A Treatise on the Limitations of Actions at Law and Suits in Equity and Admiralty

6. Continuation of Services.

§ 120. Where there is an undertaking which requires a continuation of services, the statute does not commence running until they can be completed. Thus, it has been held, that the statute does not commence running against the claim of an attorney at law for professional services, so long as the debt which he seeks to recover for his client remains unpaid. A mere suspension of proceedings, observed the court, from an apprehension that nothing might be got, would be a dangerous ground of inference; for, how desperate soever the affairs of a debtor may seem, it is always impossible to say how soon they may be retrieved; and, if money were subsequently lost for want of pursuit, the attorney might be liable for it. The contract of an attorney to carry on or defend a suit, is an entire contract to manage a suit to its close, and therefore the time runs only from the termination of the proceedings.2

1 Foster v. Jack, 4 Watts (Penn.), R. 334; [Jones v. Lewis, 11 Texas, 359].

2 Rothery v. Mannings, 1 Barn. & Adol. R. 15; Harris v. Osborn, 2 Carr. & Marsh. (N. P.), R. 829. Working "by the job," is understood among workmen to be the doing of the whole of a thing which is to be done, and it is employed in this sense in the civil code of Louisiana. Bouv. Dict. Tit. Job. Decided accordingly in reference to the statute of limitations, in Teigler v. Hunt, 1 McCord (S. C), R. 578. [McKenney v. Springer, 3 Ind. 59; Walker v. Goodrich, 16 Ill. 341. Where costs are incurred in a suit, the statute of limitations does not begin to run against the earlier items until the suit is terminated. Martindale v. Faulkner, 2 C. B. 70, and see Whitehead v. Lord, 11 Eng. Law & Eq. 589. But where an attorney was employed to raise money on a mortgage, and by direction of his employer applied to several persons for that purpose, and communicated from time to time with the defendant, it was held, that the business could not be taken to be done under one contract, so that the last item in plaintiff's bill, which was within six years, would take the others out of the statute. Phillips v. Broadley, 11 Jur. 264; s. c. 16 L. J. Q. B. 72. On an indefinite hiring of a slave, neither the time when the hiring is to terminate, nor the amount of compensation, nor the time when payable being agreed upon, the hiring is payable when earned, or within reasonable time thereafter, and the service is not a continuous one, so as to take the earlier wages out of the statute. Mins v. Sturtevant, 18 Ala. 359. See also, Davis v. Gorton, 16 N. Y. (2 Smith), 255. But contra, Littler v. Smiley, 9 Ind. 116. The statute is no bar to a suit for labor performed more than six years before action brought, if under a contract which had not expired till within six years. Vanhorn v. Scott, 28 Penn. St. (11 Harris), 316.]

7. Postponement of Right of Action.

§ 121. The liability to be sued, and consequently a right of action, may be suspended by a particular enactment. By one of the provisions of an insolvent law, if a certain number of creditors should so agree in writing, it should be lawful for the court to make an order, that the debtor shall be released from all suits, and the property which he might afterwards acquire be exempted from execution for any debt contracted, or cause of action created, previous to such release, for the period of seven years thereafter; and it was held, that the statute of limitations did not begin to run during the seven years allowed to the debtor.1

§ 122. Where money is paid on a contract which is to remain open, the statute does not run until one of the co-contractors authorizes the other to dispense with the contract. In an action for money had and received, brought in 1825, to recover the amount paid on an article of agreement for the sale of land, and which was entered into between the parties in the year 1800, where nothing had been done by the defendant until 1824, which would entitle the plaintiff to rescind the contract, the statute, it was held, was insufficient to bar the action. Unquestionably, said the court, the plaintiff might renounce the contract, after it had been repudiated by the defendant.2

8. Money paid by one of several Co-tenants, Co-purchasers, and Co-contractors.

§ 123. In an action by one tenant in common against his co-tenant for the proceeds of trees sold, the statute begins to run from the time of the payment, and not from that of the sale; and, if a promissory note be taken from the purchaser, upon which payments are afterwards made, the statute begins to run from the times of the payments.3

1 Ecksteir v. Shoemaker, 3 Whart. (Penn.), R. 15. The provision of the insolvent law was deemed constitutional, because the intent was to suspend and not destroy the debtor's liability.

2 Leinhart v. Forringer, 1 Penn. R. 492.

3 Miller v. Miller, 7 Pick. (Mass.), R. 133. [Two distributees of an estate entered into an agreement by which one was to have a life-estate in both shares, and the other

§ 124. If one joint purchaser pay the accruing interest on the purchase-money from time to time, a right of action for a moiety of each payment will arise instantly to the other joint purchaser, which will be barred by the lapse of the time limited by the statute, from the payment, before suit brought.1

§ 125. Where the liability of one joint maker of a promissory note is continued by partial payments within six years, but the remedy of the holder against the other is barred, the debtor who continues liable, may, notwithstanding, recover a contribution from the other, when he has paid the debt.2

§ 126. One partner may maintain assumpsit against his copartner for contribution, where he pays a partnership debt more than six years after a general assignment by the firm in trust for creditors, and the 'defendant gives no evidence to show that the partnership accounts are open and unsettled.3

§ 127. The complainant and defendant, in Lomax v. Pendleton,1 had, at the request of one W., become indorsers of a set of bills of exchange, which he drew on a mercantile house in London; the complainant, also, indorsed other bills to a considerable amount; but, receiving information that the bills would be protested, he obtained a conveyance to himself in trust of the whole estate of W. for the payment of his debts. The bills were returned protested, and payment of them demanded from the complainant, who, in the year 1753 (the same year in which the bills were drawn, and returned protested), sold the whole estate on six months' credit, and was active in the collection of the debts. He discharged the debts due from W. in the order of priority mentioned in the deed, as the money came to his

the remainder. It was held, that the statute of limitations did not begin to run against a suit brought by the remainder-man for property sold by the tenant for life, until the termination of such life-estate. Paxton v. Rhea, 3 Ired. (N. C.), Ch. 248.]

1 Campbell v. Calhoun, 1 Penn. R. 140.

2 Peaslce v. Breed, 10 N. Hamp. R. 489.

8 Brown v. Agnew, 6 Watts & S. (Penn.), R. 235., [The statute runs against an indorser who pays for the benefit of the maker of a note, from the time of the payment, whether partial or total. Bullock v. Campbell, 9 Gill, 182.]

4 Lomax v. Pendleton, 3 Call (Virg.), R. 542. statute begins to run from the time of payment. Buck v. Spofford, 40 Me. 328.]

[In an action for contribution, the Sherwood v. Dunbar, 6 Cal. 53;

hands, and as he could spare it from his own estate. The whole debts were paid by the month of October, 1762. It then appeared, that his payments had exceeded his receipts, and left him in advance for W. to a large amount, which must fall on the bills indorsed by the complainant and defendant, as that was the last-mentioned debt in the said deed. The trust estate was not closed till 1765. The complainant, owing to important engagements, did not apply to the defendant until some time in the year 1766; when he transmitted to the defendant an account claiming a moiety of the money paid by the complainant on the bill indorsed by them both, with interest from October, 1762. Payment was refused, and the suit was instituted in 1768. The defendant pleaded the statute, and, in his answer, stated that he did not recollect, or admit, having indorsed the bill; that he had no notice of its protest, or of its payment, until 1766; and that he knew not whether the complainant had, or had not, expended the trust estate, or whether he had paid any part of the bill. It appeared, however, from the report of the commissioners to whom the accounts were referred, that the bill of exchange was taken up by the complainant, and his own bond executed for the payment thereof in November, 1765. It was adjudged, that the statute could "not be considered as commencing to run till the trust was closed, which was in 1765; and, in 1768, the suit was instituted."

9. Promises of Indemnity.

§ 128. An indemnity is what is given to a person to prevent his suffering damage. In general, the statute begins to run in the case of a promise of indemnity, from the time when the promisee actually pays the money or damages, and not from the time when he is liable to pay it. Thus it was held, in Collinge v. Heywood,2 that a right to sue upon a contract of indemnity against the costs of an action, is first vested when the party to whom the indemnity is given, pays the bill of costs, and not when it is delivered to him; and the statute, therefore, does not begin to run until after such payment. Lord

i Colvin v. Buckle, 8 Mees. & Welsb. (Ex.), R. 680.

2 Collinge v. Haywood, 1 P. & Dav. R. 502, overruling Bullock v. Lloyd, 2 Carr. & Payne, R. 119. See also, Reynolds v. Doyle, 1 M. & Grang. R. 753; Platt v. Smith, 14 Johns. (N. Y.), R. 368. [Illies v. Fitzgerald, 11 Texas, 417.]

Denman observed, the plaintiff was not damnified until he was called on to pay the attorney's bill, and until he was damnified, he had no right of action against which the statute of limitations could run.1 Where the board of managers of a turnpike company authorized two of their number (the plaintiffs), to borrow twelve thousand dollars of a bank, for the use of the company, pledging the stock for its re-payment, and the defendant and several other members of the board entered into a written agreement to guarantee each one twelfth part of that sum to the borrowers, if the stock should not be sufficient, and the money was borrowed accordingly, and applied to the use of the company, who set apart one thousand dollars to meet discounts, and the plaintiffs, after that sum was exhausted, continued to renew the note from time to time, paying the discounts and curtailments required by the bank, out of their own funds, until the whole was ultimately paid off: It was held, that the contract was an entire one; the defendant's liability continued as long as the loan continued; the plaintiff's cause of action accrued when the whole of the money was paid, and that consequently, if a suit were brought within six years from that time, the statute was not a bar.2

§ 129. But where there is a promise to indemnify and save harmless, and the promisee is sued and charged in execution, the promise of indemnification is broken, and an action may be maintained with

1 Per Curiam also, in Rodman v. Hedden, 10 Wend. (N. Y.), R. 500. Powell v. Smith, 8 Johns. (N. Y.), R. 249, and authorities there referred to. 3 East, R. 169; 1 T. R. 599.

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A Treatise on the Limitations of Actions at Law and Suits in Equity and ...