a man receive money to a special purpose, it is not to be demanded of the party as a duty, till he have neglected it or refused to apply it according to the trust, and such misapplication or breach of trust ought regularly to be laid in the declaration, but the want of it will be aided by a verdict.-Wilkin v. Wilkin, sup. (a) Where the defendant has no way to come at the knowledge of the performance of the consideration, the plaintiff ought to give notice of it; otherwise where there is a person named, to whom the defendant may resort and inform himself; as if the promise be to pay as much as J. S. paid, quia constat de persona the plaintiff is not bound to give notice; otherwise if the promise be to pay to the plaintiff as much as he shall have of any other.-Smith v. Goffe, E. 4 Ann. 2 Raym. 1128. v. Henning, T. 1618. Cro. Jac. 432. Holmes v. Twist, T. 12 Jac. I. Hob. 51. Statute of Limitations.-By 21 Jac. I. c. 16. This action must be brought within six years after the cause of action accrued; but if the defendant would take advantage of the statute, it is necessary for him to plead it, for he will not be permitted to give it in evidence on the goneral issue. (b) (a) Where a man receives money for the use of another person, assumpsit lies against him as bailiff or receiver, and this supplies the plea of actions of account; and where money was deposited on a wager, an indebitatus lay for money received. Martin v. Sitwell, 1 Show. 117. (b) Vide Puckle v. Moor, 1 Vent. 191. Lee v. Rogers, 1 Lev. 110: for the plea of non-assumpsit speaks of a time past, and relates to the time of making the promise; but the statute relates to the time of pleading. Anon. Salk. 278. Draper v. Glassop, 1 Raym. 153. And this statute is pleadable in two forms: 1. That defendant did not promise, &c. at any time within six years. Collins v. Benning, 12 Mod. 444: and 2. That the cause of action did not accrue within six years, which may be safely pleaded be safely pleaded in all cases. Gould v. Johnson, Ld. Raym. 838. 2 Salk. 422. Vide Serjeant Williams' note to 2 Saund. 62. n. (b.) 63. n. (c.) This statute runs against every demand, and is a complete bar, notwithstanding any intervening acts, as the bankruptcy, coverture, infancy, &c. of the parties. Gray v. Mendez, 1 Stra. 556. But there is an exception of accounts current between merchants. Cotes v. Hars ris, Esp. N. P. Dig. 148; which has been held to extend to all mutual accounts. Catling v. Shoulding, 6 T. Rep. 189. There is also a saving of all rights which have been interrupted by disability, as where the plaintiff has been beyond the seas. Chandler v. Vitell, 2 Saund. 120. Rochtschilt v. Leibman, Stra. 836. Strithorst v. Græme, 3 Wils. 145. 2 Bla. 723. As to which, Ireland has been held beyond the seas, but not Scotland. Anon. 1 Show. 91. R. v. Walker, 1 Bla. 286. But when the disability is once removed, and the statute has begun to run, no subsequent disability will stop its progress. Per Kenyon, C. J. in Doe, ex dem. Duroure v. Jones, 4 T. Rep. 311. If the defendant plead non assumpsit infra sex annos, it is sufficient for the plaintiff to prove a promise to pay within six years without any other consideration, for the plea admits a cause of action before the six years. (Bland v. Haselrig, H. 1689. 2 Vent. 151.) So if the defendant say, prove it due and I will pay it," such a promise with a proof of the debt is sufficient, but a bare acknowledgment of the debt, or of the delivery of the goods after the six years, is not in itself a new promise, though it is evidence of one, as a non-delivery on demand is not a conversion in itself, yet is good evidence of a conversion. (Heyling v. Hasting, per 10 Just. Salk. MSS. Salk. 29. Carth. 471. 1 Raym. 421. S. C.) But in an action by an executor for money had and received to the use of his testatrix, where upon this issue the defendant was proved to say, “ I acknowledge the receipt of the money, "but the testatrix gave it to me;" Mr. Baron Clive directed the jury to find for the defendant: For * such an acknowledgment could not amount [*149 } to a promise to pay, when he insisted he was intitled to retain.-Owen . Wolley, Salop, 1751. In assumpsit on a promissory note, the defendant pleaded non assumpsit infra sex annos: Aud on the trial it appeared that the defendant. was surety in the note for J. S. and that six years were elapsed since the note was given, but that upon a demand within six years the defendant said, "You know I had not any of the money myself, but I am "willing to pay half of it." The judge was of opinion at the assizes that this promise took it out of the statute, but the jury found for the defendant: And on a motion for a new trial, the court held clearly that the judge was right; that this promise was sufficient; and granted a new trial. Yeo, Bart. v. Fouraker, M. 1 Geo. III. B. R. 2 Burr. 1099. (a) (a) As to what cases shall prevent this statute from attaching, the first is, that of a promise by the defendant to pay the debt after six years have elapsed, for that is a revival of the original assumpsit. Bland v. Haselrig, 2 Vent. 151. Dickson v. Thompson, 2 Show. 126. Heyling v. Hasting, Salk. 29. I Ld. Raym. 421. Comy. 54; where a conditional promise was held to take the demand out of the statute. But it must be an actual promise to pay; Owen v. Wolley, sup. or some acknowledgment that will amount to a promise, as "Prove your debt If " and I will pay you." Yea, to account, but nothing is due "to you." Trueman v. Fenton, If there be several defendants, and they plead non assumpserunt infra sex annos, proof of a promise by one within six years is not sufficient to charge him, for the action is joint. (Bland v. Haselrig, H. 1689. 2 Tent. 151. Modern practice is otherwise.) (a) If the defendant plead non assumpsit infra sex annos ante diem impetrationis brevis, and the plaintiff reply quod assumpsit infra sex annos, viz. such a day: Upon evidence the plaintiff is not obliged to prove the taking out the original, because there is a particular day mentioned in the replication; but if no particular aay be named, the plaintiff must prove the taking out the original. (v. Layfield, Salk. 292.)-There seems but very little foundation for this distinction; for though a particular day be named in the replication, yet the plaintiff is not bound to prove a promise on that day. The manner of pleading to avoid the necessity of proving the original at the trial seems to be mistaken; for to do that the plaintiff should reply that he sued forth his writ on such a day, and that the defendant promised within six years of that day, and conclude with an averment; and then the defendant is at liberty to take issue in his rejoinder, on the time of the writ's being sued out, or on the promise being made within six years money for him twelve years ago, "but that he had since become a "bankrupt, by which he was dis"charged as well as by length of "time" and Lord Kenyon held it such an acknowledgment as amounted to a promise to pay; but one of the most material cases on this point is Bryan v. Horseman, 4 East, 599, where a bailiff proved, that on his arresting the defendant, he said, "I "do not consider myself as owing "the plaintiff one farthing, it being 46 46 more than six years since I con"tracted: I have had the wheat I acknowledge, and I have paid some part of it, and £26 remain due." This Lord Ellenborough considered a sufficient acknowledgment to take a case out of the statute, though the point might have been doubted, if the matter had been res integra. On a verdict for plaintiff, and a motion for a new trial, Lord Ellenborough said, that after such a long tram of decisions on this subject, it was necessary to abide by them, and, in conformity with their doctrine, he held, that what defendant had said was a sufficient acknowledgment of a pre-existing debt, to create an assumpsit. But after all it seems, that the question, as to what will amount to an acknowledgment, must be decided by a jury. Lloyd v. Maund, sup. Rucker v. Hannay, 4 East, 604, (n.) Et vide Bicknell v. Keppel, 1 Bos. & Pull. N. R. 20. (a) In assumpsit against four defendants, all pleaded non-assumpsit infra sex annos: verdict, that one did assume infra sex annos, and that the others did not. Held, that the declaration being on a joint contract, and the verdict finding a se veral contract, no judgment could be given. Vin. Abr. (Trial,) C. 9. 4. See also Whitcomb v. Whiting, Dougl. 629, (652,) where Bland v. Haselrig, sup. was denied, for in assumpsit on a joint and several note, and one only was sued, payment of interest by the other was held an acknowledgment as to all. Vide etiam Jackson v. Fairbank, 2 H. Bla. 340. of of the time mentioned, they being alledged in the replication as two distinct facts; and when the defendant takes issue on one of those facts, he admits the other to be true, and consequently it need not be proved. -Osman v. Bowley, H. 12 Geo. I. Per Eyre, C. J. (a) The defendants were executors of the executor of W. W. and in an action of assumpsit, pleaded non assumpsit infra sex annos; the plaintiff replied, that on the Sd June, 28 Geo. II. he sued out a bill of Middlesex against the defendants, and that the testator in his life-time promised to pay the demand within six years before the bill of Middlesex sued out.The first item in * the bill whereon this demand arose, was in 1746, and [*150] all the items except the last were above six years standing before the bill of Middlesex sued out. Mr. Norton insisted for the plaintiff, that the last item being within six years, and this being a current account, never liquidated, should draw the former items out of the statute: But Denison, J. held that the clause in the statute of limitations about merchants' accounts extended only to cases where there were mutual accounts, and reciprocal demands between two persons: But if there were only a demand by A. against B. in the common way of business, as by a tradesman on his customer, that cannot be called merchants accounts: and he was very clearly of opinion that in this case the statute was a bar to all demands of above six years standing.-Cotes v. Harris et al. Sittings at Guildhall, T. 29 & 30 Geo. II. Wace v. Wyburn, T. 19 Geo. III. K. B. If an executor bring assumpsit on a promise made to his testator, and the defendant plead that he made no promise to the testator within six years; if issue be joined thereon, a promise to the executor within six years will not maintain the action.-Green v. Crane, H. 5 Ann. B. R. Salk. MSS. 2 Ld. Raym. 1101. S. C. If an executor take out proper process within a year after the death of his testator, if the six years were not lapsed before the death of the testator, though they be lapsed within that year, yet it will be sufficient to take it out of 21 Jac. I. c. 16. by the equity of s. 4.-Cawer v. James, T. 15 Geo. II. C. B. Willes 255. S. C. nom. Karver v. James. So if an executor bring assumpsit, but die before judgment, and the (a) As where to a plea of the statute, plaintiff replied a bill of Middleser issued on a certain day, and defendant rejoins that he did not proise within six years before that day, plaintiff cannot give parol evidence six years run, his executor may, notwithstanding, bring a fresh action, so as he bring it in a reasonable time, which is to be discussed at the discretion of the justices upon the circumstances of the case. (Wilcocks v. Huggins, T. 1731. Fitzg. 170. 289. 2 Stra. 907. S. C.) (a) And note; though assumpsit be not within the letter of the proviso of 21 Jac. I. which excepts persons beyond seas, yet it is within the equity of it; therefore where the plaintiff replied to the plea of non assumpsit infra sex annos, that he was beyond sea till such a time, after which he brought the action at such a day, it will be good. But the plaintiff would not have been excused by the defendant being beyond sea before the statute of 4 & 5 Ann.-Hall v. Wybourn, T. 2 W. & M. 1 Show. 81.(b) Assumpsit in consideration that the plaintiff at the defendant's request would receive A. and B. ut hospites and diet them, the defendant promised to pay. The defendant pleaded non assumpsit infra sex annos, and on demurrer it was holden to be no plea, for it is not material when [* 151] the promise was made if the cause of action be within six years, therefore the plea ought to have been actio non accrevit infra sex annos. Gould v. Johnson, H. I Ann. Salk. 422. (c) six If an action be properly commenced in an inferior court within the years, and the defendant remove it by ha. cor. to the K. B. the statute will be no bar though the six years be elapsed before the removal. (a) See Mr. Selwyn's note on this subject in his Ni. Pri. Abr. pl. 130, 131. See more of S. P. as relating to executors and administrators in Deane v. Crane, Salk. 28. Sarell v. Wine, 3 East, 409. Hickman v. Walker, Willes, 27. Smith v. Hill, 1 Wils. 134. Perry v. Jackson, 4 T. Rep. 516. Bree v. Holbech, Dougl. 630. (655), Cary v. Stevenson, 2 Salk. 421. 66 person intitled to such action shall "be at liberty to bring his action "against such person after their re"turn from beyond seas, so as they "bring the same within such time "after their return, as were re 66 spectively limited for bringing the "said action before by this act, or “by 21 Jac. c. 16.” Note, s. 17, had limited suits for seaman's wages in the Admiralty courts to six years. Before the above statute it was held, that the exception in the 7th section of the statute of King James, extended only to absent plaintiffs, and not to absent defendants. Hall v. Wybourn, Carth. 136. Cherely v. Bond, Carth. 226. (c) Vide ante, p. 148 a, n. (b), where it is observed that this statute is pleadable in two forms. (Cawer |