Hoff

This is an action on two promissory notes for $1,000 each, and for $200 loaned, each item being stated in a separate count. The notes are dated respectively April 1st, 1870, and June 22nd, 1870, payable on demand. September 20th, 1870, defendants filed their petition in bankruptcy in due form in the United States District Court, District of California, and were adjudged bankrupts about October 1st, 1870. On October 3rd, 1870, plaintiff made proof of his said debt and claim against the estate of defendants. March 31st, 1871, defendants applied to the United States District Court for final discharge as bankrupts. January 17th, 1873, the discharge was refused. June 27th, 1876, plaintiff commenced this action. Defendants demurred on the sole ground of the Statute of Limitations. The demurrer was sustained, and the plaintiff failing to amend, judgment went for defendants. Plaintiff appealed.

The sole question is, whether the time from October 1st, 1870, the date of the adjudication, to January 17th, 1873, the date of the refusal to discharge, is to be excluded in applying the Statute of Limitations ?

*235 Section 356, Code of Civil Procedure, is as follows: “ When the commencement of…