fendant pleaded, the statute of limitations, the plaintiff replied, that his testator, who was one of the attorneys of common pleas, on the 26th of April, in Easter term, 5 Geo. II. sued out a writ of privilege against the defendant, to answer him in a plea of trespass on the case on the morrow of the [*173] Holy Trinity then next; but that *the sheriff of Here fordshire (to whom it was directed) did nothing thereupon, nor did he send back the said writ; therefore the plaintiff's testator sued out another writ, &c. returnable in the then next Michaelmas term, &c.; and so on twenty other writs of the same kind, stating them, and the days they were returnable; but it stated that neither of them had been returned by the sheriff, and it did not state that any one of them had ever been

Whether an application to the judge of Probate within four years from the granting of letters of administration, for further time for creditors to exhibit and prove their claims, is equivalent to a suit so as to prevent the operation of the Statute of Limitations, the new commission not issuing till after the four years;—* Quære? Ibid.

The recovery of a claim against the [estate of a deceased person, which originates after, or, from its nature, cannot be ascertained within, the time limited by the Court of Probate for the exhibition of claims, is not barred by the non exhibition of it within such time. Therefore, where A., in 1775, conveyed land to B., with covenants of seisin and warranty, and, in 1789, died, leaving real and personal estate; the debts then outstanding were paid from the personal estate; the real estate was distributed to the heirs and devisees; and the estate was settled in the usual manner; more than thirty years afterwards, viz. in 1820, C. evicted B. in due course of law, from the land conveyed to him by A., in 1775; an administrator de bonis non on A.'s estate being appointed, B. exhibited his claim against the estate for a breach of A.'s covenant of warranty, which was allowed; the personal assets being exhausted, the Court of Probate granted to the administrator an order for the sale of land, to pay such claim; in pursuance of which, he sold a part of the land distributed to the heirs and devisees, which had been conveyed to, and was in the possession of, a bona fide purchaser; it was Held, that such land was subject to a lien, which the distribution, the limitation of claims, the alienatjon and the lapse of time, did not extinguish; and that the sale was, therefore, legal. Griswold vs. Bigelow, 6. Conn. Rep. 259.

delivered to him: that before the return of the last writ, namely, on the 28th of July, 1737, B. Karver (the plaintiff's testator) died; recently after whose death the plaintiff sued out the writ (a capias) in this case, in Trinity term, 11 & 12 Geo. II. for recovering the damages by reason of the not performing the several promises in the declaration mentioned; that the several writs of privilege so prosecuted by B. Karver in his life-time against the defendant, were prosecuted by him with an intent to have impleaded the defendant of and upon the several promises in the declaration specified; and that the writ so prosecuted by the plaintiff against the defendant, was prosecuted against him with intent to implead him for the cause of action in the declaration specified; and upon his appearance, to declare against him for the said several causes of action; and that he, (the plaintiff) according to his said intention, afterwards, on, &c. declared against the defendant here, &c. with an averment, that the several causes of action accrued within six years before the suing out of the writ of privilege first above specified by B. Karver, &c.

To this replication the defendant demurred specially, and showed for cause of demurrer, that the writ of

*privilege first above specified was void for want of a [174] sufficient return, &c.

And of such opinion was the court, and the defendant had judgment.

[*175]

*CHAP. VIII. .

Of the Proviso contained in the Seventh Section.

HAVING considered what acts of the party plaintiff prevent the statute from attaching on his cause of action, we come next to the cases excepted by the legislature out of its operation by the seventh section.[1] It is enacted, that if any person that

[1] The defendant's discharge, under the insolvent act of the 3d April, 1811, will not prevent the Statute of Limitations from running against an action of assumpsit upon a contract made before the act; though the money did not fall due upon the contract till after the discharge. SAVAGE, Ch. J. delivering the Opinion of the Court, said; "By the 2d proviso to the 5th section of the "Act of Limitations, [1 R. L. 186.] excuses for disability in the "plaintiff, are confined to infancy, coverture, insanity, or imprison"ment. The only excuse allowed by the statute, arising from "the act of the defendant, is his being out of the state when the "cause of action accrued. Though the defendant's virtual pro"tection from prosecution by his discharge, produces the same "result as his absence from the state, yet we are not warranted by any rule of construction, in deciding, that every cause which "produces the same effect as the one mentioned in the act, comes "within it." "It is not for the court to extend the law to all "cases coming within the reason of it, so long as they are not "within the letter." Sacia vs. De Graaf, 1 Cow. Rep. 356,

357.

A discharge under an insolvent law does not prevent the operation of the Statute of Limitations. Scott vs. Stackhouse, 1 Halst. Rep. 431.

In the case of Vance vs. The Ex'ors. of Grainger, (Cam. & Norw. Rep. 71,) THE COURT said; "The Act of Limitation "would amount to a general and positive bar, were not certain "exceptions contained in the proviso; we cannot add to these, "others, which the legislature has omitted; nor construe cases "to be within the saving, which it is plain were not meant to be "included."

By the proviso contained in the 8th section of the Act to settle disputes concerning the title to land in the county of Onondaga,

is entitled to any such action of trespass, detinue, action sur

(1 R. L. 215. sess. 20. ch. 51.) Infants have three years after coming of age, within which to file their dissent to the award of the commissioners. Jackson ex dem. Boyd vs. Lewis, (In Error.) 17. Johns. Rep. 475. Same case, 13 Ibid. 504. (in Sup. Court.),

The presumption of payment of a bond, arising from length of time shall be suspended between 1st January, 1776, and 21st June, 1784, under the law passed 21st June, 1781. Penrose & Al. Ex'ors. &c, vs. King, 1 Yeates' Rep, 344.

Where a subsequent disability of the plaintiff to sue arises, the period of such disability is, in cases of presumption arising from lapse of time, (although it is otherwise under the Statute of Limitations,) to be deducted from the twenty years: [after which payment of money secured by a specialty will be presumed.] And, therefore, if after the cause of action accrued, he becomes an alien enemy, the whole time of the continuance of the war must be excluded from the calculation Bailey vs. Jackson, 16 Johns. Rep、

210.

But from the decision in the case of Ogden, Adm'r. &c. vs. Blackledge, Ex'or. &c. (2 Cranch's Rep. 272. 279.) it seems that the Statute of Limitations is suspended during war, as to alien enemies; for it was there Held that "the period when the Act of "Limitations began to run against debts due by citizens of the "United States to British creditors," was " from the final ratifica"tion of the treaty of peace between Great Britain and the United "States."(Treaty of 1783.)—And in the case of Wall ads. Robson, (2 Nott & McC. Rep. 498. 510.) it was expressly decided, that A war suspends the operation of the Statute of Limitations, be "tween the citizens of the two countries, for the time during which "it continues." BAY, J. in delivering the Opinion of the Court, said; "From every view therefore which I have been able to "take of this new and important subject, and from all the author"ities which I have been able to examine, which have a bearing "upon it, I am decidedly of opinion, that the declaration of war "amounted to a suspension of the limitation act, against British "creditors; and the whole of the time which elapsed from its declaration to the day when peace was proclaimed, ought to be "thrown out of the computation of time mentioned in the statute for barring a plaintiff of a just demand."

And in the case of Hopkirk vs. Bell, (3 Cranch's Rep. 454.) where the plaintiffs had always resided in Great Britain, and had never been resident in Virginia, and, the promissory note of the defendant upon which suit was brought, was dated 21st August.

trover, replevin, actions of accounts, actions of debts, actions of

66

64

1773, the Court Held, "That the said Act of Limitations [of Virginia] is not a bar to the plaintiff's demand on the said note; "and this Court is of opinion, that the length of time from the giving the note, to the commencement of the war in 1775, not being sufficient to bar the demand on the said note, according to "the said act of assembly, [whereby British creditors were pre"vented from suing with effect for their debts from April, 1774, "until the year 1790] the treaty of peace between Great Britain "and the United States of 1783, does not admit of adding the "time previous to the war, to any time subsequent to the treaty, "in order to make a bar." & Vide same case, 4 Cranch's Rep. 164.

And in the case of Wilcox & Al. vs. Henry, (1 Dall. Rep. 71.) MCKEAN, Ch. J. in his Charge to the Jury, said; An alien enemy "has no right of action whatever during the war; but by the law "of nations, confirmed by universal usage, at the end of the war, "all the rights and credits, which the subjects of either Power had against the other are revived; for, during the war, they are not "extinguished, but merely suspended."

6:

If an Act of Limitations have a clause, saving to all persons von compos mentis, femes covert, infants, imprisoned or out of the Commonwealth, three years after their several disabilities removed," a creditor resident of another state, removes his disability by coming into the Commonwealth, even for temporary purposes; provided the debtor be at that time within the Commonwealth. vs. Roberdeau's Executor, 3 Cranch's Rep. 174.

Faw

. The exception in the Maryland Statute of Limitations, in favour of "such accounts as concerns the trade or merchandize be"tween merchant & merchant, their factors and servants, which "are non-residents within this province," applies to dealings between a merchant creditor residing out of Maryland, and a debtor residing in Maryland. And in order to take the case out of the exception, it is not sufficient to aver that the creditor returned to, came, and was within the state of Maryland after the cause of action accrued, and more than 3 years before bringing the suit. Bond & Al. vs. Jay, 7 Cranch's Rep. 350.

Foreigners, who have never been in the United States, are with in the exception of the statute for the limitation of personal actions, [Stat. 1786, c. 52.] and may bring their action within the time Jimited by the statute after their coming within the United States. Hall ve. Little, 14 Mass. Rep. 203.