tion arose was, that upon an account taken the 9th of January, the defendant appearing to be indebted to the plaintiff in the sum of 150l. promised payment upon the 30th of January. The defendant pleaded non assumpsit infra sex annos: to this it was demurred, because the six years are to be computed from the time of the performance, and not of the promise; and therefore this plea might be true, and yet the plaintiff not barred by the statute of limitations; and therefore the plea [*218] should have been, actio non accrevit infra sex annos. And of that opinion was the court.(a).

In Hilary term following there was another case parallel omnibus.

So, where the plaintiff declared, that the defendant being indebted to the plaintiff pro operi et labori, &c. promised him, on the 1st April, to pay him the money upon the 1st May, &c.; the defendant pleaded the statute 21 Jac. I. c. 16. in bar, non assumpsit infra sex annos. It was considered that the plea should have been actio non accrevit, and not non assumpsit.(b)

In an indebitatus assumpsit, on a promise to pay on demand, the defendant pleaded non assumpsit infra ser annos: the plaintiff demurred, because the plea should have been, that there was no demand within six years, or non assumpsit infra sex annos after demand. But the court held, that an indebitatus assumpsit shows a debt due at the time of the promise, and therefore the plea good but if the promise had been of a collateral thing, which would create no debt till demand, it might be otherwise.(c)

Although the statute should take place from the time of making the promise, yet the plea of actio non accrevit infra sex

(a) 10 Mod. 104.

(b) 10 Mod. 206.

(c) Bull. N. P. 151.

annos is proper ;[1] therefore it has been considered the safest and best way of pleading the statute in all cases of debt on simple contract, or assumpsit, to say, that "the said several causes of action in the said declaration mentioned, or any or either of them, did not accrue to the said plaintiff within six

years next before the su*ing forth the original writ, or [219] of exhibiting the bill of the said plaintiff. (a)

In an action by the plaintiff, as assignee of the effects of a bankrupt, he declared that the defendant was indebted to the bankrupt, and being so indebted, promised the plaintiff to pay. The defendant pleaded, that the cause of action did not accrue to the bankrupt within six years. And on demurrer it was

(a) 2 Saund. 63. note 6.

[1] "There are two modes of pleading the Statute of Limita"tions; the one, that the defendant did not promise within five "years; and the other, that the cause of action did not accrue "within that time. The latter is equally applicable to every case, "but the former, which has been adopted in this instance, is in many cases insufficient.". Banks vs. Coyle, 2 Marsh. Rep (Ky.) 564. (Per BOYLE, CH. J. delivering the Opinion of the Court.)

To an action of debt on bond, a plea that the bond was not made within sixteen years, is bad under the Statute of Limitations. (Rev. Laws. 411, Sec. 6.) It should be that the cause of action did not accrue within sixteen years. Richmans Adm'rs. &c. vs.

Richman's Ex'ors. 3 Halst. Rep. 55.

"In all actions brought for breaches of promises founded on collateral and executory considerations, the proper plea is that "the cause of action did not accrue within six years; for it is im"material when the promise was made, if the cause of action in "such cases arose within the limited period." (Per YEATES, J.) Meade vs. M'Dowell (In Error) 5 Binn. Rep. 199.

To a declaration in an action on the case founded in tort, a plea, of not guilty of the grievances mentioned in the declaration within six years, is bad upon special demurrer. The plea should be, "that the cause of action did not accrue within six "years next before the commencement of the suit." Dyster vs. Battye & Al., 3 Barnew. & Ald. Rep. 448.

held ill, because the plea does not answer to the promise laid in the declaration, and it precludes the plaintiff from proving any promise to himself. (a)

By Holt, Ch. J. and the court. In an action by an assignee of bankrupt by commissioners, on a simple contract, the right way is, to lay the promise to have been to the bankrupt, except there be an express promise, after assignment made, to the assignee. And the way of declaring on a promise to the assignee is very inconvenient, and a means to oust the defendant of the benefit of the statute of limitations: for if the goods were sold five years before the assignment by the bankrupt, and then the debt is assigned, and a year passes, and the assignee declares on a promise to himself, it will not be a good plea to say, that the defendant "non assumpsit infra sex annos to the bankrupt," for that does not answer the declaration. And if he plead “non assumpsit infra sex annos to the plaintiff," it will be against him: for if there be any promise transferred by the act, it is only upon the assignment; and the intent of the statute was only to transfer the action, and nothing else.

[ *220]

*Indeed, if after assignment another receive the money, action will lie for the assignee upon a promise to himself; because the receipt of money after assignment is a contract with him; and every contract or agreement, per Holt, Ch., J. is an express promise, not in word, but in deed, which is as strong; and there is no such thing as a promise in law; and that acceptance of a bill of exchange is an express promise to pay it.(b)

In an action brought under the statute 33 Geo. III. c. 5. by the assignees of Arthur Miller, an insolvent debtor, discharged out of the Fleet prison, as endorsee of a bill of exchange, against the drawer, the first count of the declaration stated the

drawing of the bill, the acceptance by the drawee, the endorsement by the payee to Arthur Miller, before the plaintiffs became such assignees, the refusal of payment by the acceptor, and the protest for non-payment by Miller; of all which premises the defendant afterwards, and before the plaintiffs became such assignees, had notice: by reason whereof he became liable to pay to the said Arthur Miller, &c. and being so liable, and the said sum of money afterwards, and when the said Arthur Miller was so discharged as aforesaid, and the said plaintiffs became such assignees as aforesaid, being due and unpaid, the defendant, in consideration thereof, afterwards, and after the plaintiffs became such assignees as aforesaid, promised to pay them the said sum of money, &c. There was also a count stating that the defendant was indebted to the plaintiffs as assignees, for money paid before the plaintiffs became assignees, of Arthur Miller, to the use of the defendant, in consideration of which the defendant promised to pay *to [*221] the plaintiffs as assignees, &c. And a similar count,

stating the debt to the assignees for money had and received by the defendant, before the plaintiffs became the assignees, to the use of Arthur Miller, and a promise to pay to the plaintiffs as assignees; and the breach was, the non-payment to the plaintiffs as assignees, &c. To which the defendant pleaded, after the general issue, "that the said several causes of action in the said declaration mentioned, and each and every of them, first accrued to the said Arthur Miller, before the plaintiffs became such assignees as in the said declaration is mentioned, (to wit,) at London, &c. And the said defendant further saith, that six years did elapse after the time when the said several causes of action, and each and every of them, first accrued to the said Arthur Miller, and before the day of suing out of the original writ of the said plaintiffs against the said defendant, and this," &c. To which plea there was a general demurrer.

In support of the demurrer, Heywood, Serjeant, argued, that the plea was no answer to the declaration. In all the counts the

promise is stated to have been made to the plaintiffs; and as a breach of promise is the cause of action in assumpsit, no cause of action at all could accrue to the insolvent. Non assumpsit infra sex annos to a bankrupt, is no plea to assumpsit by the assignees, 6 Mod. 131. Parkins v. Wollaston. 2 Str. 919. Skinner v. Rebou. But if the original debt to the insolvent be taken as the cause of action mentioned in the plea, yet there might have been an express promise to the plaintiff, as stated in the declaration, to which allegation there is no answer in the plea.

[*222 ] *Le Blanc, Serjeant, contra, contended, that the demurrer admitted that the cause of action accrued to the insolvent, and more than six years before the action brought; an express promise, therefore, ought not now to be insisted on; when, if the parties had gone to trial, they would have had nothing to rest on but an implied promise, raised on a consideration which is admitted to be within the statute of limitations. If it were allowed the plaintiffs now to insist on an express promise, they would succeed on demurrer by supposing an express promise, and at the trial by supposing an implied one, when, in fact, there was neither, and the defendant clearly entitled to the benefit of the statute. Instead of demurring, they ought to have pleaded an express promise within six years, on which fact the parties might have gone to trial.

Lord Ch. J. Eyre suggested, that the defendant might have pleaded that the debt was first due to the insolvent more than six years before the action was brought, and that he made no promise to the plaintiffs within six years..

Buller, J. seemed to think, that the plaintiffs must prove an express promise at the trial.

Le Blanc then prayed to amend, which, as the defendant had amended once already, was refused.(a)

(a) 2 H. Bl. 561.