pay." Loweth v. Fothergill, 4 Campb. 185. And see Douthwaite v. Tibbutt, 5 M. & S. 75. 29. Where the defendant admitted that a debt had existed, but at the same time said, that he had since been a bankrupt, by which he was discharged, as well as by the length of time since the debt had accrued, it was held, that such an acknowledgment was sufficient to take the case out of the statute. Clarke v. Bradshaw and Coghlan, 3 Esp. 155, 7. Kenyon, C. J. 1800. 30. Held, that where a party who is applied to for the payment of a debt barred by the statute, says "I have a set off for a greater amount, "the existence of the debt is admitted. Swann v. Sowell. Best, J. Launceston Assizes, 1809. medy is revived by a subsequent acknowledgment is, that the law implies a new promise to pay; but this principle is inapplicable to the case of a mere tort, or of a cause of action arising from the non-performance of some act at a particular time, as the non-acceptance of goods. Boydell v. Drummond, 2 Campb. 157. Ellenborough, C. J. 1808. S. C. 11 East, 142, not S. P. But a verbal promise will revive a written guarantee. Anon. K. B. 1818. Chitty on Bills, 455, n. 36. A letter from one of two parties to a joint and several promissory note, requesting the others to settle it, is sufficient to take the case out of the statute. Halliday v. Ward, the elder, 3 Campb. 32. Ellenborough, C. J. 1811. And see Whitcombe v. Whiting, Dougl. 651. Bryan v. Horsman, 4 East, 599. S. C. 1 Smith, 125. But see Brandram But the court of K. B. set aside a verdict for the plaintiff, on the ground v. Wharton, 1 B. & A. 463. that there must be an acknowledgment of an existing debt. T. T. 1819. And see Coltman v. Marsh, 3 Taunt. 380. Rowcroft v. Lomas, 4 M. & S. 457. 66 B. UPON TORTS. (And see PENAL ACTION, A. (a); C.) 37. An officer acting colore officii, and 31. If you had presented the protest it would have been paid," is suffi-not virtute officii, is not protected from cient where no protest was necessary. De la Torre v. Barclay and Salkeld, 1 Stark. 7. Ellenborough, C. J. 1814. 32. Where the defendant admits that a debt has existed, but at the same time insists that it has been discharged by a written instrument, the whole declaration must be taken together. Partington v. Butcher, 6 Esp. 66. Mansfield, C. J. 1806. And see Earl of Mountague v. Lord Preston, 2 Vent. 170. 33. Yet if it appear that the instrument referred to does not amount to a discharge, there remains a sufficient acknowledgment of the debt to take the case out of the statute. Ibid. And see Bermon v. Woodbridge, Dougl. 788. Post, WITNESS, D. (c) 34. In an action against a husband actions brought after the expiration of six months. Alcock v. Andrews, 2 Esp. 542, n. Kenyon, C. J. 1788. And see Anon. 1 Stra. 446. Clements v. Keen, 2 Smith, 220. Weller v. Toke, 9 East, 364. 38. Where a new offence is created, for which the defendant may be indicted or sued for a penalty, and the bringing of actions is limited to two years, the restriction does not extend to proceedings by indictment. Dover v. Maestaer, 5 Esp. 92. Ellenborough, C. J. 1803. LITERARY PROPERTY. for goods sold to his wife, whom he A. WHAT MAY BE THE SUBJect of occasionally visits, a letter of the wife acknowledging the debt, is evidence of a new promise. Gregory v. Parker, 1 Campb. 394. Ellenborough, C. J. 35. The ground upon which the re COPYRIGHT. B. COPYRIGHT, WHERE Vested. C. WHERE INVADED. D. ASSIGNMENT OF COPYRIGHT. the opera, and that by the regulations A. WHAT MAY BE THE SUBJECT OF of that establishment, such compositions COPYRIGHT. 1. The inventor of an etching who has neglected to engrave his name on the plate, pursuant to 8 Geo. II. cap. 13. s. 1. may maintain an action at common law for a piracy. Roworth v. Wilkes, 1 Campb. 94. Ellenborough, C. J. 1807. become the property of the house. Ibid. C. WHERE INVADED. 9. Mistakes in the names of places, in a topographical work, are retained in a subsequent publication by the defendant. This is not sufficient to support a See Beckford v. Hood, 7 T. R. 620. count for pirating the plaintiff's work 2. Semble, that the words of a song generally. Cary v. Kearsley, 4 Esp. applied to an old tune, and published 168. Ellenborough, C. J. 1802. with it on a single sheet of paper, are 10. But semble, that such evidence privileged as a book by 8 Ann, cap. 19. | would support a count for transcribing s. 1. Hime v. Dale, 2 Campb. 29, n. particular parts without the plaintiff's K. B. E. 44 Geo. III. Ibid. S. C. 11 East, 244, n. less fully reported. 3. But if such fugitive piece appear to be a libel, the jury, in an action for pirating it, will be directed to give no damages. Ibid. consent. 11. It is lawful to adopt the works of a contemporary writer, and incorporate them in a new work, provided this be done bond fide, and not with a view to steal the original copyright. Ibid. And see Gyles v. Wilcox, 2 Atk. 141, And quære, whether, under such cir-3; Anon. Lofft. 775. cumstances, the plaintiff would not be 12. Secus, if so much be copied as nonsuited; Walcot v. Walker, 7 Ves. 1. to form a substitute for the original And see post, TRESPASS. 4. A composition entirely musical, published on a single sheet of paper, is within the protection of the statute. Clementi and others v. Goulding and others, 2 Campb. 25. Ellenborough, C. J. 1809. And the court of K. B. were unwilling to grant a rule nisi to set aside verdict for plaintiff. Ibid. and 11 East, 244. 5. S. P. semble admit: Storace v. Longman, 2 Campb. 27, n. Kenyon, C. J. 1788. B. COPYRIGHT, WHERE VESTED. 6. An action lies for pirating additions to a work in which the plaintiff had originally no interest. Cary v. Longman, 3 Esp. 373. Kenyon, C. J. 1801. See Gibbs v. Cole, 3 P. Wms. 255. 7. And semble, that the first publisher of a book, obtained by breach of trust, may sue a stranger who pirates it. Cary v. Kearsley, 4 Esp. 168. Ellenborough, C. J. 1802. And see post, TROVER, A. 4, 5. 8. And the interest vested in the composer by this statute, is not affected by shewing that the song was composed. to be sung by a particular performer at work. Roworth v. Wilkes, 1 Campb. 94. Ellenborough, C. J. 1807. And see Dodsley v. Kennersley, Ambler, 403, 5; 1 Brown, 451; 2 Bro. 80. D. ASSIGNMENT OF COPYRIGHT. 13. An agreement that A. shall have the exclusive publication in England, does not make him assignee of the copyCampb. 8. Ellenborough, C. J. 1814. right. James Power v. Walker, 3 14. Nor can there be assignment without writing. Ibid. 15. But in action by an author, who had declared that he had parted with all his copyright, a valid assignment was presumed. Moore v. Walker, 3 Campb. 19, n. 1814. 16. An assignment of copyright must be in writing. James Power v. Walker, 4 Campb, 8. Ellenborough, C. J. 1814. 17. A verbal contract between the author and another person, whereby the latter is to have the exclusive publication of the work in England, does not entitle him to maintain any action for pirating it. Ibid. And the court refused a rule to set aside nonsuit. Ibid. and 3 M. & S. 206 MANDAMUS.-MANOR.-MASTER AND SERVANT. MANDAMUS. MASTER AND SERVANT. (And see WITNESS, C. (k).) 1. A party who has obtained a man- 2. Nor can the action be maintained And the court of K. B. appears to have made absolute a rule for arresting judgment; 1 East, 555. MANOR. (And see ante, COMMON.) A. WHAT SHALL BE. 1. A manor by reputation is sufficient to entitle the lord to manerial wastes. Curzon and another v. Lomax, 5 Esp. 60. Ellenborough, C. J. 1803. And see Soane v. Ireland, 10 East, 259; Rex v. Bishop of Chester, Skin. 651, 61, 2; S. C. 1 Lord Raym. 291, 301; Thinne v. Thinne, 1 Lev. 27; Keilw. 150, 1; 2 Brownl. 223; Cary, 33, 4; Lenon v. Blackwell, Skinn. 191. SERVANT TO WARDS MASTER. B. OBLIGATIONS OF MASTER TO- (a) Wages. (b) Care in sickness. C. RIGHTS OF MASTER AGAINST STRANGERS. D. LIABILITY OF MASTER TO A. OBLIGATIONS OF SERVANT TO- 1. A servant who having received money from his master to purchase articles, charges more for them than he has paid, is guilty of embezzlement, within 39 Geo. III. cap. 85. Per Holroyd, J. in Braddick v. Croad, Devon Spring Assizes, 1819. 2. Where a servant makes such fraudulent overcharge, without having previously received money, he is guilty of obtaining money under false pretences. Ibid. And see Rex v. Mason, 2 T. R. 581. 2. Upon admissions to distinct copy- And the court discharged a rule for B. COPYHOLds. 3. An attorney may be appointed for the purpose of suffering a recovery of a copyhold, without an express custom. Wymer v. Page, 1 Stark. 9. Ellenborough, C. J. 1814. WARDS SERVANT. TO (And see post, Misdemeanor, A. (d).) B. (a) Wages. 1. A negro slave, who continues his services in this country, is not entitled to wages without proof of an express contract. Alfred v. Marquis of Fitzjames, 3 Esp. 3. Kenyon, C. J. 1800. 2. Where a servant is discharged without notice or warning, he is entitled |