While I concur in the result reached in this ease, I prefer to rest my conclusion upon a different ground from that which is taken in the opinion prepared by Mr. Justice McGowan, as I cannot concur in some of the views which he there presents, especially in what he says in reference to the second exception, which, it seems to me, is in conflict with the decision of this court in the case of Bolt v. Dawkins, 16 S. C., 198. But as the objection to the testimony referred to in that excep*312tion was withdrawn, the exception should have been overruled on that ground.
Without, however, referring to any other matters, it seems to me sufficient to say that the defendants having wholly failed to sustain their plea of the statute of limitations, which was in fact their only defence raising any question of law, we are bound to sustain the judgment below, even though we may not be able to concur in all the views presented. As I understand it, when a party sets up as a defence the statute of limitations, he is^bound to show clearly and distinctly that the action has not been commenced within the time prescribed by the statute. Now, in this case the cause of action certainly did not accrue until the work had been completed, there being no evidence of any special contract to the contrary. According to defendants’ own testimony, the work was completed either in the spring of 1879 or 1880, and under the rule the plaintiff has a right to demand that we shall assume that the work was completed in the spring of 1880. Hence the plaintiff had a right of action on the implied contract until the spring of 1886 — the statutory limit in a case of this kind being six years.
But as the intestate died on the 12th of March, 1886. before the expiration of that period of time, section 123 of the Code expressly provides that the action may be commenced against his administrators after the expiration of the six years, “and within one year after the issuing of letters testamentary or of administration.” Strange to say, however, it does not appear in the “Case” when the letters of administration were granted to the defendants in this action, though the only inference that can be drawn from what is there stated is, that they were granted not later than some day in July, 1886; for we find that the defendants on the 21st of that month published a notice to creditors to present their claims, and the inference is that they had then lately received letters of administration. Assuming, then, that the letters had been issued as early as the 1st day of July, 1886, the plaintiff would have been entitled, under the provisions of the Code above cited, to bring his action at any time within one year from that date — any time before the 1st day of July, 1887, and it is admitted that the present action was commenced some time in *313the month of June, 1887. It seems to me clear, therefore, that the defendants, even according to their own testimony, have failed to sustain their plea of the statute of limitations.
To avoid misapprehension, I desire to add that it does not appear that any such question as that presented in the recent case of Fleming v. Fleming,1 was raised in this case, and hence it has not been deemed appropriate to consider it here.
Judgment affirmed.
Not yet filed when this case was put to press. It will probably be filed in time to be included in this volume. — Reporter.